text:
    CHARLES FURMAN and Others, Respondents, v. FELIX CUNNINGHAM, Appellant.

      Costs —• the plaintiff is entitled thereto, in an action for a violation of chapter 337 of 1878, although the recovery is less than fifty dollars^Code of Civil Procedure, sec. 3350.
    In an action to recover penalties for skimming milk before sending it to a cheese factory, under chapter 337 of 1878, which provides that whoever violates the provisions of the act “ shall forfeit and pay a sum not less than twenty-five dollars nor more than one hundred dollars, with costs,” the plaintiff recovered a judgment for forty dollars.

      Held, that he was entitled to costs.
    Appeal from an order setting aside costs taxed by the clerk in favor of the defendant, and directing them to be taxed in favor of the plaintiffs.
    The action was brought, under chapter 237 of 1878, to recover penalties incurred by the act of the defendant in skimming milk before sending it to a cheese factory. The plaintiffs had a verdict for forty dollars. The clerk thereupon taxed costs in favor of the defendant.

      Bwrke fib Kilburn, for the appellant.

      Gilbert (fit Kellas, for the respondents.
   By the Court :

¥e ale of the opinion that the statute, chapter 237, Laws 1878, which gives a penalty not less than twenty-five dollars nor more than $100 “ with costs of suit,” authorizes the recovery of costs in this case. Section 3250 of the Code leaves that statute unaffected by the provisions of the Code relative to the recovery of costs. “ The award of costs is specially regulated ” by that statute.

Order affirmed, with ten dollars costs and printing disbursements.

Present. — Learned, P. J., and Bocees, J.; Landon, J., not acting.

Order allowing costs, affirmed with ten dollars costs, and printing disbursements. •


source: Caselaw Access Project

author:
      Peckham, J.:
     Fish, J.,

license: Public Domain

text:
    ELLEN POMFREY, Respondent, v. THE VILLAGE OF SARATOGA SPRINGS, Appellant.

      Negligence — duty of a trawler to avoid a dangerous obstruction upon the sidewalk— what evidence establishes a dedication, of land for a street dfnd an acceptance thereof — 1866, chap. 320 — construction thereof.

    The plaintiff, while passing along a sidewalk in one of the streets in the defendant’s village, stepped upon a mass of snow and fell thereby sustaining injuries,, to recover damages for which this action was brought. The snow slid upon the sidewalk from the roof of a barn standing on the adjoining lot and formed, a bank of about three feet in depth and forty feet in length, breaking off sharply at the end. The bank had remained on the sidewalk some two weeks before the accident. Upon the trial the court refused to instruct the jury “that if the obstruction was visible and apparent to any passer-by the plaintiff was guilty of negligence in attempting to cross it,” and that “if the defect complained of was such as would be seen by any ordinary person passing along, the street it was negligence for the plaintiff to attempt to pass over the defect, but she should have gone around the same.”

      Held, that the court properly refused so to charge; that the question as to whether, under all the circumstances of this case, the plaintiff was guilty of negligence in attempting to pass over the bank was. properly left to the jury for its decision (Pish, J., dissenting.)
    The defendant denied that the place where the accident occurred was a part of a public street. The evidence showed that it was used as a part of a continuous street, and had been so used for many years, and that the defendant had constructed a sidewalk upon a portion of the street. The owner of a barn on a lot adjoining the place of the accident used the sidewalk in crossing to and from his barn to the street, and occasionally left carriages standing thereon. No formal acceptance of the land by the defendant was shown.

      Held, that the evidence justified the jury in finding a dedication and acceptance of the land. (Pish, J., dissenting.)
    By section 38 of the defendant’s charter (chap. 220 of 1866) the village superintendent is to have the care and supervision of all the streets, sidewalks, etc., and is to make a report to the trustees in each year as to their general condition, “with estimates of the probable expense to put them in good repair;”' he was also required to report “ the probable amount necessary to keep them all in good order during the coming year,” and by section 54 the board of' trustees were authorized to raise by tax not exceeding $5,000 “for the support of roads, bridges, culverts, streets, lanes and alleys within the village.”

      Held, that the board of trustees had power to raise money to remove dangerous-obstacles from the sidewalks in the village.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial-made upon tbe minutes of the justice before whom tbe action was tried-

      This action is brought and the recovery at circuit was for dam.ages sustained by the plaintiff by reason of injury resulting from a fall upon the sidewalk on the south side of Lake avenue, Sara-toga Springs. The complaint charges that her injury is due to the negligence of defendant as a municipal corporation, in permitting a dangerous- bank of snow and ice to accumulate .and remain on the sidewalk. There is no dispute but that Lake avenue is one of the streets of the village, under the charge, and under the jurisdiction of the village authorities, but it is denied ■that the particular place where plaintiff fell and received her injuries was so far a part of said highway as to be under village control. Evidence was given tending to show that about forty years .ago, a part of what is now Lake avenue was a common farm road leading from the village. At that time, James M. Andrews became and was the owner of the land on the south side' of the road, including that upon which the plaintiff met her disaster. His barns then stood about thirty feet from the highway. It seems there was a fence along the highway some thirty feet north of his barns. About that time Andrews moved the fence in to nearly a line with the north side of his barns, so that the barns would make the boundary of the street for one hundred feet or more. There never was any official action on the part of the village authorities accepting the land so thrown open as a public street. It assumed the control of it, however, and built a sidewalk along the Andrews line, except in front of the barns. Andrews continued to use the ground in front of his barns to drive carriages from the street to it, .-and left-and washed them there. The' public used it as a walk in and along his whole property, and he continued to use it as stated. His barns had slate roofs. When the snow fell in much quantity it would slide from the roof to the sidewalk in front, and, on the 9th of January, 1883, had accumulated by that means, so that at the highest point it was about three feet deep, and had grown hard and icy, and at each end made an ascent to get upon it and an equal descent to step down. In going over this mound of snow and ice plaintiff fell and received the injury complained of.

      Charles 8. Lester, for the appellant.

      L. B. Pilce, for the respondent.
   Peckham, J.:

I think this judgment should be affirmed.

First. The admission in evidence of the by-laws of .the village seems to me to have been an immaterial matter. If they furnished no method of obtaining funds to keep the streets in order, but merely provided that the adjoining owners should do so, as a piece of evidence they had no effect at all. An exception to their admission would not raise the question of defendant’s liability for a mere non-enforcement of its by-laws. This would have been raised by a request to charge that no such liability existed and an exception to a refusal so to charge.

Second. Under the circumstances in which the question to the witness Morris was put, I think no error occurred in permitting its answer. The witness was asked regarding the condition of the place on the ninth of January, when the accident occurred, and for two weeks prior thereto. The witness described it and then added: I speak from ■experience; I know that to be a fact. He meant that he knew the description he had just given of the condition of the street at this point was accurate, as he spoke from experience. The question was then put, “you fell there yourself ? ” and he said “I fell once.” It is evident that he was stating the condition of the sidewalk on the ninth January, and for two weeks prior thereto and that his fall was during that time and that substantially there was during that time no change of condition.

Third. There was no error in refusing to instruct the jury “ that if the obstruction was visible and apparent, to any passer-by, the plaintiff was guilty of negligence in attempting to cross it.” Nor was there any error in the refusal to charge that “ if the' defect complained of was such as would be seen by any ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect, but she should have gone around the same.”

"Whether plaintiff was guilty of negligence in seeking to pass over the obstruction, even when she saw it, was a question of fact. A person who, in the lawful use of a highway, meets with an obstacle therein, may yet proceed, if it be consistent with reasonable care so to do, and generally this is a question of fact depending upon the nature of the obstruction and all the circumstances surrounding the party. I do not say there can be no case wnere the danger in going forward would be so great and so perfectly apparent, that any one persisting with knowledge in doing so would, as matter of law, be guilty of negligence, but I think this is no such case.

The case of Griffin v. The Mayor of New York (9 N. Y., 456) is not in point. The obstacle was such in that case that no ordinarily prudent man would have made the attempt to drive over it, as the attempt was almost certain to result in an accident.

This case is much like that of Dewire v. Bailey (131 Mass., 169), and the remarks of the court therein I fully assent to. (See, too, Weed v. Village of Ballston, 76 N. Y., 329; Minick v. City of Troy, 83 id., 514, and also the cases cited by the court in 131 Mass., supra.)

The obstruction seems to have been an accumulation of snow and ice on the sidewalk, and going the whole way across, so that to entirely avoid it one would have to go out in the street as distinguished from the sidewalk. When such an obstruction is seen by the passer-by, although -he may see that it is harder or more dangerous even to cross than a perfectly level and smooth walk, yet I cannot assent to the proposition that keeping on and making a careful and cautious effort to cross the obstruction is in all cases negligence as matter of law instead of being a simple question of fact. In Durkin v. City of Troy (61 Barb., 437, at page 454) the court describes the place where the accident happened, and it appeared that the plaintiff saw the obstruction or the icy place, and was warned of it at the time.

The requests of the defendant’s counsel in this case took from the jury any question as to whether in fact the plaintiff did see the difficulty in the way, or that it was dangerous to pass over it, and if she did not see it or know that it was dangerous, whether she had any excuse for failing to see or to notice its dangerous qualities. Our courts have held that mere knowledge previously obtained of the existence of an obstruction or of a dangerous place in the street did not necessarily show that plaintiff noticed it at the time of the accident, and whether if the plaintiff did not notice the obstruction, she would then be guilty of negligence has been held to be a question of fact. (See Driscoll v. The Mayor, 11 Hun, 101; Thomas v. The Mayor, 28 Hun, 110; Evans v. City of Utica, 69 N. Y., 166; McRickard v. Flint, in Ct. of App., reported 20 Weekly Dig., at p. 328,)

In 69 New York (supra) the Court of Appeals holds that mere knowledge of the existence of ice does not render the person negligent as matter of law in attempting to pass. In that case somewhat similar requests were made and refused. I think the right disposition was made of the requests by the modification of them by the judge. There was no error, therefore, in refusing the requests, for even if the obstructions were apparent, and such as an ordinary person might see, yet possibly the plaintiff in passing along, intent on her business and assuming the safety of the street, did not notice its dangerous condition, and if she did not, whether she was excused from such notice, was a question for the jury. In other words, taking the whole circumstances of the case into consideration, the question as to the negligence of the plaintiff was one for the jury and not for the court. The requests of the defendant’s counsel were properly modified by the learned judge, and there was-no error in his disposition of the whole question. .

