author: Daniels, J.

text:
    The Richardson & Boynton Co., Resp’ts, v. The Barstow Stove Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Nuisance—Obstruction oe sidewalk.
    An adjacent occupant of a building upon the street has no right to appropriate the sidewalk for the purpose of his business by backing or placing vehicles upon it and thereby obstructing and preventing the use of it by persons lawfully passing along the street on foot.
    8. Same—Injunction.
    Where the affidavits used on the motion, as well as admissions in the answer, clearly establish the fact that defendant did create such an unlawful obstruction in the course of receiving and delivering goods, it is proper to continue an injunction pendente lite until the trial of the action.

      Appeal from an order enjoining the defendants pendente lite from “backing, driving or otherwise placing any carts, wagons, trucks, vehicles, horses or other animals on the westerly sidewalk of Water street, between Beekman street and plaintiff’s store. Both the plaintiff and defendant are wholesale dealers and manufacturers of furnaces, ranges and stoves, etc. They occupy adjoining warehouses in Water street, near Beekman street, in this city, and are engaged in precisely the same business.
    The following is the opinion below:
    O’Brieít, J.—This action is brought to obtain an injunction restraining the defendants from: First, unreasonably using the
    sidewalk in front of their premises, by loading, unloading and storing their goods thereon; and, second, from maintaining a permanent bridge or covering across the gutter and using the same for backing and driving wagons over the sidewalk.
    As to the first, until the trial of the action, no .injunction should be granted, as it is impossible to determine from the conflicting affidavits as to whether or not the use made of the sidewalk for loading, unloading and storing goods is unreasonable. If upon the trial it can be shown that by such use the sidewalk is unnecessarily obstructed, then within the principle laid down in Callarían v. Gilman, 107 N. Y, 361; 12 N. Y. State Rep., 21, it will be enjoined. The second ground for which the temporary injunction is sought, is as to the right of the defendant to maintain the permanent bridge over the gutter and to use the same for the purpose of driving wagons and trucks upon the sidewalk. As to the bridge itself, the question of its removal should also be left until the trial of the action ; for it is made to appear that the same was constructed pursuant to an ordinance of the common council, and while its use as a means of ingress and egress to and from the sidewalk may not be justified, it may be proper for uses or purposes which upon a consideration of all the facts would be lawful. The real question therefore remaining is, as to the right of the defendant to be allowed to drive or back teams or trucks on the sidewalk. That is sought to be justified upon the ground that it is necessary for the transaction of plaintiffs’ business and is a reasonable use of the sidewalk, having regard for the rights of the public. This precise question has not been directly passed upon, but upon principle and reason it does not seem to me that such use of sidewalks can be justified. In the division of the space between the houses provision is made in the street for wagons and carts, and the sidewalks are constructed for and allotted to pedestrians.
    The claim that because the street is narrow, such use of the sidewalk is justified, does not seem to me to have much force, for no good reason is shown why pedestrians should be prevented from traversing over a sidewalk in a narrow street any more than on a sidewalk in a wider and broader avenue.
    It is evident that in a narrow street like Nassau, or in Broadway, Fifth, Sixth or any of the' larger avenues and streets, the obstruction of the sidewalk by wagons and trucks would be the subject of just comment and complaint. As was said in the case of The People v. Cunningham, 1 Denio, 524: “ The fact that defendants’ business was lawful does not afford them a justification in annoying the public in transacting it: it gives them no right to occupy the public highway so as to impede the free passage of it by citizens generally * *
    To justify this use of the sidewalk the same argument is advanced as was in the case of Callanan v. Gilman, supra, that such use of the street is necessary to the transaction of the defendants’ business. As was said in that case: “ The answer is to be found in the observations of the court in Bussell's case, 6 East, 427: ‘ They must either enlarge their premises or remove their business to some more convenient spot.’ Private interests must be made subservient to the general interests of the community.” Even though -necessary for defendants’ business, this would not authorize such use of the sidewalks. A conflict, however, arises as to its being necessary for defendants’ business to back wagons upon the sidewalk, the plaintiff showing that they are in the same business, have a larger trade carried on in the adjoining store, and that they have never found it necessary to back their wagons and trucks upon the sidewalk. Neither does it appear that their being prevented from driving on the sidewalk would interfere with the cars of the Second Avenue Railway Company, which has a track in that street, for it is shown by accurate measurements taken that the distance from the curb to the nearest railroad track is ten feet, and that with a truck standing upon the street there would still be a clear space four feet and three inches between it and the track. This, of course, would not permit the truck to back up at right angles with the curb. But this is not shown to be necessary, for the plaintiff, with the same class of goods, loads its twelve or more trucks while standing sideways to the sidewalk, occupying less than six feet of the street and not trespassing at all on the sidewalk.
    The second ground upon which the defendant seeks to justify the use of the sidewalk is that such use is authorized by ordinance of the common council § 86 of the consolidation act of 1882. Under this authority it is claimed that the common council has exercised its powers, and in its revised ordinances has expressly authorized such use of Water street and its sidewalks.
    Apart from the constitutionality of any such enactment, it is doubtful if the consolidation act relied upon conferred any such power upon the common council. Section 86 conferred upon the common council the power to make ordinances to regulate the use of streets, etc., but the provision with reference to encroachments and obstructions upon the streets authorized the common council to make such ordinances to prevent obstructions, and expressly limited its power to authorize the placing or continuing of any encroachment or obstruction upon the street, to the temporary occupation thereof during the erection or repair of a building. It is sufficient, for the purpose of this motion, that the use to which the sidewalk is to be put by the defendant is not the ordinary use for- which sidewalks were intended, and in the absence of any clear authority permitting the same, it should not, to the injury of

      the plaintiff and the public generally, be tolerated or allowed. The defendant, therefore, having failed to justify such use, the same should be prevented during the continuance of the action, leaving the question for final determination to the court upon the trial. Ordered accordingly.

      O. H. Pettit, for app’lt; O. H. Phelps, for resp’ts.
   Daniels, J.

Neither the case of Welsh v. Wilson, 101 N. Y., 254; 1 N. Y. State Rep., 19, nor that of Callanan v. Gilman, 107 N. Y., 373; 12 N. Y. State Rep., 21, carry the right of an adjacent occupant of a building upon the street so far as to permit the appropriation of the sidewalk for the purposes of his business by backing or placing vehicles upon it and thereby obstructing and preventing the use of it by persons lawfully passing and repassing along the street on foot; and there is no principle intimated by either of these cases that will excuse such an obstruction,or use of the sidewalk. If that were permitted then the sidewalks upon business streets would become practically useless by their occupation for persons passing along the walks and having the paramount right to use them.

The affidavits as well as the admission in the defendant’s answer are abundant to establish the fact that it did create this unlawful obstruction in the course of receiving and delivering goods; and sufficient has been presented by them clearly to justify the continuation of the injunction until the action can be tried and the rights and obligations of these parties disposed of upon the hearing of the evidence at the special term.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Feiber, App’lt, v. Joseph B. Lester, Jr., et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. New trial—Excessive damages.
    An appellate court will not interfere with an order of the trial judge setting aside a verdict on the ground of excessive damages, especially where the case does not state that all the evidence is contained in it. In such case the presumption arises that there was other proof fully warranting the action of the court.
    2. Appeal—Objections not raised below.
    An objection that payment of the costs of trial was not made a condition of setting aside a verdict for excessive damages, or because unsupported by the evidence, cannot be raised for the first time on appeal.
    Appeal from an order setting aside a verdict and directing a new trial.

      Henry H Goldfogle, for app’lt; B. 0. Ohetwood, for resp’ts.
   Daniels, J.

The verdict was for $175.50 as a compensation for a motion made in the city court to vacate an attachment. The motion was not attended with much labor or attention, and re-suited in the attachment being set aside as unauthorized, and this action was brought against the persons who executed the undertaking, for the services of the counsel making the motion. The court at the trial considered that the jury had transcended the proper effect of the evidence in their adjustment of the damages, and, from the nature of the services rendered, there is reason for believing that this view was correct. The witnesses gave their evidence before, and were observed by the j ustice presiding. And liis conclusion that the verdict was unsatisfactory is entitled to have weight in the disposition of the appeal. The inclination of the justices of this court is to refrain from interfering with verdicts, when that can reasonably be avoided. And that will ordinarily produce the belief that the verdict was wrong when the court at the trial has felt bound to set it aside. The case, as it has been made, does not deprive that belief of its foundation, for it fails to state that all the evidence has been included in it, and, in that condition of it, the presumption arises that there was other proof fully warranting the action of the court, even if there was uncertainty on the evidence so far as it had been presented.

Ordinarily, the payment of the costs of the trial is made a condition in the order setting aside a verdict for excessive damages, or because it may be unsupported by the evidence. But that practice does not appear to have been brought to the attention of the court in this instance. And that should have been done if it had been intended to claim such costs. It is to be inferred from the language of the order that it was entirely omitted; and for that reason the objection that the order was defective in this respect cannot be first made on the hearing of the appeal. The place to invoke its application was when the order was settled or entered. That not having been done, the respondent has lost the right now to complain. The order should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Van Brunt, P. J.

text:
    The People ex rel. John L. Harvey v. John McClave et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Municipal corporations—Police-Removal.
    Relator was removed for being absent without leave for four hours. He claimed to have been ill, and that he attempted to send notice thereof to the station house, but no such notice was received, and relator presented no certificate of the police surgeon or other evidence confirmatory of his story. Held, that the removal was proper.
    Certiorari to review the judgment of the hoard of police dismissing the relator from the police force.

      L. J. Grant, for relator; J. J. Delany, for resp’t.
   Van Brunt, P. J.

The relator, a patrolman of the police department, was dismissed after trial by the commissioners finding him guilty of a charge of neglect of duty in that he was absent without leave for a period of four hours. The evidence of the relator is to the effect that on his night off, being free from duty; he went to see some of his relatives and was taken ill, that he attempted to send notice to the station house of this fact, but no such notice was received, and upon learning this fact the relator claims he went directly to the station house and notified the sergeant. Ho evidence whatever confirmatory of this remarkable story was offered; although if true it undoubtedly was possible for the relator to have furnished such evidence.