Fourth. To my mind it is plain that the evidence made a dedication and acceptance of the street and the locus in quo. Certainly the jury m coming to that conclusion, under the charge of the learned judge, agreed upon no verdict which was against the evidence. The fact plainly appears that the strip in question forms part of a continuous line of street which has been controlled by defendant for years. It is equally plain that the only user of the strip, by the original owner or his assigns, was to cross the sidewalk in obtaining access tp his barn from the street, just the same thing that is done by every owner of property on a street, access to which by carriage is across the sidewalk. The evidence does not show that Mr. Andrews exercised control over this spot. It simply shows that he placed his wagons and sleighs on and at times somewhat obstructed the clear passage over the sidewalk, so that persons in passing along might occasionally have to go around this temporary obstruction. This is frequently done by persons who have made no claim to any right to the sidewalk, and is not necessarily any such control over the land as to take it out of the description of a village street. At most it is evidence bearing upon the question of dedication and acceptance, which question was submitted to the jury. As to the claim that a dedication must, under the evidence, have been made subject to the right to obstruct the street or sidewalk by snow which had fallen from the barn, I regard it as not well founded, certainly not so well founded from the evidence as to make it a matter of law that no legal and unconditional dedication and acceptance had been proved.

Fifth. The last proposition of the defendant, that there was no way of raising funds for the keeping of the streets free from a dangerous accumulation of snow and ice, I do not regard as well founded. By section 38 of the charter (chap. 220 of 1866) the village superintendent must within ten days prior to the annual village election report in writing to the trustees the condition of the *' * * sidewalks * * * with the probable amount necessary to keep them all in good order during the coming year. It is not keeping them in good order to permit a dangerous accumulation of snow and ice in any of such streets. By section 54 the trustees are authorized, for the purpose of providing the means of sustaining the several departments and defraying the expenses of the corporation, to levy and collect an annual tax, not exceeding $5,000, for the support of roads, bridges, culverts, streets, lanes and alleys within the village. This language include's the sidewalks of streets, and the expression for the support of streets,” etc., when thus used, means keeping the whole street, including sidewalks in order, and keeping such places in order includes the removal of dangerous obstacles therefrom. There was no proof of a want of funds in this department, or for the purpose of the support of roads, streets, etc. A question was, indeed, put to the superintendent of the village whether he had at the time of the accident funds in his hands for the purpose of the cleaning of sidewalks, and he said he had not. The answer to this question was as the case shows, simply an opinion of the superintendent and not a mere statement of fact, and the superintendent, while paving plenty of funds for the support of roads, streets, etc., may have supposed such funds not applicable to cleaning sidewalks. This is made entirely clear when in answer to the question : “You say you had no money in your hands for the purpose of keeping snow and ice off the street ? ” the witness said, no, sir;” and to the additional question, “ Did you ever have ? ” He said again, No, sir.” It is plain the witness was of the opinion that money raised for the purpose of providing the means of ■ sustaining the several departments and defraying the expenses of the corporation by the trustees, and some of it devoted to the support of roads, streets, etc., did not include a purpose of removing obstructions in a sidewalk if composed of accumulations of ice and snow. In this construction we think the superintendent erred.

It appears, therefore, that there were methods provided by law by which funds could be raised for the purpose, among other things, of keeping the streets and sidewalks in good order, and it does not appear that the funds which the trustees were authorized to raise for this purpose were insufficient or had become exhausted. This fact should have been shown if it existed. (Hines v. City of Lockport, 50 N. Y., 236.) No defense, therefore, is made out on the ground of a lack of funds.

There are no other questions, and I think the judgment should be affirmed, with costs.

Learned, P. J., concurred.

Fish, J.,

dissenting:

The first and perhaps the most important question to be decided is whether the action of Andrews in setting back the fence along the street had so far dedicated the land to the public that the village authorities had control of the groimd along the frontage of his ha/rn / and had the village authorities so far accepted the dedication as to make it liable for injuries occasioned by its being left in a dangerous condition at that particular place. There does not seem to be much dispute about the facts.

To make a dedication complete there most be concurrent and mutual action on the part both of the owner and of the public authorities. There must be not only a setting apart and surrender to the public use, of the land by the owner, but also an acceptance by the public authorities to be evinced either by a formal opening or acts of user. (Holdane v. Cold Spring, 21 N. Y., 474; Bridge Co. v. Bachman, 66 id., 261.)

The acts and declarations of the owner must be unmistakable in their purpose and decisive in their character before it can be claimed that an owner has parted with his title so as not to be able to reclaim it. And until there has been an acceptance, and both parties have taken definite action, the owner may change his purpose and reclaim his land.

Under the facts as proved, and which remain uncontradicted, I do not see how the village authorities could drive Andrews from the strip of land in front of his barns or compel him to remove obstructions, or, in fact, interfere in anywise with his jurisdiction over it. He owned the land and saw fit to set his fence back, throwing about thirty feet in width open, and which generally, as matter of fact, became and was used as part of an enlarged street. But the space in front of his barns he continued to use and has continued to use. The snow from his roofs has continued to slide off upon the ground along them, and he has been accustomed, as he saw proper from time to time, to remove the snow. According to the proofs, there has been no break in the user since he set back his fences.

Assume that there was a sufficient dedication of the general tract, if it was his mind and he so acted as to retain control of the space in front of his buildings, he continued to hold it as matter of right, even though foot passengers were allowed to pass over it and use it as a sidewalk. The use of the public was subordinate to his. This being so, the village corporation cannot be blamed for that part of the premises being out of repair, or even in a dangerous condition. So much of the land so thrown open by Andrews as was taken possession of by the village authorities and improved, including the sidewalks extending each way from his barns, may be regarded as irrevocably dedicated to the public use as a part of the street; but it is difficult to see how the space in front of his barns, where plaintiff was injured, which Andrews had continued to occupy a/nd use in the ma/nner described, cam, be held to home gone beyond his control. If there was any dispute as to the facts, the question might have been well left to the jury to say whether the dedication of the particular space in front of the barns was complete; but the facts in relation to his manner of using it are uncontradicted and undisputed. A jury would not be justified in finding the fact against the evidence. If this view is correct the recovery of plaintiff cannot be sustained, and it may not be necessary to review the other questions raised by the appellant.

There is, however, another difficulty in the way of plaintiffs recovery. The accident to plaintiff occurred in the day-time when the whole street was plain to be seen, a street sixty feet wide. The only obstruction complained of was the accumulation of snow hardened so as to become slippery, which occupied the space in front of Andrews’ barns for about 100 feet. According to the strongest proof the bank of snow and' ice was about three feet deep at the highest point. In passing over it the passenger was required to.go up a grade of about five feet at either end, and get down the same distance at the opposite end. Whatever there was of it was plain to be seen. It is not claimed that the plaintiff had defective sight. Defendant’s counsel requested the court to charge the jury that “ if the defect complained of was such as would be seen by an ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect.” Also, that if the obstruction was visible and apparent to any passenger, the plaintiff was guilty of negligence in attempting to cross it.” The court refused to so charge and counsel excepted.

The meaning of the language of the requests as quoted may not be entirely clear if taken literally. But I think the fair import and scope of the language is to the effect that if the jury find as a matter of fact that the dangerous obstruction was plain to be seen by any person who approached it, including the plaintiff, she ought to have seen it and avoided it. And if under such circumstances she did not do so, but with the difficulty plain before her she attempted its passage, sheotook the risk of the' attempt. And in such case the jury ought to find that she was guilty of contributory negligence. The law will presume that plaintiff had ordinary eyesight and capacity to see a dangerous place and was, in all respects, in the normal condition of ordinary people until the "contrary is made to appear. If she had defective eyesight she should have shown it on the trial.

The decision at circuit implies that a passenger may encounter any dangerous obstacle in the highway or on the sidewalk, and with all the dangers attendant upon the attempt to pass over plainly apparent, and with plenty of room to pass around and avoid the dangerous ground, may yet make the attempt without incurring the charge of bringing upon himself or herself the result of the attempt. It seems like an unsafe rule, and, jf adopted as the law, will tend largely to exempt the passenger from the requirements of reasonable care and prudence. Especially in this northern latitude, where ice and snow accumulate in the wintry season faster than man can remove it, it would seem that every person ought to be put on good behavior in that regard, and the law should bid people always to avoid danger when they can plainly see it ahead. If they voluntarily and unnecessarily venture to make contact with the perils of the situation, they must assume all the risks attendant upon it. Tt is not at all like unto the case where the true situation is not plainly discernable, and where the passenger has a right to rely upon the ground being safe ■ and free from dangerous obstructions, as in the traveling ground in front of a railroad passenger station.

The plaintiff, in her complaint, charges that this bank of hardened snow and ice was raised above the level of the sidewalk in such a manner as to greatly endanger the life and limb of a passenger, and her proof is directed to showing that the place was dangerous to pass, and that it had been in that same situation for several weeks, and so long that the village authorities are chargeable with constructive notice of its condition. The village is only liable after notice of the dangerous condition, and the notice in this instance is to be inferred from the long period it had so remained. If the village trustees are chargeable with notice, the plaintiff had the same opportunity to know. The obstruction was one she could not help seeing. The ruling in this case, in substance, holds that the plaintiff, knowing and plainly seeing.that there was a dangerous place in the sidewalk, with ample room to pass around it (as plainly appears in the case), could nevertheless take the chances of danger in passing over it, and yet be entirely free from the charge of contributory negligence. This does not accord with the spirit of the rule always maintained, that in places of danger it behooves the individual to exercise caution and prudence to avoid the danger when it can be avoided.

The only theory of a cause of action in this case is that the loons in quo was a dangerous place, plain to be seen, dangerous to life and limb. It had remained so long that everybody should be presumed to know it. The plaintiff did know it. I think in such case where the plaintiff, instead of going around and avoiding the dangerous place, made the attempt to pass over it, she took the risk of all accidents and assumed all the perils of the attempt. (Griffin v. The Mayor, 9 N. Y., 456; Durkin v. City of Troy, 61 Barb., 437.) That was an action for an injury caused to plaintiff from slipping down on a sidewalk in the city of Troy. There was a recovery at the circuit, but the General Term, Third Department, reversed the judgment, and the learned judge who wrote the opinion of the General Term declares the obstruction was therefore one to be-avoided by those using the sidewalk, and seeing or being able to see the ice, and, if it could readily be avoided, the failure to avoid it by one using the sidewalk, and plainly seeing the obstruction,, must be accounted negligence.”

In that case, at circuit, the defendant’s counsel requested the circuit judge to charge as matter of law, if immediately previous to the accident the plaintiff knew or had noticed that there was ice there, and then took the risk of passing over there safely, he cannot recover.” This request was refused and defendant’s counsel' excepted.

The General Term held this to be clearly errdr, and in commenting upon it, the court say: If the ice presented a dangerous-obstruction, which the defendant was bound to do away, by removal' or some other means, so that it was negligence on its part to-leave it on the sidewalk, it must follow that it was negligence-, on the part of plaintiff voluntarily and unnecessarily to venture upon the dangerous obstruction, however carefully he might-attempt to carry himself upon it.” That case went back to the-circuit where, on second trial, the plaintiff was nonsuited, and that ended the litigation.

Almost precisely this ruling has prevailed in the leading States-of the Union, outside of New York. Massachusetts, Illinois and Pennsylvania have held to the rule above stated, and fixed it as a principle of law well settled. (See Magill v. City of Erie, 2 Am. and Eng. Corporation Cases, 579; S. C., 101 Penn. St., 616, a very modern decision by the Supreme Court of Pennsylvania.) There it was held, as matter of law, that “ a foot passenger on the sidewalk of a city street, who with full knowledge of the dangerous character of an obstruction on the pavement, deliberately attempts to walk over it when he could have avoided it by a slight detour into the street and who falls and is injured in such attempt is guilty of contributory negligence per seP (And see, also, Fleming v. City of Lackhaven, in Supreme Court, Penn., 19 Am. Law Review, 162.)

The leading cases relied on by the plaintiff in this case are not in conflict with the principle decided in Durkin v. City of Troy (supra). In Evans v. City of Utica (69 N. Y., 166) the judge at ■circuit charged the jury in substance as was requested in this case. As thei’e was conflicting evidence as to whether the plaintiff in that case could see the danger before he got into it, the court left the question to the jury. In that case the accident occurred in the evening when it was dark and no lamps lighted. So in Driscoll v. The Mayor (11 Hun, 101) there was a hole in the sidewalk which plaintiff’s intestate fell into and was thus injured and died. The accident occurred in the nighttime when it was difficult to see. And for that reason the court left it to the jury to say whether, even though she had before then known that the hole was there, her mind at that particular time might not have been so engrossed with business matters that~from inadvertence she omitted to notice the hole. If in that case the dangerous spot had been a prominent object, and the party encountered it in the day time, the decision might have been different. So in Thomas v. Mayor (28 Hun, 110) the plaintiff was injured by a fall caused by a dangerous spot of ice in the sidewalk. He knew the ice was there a day or two before and avoided it. On the day of the accident it appeared that the sidewalk at that place was crowded, and he did not notice the ice until he came upon it. For that reason it was left to the jury to say whether under the circumstances he was guilty of negligence in making the attempt to cross. In the case of Mrs. Pomfrey, if the casualty had happened in the night time when it was so dark that she could not have seen or noticed the dangerous obstruction, or if there had been a crowd in the way so that her vision was obstructed, there might be some reason in regarding it as an open question of fact for the jury.

Under the circumstances of this case I think the court at circuit ought to have charged as requested or taken the still bolder ground, as the facts appeared, that, as matter of law, it was a case of negligence on the part of the plaintiff to attempt crossing the place that she knew and could plainly see was dangerous.

There are several other questions raised by the defendant’s counsel relative to the admission of evidence on the trial, and a very grave question as to the powers conferred by defendant’s charter, and the duty of defendant in clearing the sidewalks of ice and snow, which in view of the conclusion I have arrived at above I omit to examine.

I conclude the judgment ought to be reversed.

Judgment and order affirmed, with costs.


author: Peokham, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES HORACE JONES, Appellant.

      Appeal from a judgment convicting a defendant of murder in the first degree— duty-of the appellate court to grant a new trial if the verdict be against law or if justice requires a new trial — when the expense of preparing the case will be charged upon the county.

    Appeal from a judgment of the Court of Oyer and Terminer of Rensselaer county, convicting the defendant of the crime of murder in the first degree.
    The court at General Term said: “ The respondent herein was convicted of murder in the first degree at a Court of Oyer and Terminer, held in Rensselaer county, for the killing of his wife on the 3d day of July, 1884, at the city of Troy. He has appealed to this court from the judgment entered upon such conviction. The question that was most strenuously argued by his counsel was that the verdict was against the weight of evidence, and that it should not have been for a higher crime than that of murder in the second degree. Upon the'coming in of the jury and the delivery of their verdict a motion was made by counsel for the prisoner for a new trial on that ground, which was denied and an exception duly taken.
    “Under section 527 of the Code of Oriminal Procedure, as amended by chapter 360, Laws of 1882, this court must review that decision, and the same section makes it our duty to grant a new trial if the verdict be against law, or if justice require a new trial whether any exception be taken or not. This section grants new and very extensive powers to an appellate tribunal, and they should be exercised with great circumspection. The case ought to be exceedingly clear, which would authorise the court to grant a new trial upon the-general ground that justice requires it. It is much broader than the power to grant a new trial where the verdict is thought to be ■against the weight of evidence, and in both cases the verdict of a jury should be regarded with high consideration as the decision of a tribunal to which questions of fact are properly confided. It is not thought that the danger of error against a prisoner upon a 'mere question of fact, is very imminent and at all events the whole theory of our law is based upon the great weight to be attached to the conclusions of a jury, and especially is this the truth with regard to verdicts in criminal cases. The safety of a civilized community lies largely in the prompt and stern administration of the criminal law. The more enlightened spirit of the age has been manifested from time to time in the mitigation by legislative act of the severity of the punishments for crime, but I think the enforcement of the laws should be the speediest possible, consistent with a due regard for the rights of the accused to enable him to have a fair trial, and when convicted the punishment should be alike certain and prompt. To grant a new trial upon either of the grounds alleged, the case ought to be free from any reasonable doubt, and consequently if there be simply a balanced case or perhaps one where the court might have come to a different conclusion upon the fact, the verdict of the jury, especially where it is satisfactory o the judge who tried the case, manifested by a denial of a motion for a new trial on such grounds, should stand confirmed. It has become necessary therefore to examine the evidence returned herein for the purpose of deciding these questions. This we have done.”
    After examining the evidence and holding that justice did not require that a new trial should be granted, the court proceeded: “ Under the law as it stood for a long number of years prior to the passage of the Code of Criminal Procedure this case would not probably have come here for review. But in capital cases the legislature has enacted that the mere filing of -a notice of appeal stays the execution of the sentence until its determination. This appeal was taken and it then was made to appear to this court that the prisoner was so poor as to be unable to print the case and thus .to properly present it for review. We became satisfied that such was the fact, and m carrying out the policy of the legislature to afford a review in all capital cases by the court of last resort, if desired by the convict or his counsel, we ordered the case to be printed at the expense of the county of Rensselaer and the money to be taken from the fund to pay the expenses of the courts in such county. This appeared to us to have been the only course left open.
    “We think the appeal entirely without merit, but so long as the policy of the legislature remains unchanged it assumes that in all cases, meritorious or otherwise, and whether the criminal is rich or poor, he shall never be made to suffer death until his case, at his own option, has been passed upon by the Court of Appeals. If this policy is to be changed it is the legislature that must change it.”

      Wm. J. Ludden, for the appellant.

      La Mott W. Rhodes, district attorney, for the respondent.
   Opinion by

Peokham, J.

Present — •Bookes, P. J., Landon and Peokham, JJ.

Judgment affirmed, and proceedings remitted.


author: Smith, P. J.;

text:
    The People of the State of New York, Respondents, v. Franz Joseph Petmecky, Appellant.
   Judgment and conviction affirmed, and decision and return remitted to the Court of Oyer and Terminer of Cayuga county. Opinion hy

Smith, P. J.;

dissenting opinion by Barker, J.


author: Bradley, J.;

text:
    Edward M. Jewett, Respondent, v. Jeremiah C. Lamphier, Appellant.
   Judgment and order affirmed. Opinion by

Bradley, J.;

Barker, J., not sitting.


author: Barker, J.

text:
    Frederick Haake, Respondent, v. Frank T. Reynolds and others, Appellants.
   Order reversed and new trial granted in the Erie County Court, costs to abide the event. Opinion by

Barker, J.


author: Bradley, J.

text:
    Charles Hawley, Respondent, v. The Pittsburg, Titusville and Buffalo Railroad Company, Appellant.
   Judgment of the County Court and that of the justice reversed. Opinion by

Bradley, J.


text:
    Ethel L. Lyon, Respondent, v. James A. Wing and another, Appellants.
   Judgment reversed on a question of fact and new trial ordered before another referee, costs to abide the event. Opinion by

Smith, P. J.;

Haight, J., not voting.


text:
    John Birmingham, Respondent, v. Mary Gorman, Appellant.
   Judgment reversed and new trial ordered before another referee, coBts to abide the event. Opinion by

Bradley, J.


author: Haight, J.

text:
    Maria Evans, Respondent, v. Charles Demming, Appellant.
   Judgment reversed and new trial ordered in the County Court of Allegany county, costs to abide the event. Opinion by

Haight, J.


text:
    Alice J. Taylor, Appellant, v. Andrew J. Palmer, Respondent.
   Order affirmed, with costs. Opinion hy

Smith, P. J.;

Barker, J., not sitting.