Among the rules of the board of police is one that any patrolman absent from duty without leave shall forfeit all pay for the time of such absence and be fined, reprimanded or dismissed from the force at the discretion of the board of police, except in case of sickness when properly certified by the police surgeon. The relator made no effort to get the certificate- of the surgeon, and in no manner attempted to fortify by other evidence the fact that he had been ill at all. If he had been ill it is clear" that he could have established it by other evidence.

We think the charge was established beyond question and that the relator was properly dismissed.

The writ should be dismissed, with costs.

Brady and Daniels, JJ., concur.


text:
    Joseph O'Donnell, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Bail—Recovery of money paid on forfeited recognizance.
    Where a judgment entered on a forfeited recognizance has been vacated and the moneys paid thereon ordered repaid, and the officer who received the moneys refuses to pay, an action will lie to recover such moneys. Section 1483 of the consolidation act of 1882 provides no further remedy than the service of the order on the officer who received the money.
    Appeal from judgment overruling a demurrer to the complaint.

      William H. Clark, for app’lt; Alex. Thain, for resp't.
   Daniels, J.

The right of action relied upon in the complaint is for the recovery of money paid by the plaintiff to satisfy a judgment and execution against him for the failure to produce his principal, as he had become bound to do by his obligation as bail. The principal was afterwards produced in court, pleaded guilty to the indictment, and was thereupon fined, and paid the fine. An application was then made to the court of. general sessions, in which the indictment had been pending, to vacate the judgment under which the plaintiff had paid the money, and for an order directing the refunding of the money paid by the plaintiff as the bail. And that order was made by tiie court, under the authority of § 1483 of chap. 410 of the laws of 1882, all the precedent requirements of which to have been complied with.

The order was served upon the comptroller, to whom the money had been finally paid by the chamberlain, and a demand was made upon him for its payment more than thirty days previous to the commencement of the suit. The demurrer was served on the ground that the complaint failed to state facts presenting a cause of action. The court held the objection to be without foundation, and overruled the demurrer. And final judgment was afterwards entered in the action. This decision has been objected to as erroneous, for the reason that the plaintiff should be restricted to the proceedings prescribed by this section of the act for the recovery of the money. But the section provides no further remedy than the service of the order on the officer who has received the money. If he declines to pay, as the comptroller has done in this case, the act provides no means which may be taken to oblige him to do so. And the only remedy therefore to to which resort can then be had, is that by way of an action to recover the money. The obstacle in the way of such an action has been removed by vacating the judgment, and the comptroller as the fiscal officer of the city has no longer any legal right to retain the money from the plaintiff. The case is similar to that presented by the reversal of a judgment after its collection by execution. There the party who has been obliged to make the payment may by action recover back the money so paid. Scholey v. Halsey, 72 N. Y., 578. And this principle has been applied to sustain the right to recover the amount of an erroneous assessment paid, after the proceedings have been reversed by the action of the court. Peyser v. Mayor, etc., 70 N. Y., 497. And its general application is sanctioned by Mason v. Prendergast, 120 N. Y., 536; 31 N. Y. State Rep., 497. Bedress by action is all that has been secured to the plaintiff since the comptroller has declined to pay. The right of the plaintiff to maintain it is reasonably well sustained and the judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Per Curiam.

text:
    Augusta C. Genet, App’lt, v. The President, etc., of the Delaware & Hudson Canal Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Beferee—Appointment of new, on ordering new trial.
    The court being of opinion that the new trial should be heard before another referee, judgment ordered resettled and amended by directing the trial to be before a new referee, to be appointed by the court.
    Appeal from an order denying motion for the appointment of a new referee to hear and determine this action. See 35 IT. Y. State Bep., 552.

      G. 0. Genet, for app’lt; F. F. Smith, for resp’t
   Per Curiam.

It was the opinion of the court who heard the appeal in this action that the new trial should be before another referee than the one who had passed upon the issues involved in the action, and in order that there may be no doubt as to the power of the court to appoint a new referee, the order entered upon the reversal of the judgment should be resettled and amended by directing that the new trial be had before a new referee, to be appointed by the court.

Under these circumstances, the appeal taken from the order of the special term should be dismissed, without costs, and the order resettled in the manner suggested.

Yan Brunt, P. J., Daniels and O’Brien, JJ., concur.


text:
    In the Matter of the Petition of Matilda Myers for an Allowance, etc. In the Matter of the Petition of Louisa Myers for an Allowance, etc.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Executors and administrators—Interest. _
    Where the executors permit the assets of a firm of which the deceased was a member to remain in a new firm formed immediately upon his death, but a portion of such assets carries no securities for customers of the new firm; and is no otherwise employed in its business than by being carried into its books, the executors cannot be compelled to pay full interest upon such portion.
    Settlement of order. For decision on appeal, see 33 H. Y. State Rep., 977.

      James Thomson, for petitioners; Edgar M. Johnson, for app’lts.
   Daniels, J.

Upon the proposal to settle the order directed for the disposition of the appeals in these proceedings, it was objected that the" deductions mentioned in the opinion should not be made, and that this should be corrected by the order to be entered to carry the decision into effect And the case has been re-examined on the suggestions of the counsel for the parties, to determine the soundness of this objection. And from the evidence of the executor, John A. Rutherford, there appears to be fair ground for advancing the item of $18,720.80, to the sum of $23,401, and advancing what has been called the J. R. account, from $96,660.36, to the sum of $120,825.43, which will bring the personal estate to the sum of $180,920.90, exclusive of the undivided half of the seat in the Stock Exchange, and the additional securities, in the suspense account, amounting to $10,503, making a large advance over the inventory of the appraisers.

But this balance of $180.920.90 still seems to exceed the amount upon which interest should be charged against the executors. For it appears further from the evidence of the same person, who is the acting executor, that he is still keeping the securities and properties representing this one-half of the J. R. account, being the sum of $120,825.43, on hand, and that the new firm is not carrying any stock or bonds for any of its customers on that account. He further added that at the time of the decease of Mr. Myers, the testator, the firm was carrying stocks and bonds, but this J.R. account did not. If this account carried no securities for customers in the business at the time of the decease of the testator, and has carried none since, there seems to be reason for concluding that the new firm has derived no profit from it in its business which would justify the imposition of six per cent interest, on the amount of it, on the executors.

The figures, are given in the usual manner of complicating accounts entering into legal proceedings and it may be that they will justify a different result. But that is not at present apparent.

Neither the referee by his report, nor the decrees confirming it, contain any solution of this condition of the J. B. account. For they all proceed upon the theory that the value of the undivided half of the seat in the Stock Exchange, the additional securities in the suspense account, amounting to $10,503, and also those held in the J. B. account, should be deducted.

The referee has plainly enumerated these three items as items to be deducted. And then it has been further added:

Begarding the interest of the testator in Stock Exchange seat and the securities of the J. B. account, and suspense account above mentioned, and which securities are chiefly known as wild cat, I am of opinion that in view of the contest pending, regarding the probate of the will, and the nature of the securities, and under "the circumtances disclosed by the evidence, no income has been derived from those securities, and that the executors have not been guilty of such negligence in failing to dispose of them as would render the estate or the executors liable for income on "these amounts, and that the executors were entitled to use their judgment in disposing of them.

And these conclusions are in evident variance with that finally following, that the executors should pay interest at the rate of six per cent on the total amount of $180,000; for without the J. B. account that cannot possibly be their liability. If the J. B. account has carried no securities for the customers of the new firm, and been no otherwise employed in its business than by being carried into its books, then it is difficult to see how the executors are liable to pay the rate of six per cent interest upon it The counsel may be able to show some mode through which that rate of interest may be imposed. And to present this opportunity, a re-submission of these appeals should be permitted, by briefs to be supplied in ten days after notice of this decision.

Van Brunt, P. J., and Brady, X, concur.


text:
    Leopold Schepp, Resp’t, v. Lewis E. Manley and The Samuel Crump Label Co., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Arbitration—Revocation—Effect of.
    Certain actions being pending between the parties hereto in relation to a contract, they entered into an agreement for the settlement of their differences by arbitration. Thereafter the agreement was revoked. Meld, that the parties were thereby remitted to their original rights against each other, and that although they were still bound by stipulations in said instrument unconnected with the agreement to arbitrate, such stipulations created no independent right of action, and that this action to enforce the agreement and settlement could not be maintained.
    Appeal from a judgment recovered on trial at the special term.

      J. Hampden Dougherty, for app’lts; Theron G. Strong, for resp’t.
   Daniels, J.

The action was brought to secure a judgment declaring an agreement entered into on the 11th of July, 1888, between the plaintiff and the Samuel Grump Label Company to be valid and binding and for a settlement of the controversies between the parties, and to restrain and enjoin the prosecution of an action brought by the defendant Manley as assignee of the company against the plaintiff, and to settle the disputes which had arisen between the plaintiff and the company. He had previously been engaged in manufacturing and selling desiccated cocoanut and pudding preparations, and the company had manufactured and delivered to him wrappers and labels used upon the packages in which these articles were contained and sold. Early in the year 1887 they entered into an agreement by which the company was to make and deliver to him 25,000 half pound and 25,000 pound cocoanut cartons. These articles were to be in the nature of samples of a new manufacture, and if they proved satisfactory, an order was to be placed with the company for a much larger quantity of the same or similar articles. The company entered upon the performance of this agreement and order, and continued to do that until about the close of the year 1887. On the 14th of November of that year a further agreement was made between the parties, by which the company was to manufacture 600,000 one-half pound and 100,000 one-pound pudding cartons. These were to be manilla-lined, coated one side and having a strawboard back. And early in the year 1888 the company began the delivery of these additional articles to the plaintiff, but disagreements arose concerning these, and also, as there is some reason for believing from the plaintiff’s testimony, as to some of the other cartons made and delivered to the plaintiff.

The complaints, however, as to those made under the contract and order of the 14th of November, 1887, were more general and comprehensive, including certainly a very large number of cartons delivered and offered to the plaintiff, he complaining that they were not according to the agreement which had been entered into, and the president of the company insisting that they were manufactured as well as that could be done from the material mentioned in the contract.