text:
    Michael Hess, Respondent, v. Charles Burroughs, Appellant.
   Judgment affirmed; no opinion.


text:
    Elizabeth M. Chapman, Appellant, v. The Village of Silver Creek, Respondent.
   Order reveled, with costs. Opinion by

Bradley, J.


author: Smith, P. J.

text:
    Emily E. Kinney, Respondent, v. William Schwartz, as Administrator, etc., and others, Appellants.
   Appeal from order of substitution dismissed, with ten dollars costs of that appeal against the administrator, and judgmentaffirmed, with costs against the appellant. The costs charged upon the administrator to be paid out of the estate of the intestate in her hands. Opinion by

Smith, P. J.


text:
    Lucy Wainman, Respondent, v. Isaac Hampton, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Haight, J.


text:
    Levi Maxfield, Respondent, v. George W. Terry, Appellant.
   Judgment and order affirmed. Opinion by

Smith, P. J.


author: Barker, J.;

text:
    Henry Clews, Appellant, v. Walter L. Sessions, Henry Sheldon and others, Respondents.
   Judgment and order appealed from in each case affirmed. Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    Alonzo J. Aldrich, Respondent, v. The Home Insurance Company, Appellant.
   Judgment affirmed. Opinion by

Haight, J.


text:
    Willoughby Derr, Appellant, v. Alonzo B. Cooley and others, Respondents.
   Judgment as to the custody of the child affirmed, with costs of the action, prior ro the bringing of this appeal, to the defendants, and the judgment, so lar as it relates to compensation, reversed and a new trial ordered as to the issues on that subject before another referee, the costs of this appeal and of the new trial to abide the event. Opinion hy

Smith, P. J.


text:
    John Hanna, Respondent, v. Amos C. Sanford, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide the event Opinion by

Barker, J.


text:
    Mary C. Hyde, Respondent, v. Abram Eckler, Appellant.
   Judgment affirmed, with costs, with leave to the defendant to answer in twenty days, on payment of the costs of this appeal and of the demurrer. Opinion by

Smith, P. J.;

Haight, J., not voting.


text:
    Mortimer Ely v. Leander S. Phelps.
   New trial denied and judgment for the defendant on the verdict. Opinion by

Bradley, J.;

Barker, J.v not sitting.


author: Haight, J.;

text:
    Joshua J. Towle, Respondent, v. The Springfield Fire and Marine Insurance Company, Appellant.
   Judgment affirmed. Opinion by

Haight, J.;

Barker, J., not .sitting.


text:
    Solomon Longyer, Plaintiff, v. The United States Life Insurance Company of New York, Defendant.
   New trial granted, costs to abide-event. Opinion by

Barker, J.


text:
    David H. King, Plaintiff, v. The United States Life Insurance Company of New York, Defendant.
   New trial denied and judgment ordered for the, plaintiff on the verdict. Opinion by

Barker, J.


text:
    John Kelly, Respondent, v. The Agricultural Insurance Company, Appellant.
   Judgment and order reversed and new trial granted, costs to abide event, uuk’ss the plaintiff stipulates within twenty days after the service of the order on him to reduce the judgment by deducting therefrom $233.75 as of the time of rendering the verdict, and in that case the judgment as so reduced affirmed, without costs of this appeal to either party. Opinion by

Bradley, J.;

Haight, J., not sitting.


text:
    In the Matter of the Petition of Lewis H. Clark, a Tax-payer, etc., Appellant, v. Andrew F. Sheldon, as County Treasurer of Wayne County, Respondent.
   Order affirmed, with costs. Opinion by

Smith, P. J.


text:
    Anton Stadler, Respondent, v. Hiram Burchard, Appellant.
   Judgment oi the County Court and that of the justice reversed. Opinion by

Barker, J.


text:
    The Town of Wheatland and others, Respondents, v. Henry A. Taylor, Appellant.
   Order affirmed, with ten dollars costs and disbursements, to be paid by the appellant. — Opinion by

Smith, P. J.;

ilaight, J., not silting.


author: Barker, J,

text:
    Susan E. Hyland, Respondent, v. John H. Carpenter and others, Executors, etc., Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Barker, J,


text:
    Mary J. Coombs, Appellant, v. Benjamin F. Bowen, as Administrator, etc., and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Haight, J.


text:
    John Coombs, Appellant, v. Benjamin F. Bowen, as Administrator, etc., and others, Respondents.
   Judgment affirmed, with costs.


text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railway Company to Acquire Lands of Dwight E. Hemingway and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Bradley, J.


text:
    Henry D. Tucker, Respondent, v. Alfred Ely, Appellant.
   Judgment and order reversed- and new trial ordered in the County Courts of Monroe county, costs to abide the event. Opinion by

Haight, J.


text:
    The People of the State of New York ex rel. Dunkirk and Fredonia Railroad Company v. The City of Dunkirk.
   The assessment and the confirmation of it by the common council affirmed, with costs and disbursements to the relator, which are fixed at fifty dollars. Opinion by

Bradley, J.;

Barker, J., not sitting.


text:
    In the Matter of Proving the Alleged Will of Lucius Waldo, Deceased.
   Decree of surrogate reversed and issues ordered to be tried at the Steuben Circuit before a jury. The form of the order to be settled by Mr. Justice Barker. Opinion by

Barker, J.


text:
    The Rochester Flour City Savings and Aid Association, Respondent, v. Crescentia Gomo, Appellant, Impleaded, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Barker, J.


text:
    In the Matter of the Judicial Settlement of the Accounts of William C. Tallmage, Executor, etc., of Charles Tibbitts, Deceased.
   Decree affirmed, with costs. Opinion by

Haight, J.


text:
    John Grant, Appellant, v. James Keep, Respondent.
   Judgment of the County Court and. that of the justice reversed. Opinion by

Bradley, J.


text:
    Benjamin Gould, Plaintiff, v. The Cayuga County National Bank of Auburn and others, Defendants.
   New trial ordered, costs to abide the event. Opinion by

Barker, J.


text:
    The Keuka Navigation Company, Appellant, v. Jane Holmes, Respondent.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    Lydia A. Robbins, Appellant, v. Daniel Hartnet, Respondent.
   Judgment of the County Court reversed aud that of the justice affirmed, with costs. Opinion by

Smith, P. J.


text:
    The Board of Commissioners of the City of Auburn, Respondent, v. Cary S. Burtis and others, Appellants.
   Judgment and order affirmed. Opinion by

Barker, J.;

Haight, J not voting.


author: Haight, J.♦

text:
    Hobart F. Atkinson, as Receiver, etc., Apellant, v. Milton Stafford, Respondent.
   Judgment and order affirmed. Opinion by

Haight, J.♦

Smith, P. J.. taking no part.


text:
    The First National Bank of Batavia, Respondent, v. Horatio N. Ege and others, Appellants.
   Judgment reversed and new trial ordered bofore another referee, costs to abide event. Opinion by

Barker, J.


text:
    David Soule and others, Appellants, v. Samuel Osterhoudt and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Haight, J.;

Barker, J., not sitting.


text:
    John Tufts, Appellant, v. Holmes C. Lucas, Respondent.
   Judgment and order reversed and new trial ordered in the County Court of Ontario county, coBts to abide event. Opinion by

Haight, J.


text:
    Margaret C. Remington, Respondent, v. William H. Walker, Executor, etc., Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Bradley, J.


text:
    Isabella Mead, Respondent, v. Isaac J. Stratton and others, Appellants.
   Judgment affirmed, with costs, with leave to the defendant to answer within twenty days, on payment of costs of the demurrer and of this appeal. Opinion by

Haight, J.


text:
    David Rose, Respondent, v. John Rose, Appellant.
   Judgment affirmed, with costs. Opinion by

Bradley, J.


author: Smith, P. J.'

text:
    Dennis McCarthy and others, Appellants, v. Leander Pitts and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.'


text:
    Joel Wheeler and others, Appellants, v. William W. Lawrence, Respondent.
   Judgment affirmed. Opinion by

Barker, J.


text:
    Henry Nugent, Respondent, v. Ely B. Jacobs, Appellant.
   Judgment affirmed, with costs. Opinion by

Bradley, J.


text:
    Henry D. Tucker, Respondent, v. Caroline L. Ely and others, Appellants.
   Judgment and order affirmed. Opinion by

Haight, J.


author: Smith', P. J.;

text:
    George W. Funk, Appellant, v. John W. Alexander, Respondent.
   Judgment modified as indicated in the opinion, and as modified affirmed, without costs oí the appeal to either party. Opinion by

Smith', P. J.;

Haight, J., not voting.


text:
    Edward Madden, Respondent, v. Charles B. Benedict, Appellant.
   Judgment and order affirmed. Opinion by

Smith, P. J.;

Barker, J., not sitting.


author: Per Curiam

text:
    Jacob Falkel v. George Moore and others.
   Motion for reargument denied.

Per Curiam

opinion left with clerk.


text:
    Maggie Scott McNaughton, by Guardian, etc., Appellant, v. James Frazer, Executor, etc., and others, Respondents.
   Order reversed and decree opened in the particulars mentioned in the opinion. Order to be settled and opinion by

Bradley, J.


text:
    William T. Merrill, Respondent, v. Edmund F. Clark and another, Appellants.
   Judgment modified by deducting therefrom the sum of $400, as of the date of the decision, which was allowed for a deficiency, and as modified affirmed, without costs of this appeal to either party.

Corlett, J., dissents and reads an opinion.


author: Corlett, J.;

text:
    Amelia A. Bartholomew, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by

Corlett, J.;

Smith, P. J., not sitting.


text:
    William Burke, Appellant, v. John Quinn, Respondent.
   Judgment affirmed. Opinion by

Bradley, J.;

Smith, P. J., not voting.


text:
    Perry J. Tobin, Respondent, v. James H. Fisher, Appellant.
   Judgment of the County Court and that of the justice reversed. Opinion by

Barker, J.;

Smith, P. J., not sitting.


text:
    Nathan P. Pond, as Assignee, etc., Respondent, v. Chauncey C. Starkweather and others, Appellants.
   Judgment and order affirmed. Opinion by

Barker, J.;

Smith, P. J., taking . no part.


author: Corlett. J.

text:
    John A. Campbell, Respondent, v. Edmund Kelly, Appellant.
   Judgment affirmed. Opinion by

Corlett. J.


author: Bradley. J.

text:
    William T. Stout, Appellant, v. James Liddell, Respondent.
   Judgment affirmed. Opinion by

Bradley. J.


author: Corlett, J.

text:
    Peter W. Dafoe, Respondent, v. Marvin L. Hess, Appellant.
   Judgment and order affirmed. Opinion by

Corlett, J.


text:
    Thomas R. Boone, Respondent, v. Joseph F. Kalb, Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    The Commercial Bank of Keokuk, Iowa, Respondent, v. Christian Pfeiffer and others, Appellants.
   Judgment affirmed. Opinion by

Bradley, J.;

Barker, J., not sitting.


text:
    The Third National Bank of Buffalo, Appellant, v. Lucien T. Cornes and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    James H. Polley, Plaintiff, v. The City of Buffalo, Defendant.
   A new trial denied and judgment ordered for the plaintiff on the verdict. t Opinion by

Corlett, J.


text:
    William Sutherland and others, Appellants, v. Cady E. Reed and others, Executors, etc., Respondents.
   Judgment affirmed, with costs. Opinion by

Corlett, J.


text:
    John A. Stetson, Jr., Appellant, v. William A. Weaver and others, Respondents.
   Judgment affirmed. Opinion by

Corlett, J.


text:
    Persons S. Barnard, Respondent, v. Frank N. Farnham and others, Appellants.
   Order affirmed. Opinion by

Corlett, J.;

Barker, J., not sitting.


author: Barker. J-.

text:
    John Hilton, Respondent, v. William H. Scott, Appellant.
   Judgment aud order affirmed. Opinion by

Barker. J-.


text:
    John Simpson and others, Respondents, v. John Chadwick, Appellant.
   Judgment modified as indicated in* the opinion, and as modified affirmed} without costa of this appeal to either party. Opinion by

Smith, P. J.


author: Dwight, J.,

text:
    Edward Brick, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, on opinion of

Dwight, J.,

denying

new trial;

Smith, P. J., taking no part.


text:
    Robert Gilbert, Respondent, v. John B. Manning, Appellant.
   Judgment reversed and now trial ordered in Erie county, costs to abide the event. Opinion by

Corlett, J.


text:
    Sarah Jane Hays, Respondent, v. Thomas Maytham, Appellant.
   Judgment affirmed. Opinion by

Bradley, J.


author: Smith, P. J.;

text:
    Clara A. Abbey, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by

Smith, P. J.;

Barker, J., not sitting.


text:
    Lewis C. Wagner, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.;

Bradley, J., not sitting.


author: Bradley, J.

text:
    Hiram Armstrong and others, Plaintiffs, v. Charles O'Connor, Defendant.
   New trial denied and judgment ordered for the defendant on the verdict. Opinion by

Bradley, J.


text:
    Elizabeth Pierce, as Administratrix, etc. Plaintiff, v. The Rawson Manufacturing Company, Defendant.
   New trial granted, costs to abide the event. Opinion by

Barker, J.;

Bradley, J., not sitting.


author: Barker, J.,

text:
    The Board of Commissioners of Excise of the City of Auburn, Respondent, v. John Hogan, Appellant.
   Judgment affirmed on opinion of

Barker, J.,

in the case of the same plaintiff against Burtis, decided at the present term.


author: Smith, P. J.

text:
    Warren H. Kelly, Respondent, v. Joseph F. Bonesteel, Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.


author: Barker, J.

text:
    Royal L. Mack and others, Respondents, v. John P. Vidvard and others, Appellants.
   Judgment affirmed. Opinion by

Barker, J.


text:
    Seth G. Rowley and others, Appellants, v. The First Methodist Episcopal Society in Medina, Respondent.
   Judgment reversed and new trial ordered, costs to abide the event. Opinion by

Corlett, J.


text:
    William A. Lewis, Appellant, v. Charles Barton and others, Respondents.
   Judgment reversed and new trial ordered, with costs to abide the event. Opinion by

Barker, J.


text:
    Henry C. Albee, Respondent, v. Stephen B. Carroll, Appellant.
   Judgment affirmed; no opinion.


text:
    Mary Minor, Respondent, v. The City of Buffalo, Appellant.
   Judgment affirmed; no opinion.


text:
    Ira C. Brownell v. Alfred Kilburn and others.
   Motion for reargument denied, without costs, the form of the order modifying judgment to be settled by Haight, J.


text:
    Reuben Hall, Respondent, v. The City of Buffalo, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion to strike out answer, etc., denied, with ten dollars costs. (Wayland v. Tyson, 45 N. Y. 281; Thompson v. Erie Ry. Co., Id., 468; Grocers' Bank v. O'Rorke, 6 Hun, 18.)


text:
    Michael Beers, Respondent, v. Eva Beers, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of John Horr, an Attorney.
   Ordered, that he be removed from the office of attorney and counselor and that his name be stricken from the roll. It is further ordered that the clerk cause a certified. copy of this order to be served upon him.


text:
    Isaac Burnett v. Charles S. Wright, as Executor, etc.
   Motion for reargument denied. Memoranda of decision filed with the clerk.


author: Per CuHam

text:
    Buadore Wiltsie, Appellant, v. David Johnson, Respondent.
   M otion'for reargument denied, without costs.

Per CuHam

memoranda filed with the clerk.


author: Daniels, J.,

text:
    Sylvia M. Newman, Administratrix, etc., v. Henry L. Newman as Administrator, etc., and others.
   Order affirmed, with ten dollars costs and disbursements on the opinion of

Daniels, J.,

at Special Term.


text:
    Edgar Munson and others, Appellants, v. George J. Magee and the Syracuse, Geneva and Corning Railway Company, Respondent.
   Judgment affirmed, with costs on the opinion of Macomber, J., reported 29 Hun, 76, and the order denying reargument, 29 Hun, 617.


text:
    Mary Marsh, Respondent, v. William R. McNair, Appellant.
   Judgment affirmed, with costs, on former decision, reported in 25 Hun, 314.


text:
    Caroline Horton and others, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed.


text:
    Jerome B. Wiggins, Respondent, v. Adney P. Donner, Appellant.
   order affirmed, with ten dollars costs and disbursements.


text:
    Jacob Crouse and others, Appellants, v. Harlow G. Borthwick, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Follett, J., not sitting.


text:
    Loretta D. Ogden, Respondent, v. Merrick Ogden, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Jacob L. Beck, Respondent, v. Elliot O. Worden, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    First National Bank of Chittenango, Respondent, v. Edmund A. Millington and another, Appellants.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    In the Matter of the Application of the Cortland and Homer Horse Railroad Company, Respondents, to acquire a crossing over the tracks of the Syracuse, Binghamton and New York Railroad Company and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Follett, J., not 1 sitting.


text:
    Jerome Putnam, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellants.
   Judgment and order affirmed.


text:
    The People of The State of New York, Appellants, v. John Owen, Respondent.
   Judgment and order affirmed.


text:
    Julia E. Blackman, Respondent, v. Eliza Wheeler, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


author: Per Curiam.

text:
    John Holden, Appellant, v. Charles D. Strong, Executor, etc., Respondent.
   Judgment affirmed. Costs of respondent payable out of the income of the estate. Opinion

Per Curiam.


text:
    Michael Hennesy, Respondent, v. Celia T. Schneider, Appellant.
   Judgment affirmed, with costs,


text:
    Mary E. Smith, Respondent, v. William Duffus, Appellant.
   Judgment affirmed, with costs.


author: Hardin. P. J.

text:
    Allen S. Smith, Respondent, v. Charles Whitney, Appellant.
   Judgment of Jefferson County Court affirmed, with costs. Opinion by

Hardin. P. J.


text:
    James McDonald v. Egbert A. Smith and others
   Appeal dismissed, with ten dollars costs and disbursements. Held> the appeal is irregular because no interlocutory judgment has been entered.


text:
    Elisha M. Shurtleff, Respondent, v. The Utica and Black River Railroad Company, Appellant.
   Declined to hear, but leave granted to appellant to apply to Special Term for relief.


text:
    Benjamin T. Wright, Respondent, v. David Weil and another, Appellants.
   Judgment affirmed.


text:
    John Strowbridge, Appellant, v. Minor J. Jones and Mary Stilwell, Administrators, etc., Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Benjamin B. Robeson, Appellant, v. William H. Sage, Respondent.
   Judgment affirmed, with coe'ts.

Boardman, J., not sitting.


text:
    Franklin Pierce, as Administrator, etc., Respondent, v. Mary Sullivan and another, Appellants.
   Judgment affirmed, with costs.

Follett. J., not sitting.


author: Hardin, P. J.

text:
    John Collins, Respondent, v. William P. J. Foote and another, Appellants.
   Judgment affirmed. Opinion by

Hardin, P. J.


text:
    Joseph Esmond and another, Appellants, v. Seabury A. Fuller, Respondent.
   Judgment and order reversed and new trial ordered in the County Court of Onondaga*3county, with costs to abide the event. Opinion by

Hardin, P. J.


text:
    Charles L. Petrie, Respondent, v. Octavius O. Cottle and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., not voting.


text:
    Daniel Ackerman and others, Respondents, v. R. Watson Marcey, Appellant.
   Order affirmed, without costs.


text:
    Joshua Mather and another, Respondents, v. Hattie E. Van Allen, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Kittie Waterman, Respondent, v. Stanton Waterman, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Follett, J', not sitting.


text:
    Michael Cassins, Respondent, v. George Stuckey, Appellant.
   Judgment affirmed, with costs.


author: Martin, J.,

text:
    Addison Doane, Appellant, v. Dennis Daily, Jr., and others, Respondents.
   Judgment affirmed on the opinion of

Martin, J.,

denying a motion for a new trial.


text:
    Joseph S. Lowery and another v. Calcina B. Clinton and others.
   Motion for leave to appeal to the Court of Appeals granted on the ground that a question of law isv involved which ought to he reviewed’ by that court.


text:
    In the Matter of the New York, West Shore and Buffalo Railway Company to Acquire Title to certain Real Estate of William A. Judson and another.
    Follett, J., not sitting.


text:
    Homer Anderson, Respondent, v. Joseph Powers, Appellant.
   Judgment of County Court of Chenango county reversed, and the judgment of the Justices’ Court affirmed, with costs.


text:
    The People of the State of New York ex rel. The Board of Supervisors of Chenango County v. The Board of State Assessors.
   Motion to dismiss for want of prosecution denied, without costs.