The misunderstanding arising out of the objections made by the plaintiff continued until the early part of July, 1888. And on the 11th of that month these parties entered into an agreement for the adjustment of their differences. By this agreement it was: “ Agreed between Samuel Crump, president, in behalf of Sam’l Crump Label Co., and L. Schepp that the controversy now existing between them regarding cartons for cocoanut and puddings, shall be settled on the following basis, viz.:

“All cartons that have been used by L. Schepp shall be paid for at contract price, less fifty per cent. (i. e„ half invoice price). Those that are perfect, and those that are not perfect, but can be. made so, or like sample, are to be taken at full contract price.
“It is understood that there is no sample to guide regarding the cocoanut cartons, and the umpire is to judge for himself what is a perfect carton. Those which are unmerchantable are to be discarded, i. e., imperfect.
“ The expense attending the cartage to corporation yard and the railroad charges to Canada and Montclair, R Y., are to be equally divided between Samuel Crump Label Co. and L. Schepp.
“ Each party to pay his own legal expenses.
“All labels are to be paid for in full.
“Cash to be paid by L. Schepp for the amount of the referee’s award when the same is made.
“ Each and every question mentioned and not mentioned in this agreement is left to Charles F. Oonant if he will serve as referee, and if he will not serve we are to agree upon some other person,, and the terms of this agreement shall be equally binding on us. And it is understood further that the referee has no power to make any reconstruction on anything that is provided for in this, agreement.
“ On the conclusion and settlement of this agreement L. Schepp agrees to withdraw all his claims for business damages.
L. Schepp.
Sam’l Crump, Prest.”

In the'first instance this instrument contains an agreement as to-prices to be paid by the plaintiff and the obligation of the company concerning what should be found to be imperfect cartons. Then it was agreed, after providing for the payment of the expenses of taking a large number of cartons which had been unloaded upon the sidewalk in front of the plaintiff’s store, and which he refused to receive, and for that reason they had been carted by the officials of the city to the corporation yard, that the labels which had been manufactured prior to making either of these agreements should be paid for in full, and then that the, other questions between the parties, either mentioned, or not mentioned, in the agreement, were to be left to Charles F. Conant, or some other person in case he declined to act, as referee to settle and adjust them between these parties. Mr. Conant was, willing to act in this capacity. But soon after the agreement was made differences arose between the parties to it concerning its construction and effect and the extent to which it should be applied. And these differences prevented the submission of the matters referred to in the agreement to Mr. Conant for settlement And for that reason the president of the company, acting in its behalf, early in the year 1889 revoked the submission of these matters to the arbitrator or referee.

Mr. Conant wrote to him inquiring whether it was desired that he should act. And on the 28th of February, 1889, the president replied that they had commenced a suit, stating that as a reason for not proceeding with the arbitration. And on the 4th of March of the same year, in answer to another letter from Mr. Conant, the same fact was reiterated, as to which the president of the company added: “I suppose I am now relieved from any further action? ” Further correspondence took place between these persons in which the president of the company stated that they had no other alternative but to consider the agreement at an end on account of the action taken by the plaintiff. And notice of this final conclusion was given by Mr. Conant to the plaintiff on the 18th of March, 1889. This was clearly a revocation of so much of the agreement of the 11th of July, 1888, as that has been permitted by the provisions of the statute, as well as the rule previously sanctioned by the authorities, not brought to the attention of the special term. Code Civil Pro., § 2383; People v. Nash, 111 N. Y., 310; 19 N. Y. State Rep., 75; Frets v. Frets, 1 Cow., 335.

And the effect of it was to terminate and annul so much of the agreement as included and provided for this arbitration. And as the company was vested with the legal right to revoke the .submission in this manner, the court had no authority after that to establish or maintain the submission. It was as much out of existence as though no agreement had been made at any time providing for it. And that necessarily remitted and restored the parties to all their rights against each other which they had previous to the making of this agreement

These were for the enforcement of the claims made by the plaintiff against the company for the defective manufacture of the cartons, and on the part of the company for the prices agreed to be paid for the cartons made and delivered in case they conformed to the description of them contained in the agreement. So far as the parties entered into stipulations by the instrument of the 11th of July unconnected with the submission to arbitration, they remain unrevoked and require to be construed and applied, in view of the attendant circumstances, the same as other agreements made between parties competent to contract. Dodds v. Hakes, 23 N. Y. State Rep., 193.

And so far as such agreements or stipulations were made a part ■of the instrument, they undoubtedly will be applicable to the disposition in future of the contracts or claims existing between these parties. But these stipulations created no independent right of action in favor of the plaintiff. He had previous to the making of the agreement commenced two suits against the company for the recovery of the damages he claimed to have resulted from the ■cartons being defectively manufactured. And when the submission to the arbitration was revoked he was left at liberty to proceed with either one or both of these actions the same as though no submission had ever been agreed upon. And the company, proceeding upon the same principle, assigned their demands to the defendant Manley, who commenced an action against the plaintiff for their recovery. These actions, and probably one action on the part of each of these parties, will be sufficien tto settle the entire dispute arising out of their different positions. The ■disputes were the proper subjects of actions at law, arising as they did out of no more than claims for damages on the one side, and of prices of articles manufactured and delivered on the ■other side. These were all strictly grounds for legal actions as distinguished from suits in courts of equity. Full and complete relief can readily by the simplest course of proceeding be attained through the instrumentality of these suits. And the subjects included in them formed no equitable grounds of action.

It is true that courts of equity may under certain circumstances maintain and establish compromises and settlements between parties. But this is not a case of that description. For no settlement was effected by this agreement, but it provided a means-through which a settlement or adjustment should be reached, and that was by the consideration and decision of the matters agreed to be submitted to Mr. Conant, which was prevented entirely by the subsequent disagreements of the parties and the revocation of the submission.

That has left all the disputes intended and desired to be settled under the agreement as completely unsettled as they were before, except so far as they may be affected by the covenants or stipulations contained in the instrument, aside from those relating to the arbitration. The action, therefore, cannot be maintained for the purpose of • establishing a settlement or compromise, for the grounds of complaints and. demands of the parties have not been settled by what has taken place. And the legal mode for securing that settlement is by the actions on the one side for damages, and on the other side for the prices of the cartons which, have been made and delivered. And a full and complete adjustment and determination of these matters will be made in the actions for damages on the one part, and for the prices of the goods on the other. There is no necessity, nor is there any propriety, for prosecuting an action in equity to attain these ends. They are the appropriate subjects of actions at law, and there required to be prosecuted and determined.

Ueither is there any ground for maintaining this suit as one to prevent a multiplicity of actions. For the range and extent of possible litigation between the parties is limited, and as their affairs at present are made to appear will not transcend the suits which have already been commenced, and probably will not require the prosecution of more than tw'o of these actions.

The judgment which has been entered in this case has- undertaken to go no farther than to sustain the agreement of the 11th of July, and to restrain the prosecution of the action commenced by Manley, as the assignee of the company, and prevent the entry of judgment for want of a complaint in the actions commenced by the plaintiff against the company. It to no extent settles, or has undertaken to settle, either of these disputed matters between these parties. But it has declared in its third subdivision:

“ That no cause of action exists in favor of either of the defendants excepting upon compliance with the terms and provisions of said agreement of July 11, 1888.” And that seems to be an erroneous conclusion, for the reason that the company was at liberty under the law to revoke the sxxbmission which had been agreed to be made. The casein this x-espect differs from that of Delaware, etc., Canal Co. v. Penn. Coal Co., 50 N. Y., 250. For the province of the ai’bitrator was to settle the disputes existing between the parties, and not to perform a condition precedent to the right of either to maintain an action at law. And the objection that adequate relief could be obtained by the plaintiff in an action at law has been taken by the answer in this action.

For that reason, while the judgment should be reversed and new trial ordered, it should be without costs to the appellants.

Van Brunt, P. J., and Brady, J., concur.


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    The People ex rel. Patrick O’Reilly v. John McClave et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Municipal corporations—Police—Removal.
    A police officer who is intoxicated at all is unfit for duty. The mere fact that he can walk has little to do with it. Degrees in the matter of intoxication cannot he considered.
    Certiorari to review the judgment of the board of police dismissing the relator from the force.

      Louis J. Grant, for app’lt; J. J. Delany, for resp’t.
   Van Brunt, P. J.

The relator, a patrolman, was charged with intoxication, the specification being that he was intoxicated and unfit for duty while at the central office.

He was tried and the charge adjudged to be true, and the relator was dismissed from the police force.

It is claimed upon the part of the relator that he was not so much intoxicated as to be unfit for duty, and he bases this claim upon the evidence of the police surgeon, who testified that at the time when he examined him, an hour and a half after his intoxication was discovered, he was not so much intoxicated as to be unfit for duty; and that if he was intoxicated at all, it must have been in a slight degree.

The idea of the police surgeon, from his evidence, seems to have been that the relator was not unfit for duty because he could walk. The evidence upon the part of the officers who saw the relator before the police surgeon would seem to lead to the inference that he was considerably under the influence of liquor. And it may have been the opinion of the commissioners, as it is ours, that an officer who is intoxicated at all is unfit for duty. The mere fact that he can walk has but little to do with it. The evidence is conclusive that this man was intoxicated to some extent, and, being so, he was clearly unfit for duty; and if the commissioners allowed men under the influence of liquor to go upon duty, or men intoxicated in the slightest degree, we think they would be guilty of dereliction of duty, as no intoxicated man is to be entrusted with the supervision and the lives of his fellow citizens.

Degrees in the matter of intoxication cannot be considered.

We think the writ should be dismissed, with costs.

Brady and Daniels, JJ., concur.