Follett, J., not sitting.


text:
    Lorin Pullman, Appellant, v. Wealthy Dorn, Respondent.
   Judgment of the County Court of Herkimer county affirmed, with costs, on the opinion of the county judge.


text:
    Elias Heyman, Appellant, v. The Merchants’ National Bank of Syracuse, Respondent.
   Judgment reversed and a new trial ordered, costs to abide the event.


text:
    Cornelia J. Hewitt, Appellant, v. The City of Watertown, Respondent.
   Judgment reversed, new trial ordered, with c “Sts to abide the event. Opinion by

Hardin, P. J.


text:
    John G. Harbottle and another, Respondent, v. William E. Dun and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Harrison Courtney, Respondent, v. Oscar L. Sumner and others, Appellants.
   Judgment affirmed, with costs.


text:
    Sarah Ann Williams, as Administratrix, etc., Respondent, v. The Syracuse Iron Works, Appellant.
   Judgment and order affirmed. Opinion by

Hardin, P. J.


author: Vann, J..

text:
    William H. Thomas and others, Administrators, etc., Respondents, v. The Utica and Black River Railroad Company, Appellant.
   Judgment and order affirmed on the opinion of

Vann, J..

at circuit terra.


text:
    Mary Hughes, as Executrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by

Hardin, P. J.


author: Merwin, J.

text:
    Joseph D. Malonee, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order reversed and new trial ordered, with costs to abide the event. Opinion by

Merwin, J.


author: Follett, J.

text:
    Nathaniel M. White, as Trustee, etc., Respondent, v. Ira Betts, Appellant.
   Judgment affirmed, with costs. Opinion by

Follett, J.


text:
    William Thurston, Respondent, v. Allen Benedict, Appellant.
   Judgment affirmed, with costs. Opinion by

Follett, J.


text:
    Laura Campbell, Respondent, v. The City of Syracuse, Appellant.
   Judgment affirmed. Opinion by

Hardin, P. J.


text:
    The Northwestern Insurance Company, Respondent, v. Francis B. Mooney and others, Appellants.
   Judgment affirmed, with costs, on the opinion of the referee.


text:
    Francis Morris, Appellant, v. Addison P. Jones and others, Respondents.
   -Judgment reversed and new trial ordered, with costs to abide the event. Opinion by Follett, J.; Hardin, P. J., not voting.


text:
    Michael Mulchy, Respondent, v. Selan Sabine, Appellant.
   Judgment affirmed. Opinion by

Merwin, J.


text:
    John W. Pratt, Respondent, v. Charles Peckham, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide the event. Opinion by

Hardin, P. J.


text:
    Orrin W. Sage, Respondent, v. John S. Robinson, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Opinion by

Merwin, J.


text:
    In the Matter of the Petition of Joshua L. Wadly, Respondent, for leave to issue execution against the property of Joseph Davis and others, Appellants.
   Order affirmed, with costs. Opinion by

Follett, J.


text:
    Ebenezer Williams, Appellant, v. George L. Davis as Executor, etc., Respondent.
   Judgment, affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Timothy A. Smith and another, Appellants, v. Thomas Brady, Respondent.
   Order granting new trial affirmed, with costs. Order striking out answer, etc., affirmed, with ten dollars costs and disbursements. Opinion by

Merwin, J.


text:
    Adeline Doner, Appellant, v. Ebenezer Williams, Respondent.
   Judgment of the Jefferson County Court reversed, and the judgment of the Justices’ Court affirmed, with costs. Opinion by

Hardin, P. J.


text:
    John R. Thomas, Respondent, v. Savillian F. Traffarn, Appellant.
   Judgment affirmed, with costs. Opinion by

Follett, J.


author: Hardin, P. J.;

text:
    John Kerley, Respondent, v. Sanderson Brothers Steel Company, Appellant.
   Judgment and order reversed and new trial ordered, with costs to abide event. Opinion by

Hardin, P. J.;

Follett, J.. not sitting.


author: Merwin, J.;

text:
    Leslie H. Babcock, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by

Merwin, J.;

Follett, J., not sitting


text:
    Michael McCarthy, Respondent, v. James A. O’Hara, Appellant.
   Order denying motion for new trial on the minutes set aside as irregular, without prejudice to the right of the respondent to move at Special Term on a case for a new trial, or to appeal from the judgment. Opinion oy

Hardin, P. J.


text:
    In the Matter of the Petition to revoke the Probate of the last Will and Testament of Lewis S. Phillips, v. Erastus V. Phelps and Mary J. Lyman, Appellants.
   Decree affirmed, with costs. Opinion by

Follett, J.


text:
    Thomas McNamara, Respondent, v. The Delaware, Lackawana and Western Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by

Merwin, J.


text:
    Alesia J. Mixter, Appellant, v. James Bronner, Respondent.
   Judgment and order affirmed. Opinion by

Merwin, J.


text:
    Della Clark, by Guardian, Respondent, v. Alonzo Schurtliff and William H. Warren, Appellants.
   Order modified, as stated in the opinion of Hardin. P. J., and as modified affirmed, without costs of this appeal. Opinion by

Hardin, P. J.


author: Bardin, P. J.

text:
    Mary A. E. La Duke, Respondent, v. The Village of Fulton, Appellant.
   Judgment affirmed. Opinion by

Bardin, P. J.


text:
    Christopher Bingham, Respondent, v. Richard V. Evans, Appellant.
   Judgment and order of Oneida County Court, affirmed, with costs. Opinion by

Follett, J.


text:
    Abner M. Durfee, Respondent, v. Gilderoy Lord and others, Appellants.
   Judgment of Jefferson County Court affirmed, with costs. Opinion by

Hardin, P. J.


author: Follett, J.;

text:
    Foster M. Ferrin, Appellant, v. Almira J. Ferrin, Respondent.
   Judgment affirmed, with costs. Opinion by

Follett, J.;

Merwin, J.% not voting.


text:
       Horace N. Hayes, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      This case will be found reported in SO Albany Law Journal, 469.—[Rep.

   Judgment and order reversed and new trial ordered, with costs to abide event. Opinion by

Merwin, J.


text:
    Emma J. Veeder, Administratrix, Respondent, v. The Village of Little Falls, Appellant.
   Judgment and order affirmed. Opinion by

Follett, J.;

Hardin, P. J., not voting.


author: Vann, J.

text:
    Jesse M. Humaston and others, Respondents, v. David Beekman, Appellant.
   Judgment and order reversed and new trial ordered, with costs to abide event. Opinion by

Vann, J.


text:
    Edwin B. Bush, Respondent, v. Medina Preston, Appellant.
   Judgment modified as stated in the opinion of Vann, J., and as modified

affirmed, with costs. Opinion by

Vann, J.


text:
    William H. Clark, Appellant, v. Esaias T. Fox and others, Respondents.
   Judgment of County Court of Oneida county affirmed, with costs. Opinion by

Vann, J.


text:
    John Sheehan, Respondent, v. Mary J. Johnson, Appellant.
   Judgment of Herkimer County Court affirmed, with costs. Opinion by

Vann, J.


author: Follett, J. ,

text:
    Harriet Balou, Respondent, v. Theodore P. Balou and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Follett, J. ,


author: VaDn, J.

text:
    In the Matter of the Cortland and Homer Horse Railroad Company, Appellant, to Acquire a Crossing over the Tracks of the Syracuse, Binghamton and New York Railroad Company and another, Appellants.
   Order affirmed, with costs. Opinion by

VaDn, J.


text:
    Isaac W. Bennett, Respondent, v. The Agricultural Insurance Company, Appellant.
   Judment affirmed. Opinion by

Follett, J.


text:
    The Electrical Supply Company, Respondent, v. The Baxter Electric Light Company, Appellant.
   Order reversed, and order opening judgment and allowing amendment of answer grauted, without costs of motion, or of appeal or of trial to either party.


author: Daniels. J.

text:
    Marie de la Salud Oviedo Younger, Appellant, v. Mary Ann Pelton Duffie, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels. J.


text:
    Otto Meyer, Appellant, v. Isaac Kaufman and another, Respondents.
   Order reversed and motion denied, with ten dollars costs and disbursements. '


text:
    Frederick Muser, Appellant, v. Julius Lissner, Respondent.
   Order reversed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Thomas De Fino, Respondent, v. Alexander V. Davidson, Appellant.
   Order reversed, without costs, and motion grauted on payment of ten dollars costs of opposing motion.


text:
    The United States Life Insurance Company, Appellant, v. Mary A. Adams, Respondent.
   Order reversed, with ten dollars costs and disbursements and injunction continued.


text:
    Morris J. Meyer, Appellant, v. Henry S. Rasquin, Respondent.
   Order reversed and motion denied, without costB. Opinion

Per Curiam.


author: Daniels. J,

text:
    Theodore M. Amsdell and another, Respondents, v. Michael Martin, Appellant.
   Order of reference modified by excluding the direc tion for the recovery of costs, and as so modified' affirmed, without costs to either party. Order confirming the report of referee reversed, with ten dollars costs and disbursements, and order denying application for hearing of exceptions affirmed, with ten dollars costs and disbursements. Opinion by

Daniels. J,


author: Daniels, J

text:
    H. G. Adams, Respondent, v. John Henry Keene, Jr., Appellant.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Daniels, J

Order to be settled by Daniels, J.


author: Per Curiam.

text:
    David Phillips, Respondent, v. Francis M. Brown, Appellant.
   Judgment reversed, new trial ordered; costs to abide event. Opinion

Per Curiam.


text:
    Anthony Reisert and another, Respondents, v. William R. Peters, Appellant.
   Judgment affirmed, with leave to answer over in twenty days on payment of costs of appeal and of demurrer.