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    The National Broadway Bank, Pl’ff, v. Humphrey H. Swift et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Pleading—Frivolous answer—Merger of note in judgment.
    In an action on a promissory note made by a firm, the answer set up a former action upon said note and the recovery of judgment therein against the other partners, and claimed that the note was merged therein and that the same was a bar to this action. Held, that the question raised by the answer was not so clear in favor of plaintiff as to justify the court in striking out the answer as frivolous.
    Appeals' in two cases by defendant Hitch from orders overruling his answer as frivolous, and from the judgment entered thereon.
    The actions were brought upon promissory notes made by the firm of H. H Swift & Co., of which defendant Hitch was a partner. The answer was as follows:
    “ The defendant Henry F. Hitch, by Henry Be Forest Weekes, his attorney herein, separately answers the complaint herein as follows: He alleges that heretofore the plaintiff commenced an action upon the promissory note alleged in the complaint herein in the supreme court, and that on the 21st day of July, 1886, in the said supreme court, in said action, a judgment was entered and recovered by said plaintiff against Humphrey H. Swift and Alfred Gr. Swift, as makers and endorsers of said promissory note under the said firm name of H. H. Swift & Co., which judgment was for the sum of five thousand and seventy-nine and 22-100 dollars, damages and costs, and was recovered for and upon the same cause of action for and upon which said plaintiff commenced and is prosecuting this action against this defendant, impleaded with said Swifts, and that the said judgment so entered and recovered has not been vacated, reversed, or modified, but still remains with the same force and effect which it had at the time of the rendition and recovery thereof; and this defendant alleges, on information and belief, that the said judgment so recovered merges the said promissory note, and all and every cause of action thereon, and is a bar to any recovery thereon or herein against this defendant, and that by the entry and recovery of said judgment the said plaintiff is precluded from maintaining this action against this defendant. Wherefore said defendant demands judgment against the plaintiff for the dismissal of the complaint and for the costs of this action.”
    Respondent contends that there is no merit in the appeal of defendant Hitch, because the complaint, though on a joint obligation, was an obligation upon which each partner was severally, as well as jointly, liable, and that there was no merger of the cause of action by the entry of judgment against the other partners, and that the common law rule has been changed in that respect in this state, as indicated by the Code, and the rule only applied when all the partners were not joined in the original action.

      H. A. Forster, for app’lt; W. F. MacRae, for resp’t
   Per Curiam.

We are of opinion that the points of the respondent demonstrate beyond question that the answer which was-stricken out as frivolous was not subject to that criticism.

The order appealed from has been argued by him precisely the same as though it came before this court upon a demurrer; and the question involved is certainly not so clear in favor of the respondent as to justify the court in striking out the answer as frivolous.

The order should be reversed, with ten dollars costs and disbursements.

Yan Brunt, P. J., Daniels and O’Brien, JJ., concur.


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    The People ex rel. John H. Winchell v. Charles F. MacLean et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Municipal Corporations—Police—Removal.
    Relator was found off post by the sergeant, who testified that his breath smelt of liquor, his gait was unsteady, and he did not answer coherently. This was corroborated by other officers who observed him. Relator stated that he was dizzy, and took two doses of medicine at a drug store. The drug clerk testified to the ingredients of the medicine, and that it would not intoxicate unless a man had a weak stomach, and this was sustained by the police surgeon. Relator did not make such explanation when found off post, or report sick. Held, that upon this evidence the verdict of a jury would be conclusive, and that the decision of the commissioners could not be disturbed.
    Writ of certiorari to review the proceedings of the police commissioners by which the relator was removed from the police force of the city of New York.

      Louis J. Grant, for relator; W. Hartwell, for com’rs.
   Daniels, J.

The relator was found guilty of, the charge of being absent from his post, and so much under the influence of liquor as to be unfit to properly perform police duty, during his-tour of patrol duty, on the evening of the 9th of December, 1889, and, by a vote of all the commissioners he was dismissed from the police force.

The fact was proved, and not contradicted, that he was found by Sergeant Thomas off his post, and he also testified that he then appeared to be intoxicated; that his breath had the odor of liquor, his gait was unsteady, and he did not answer coherently. He was then taken by the sergeant and Roundsman Wéstervelt, who was met on the way, to the station house, where he was also observed by other officers, including Surgeon John H. Nesbitt, who all confirmed the statement of Thomas and Westervelt that he was intoxicated.

The relator testified that he became dizzy, and went into a drug store for something to remedy that condition; that he received from the druggist a liquid, and drank it, without producing any change, when he returned and obtained another dose, which was. the cause of the condition in which he had been found.

The druggist was also a witness, and in his evidence so far confirmed that of the relator as to prove that he was in the store and received and drank the preparations handed to him. He also stated of what the compound consisted, and added that a child could take it, and it had no more than thirty per cent of alcohol, which would not produce intoxication unless a man had a very weak stomach. The police surgeon then added to his previous testimony that he did not think the ingredients mentioned by the druggist would produce the condition in which he found the relator. It was also proved that the relator neither made nor attempted to make any such explanation of his condition when he was found off his post, or after that when he was in the station house, and that omission as well as the evidence of the surgeon and druggist tended to discredit the evidence which the relator himself gave. So did his omission to report himself sick, or unfit for duty, or to consult the surgeon of his post, as he was directed to do whenever that might become necessary. The evidence taken together was decidedly against him. He had probably been beguiled into his condition by the unfortunate appetite which has proved a fatal snare to so many other well intentioned persons who have found employment and position in the police force of this as well as other cities.

The power of this court over the case now presented is no greater than it has over the verdict of a jury rendered on the trial of an action. Subds. 4 and 5, § 2140, Code of Civil Pro. Upon this evidence the verdict of a jury would be conclusive. The court could not set it aside. And it can therefore afford this relator no assistance. The case is notmaterially variant from others brought before the courts, and which it has been uniformly necessary to affirm. People v. French, 7 N. Y. State Rep., 253. The action of the commissioners should be affirmed, and the writ dismissed, with costs.

Van Brunt, P. J., and Brady, J., concur.


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    William Paine, App’lt, v. Elizabeth W. Aldrich, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Judgment—Direction for entry.
    In an action tried before the court or a referee, the clerk has no judicial functions and no power except to enter the judgment directed by the court or referee. The court or referee must settle the judgment and direct that judgment to be entered, and it is not for the clerk to determine whether any paper corresponds with the judgment directed to be entered.
    Appeal by the plaintiff from a judgment of the special term, dismissing the complaint as against the defendant, Elizabeth W. Aldrich, and adjudging that the defendant recover of the plaintiff the sum of $1,110.60, costs and allowance.
    Action to set aside certain conveyances made by one John Paine on the ground that he was insane at the time of their execution.

      L. L. Kellogg, for app’lt; G. P. Smith, for resp’t.
   Per Curiam.

Upon an examination of this case it appears that it was tried before the court without a jury, and that it was an action seeking equitable relief.

The court has duly made its findings of fact and conclusions of law, and thereupon, it would appear from the appeal papers, the clerk has attempted to enter judgment by means of a postea; attached to the judgment roll. The court before whom the case was tried does not appear to have directed any such judgment, and, in fact, this postea contains relief which the clerk seems to have concluded the parties to be entitled to, but which the court, has refrained from giving them.

It has been determined by this court that in the case of a trial before a court or referee, the court or referee must settle the judgment to be entered, which is the language of the Code, and that the clerk has no power to determine whether a judgment comports with a direction to enter judgment or not The clerk has-no judicial functions and no power except to enter the judgment directed by the court or referee. Consequently, the court or referee must settle the judgment and direct that judgment to be entered; and it is not for the clerk to determine whether any paper corresponds with the'judgment which the court or referee has directed to be entered.

The whole proceeding seems to be absolutely irregular. The-papers before us do not disclose a judgment which can be reviewed upon appeal, and the case must be stricken from the calendar.

Yah Brunt, P. J., Brady and Daniels, JJ., concur.


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    William R. Peters et al., App’lts, v. Winfield S. Chamberlain et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Bills and notes — Unauthorized alteration of endorsement — Guaranty.
    Defendants endorsed the note of a corporation in blank. On delivery of the note to plaintiffs, the attorney for the corporation, without authority from defendants, wrote a guaranty of payment of the note above their-endorsement. In an action upon the note alleging that the defendants endorsed said guaranty upon the note. Held, that their contract was not one of guaranty, and the nature of their liability as endorsers conld not, by any such writing over their signatures, be changed into that of guarantors.
    3. Same—Amendment of pleadings.
    A motion to conform the pleadings to the proofs in such a case cannot be granted, because a cause of action against defendants as endorsers would he entirely different from one against them as guarantors.
    Appeal from judgment dismissing the plaintiffs’ complaint.

      R. L. Harrisoti, for app’lts; W. H. Bayliss, for resp’t Botsford; T. O' Callaghan, for resp’t Chamberlain.
   Van Brunt, P. J.

The complaint in this action alleged the copartnership of the plaintiffs, the organization of the Empire Manganese & Iron Co., and that on the 11th of December, 1889, the defendant the Iron Co. made its promissory note in writing whereby thirty days after date it promised to pay to the order of the plaintiffs $2,222.70, and that after said note was made, and before maturity thereof, and before the same was delivered, the defendants Chamberlain and Botsford endorsed the same as follows : “ The undersigned, for value received, guarantee the payment of the within note at maturity. W. S. Chamberlain, X. J. Botsford; ” and that at the maturity thereof the said note was duly presented for payment,.but was not paid; of all which due notice was given to the defendants. The defendants’ answer denied that they endorsed the note as alleged in the complaint.

Upon the trial it was established that the company, of which the ■defendants were officers, obtained a loan from the plaintiffs in July, 1889, and notes were given to secure the payment thereof. A note falling due in December, an arrangement was entered into by which the plaintiffs agreed to take an extended note with the endorsement of the defendants. The note in suit was brought to the office of the plaintiffs by one Mr. Dill, who was the counsel of the defendant; at that time it was endorsed in blank, and some objection having been raised to the form of the endorsement Mr. Dill wrote in the guaranty over the signatures of the defendants. There was no evidence that Mr. Dill had any authority whatever to make such alteration in the note. Upon this condition of the proof a motion was made to dismiss the complaint, which was granted.

We see no reason to disturb this result. The relations of the endorsers to this note seem to have been entirely misapprehended, .although if the note had remained in its original condition, and it had been affirmatively established that the defendants endorsed the note for the purpose of giving it credit with the plaintiffs, the payees therein named, a recovery might have been had against .the defendants under the principles laid down in the case of Moore v. Cross, 19 N. Y., 227.

But their contract was not one of guaranty, and an endorser ■under such a contract could not be charged as a maker or •guarantor.

This principle is distinctly held in the case cited, and the relations of the payee and endorsers of a note of this description as contained in the case cited have been affirmed in many later adjudications. Bacon v. Burnham, 37 N. Y., 617; Meyer v. Hibsher, 47 id., 270; Phelps v. Vischer, 50 id., 69; Clothier v. Adriance, 51 id., 322; Hubbard v. Matthews, 54 id., 43; Coulter v. Richmond, 59 id., 478; Jaffray v. Brown, 74 id., 393.