author: Larremore, J.,

text:
    Daniel C. Kingsland, Respondent, v. Jane M. Leonard, Appellant.
   —Judgment affirmed,

with costs on the opinion of

Larremore, J.,

in the court below.


author: Daniels, J.

text:
    Eliphalet Nott, Appellant, v. Henry Clews, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Charles H. Coffin and another, Respondents, v. Samuel Baer and another, Appellants.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs on giving stipulation not to sue for false imprisonment.


text:
    The People of the state of New York ex rel. Henry D. Nicoll, Appellant, v. The New York Infant Asylum, Respondent.
   Order directing alternative mandamus affirmed, with ten dollars costs and disbursements.


text:
    Charles H. George and another, Appellants, v. Richard S. Grant, Respondent.
   --Order affirmed, with ten dollars costs and disbursements.


text:
    John F. Maxfield, Respondent, v. Ann Taylor and another, Appellants.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Daniels, J.


text:
    William A. Torrey, Receiver, etc., Appellant, v. Sarah Wilde and another, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Patrick Cassidy, Respondent, v. John B. Cornell, Appellant.
   Judgment affirmed, with costs.


text:
    Peter Chapman, Appellant, v. Edwin P. Bassett, Respondent.
   Order reversed, without coste, ¡fcje opinion in Meyer v. Rasquin.


text:
    William Moores, Respondent, v. John Townshend, Impleaded, etc., Appellant.
   Judgment affirmed, with costs.


text:
    Catherine Zapp, Respondent, v. Charles J. Miller, Appellant.
   Order -appointing receiver affirmed, with ten dollars costs and , disbursements. Order denying motion to set aside interlocutory judgment affirmed, with' ten dollars costs and iisbursements.


text:
    Samuel E. Bloch, Appellant, v. Gustave Simons, Respondent.
   Order affirmed, without costs. Opinion by

Daniels, J.


text:
    The Second National Bank, Plaintiff, v. Arthur Dyett and another, Defendants.
   Order reversed, with ten dollars costs and disbursements, and motion granted with leave to renew on iurther papers showing by proper proof the necessity for an examination.


text:
    Hugh Smith and others, Respondents, v. Solomon Jacobs, Appellant.
   Order reversed, with ten dollars costs and disbursements; amount paid to be reimbursed, together with expenses of searching title; order denying motion requiring purchaser to complete, affirmed, with ten dollars costs and disburse-' mente. Opinion by

Daniels, J.

Order to be settled by Daniels, J.


text:
    In the Matter of Matthias B. Smith.
   Order affirmed on opinion Lawrence, J., with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Panama Railroad Company, Respondents, v. Commissioners of Taxes, etc., Appellants.
   Order affirmed, without costs.


text:
    In the Matter of the Church at Harsenville.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Constance B. Price, Appellant, v. Stephen Brown and others, Respondents.
   Order reversed, without costs, and motion granted on stipulation as proposed.


author: Lawrence, J.,

text:
    The People of the State of New York ex rel. James S. T. Stranahan and others, Respondents, v. Hubert O. Thompson and others, Appellants.
   Order affirmed on the opinion ol

Lawrence, J.,

in the court below.


text:
    Charles Partridge, Respondent, v. John J. Haly and another, Appellant.
   —Order reversed and motion granted, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    In the Matter of Ferdinand Forsch.
   Order affirmed, with ten dollars costs and disbursement.


text:
    The People of the State of New York, Respondent, v. Paul Gangy, Appellant.
   Judgment reversed; new rial ordered.


text:
    The President, etc., Bank of Mobile, Respondent, v. Phœnix Insurance Company, Appellant.
   Judgment affirmed.


text:
    Anna R. Gilman, Respondent, v. Aaron Healy, Appellant
   Order affirmed, with ten dollars

costs and disbursements.


text:
    Mary M. Watson, Appellant, v. John D. Phyfe, Respondent.
   Orders affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    William J. Purman, Appellant, v. George H. Levis, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Butchers’ Hide and Melting Association v. Thomas B. Asten and others.
   -^Proceedings affirmed on authority of People v. Commissioners of Taxes and Assessments (95 N. Y., 554) and writ dismissed, with costs.


text:
    Nathan Boehm, Respondent, v. Adler Distilling Company, Appellant.
   judgment reversed, new trial ordered, costs to abide event. Opinion

Per Curiam.


text:
    Jane Reilly, as Executrix, etc., Respondent, v. The Mayor, etc., of the City of New York, Appellant.
   Judgment reversed, new trial

ordered, costs to abide event. Opinion

Per Curiam.


text:
    Henry R. Lounsbery, Respondent, v. Henry H. Hayden, Appellant.
   Judgment affirmed.


text:
    In the Matter of Ruth A. Schulting.
   Order reversed and reference direct*, d to Nathaniel Jarvis, Jr,, Esq., to ascertain and report to this court his opinion whether it is lor the interest of the infant that the prayer of the petition be granted.


text:
    Alexander Buderus, Plaintiff, v. Henry Immen, Defendant.
   Judgment ordered for plaintiff, with costs. Opinion

Per Curiam.


text:
    Wells, Fargo & Company, Respondent, v. Erwin Davis, Appellant.
   Judgment affirmed.


text:
    Louis Farber, Administrator, etc., v. Staten Island Railway Company. Elizabeth Higgins v. The Same. Amasa Higgins v. The Same. Isabella Homan v. The Same. George M. Hogan v. The Same.
   Orders affirmed, without costs.


text:
    George F. Eschbach, Respondent, v. Theodore M. Amsdell and another, Appellants.
   —Order reversed, with teu dollars costs to abide event.


text:
    Charles F. Wetmore, Respondent, v. Charles G. Patterson, appellant. Same v. Same.
   Order reversed and motion granted, with costs of motion below and of this appeal to appellant to abide event.


text:
    Charles McRoberts, Appellants, v. Eliza T. Harrison, Respondent, Impleaded, etc.
   Order reversed and injunction continued, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    John Kafka and another, Respondents, v. Mayer Wile, Appellant.
   Judgment affirmed.


text:
    John Benkendorff, Respondent, v. The New York, Lake Erie and Western Railway Company, Appellant.
   Judgment reversed, without costs.


text:
    Chemical National Bank, Respondent, v. William Pitt, Appellant, Impleaded, etc.
   —Order affirmed, with costs.


text:
    Dennis G. Barber v. Abendroth Brothers.
   Motion for leave to go to Court of Appeals granted.


text:
    The National City Bank v. The New York Gold Exchange Bank.
   Motion to correct record granted.


text:
    Polydore Duclos v. William T. Cunningham.
   Motion denied.


text:
    Daniel Herbert and another v. Warren S. Dey.
   Motion denied.


text:
    The People of the State of New York v. Manhattan Fire Insurance Company.
   Application grau ted.


text:
    George F. Vietor and others v. Moses Henlein.
   Motion for reargnment granted.


text:
    Otto Heinze v. Moses Henlein.
   Motion for reargument granted.


text:
    Ann McAdowery, Appellant, v. Margaret McKenna, Respondent.
   To be re-submitted.


text:
    Maria A. Witthaus v. Frederick C. C. Schack.
   Motion denied. Opinion by

Daniels, J.


text:
    In the Matter of the New York Elevated Railway Company.
   Ordered, that the report of the Commissioners m this matter be sent back to such Commissioners with directions to make a further report setting forth what they have considered to be easements, l'o'r which they have allowed damages in and by their report, and what damages they have allowed and awarded for such easements respectively.


text:
    In the Matter of the New York Elevated Railway Company.
   Referred to S. P. Nash, Esq,, to take prool relating to the issue created oy the answer of the respondent, and to report Q the same to this court with a statement of the facts he regards as having been established, with his opinion thereon.


text:
    Catharine Zapp, Respondent, v. Charles J. Miller, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Antonio Del Pino, Respondent, v. Ozias Hermann, Appellant.
   —Order affirmed, with ten

dollars costs and disbursements. Opinion by

Daniels, J.


author: Dauiels, J.;

text:
    Thomas J. Hayes, as Assignee, etc., Appellant, v. Alexander V. Davidson, Sheriff, etc., Respondent.
   Order from which the appeal has been taken reversed, with ten dollars costs and disbursements and the motion made denied. Opinion by

Dauiels, J.;

Davis, P. j., concurred; Brady, J.,dissented.


author: Brady, J.;

text:
    The People of the State of New York ex rel. The Mayor, etc., of the City of New York v. John Kelly. Allen Campbell and Daniel Lord, Jr.
   Writ dismissed and the decision of the assessment commissioners, in the case of Julia Douglas, affirmed. Opinion by

Brady, J.;

Davis, P. J., concurred.


author: Bockes, J.

text:
    Winthrop W. Gilman and others, Appellants, v. Benjamin Case, Acting Supervisor, etc., and others, Respondents.
   —Order affirmed as to Case’s claim, reversed as to Campbell’s, to be settled by

Bockes, J.


text:
    Amasa R. Moore, Appellant, v. John M. Francis and others, Respondents.
   Order affirmed, with costs.

Learned, P, J., not acting.


author: Learned, P. J'.

text:
    Hattie J. Hawley v. Arthur H. Hawley.
   Decree affirmed, with costs against appellant. Opinion by

Learned, P. J'.


text:
    The People of the State of New York, Respondents, v. George Eckert, Appellant.
   Judgment and conviction reversed and new trial granted. Opinion by

Bockes, J.


author: Learned, P. J.

text:
    Susan A. Wheeler, as Administratrix, etc., Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Margaret Parker, as Administratrix, etc., Respondent, v. The Ulster and Delaware Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.


author: Learned, P. J.;

text:
    Eliza Bailey, as Administratrix, etc., Respondent, v. The Boston, Hoosac Tunnel and Western Railway Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.;

Landon, J., not acting.


text:
    Walter Jennery, Respondent, v. Aaron B. Olmstead and William H. Clement, Appellants.
   Rearguoient ordered.