This action was brought to charge these defendants as guarantors, the guaranty having been placed upon the note without authority. The nature of their liability as endorsers could not, by any such writing over their signatures, be changed into that of guarantors.

But it is urged that under the principles laid down in the case of Moore v. Cross they might have been held under the proof as •endorsers. It is sufficient to say that the complaint contains no allegations of any such facts, and the cause of action alleged against the defendants was entirely different from that on which "the proof might perhaps have justified a recovery had there been ::no interference with the nature of the endorsers’ contract

The motion to make the pleadings conform to the proof could not prevail, because a cause of action against the defendants as endorsers was entirely different from the cause of action against them as guarantors.

Upon the whole case, therefore, we think the judgment should be affirmed, with costs.

Bradt and Daniels, JJ., concur.


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    John C. Shaw, App’lt, v. Francis S. Wellman et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Mortgage—Forfeiture—Rights of assignee.
    Where the mortgagee has assigned the mortgage .in whole or in part as collateral security he cannot, without the authority or concurrence of the assignee, exercise an option provided for in the mortgage of declaring the whole sum due by reason of a default in the payment of taxes.
    2. Same—Redemption of default.
    When indemnity to^ the mortgagee can be secured in that manner, a court of equity will consider the default redeemed by a subsequent payment of such taxes, and will not enforce the forfeiture.
    Appeal from a judgment recovered at the special term, and including an order for an additional allowance of costs.

      Graiz Nathan and John G. Shaw, for app’lt; Edgar J. Nathanr for resp’ts.
   Daniels, J.

The judgment recovered dismissed the complaint for the foreclosure of a mortgage executed by the defendant, Francis S. Wellman, and Cora, his wife, to secure the payment of $5,000, with interest, to the plaintiff, his heirs, executors, administrators or assigns, on the 1st of October, 1891. The action was commenced in or about the month of May, 1889, because of a default by the mortgagors in the payment of the taxes for the years 1886-7 and 8. The mortgage provided in case of such a default, for the space of sixty days, that the principal sum secured should, at the option of the mortgagee or his legal representative, become due and payable immediately. And that option was made by the plaintiff before this suit was commenced.

But the further fact appeared in the case, that on the 17th of ■ March, 1887, the plaintiff assigned the mortgage, and the debt thereby secured, to Reuben Ross who, at. his own instance, and during the pendency of the action, was made a defendant therein. The assignment to this defendant was absolute in form, but in fact made to secure' to him the payment of the sum of $4,000' which still remained unpaid, and he at no time elected to declare the debt secured by the mortgage to be due for the nonpayment of these taxes.

The object to be attained by this part of the mortgage was to prevent the security from being reduced or diminished by the unnecessary existence of taxes upon the property. It was for the benefit of the security, and its complete preservation. And after the assignment the assignee became entitled to its benefit, to the extent of four-fifths of the secured indebtedness. For by the assignment to him, the entire mortgage with each of its covenants and. provisions was to that extent assigned to him. And after that the mortgagee had not the power to exercise control over it, so far as it had been transferred by the assignment Brown v. Blydenburgh, 3 Seld., 141, 145. That was the clear nature and effect of the assignment. It gave the assignee control over the security to at least the extent of the interest assigned to him. And whether the debt secured should become due because of this default of the owner of the equity of redemption was so far confided to him to determine. That resulted from the assignment, which was subject to no reservation, or exception, beyond a right of redemption in the plaintiff. He could have redeemed the security by paying what was owing from him to the assignee, and thereby re-acquired the sole right to exercise this option. But that he did not do. On the contrary, without the authority, or concurrence of the assignee, and without ascertaining whether he deemed it for his interest that advantage should be taken of this clause in the mortgage, the plaintiff declared the debt to be due. The right to do this was equally for the benefit of the entire debt. It was an entirety, consisting of an option affecting the whole debt secured, and not a part of it. To take advantage of it was an authority vested in the owners of the debt, not in a portion of it And as long as the assignee did not assent to the exercise of the option, the term of credit was not forfeited, or' lost, by the act alone of the assignor. This subject under circumstances quite similar in their effect was examined in Marine Bank, etc., v. International Bank, 9 Wis., 57, and the same conclusion was adopted by the court.

It further appeared that these taxes were paid on the 21st of October, 1889, and that fact was alleged by a supplemental answer, as a defense to the action. This payment fully restored all the rights intended to be protected by this part of the mortgage. It indemnified both the plaintiff and his assignee against all possible prejudice or loss arising from the default. And when that appears to' be the fact, it is the policy of courts of equity to consider the default to have been redeemed by the payment 2 Story Eq., 5th ed, § 1314. When indemnity can in this manner be secured, and that shall in fact be made, then the rule in equity is not to enforce the forfeiture otherwise coming into existence. Id., § 1319. On this fact of payment of the taxes a defense was also presented to the action.

The allowance complained of was made for the mortgagor, amounting to the sum of $100. It was authorized in the suit as •one for the foreclosure of a mortgage upon real property by § 3253 of the Code of Civil Pro., and was by no means unreasonable in its amount. Without, therefore, considering whether the action was regularly brought by the plaintiff without in the first instance making his assignee a party, and which was so much discussed on the argument, both the judgment and the order should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.


author: Brady, J.

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    The People ex rel. Vernon K. Stevenson et al. v. Edward Gilon et al., Ass’rs, et al.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Certiorari—Assessments.
    A certiorari will not lie to review the action of the hoard of assessors in levying an assessment for improvements, as there is no final determination of the objections raised thereon until they are considered by the board of revision, and also because the consolidation act provides other remedies to which relators should resort.
    2. Same.
    Where the only evidence presented to the appellate court on which the relators seek to avoid an assessment is contained in their attorney’s affidavit, which is on information and belief, the record is not sufficient to enable the court to act thereon.
    Certiorari to review the action of the board of assessors and the board of revision in imposing and confirming an assessment for the building of a sewer in Eighth avenue, between One Hundred and Fifth and One Hundred and Fourteenth streets. The list was made up in the usual way; objections were urged before the board of assessors^ which were overruled, and the list transmitted to the board of revision and correction. Prior to such transmission the certiorari herein was obtained and the confirmation by the board of revision of the assessment was subsequently made.

      Truman S. Baldwin, for relators; George L. Sterling, for resp’ts.
   Brady, J.

The board of assessors are appointed under § 865 of the consolidation act,- and who, on completing the assessment lists, transmit them, as required by the statute, to the board of revision and correction.

That board, or a majority, are obliged by § 867 of the consolidation act to perform all powers and duties relative to the revision, correction and confirmation of assessment lists specified in the various laws relating to assessments in the city of New York, other than assessments made by commissioners appointed by a court or justice. They have the power, and it is their duty, to consider on the merits all objections made to any’assessment and to subpoena and examine witnesses in relation thereto, if necessary, and to confirm said assessments or to refer the same back to the board of assessors for correction in such respects as they may determine. The importance of these provisions is apparent from the fact that § 2122 of the Code of Civil Procedure declares-that a certiorari cannot be issued in either of the following cases:

First. To review a determination which does not finally determine the rights of the parties with respect to the matter to be reviewed.

Second,. When the determination can be adequately reviewed by an appeal to a court or some other body or officer. The importance of these provisions herein is demonstrated inasmuch as-the board of revision and correction might have sustained the objections made before the assessors, and no further action would have been required by the relators. That the board did not do so does not affect the principle; indeed we are not supposed to be advised of that as a subsequent incident. It is enough that they had the power to do so. The certiorari having been obtained, therefore, after the list already mentioned was sent to the board of revision and correction, and before any action upon it by that body, there was no final determination of the objections made, and which, as we have seen, the board of revision had the power to consider, revise and remit, and in relation to which they had the power also to subpoena and examine witnesses. Independently, however, of these provisions, though quite conclusive, title 3 of. the consolidation act, in reference to vacating and modifying assessments imposed for local improvements, provides by a series of sections for the vacation óf any assessment, or to remove a cloud upon the title. See §§ 897 to 914 inclusive. Section 897 declares substantially that for the vacation of any assessment on the lots in the city of New York, the owners of property shall be confined to their remedies.

It is perhaps needless to say, the rule being so well settled as to be very familiar, that the court only interferes by certiorari when there is no other remedy. There are, therefore, herein two points presented by the respondent which seem to be fatal.

First. That there was no final determination, and,

Second. That there existed another remedy to which the relators could have resorted. There is still, however, a further reason, and that is that the only evidence on which the relators seek to avoid the assessment is contained in the affidavit of their attorney, and which is on information and belief. The evidence on which the board of assessors acted is, therefore, not before thé court.

Entertaining these views, there is but one disposition to make of this writ, and that is to dismiss it, with costs.

Van Brunt, P. J., and Daniels, J., concur.


text:
    The People ex rel. Nathan Wise et al. v. Edward Gilon et al.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Certiorari to review an apparent determination of the board of assessors in distributing over private property the entire cost of filling in certain lands, etc.

      Truman H. Baldwin, for relators; Geo. L. Sterling, for resp’ts.
   Brady, J.

The writ of certiorari having been issued herein intermediate the filing of the list by the assessors and the decision of the board of revision and correction, the result is controlled by the conclusion arrived at in the matter of the People ex rel. Stevenson v. Edward Gilon et al., decided herewith. Ordered accordingly, and writ dismissed, with costs.

Van Brunt, P. J., and Daniels, J., concur.


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    William Foster, Trustee, App’lt, v. The Webster Piano Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed, February 11, 1891.)

    Trade mark—Injunction.
    Mere similarity of names is not sufficient to authorize a preliminary injunction, where plaintiff shows no right to the use of the word used by-defendant and there is nothing to show that defendant intends to sell its goods as those of plaintiff or that the use of such words has deceived any one.
    Appeal from order denying motion for an injunction pendente lite.

    Action to restrain an infringement of plaintiff’s trade mark, "brought by plaintiff as substituted trustee under the will of Albert "Weber, deceased, who claims that the use of the word Webster ■on defendant’s pianos is likely to cause confusion in the minds of purchasers of pianos; that they will think they are buying a Weber piano when a Webster piano is foisted upon them.'
    The following is the opinion at special term:
    Ingraham, J.—The plaintiff shows no right to the use of the word “ Webster,” and it is clear that there was no intention to sell the defendant’s pianos as the pianos manufactured by the plaintiff. It is not shown that the use of the words “ Webster pianos ” has deceived any one, and I do not think it is likely to deceive any ojie.
    Motion for an injunction denied.

      Sutherland Tenney, for app’lt; Alexander S. Bacon, for resp’t.
   Per Curiam.

We think the order appealed from should be affirmed, for the reasons stated in the opinion .of the court below.

Order affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., Daniels and O’Brien, JJ., concur.


author: O’Brien, J.

text:
    Louis Strasburger et al., App’lts, v. Nathan Bachrach, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Attachment—Aeitdayit—Judgments.
    An affidavit setting forth alleged fraudulent statements as to his financial condition made by defendant for the pm pose óf obtaining goods on credit, and that he subsequently and within three months confessed judgments to an amount largely exceeding his represented liability, is insufficient to sustain an attachment on the ground of a fraudulent disposition of his goods, where it also shows that some portions of the claims on which such judgments were based arose after the time when such representations were made.
    Appeal from order vacating a warrant of attachment.
    The attachment was granted on the following affidavits:
    “ Alvin L. Strasburger, being duly sworn, deposes and says that he is a member of the firm of Louis Strasburger & Co., composed ., of the above-named plaintiffs, who are copartners in business in the city of New York; that heretofore, and on the 2d day of September, 1890, the above-named plaintiffs sold and delivered to the above-named defendant certain goods, wares, and merchandise at the agreed price of two thousand three hundred and sixty-one and 24-100 ($2,361.24) dollars, which was the fair and reasonable value of said goods, and that the full sum of two thousand three hundred and sixty-one and 24-100 ($2,361.24) dollars is now due to the plaintiffs over and above all counterclaims and offsets known to deponent. Deponent avers that the above-named dcfendant has fraudulently disposed of his property, with intent to cheat and defraud" the above-named plaintiffs and his creditors, and the grounds of his belief are as follows: At the time of the purchase by the defendant of the goods above mentioned, deponent, who had made the sale through the son of the defendant, Joseph Bachrach, who represented the defendant in said matter, and who was in business with him, gave deponent a statement to the effect that his stock was fully worth the sum of $5,000, and that they had good outstanding collectible accounts valued at $8,000, making a total assets of $13,000, and that they did not owe in all for all purposes more than $13,000, and that the defendant, his father, was worth net the sum of $9,000 over and above all his debts and liabilities, according to their inventory of January 1, 1890. That in September, when these representations were made, he stated they owed even less than $4,000, and that the total liabilities would not exceed $2,300, which were all for business debts. That yesterday, December 11, 1890, judgments were entered in the supreme court against the above-named defendant, one in favor of Joseph Bachrach for the sum of $2,917.97, and another in favor of A M. Bachrach for the sum of $1,715.01. That Joseph Bachrach is the son of defendant, and the one who made the representations to deponent. Deponent avers that these judgments are founded on fictitious claims, and that this is a scheme to dispose of the assets of the defendant for the purpose of cheating plaintiffs. That according to the representations of defendant his stock did not amount to more than about $5,000, and, if defendant is permitted to sell under the judgments above named, there will be no tangible assets to apply to the claim of the plaintiffs.' Deponent therefore asks that a warrant of attachment issue against the property of defendant No previous application for the relief asked for herein has been made.”
    “Louis Strasburger, being duly sworn, deposes and says that he is one of the plaintiffs in the above-entitled action; that on Tuesday of this week he had a conversation with the above-named defendant in the presence of his son, Joseph Bachrach, deponent having called upon the defendant because he had heard that he was buying very heavily; when questioning the defendant as to whether it was so, said defendant claimed that he was not buying too heavily; that he was perfectly solvent; and that no creditor need be afraid, as they would be paid in full.”
    “ Jacob Lorsch, being duly sworn, deposes and says that he is an attorney at law, and clerk in the office of Hays & Greenbaum, attorneys for the plaintiff in the above-entitled action; that he has examined the judgment roll entered December 11, 1890, in the cases of Joseph Bachrach v. Nathan Bachrach, and of Abraham M. Bachrach v. Nathan Bachrach; that from an examination of the judgment roll entered in the case of Joseph Bachrach against Nathan Bachrach, deponent states that the judgment is entered for the sum of $2,845 on two alleged causes of action; the first alleged cause of action being for money loaned April 1, 1890, amounting to $700; and the second alleged cause of action being for work, labor and services in the management of defendant’s jewelry store at $100 a month, amounting to $2,625, performed for defendant since 1888, upon which said Joseph Bachrach claims to have received $480; that said judgments are entered upon offer of judgment and acceptance of offer; that the judgment in the case of Abraham M. Bachrach against Nathan Bachrach is entered upon three alleged causes of action—the first upon an account stated of August 15, 1889, for $212; the second for balance due for goods sold and delivered between September 19, 1889, and September 12, 1890, amounting to the sum of $1,032.71; the third alleged cause of action being for money loaned between May 23, 1889, and December 8, 1890, amounting to $725, of which sum $310 was paid on account; that these judgments are entered in the supreme court, and that both judgments were entered on offers of acceptance.”
    “ Jacob Lorsch, being duly sworn, deposes and says that he is an attorney at law, and a clerk in the office of Hays & Greenbaum, attorneys for the plaintiffs herein; that he has been informed by the deputy sheriff who has charge of the executions against Nathan Bachrach that there is comparatively little property in the store; and that he was also informed by the said deputy sheriff that there was not near enough property to satisfy the two executions, amounting to a little more than $4,500, under which he had levied upon the property of the said Bachrach.”
    On the motion to vacate, made upon the papers on which the attachment was granted, the special term delivered the following opinion:
    Beach, J.—The affidavits upon which the attachment was granted fail to disclose any facts from which the court can con•clude that defendant has assigned or disposed of his property with intent to defraud. Motion to vacate granted, with ten dollars costs.

      & Greenbaum, for app’lts; Abraham Afelson, for resp’t.
   O’Brien, J.

The motion to vacate the attachment was made upon the papers upon which the same was issued. An examination of these will show that even if we assume that all the statements made with reference to the condition of the assets and liabilities of the defendant were true, there is no proof furnished that the judgments subsequently entered were fraudulent, for the reason that it appears from the papers that some portion of the claims upon which the judgments were based arose subsequent to the time when the representations themselves were claimed to have been made.

It is apparent that the affidavits were not drawn with care, and an examination of them justifies the conclusion reached by the learned judge from whose order this appeal is taken.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.


text:
    Court of Appeals.
    Filed February 24, 1891.
    Elizabeth J. Weber, Resp’t, v. John N. Lester et al., App’lts.

      Geo. Wadsworth, for resp’t; Tracy G. Becker, for app’lts.
   Judgment affirmed on opinion of Daniels, J., below, without costs in this court. All concur.

Affirming 31 N. Y. State Rep., 368.


text:
    The People ex rel. Israel P. Grant et al., App’lts, v. Samuel Warner, Resp’t.

      James A. Douglas, for app’lts; Francis A. Williams, for resp’t.
   Order affirmed on opinion of Barker, J., below, with costs. All concur.

Affirming 20 N. Y. State Rep., 573.


text:
    Emma E. Dryer, App’lt, v. Elon G. Brown, Surv’g Ex’r, Resp’t (2 cases).

      J. I. Sayles, for app’lt; E. D. Mathews, for resp’t.
   Appeal dismissed, without costs. All concur.

See 30 N. Y. State Rep., 48.


text:
    Fred’k Marx et al., App’lts, v. Eugene A. Gross et al., Resp’ts.

      Geo. A. Black, for app’lts; Foster & Thomson, for resp’ts.
   Appeal dismissed, with costs. All concur.

See 31 N. Y. State Rep., 403.


text:
    J. Forman Wilkinson, Sole Surv’r, etc., Resp’t, v. Simon D. Paddock et al., App’lts.

      Frank H. Hiscock, for resp’t; M. M. Waters, for app’lts.
   Order affirmed on opinion of Martin, J., with costs. All concur.

Affirming 33 N. Y. State Rep., 535.


text:
    Samuel M. Lederer, App’lt, v. Thomas D. Adams, Resp’t.

      Edward 0. Boardman, for app’lt; John J. Adams, for resp’t.
   Order affirmed on opinion below, with costs. All concur.

Affirming 33 N. Y. State Rep., 799.


text:
      In re Application of The People of the State of New York for Consent to Prosecute Action v. The Equity Gas Light Co.

      Jesse Johnson, for app’lt; Horace Grates, for resp’t.
   Appeal dismissed, with costs. All concur.

See 32 N. Y. State Rep., 1138.


text:
    The People, Resp’ts, v. Theo. W. Myers, Comptroller of New York, App’lt.
    TY A. Poste, for resp’ts; David J. Dean, for app’lt.
   Order affirmed on opinion below, with costs. All concur.

Affirming 34 N. Y. State Rep., 384.


text:
    James Thompson et al., App’lts, v. Chas. W. Dater et al., Resp’ts.

      Wm. P. Cantwell, for app’lts; Nelson Davenport, for resp’ts.
   Appeal dismissed, with costs." All concur.

See 33 N. Y. State Rep., 1034.


text:
    Thos. Wheeler, App’lt, v. Wm. Emmeluth, Resp’t; Obed Wheeler, Adm’r, etc., App’lt.

      Michael J. Scanlon, for app’lt; Gabriel Levy, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 34 N. Y. State Rep., 775.


text:
    The Metropolitan Concert Co., Limited, v. Howard A. Sperry et al., App’lts.

      Henry Cooper, for app’lts; Eugene Seligman, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 35 N. Y. State Rep., 611.


text:
    Joseph H. Beckwith, by Guardian, etc., Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      S. Cromwell, for resp’t; C. D. Prescott, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 292.


text:
    John H. Beckwith, as Adm’r, etc., Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      S. Cromwell, for resp’t; O. JD. Prescott, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 130.


text:
    Elizabeth Nary, Adm’rx, etc., Resp’t, v. The N. Y., O. & W. R. R. Co., App’lt.

      Elisha B. Powell, for resp’t; P, W. Cullinan, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 29 N. Y. State Rep., 630.


text:
    Thos. H. Story, Ex’r, App’lt, v. The United Life & Accident Ins. Ass’n, Resp’t.

      Jerry A. Wwnberg, for app’lt; Harry Wilber, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 22 N. Y. State Rep., 832.


text:
    James Fitzgerald, Adm’r, Resp’t, v. The City of Troy, App’lt.

      Frank S. Black, for resp’t; William J. Boche, for app’lt.
   Judgment affirmed, wiih costs. All concur.

Affirming 26 N. Y. State Rep., 47.


text:
      In re Estate of Roselia S. Look, Dec’d.

      H. Aplington, for app’lts; John G. Milburn. for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 26 N. Y. State Rep., 745.


text:
    Johanna Bergen, Adm’rx. Resp’t, v. The Manhattan R’way Co., App’lt.

      Thos. F. Magner, for resp’t; Julien T. Davies, for app’lt.
   Judgment affirmed, with costs. All concur, except Earl, Peckham and Gray, JJ., dissenting.

Affirming 27 N. Y. State Rep., 984.


text:
    Alice Bartholomew, by Guardian, etc., Resp’t, v. The Poughkeepsie & Highland Ferry Co., App’lt.

      AVison Butts, ior resp’t; Thompson & Lown, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 388.


text:
    Frances A. Hess et al., App’lts. v. The Washington Fire & Marine Ins. Co., Resp’t.

      Geo. F. Yeoman, for app’lts; Wm. Hathaniel Cogswell, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 33 N. Y. State Rep., 730.


text:
    Bridget McCoy, Adm’rx, App’lt, v. The Empire Warehouse Co., Limited, Resp’t.

      Patrick Heady, for app’lt; John Holman, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 31 N. Y. State Rep., 815.


text:
    John W. Macy, Trustee, Resp’t, v. David T. Williams et al., Ex’rs, App'lts.

      Chas. JV". Judson, for resp’t; Sidney 8. Harris, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 N. Y. State Rep., 345.


text:
    Martha A. Guion, Resp’t, v. David T. Williams et al., Ex’rs, App’lts.

      Chas. A". Judson, for resp’t; Sidney S. Harris, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 919.


text:
    Louisa O. W. Butler, Ex’rx, Resp’t, v. The State Mutual Life Ins. Co. of Worcester, Impl’d, App’lt.

      Oliver P. Buel, for resp’t; Edward E. Sprague, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 491.


text:
    Bridget Flannagan, Adm’rx, Resp’t, v. The N. Y., N. H. & H. R. R. Co., App’lt.

      Martin J. Keogh, for resp’t; Henry W. Taft, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 29 N. Y. State Rep., 543.


text:
    In the Matter of the Final Accounting of Executors of Charles J. Hayden, Deceased.

      M. H. Briggs, for ex’rs, etc.; W. H. Shepard and James W. Osborne, for adm’r, etc.; Geo. E. Yeoman, for guardian ad litem.

   Judgment affirmed on opinion of Barker, J., below, without costs to either party on this appeal. All concur.

Affirming 26 N. Y. State Rep., 911.


text:
    Chas. H. B. Perkins, Adm’r, Resp’t, v. The Buffalo, Rochester & Pittsburgh R. R. Co., App’lt.

      M. E. & E. M. Bartlett, for resp’t; Henry Q. Banforth, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep. 41.


text:
    Louisa P. Chard et al., App’lts, v. Cornelia A. Hamilton, Adm’rx, Resp’t.

      Samuel J. Crooks, for app’lts; Sherman S. Rogers, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 30 N. Y. State Rep., 594.


text:
    Filed March 3, 1891.
    Wm. F. Morgan, Resp’t, v. Catherine Taylor, App’lt.
   Motion to reinstate appeal. No papers.

The return of the remittitur to this court is requested, and, when returned, motion granted upon payment by the appellant to the respondent of twenty dollars, and all taxable disbursements.


text:
    Ann Lee, Adm’rx, v. The Vacuum Oil Co.
   Motion to reserve cause. No papers.

Argument reserved until Wednesday, March 18, 1891.

See 26 N. Y. State Rep., 814.


text:
    Jacob Oppenheimer, Resp’t, v. Asahel W. Humphreys et al, Adm’rs, App’lts.
   No papers.

Motion for re-argument denied, with costs.

See 35 N. Y. State Rep., 996.


text:
    Filed March 10, 1891.
    The People ex rel. Alexander Shaler, App’lt, v. The Mayor, etc., of New York, Resp’t.

      Samuel B. Clarke, for app’lt; B. J. Bean, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 241.


text:
    Wm. F. Peck, Taxpayer, Resp’t, v. The City of Rochester, App’lt.

      John H. Hopkins, for resp’t; Henry J. Sullivan, for app’lt.
   Appeal dismissed, with costs. All concur.

See 30 N. Y. State Rep., 1020.


text:
      In re Application of Philander D. Ellithorpe, for peremptory writ of mandamus.

      H. J. Swift, for app’lt; Ad Ibert Hoot, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 30 N. Y. State Rep., 704.


text:
    The People ex rel. Donald McQuien, Resp’t, v. The Theatrical Mechanical Association, App’lt.

      Smith Tuttle, for resp’t; Benj. Steinhardt, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 30 N. Y. State Rep., 1019.


text:
    The People ex rel. The American Surety Co., App’lt, v. Edward Wemple, Comptroller, etc., Resp’t.

      John J. Crawford, for app’lt; Chas. F. Tabor, att’y-gen’l, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 34 N. Y. State Rep., 713.


text:
    The People ex rel. Geo. W. Van Hise, Resp’t, v. The Board of Police Com’rs of Greenbush, etc., App’lt.

      Eugene Burlingame, for resp’t; James II. Byan, for app’lt.
   Order affirmed on opinion below, and also on opinion in People ex rel. Campbell v. Hannan, 56 Hun, 469; 31 N. Y. State Rep., 602, which was adopted in this court upon the affirmance of the judgment in this court. All concur.

Affirming 34 N. Y. State Rep., 193.


text:
    The Farmers’ Loan & Trust Co., Resp’t, v. The New Rochelle & Pelham Railway Co., Deft, and The Village of New Rochelle, App’lt.

      Chas. Strauss, for resp’t; Martin J. Keogh, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 714.


text:
    Jas. H. Fay, Assignee, Resp’t, v. Hugh J. Grant, Sheriff, App’lt.

      Ceo. Walton Greene, for resp’t; Stern & Myers, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 23 N. Y. State Rep., 571.


text:
    Herman Bridgman et al., Guardians, Resp’ts, v. The Vacuum Oil Co., App’lt.

      John Van Voorhis, for resp’ts; Theodore Bacon, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 26 N. Y. State Rep., 984.


text:
    William Burch v. The Same.
   Same as above.

Affirming 26 N. Y. State Rep.,.984.


text:
    Filed March 17, 1891.

      In re Proving Last Will, etc., of Hiram Vowers, Dec’d.

      Edgar T. Brackett, for app’lt; S. Brown, for resp’t.
   Judgment affirmed, with costs against the appellant personally. All concur.

Affirming 28 N. Y. State Rep., 984.


text:
    Thos. F. Stark, App’lt, v. Asa T. Soule, Adm’r, Resp’t.

      A. J. Abbott, for app’lt; J. Welling and Wm. F. Cogswell, for resp’t.
   affirmed, with costs. All concur.

Affirming 26 N. Y. State Rep., 985.


text:
    John Quill, Adm’r, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Hugh L. Cole, for resp’t; Hamilton Harris, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 612.


text:
    Johanna Hugger, Adm’rx, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Louis Mar-hall, for resp’t; P. B. McLennan, for app’lt..
   Judgment affirmed, with costs. All concur.-

Affirming 32 N. Y. State Rep., 1133.


text:
    Chas. E. Lydecker, Public Adm’r, Resp’t, v. Dominique F. Verdinal, App’lt.

      Frank W. Arnold, for resp’t; Albert A. Abbott, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 194.


text:
    Ellen Paul, Ind. and as Ex’rx, Resp’t, v. Augustus P. Stevens et al., Impl’d, App’lts.

      Coleridge A. Han’t, for resp’t; A. Simis, Jr., for app’lts.
   Judgment affirmed; with costs. All concur.

Affirming 32 N. Y. State Rep., 851.


text:
    Absalom Pollitt, Adm’r, App’lt, v. The Kings County El. R’way Co., Resp’t.

      Win. J. Gaynor, for app’lt; A. B. Boardman, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 954.


text:
    The People, Resp’ts, v. The Seneca Lake Grape & Wine Co., App’lt.

      Flbridge L Adams, for resp’ts; W. Bumsey Miller, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 23 N. Y. State Rep., 346.


text:
    Martha A. Stewart, Adm’rx, Resp’t, v. The N. Y., O. & W. R. R. Co., App’lt.

      T. F. Bush, for resp’t; Geo. H. Carpenter, for app’lt.
   Judgment affirmed", with costs. All concur, except Earl and Peckham, JJ., not voting.

Affirming 28 N. Y. State Rep., 215.


text:
    Sylvester Trimmer, App’lt, v. The City of Rochester, Resp’t.
   No papers.

Motion to transfer from second division denied.

See 30 N. Y. State Rep., 703.


text:
      In re Petition of Rollin M. Squire, etc.
   No papers.

Motion for re-argument, or to amend, denied,- with costs.

See 34 N. Y. State Rep., 721.


text:
      In re Accounts of Calvin J. White.
   No papers.

Motion to amend remittitur denied, with costs.

See 36 N. Y. State Rep., 258.


text:
    Betsey Whitman, Adm’rx, Resp’t, v. Matthew F. Foley et al., App’lts.
   No papers.

Motion to amend remittitur denied, without costs.

See 36 N. Y. State Rep., 133.


text:
    John Townshend, App’lt, v. Edward Frommer et al., Resp’ts.

      John Townshend, for app’lt.
   Motion for re-argument denied, with costs.

See 36 N. Y. State Rep , 153.


text:
    Wm. R. Barr et al., App’lts, v. The N. Y., L. E. & W. R. R. Co., Resp’t.

      Win. Parkin and W. TV. MacFarland, for resp’t.
   Motion for re-argument denied, with costs.

See 34 N. Y. State Rep., 743.


text:
    Filed March 20, 1891.
    Chas. B. Graves, Resp’t, v. Augusta C. Graves, Ind. and as Ex’rx. App’lt.

      Henry W. Sprague, for resp’t; Fi'ank M. Loomis and Adelbert Moot, for app’lt.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 28 N. Y. State Rep., 57.


text:
    Frederic G. Smedley, Assignee, Resp’t, v. George W. Smith et al., App’lts.

      Wm. S'. MacRae, for resp’t; Fredm'ie R. Coudert and Arthur Furber, for . app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 414.


text:
      In re Revocation of Will of Michael McMahon.

      Matthew Hale and Wm. D. Veeder, for app’lts; Wm. SI. Osborn, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 30 N. Y. State Rep., 350.


text:
    Edwin Wallace et al., App’lts, v. Jas. O’Gorman, Assignee, Resp’t.

      A. H. Gleason, for app’lts; J. R. O’Gorman, for resp’t.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 25 N. Y. State Rep., 261.


text:
    Wm. E. Stillings, Assignee, App’lt, v. Geo. A. Haggerty, Ex’r, Resp’t.

      Archibald 0. Shenstone, for app’lt; Gibson Putzel, fir resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 36 N. Y. Stats Rep., 449.


text:
    The People, Resp’ts, v. Theo. Myers, Comptroller, App’lt.

      Wm. A. Poste, for resp’ts; J. W. M. Newlin and George 8. Coleman, for app’lt.
   Judgment affirmed, with costs, on opinion in general term. All concur (Gray, J., in result), except O’Brien, J., not sitting.

Affirming 35 N. Y. State Rep., 755.


text:
    William H. Rutty, Resp’t, v. The Consolidated Fruit Jar Co., App’lt.

      John E. Eustis, for resp’t; L. A. Fuller, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 N. Y. State Rep., 121.


text:
    Second Division.
    Filed February 24, 1891.
    Adolphe Clement, as Adm’r, App’lt, v. The Ranken Knitting Co., Resp’t.
   No papers.

Appellant’s motion to be allowed to discontinue his appeal granted upon the payment of twenty-five dollars, within ten days.

See 20 N. Y. State Rep., 196.


text:
    James W. Chase, Resp’t, v. Sarah C. McLane and David W. McLane, App’lts.
   No papers.

Motion to dismiss appeal denied, without costs..

See 30 N. Y. State Rep., 159.


text:
    John R. Hinz, as Adm’r, App’lt, v. John H. Starin, Resp’t.

      Martin J. Keogh, for app’lt; Wm. W. Goodrich, for resp’t.
   Judgment affirmed, with costs. All concur, except Bradley, Yarn and Brown, JJ., dissenting.

Affirming 32 N. Y. State Rep., 918.


text:
    In the Matter of the Final Accounting of Le Roy Parker, as Assignee of Henry I. Glowacki, App’lt.

      Le Roy Parker, assignee, in person; Henry F. Tarbox, for Nat. Bank of Genesee.
   Judgment affirmed, without costs to either party. All concur.

Affirming 30 N. Y. State Rep., 1022.


text:
      In re Judicial Settlement of Account of Phebe C. Haviland, Ex’rx, etc, App’lt, and of the Petition of Adelia Cocks, etc., Resp’t.

      Thos. Nelson, for app’lt; James A. Hudson, for resp’t.
   Judgment affirmed, with costs. All concur, except Haight, J., not voting.

Affirming 28 N. Y. State Rep., 889.


text:
    William T. Shackelford, Resp’t, v. Ann Eliza Mitchill et al., Ex’rs, App'lts.

      Julien T. Davies, for resp’t; John B. Parsons, for app’lts.
   Judgment affirm d, with costs. All concur.

Affirming 32 N. Y. State Rep., 67


text:
    William Collins, as Assignee, App’lt, v. Elisha W. Hydorn et al., Resp’ts.

      Geo. B. Wellington, for app’lt; Chas. B. Patterson, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 34 N. Y. State Rep., 574.


text:
    Mary E. McCollum, as Adm’rx, App’lt, v. The Mutual Life Ins. Co. of N. Y., Resp’t.

      Joel L. Walker, for app’lt; Robert Seicell, for resp’t.
   Judgment affirmed, with costs. All concur, except Haight and Brown, JJ., not sitting.

Affirming 28 N. Y. State Rep., 272.


text:
    Camilla G. Towns, as Adm’rx, Resp’t, v. The Rome, W. & O. R. R. Co., App’lt.

      W. V. Porter, for resp’t; Bdmund B’Wynn, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 124.


text:
    Mary E. Carroll, as Ex’rx, Resp’t, v. John Conley, Jr., App’lt.

      John Delahunty, for resp’t; Geo. R. Westerfield, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 31 N. Y. State Rep., 716.


text:
    Jeremiah Callaghan, as Adm’r, Resp’t, v. The Delaware, Lack. & W. R. R. Co., Impl’d, App’lt.

      M. B. Driscoll, for resp’t; Louis Marshall, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 29 N. Y. State Rep., 998.


text:
    Emeline Bowers, App’lt, v. William C. Smith et al., Ex’rs, Resp’ts.

      W. Frothingham, for app’lt; Bdwin Countryman, for rpsp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 346.


text:
    In the Matter of the Last Will of Jane K. Agar, Dec’d; Juliet M. Abels el al., Resp’ts, Christopher Agar, App’lt.

      J. Newton Mero, for resp’ts; Frank G. Ferguson, for app’lt.
   Judgment affirmed, with costs. All concur, except Parker, J., not voting.

Affirming 28 N. Y. State Rep., 985.


text:
    Filed March 3, 1891.
    Ann Farmer, as Adm’rx, Resp’t, v. The Emigrant Industrial Savings Bank and Anna A. Devlin, App’lts.

      Abram Kling, for resp’t;' Francis O. Devlin., for app’lts.
   Judgment affirmed, with costs, upon the opinion of Peckham, J , court of appeals, in Devlin v. Greenwich Savings Bank et al. All concur.

Affirming 32 N. Y. State Rep., 168.


text:
    George Dintruff, an Infant, Resp’t, v. The Rochester City & B. R. R. Co., App’lt.

      Walter S. Hubbell, for resp’t; Thomas Raines, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 33 N. Y. State Rep., 730.


text:
    Filed March 10, 1891.
    Catharine B. Pitt, as Adm’rx, App’lt, v. Charles Kellogg, Resp’t.

      Horace Seeor, Jr,, for app’lt; Geo. H. Fle'cher, for resp’t.
   Appeal dismissed, with costs. All concur.

See 33 N. Y. State Rep., 894.


text:
      In re Judicial Settlement of Philip R. Underhill, as Adm’r; Elizabeth R. Guion, Ex'rx, Appl’t, Philip R. Underhill, Admr, Resp’t.

      Alex. Tliain, for app’lt; A. B. Dyett, for resp’t.
   Appeal dismissed, with costs. All concur.

See 32 N. Y. State Rep., 1061.


text:
    John Mitchell, as Ex’r, Resp’t, v. David W. Knapp, personally and as Ex’r, Impl’d, App’lt.

      Howard D. Newton, for resp’t; GeorgeW. Bay, for app’lt.
   Judgment affirmed on opinion of general term, with costs. All concur, except Follett, Oh. J., not sitting.

Affirming 29 N. Y. State Rep., 999.


text:
    Filed March 17, 1891.
    Hiram Miller, Resp’t, v. Henry R. Pierson, Ind., and Robert C. Pruyn, as Assignee, App’lts.

      Geo. B. Wellington, for resp’t; Marcus T. Hun, for app’lts.
   Judgment reversed and new trial granted, with costs to abide the final award of costs, on opinion in Durant v. Pierson, 36 N. Y. State Rep., 463. All concur, except Vann, J., dissenting, and Potter, J., not voting.

Reversing 34 N. Y. State Rep., 203.


text:
    Thomas Ryan, as Adm’r, App’lt, v. The Long Island R. R. Co., Resp’t.

      Thomas Young, for app’lt; E. B. Hinsdale, for resp’t.
   Judgment affirmed, with costs. All concur, except Bradley, J., not voting, and Brown, J., not sitting.

Affirming 22 N. Y. State Rep., 655.


text:
    Emma M. Howarth, Resp’t, v. John H. Howarth, Adm’r, App’lt.

      A. M. Beardsley, for resp’t; 8. M. Lindsley, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 1134.


text:
    In the Matter of Proving the Last Will of Charlotte Bennett, Dec’d.

      Brands Larkin, for app’lt; Lent & Herrick, for .resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 164.


text:
    Herman Beeckel, Adm’r, App’lt, v. The Imperial Council of the Order of United Friends, Resp’t.

      W. A. Sutherland, for App’lt; Alfred Steckler, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 33 N. Y. State Rep., 434.


text:
    John W. Gibson et al., Ex’rs, Resp’ts, v. Anna A. McLaury et al., App’lts.

      Edwin D. Wagner, for resp’ts; George Adee, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 31 N. Y. State Rep., 1004.


text:
    Richard Farman, Resp’t, v. The Town of Ellington, App’lt.

      A. 0. Wade, for resp’t; Wm. H. Henderson, for app’lt.
   Judgment affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting.

Affirming 10 N. Y. State Rep., 840.


text:
    Filed March 20, 1891.
    Michael O’Gorman et al., Resp’ts, v. The National Fire Ins. Co., App’lt.

      J. B. O’Gorman, for resp’ts; P. W. Cutlin'm, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 31 N. Y. State Rep., 1005.


text:
    In the Matter of the Will of Richmond Simmons, Dec’d.

      A. P. Bose, for app’lt; Edwin Hides, for resp’t.
   Judgment affirmed, with costs to both parties out of the.estate. All concur.

Affirming 30 N. Y. State Rep., 446.


text:
    In the Matter of the Probate of the Last Will, etc., of John Connor, Dec’d.

      Aaron Pennington Whitehead, for app’lt; Frederic B. Qoudert, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 15 N. Y. State Rep., 443.


text:
    Supreme Court—General Term—First Department.
    Filed December 31, 1890.
    The First National Bank of Jersey City v. Frederick B. Bard.
   Motion granted.' The record must be corrected before re-argument.