Landon, J., not acting.


text:
    John Barrons, Respondent, v. William McDougall, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.


author: Landon, J.

text:
    James Mingay and others, Appellants, v. The Holly Manufacturing Company, Respondent.
   Order reversed, wit'h ten dollars costs and printing disbursements, and motion denied, without prejudice to renewal. Opinion by

Landon, J.


text:
    Catharine J. Wise, Respondent, v. The Liverpool and London and Globe Insurance Company, Appellant. Catharine J. Wise, Respondent, v. The New York Bowery Fire Insurance Company, Appellant.
   Judgments affirmed, with costs. Mem. by

Bockes, J.


text:
    Hollis Russell, Respondent, v. Catherine A. Brownell, Appellant.
   Judgment and order affirmed, with costs. Opi • >a by

Landon, J.


text:
    Maria Arrex, Appellant, v. James H. Van Demark and Andries L. Brodhead, Respondents.
   Judgment and order affirmed, with costB. Opinion by

Learned, P. J.


text:
    Jeannette Corse, Respondent, v. Joshua S. Peck and Nathan Peck, Appellants.
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.

Mem. oy Learned, P. J., dissenting.


text:
    Lucius Lawson, Respondent, v. The Town of Woodstock, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opiuion by

Landon, J.

Mem. by Learned, P. J., dissenting.


text:
    Paul Cushman, as Trustee, etc., Respondent, v. Charles E. Leland, as such Trustee, etc., and individually, Respondent. Mary Ann Trimble and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Landon, J.


author: Bockes, J.;

text:
    The People of the State of New York, Respondent, v. Frank R. Sherwin, Appellant (three cases).
   Judgment and conviction affiimed. Order allowing bill of exceptions* affirmed. Motion to strike out bill of exceptions denied. Form of order to be settled by Bockes, J. Opinions by

Bockes, J.;

Learned, P. J., and Landon, J., concurring as to affirmance of judgment and conviction.


author: Bockes, J. and Learned, P. J.;

text:
    John A. Lee, Respondent, v. James M. Whallon, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and printing disbursements. Opinions by

Bockes, J. and Learned, P. J.;

Landon, J., not acting.


text:
    Samuel Bigelow as Executor, etc., Appellant, v. Elisha P. Abbott and others, Respondents.
   Decree reversed and issue to be tried by a jury, etc. Costs of appeal to be allowed appellant out of the fund. Issues and order to be settled by Landon, J. Opinion by

Landon, J.


text:
    Margaret Moore, Executrix, etc., and another, Plaintiffs, v. The City of Albany, Defendant.
   —Judgment ordered for defendant. Opinion

by

Learned, P. J.;

Bockes, J..-dissenting in opinion that plaintiff recover $690.78 and interest.


author: Landon. J.

text:
    In the Matter of Rebuilding the Bridge Across the Shawangunk Kill, between the Towns of Crawford and Shawangunk, on Hardenbergh’s Road.
   Order reversed, with ten dollars costs and printing disbursements. Opinion by

Landon. J.


text: Horace Hamell, Administrator, etc., Respond ent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.


text:
    Elijah B. Fitts, Respondent, v. The Same, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.;

Landon, J., not acting.


text:
    Daniel McElwain, Respondent, v. Charles Muldowney and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Julia E. Hooghkirk, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Landon, J.


text:
    John Reilly, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment and order reversed, new trial granted on payment by defendant of costs of trial and of appeal. Opinion by

Learned, P. J.


text:
    Patrick Leary, Plaintiff, v. The President, etc., of the Delaware and Hudson Canal Company, Defendants.
   Motion for new trial denied, and judgment ordered for defendant on non-suit, with costs. Opinion by

Bockes, J.


text:
    Hugh Reilly, Respondent, v. The Hudson River Bridge Company of Albany, Appellant.
   Judgment and order affirmed, with costs. Opinkm by

Landon, J.


text:
    Wilson H. Sherman and others, Respondents, v. James W. Caldwell and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    William C. Randall, Respondent, v. Frank Randall, Appellant.
   Order affirmed, with costs. Opinion by

Learned, P. J.;

Landon, J., not acting.


text:
    In the Matter of the Judicial Accounting of John Hughes, as Guardian, etc.
   Decree of surrowith costs •pinion by

Landon, J.


text:
    Mark T. Dunning, Appellant, v. Edwin R. Northrup and Roselle Vanderwerker, Respondents.
   Judgment reversed, new trial granted, costs to abide, event. Opinion by

Bockes, J.


author: Laudon,' J.;

text:
    William Slocum, Appellant, v. Mary R. Stoddard, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Laudon,' J.;

Bockes, J., not acting.


text:
    People ex rel. Burhans v. Supervisors.
   Motion denied.


author: Fish, J.

text:
    John Staats v. Thomas Garrett.
   Motion to dismiss denied. Opinion by

Fish, J.


text:
    Eugene A. Pratt, Respondent, v. Isaac Seeley, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


author: Fish, J.;

text:
    Jacob H. Clute v. Robert Robinson and others.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Fish, J.;

Landon, J., not acting.


text:
       Thomas Ganley, Administrator, etc., Respondent, v. Troy City National Bank, Appellant.

       In this and the following cases decided at this term the decisions were handed down. December 27,1884.

   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Edwin W. Hall, Appellant, v. The Whitehall Water Power Company, Limited, Respondent.
   Judgment affirmed, with costs on opinion below.

Landon, J., not acting.


text:
    Mary Renihan, Appellant, v. Martha A. Dennin, Individually and as Executrix, etc., of James Dennin, Deceased, Respondent.
   Decree reversed, issues sent for trial at Rensselaer Circuit. Order and issues to be settled by Landon, J., costs to abide event. Opinion bv

Landon, J.


text:
    Mary J Dewey, as Administratrix, etc., of Henry Livingston, deceased, Respondent, v. The President, etc., of The Delaware and Hudson Canal Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


author: Learned. P. J.

text:
    Solomon Langlois, as Administrator, etc., of Henry Langlois, Deceased, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned. P. J.


author: Bockes, J.,

text:
    Mary S. Vischer, Respondent, v. James M. Andrews, Appellant, Impleaded, etc.
   Judgment modified as per opinion, without costs. Order to be settled by Bockes, J. Opür'on by

Bockes, J.,

and by Learned, P. J., dissenting.


text:
    In the Matter of the Application of Joseph T. Stevens, a creditor, for the disposition of the Real Estate of John P. Dodge, Deceased, for the payment of his debts.
   Decree of surrogate reversed, rehearingordered, costs to abide event. Opinion by

Bockes, J.;

Landon, J., concurring in result; Learned, P. J., dissenting.


text:
    George McVie, Respondent, v. Henry G. McNaughton, Appellant.
   Judgmentand order affirmed, with costs. Opinion by

Landon, J.


text:
    Mary O’Connor, Respondent, v. The Troy and West Troy Bridge Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Richard Smith, Appellant, v. George W. Robbins and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Troy and Boston Railroad Company, Appellant, v. Boston, Hoosac Tunnel and Western Railway Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Theodore F. Miller, by Guardian, Plaintiff, v. Samuel D. Coykendall, Defendant.
   New trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    George A. Farnham and Henry K. Bush, Respondents, v. James A. Connors, Appellant.
   Judgment reversed, new trial granted. Costs to abide event. Opinion by

Landon. J.


author: Landon, J.;

text:
    Lorenzo Smith, as Receiver, etc., of Solomon Shaul, Appellant, v. Solomon Shaul and others, Respondents.
   Judgment reversed, reference discharged, new trial granted, costs of appeal to abide event. Opinion by

Landon, J.;

Learned, P. J., concurring in result.


text:
    Frederick Turner, Appellant, v. The Chateaugay Ore Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Fish, J.


text:
    Ebenezer Austin, Respondent, v. Royal G. Harris, Appellant.
   Judgment affirmed, with costs. Opinion by

Fish, J.


text:
    Robert H. Moore and others, Appellants, v. The North River Construction Company and others, Respondents.
   Judgment affirmed, with costs.


author: Barnard, P. J., and Dykman, J.

text:
    The People of the State of New York, Respondents, v. William A. White, Appellant.
   Conviction and judgment reversed and new trial granted. Opinions by

Barnard, P. J., and Dykman, J.


author: Dykman, J.;

text:
    George C. Genet, Appellant, v. The City of Brooklyn, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Pratt, J., not sitting.


author: Barnard, P.

text:
    The Bowker Fertilizing Company, Appellant, v. Lawrence N. Cox, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P.

J.; Pratt, J.. dissenting.


author: Barnard, P. J.

text:
    Jacob Haag and another, Respondents, v. Charles Hillemeyer, Appellant.
   Judgment reversed and new trial granted, costs to abide event and order of reference vacated. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Margaretta Remsen and others, Appellants, v. George S. Wheeler, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Pratt, J.

text:
    Ann Block, Appellant, v. David Kelly, Respondent.
   Judgment 01 County Court reversed, with costs. Opinion by

Pratt, J.


text:
    Samuel Holmes, Appellant, v. John McAdams and others, Respondents.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


author: Barnard, P. J.;

text:
    Harmon Felter and another, Appellants, v. Daniel Denoyelles and John L. Denoyelles, Respondents.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    Warren Currier, Appellant, v. The New York, West Shore and Buffalo Railroad Company, Respondent.
   Reargument ordered.

Barnard, P. J., not sitting.


text:
    The First National Bank of Sing Sing, Appellant, v. Thomas H. Chalmers and others, Respondents.
   Judgment and order denying new trial reversed aud nesv trial granted; costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    James L. Wheeler and another, Appellants, v. Thomas H. Chalmers and another, Respondents.
   Judgment and order denying new trial reversed and new trial granted; costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Sylvia A. White, Respondent, v. William Law as Executor, etc., Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Pratt. J.

text:
    In the Matter of Application of St. George M. E. Church.
   Order affirmed, with costs and disbursements. Opinion by

Pratt. J.


text:
    The People of the State of New York ex rel. John Andrews, Respondent, v. Aaron Brinckerhoff, Comptroller, Appellant.
   Order reversed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Josiah H. Burton, Respondent, v. Antoinette W. Sherman, Appellant.
   Order reversed, with costs and disbursements, and motion granted, without costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Wairen B. Smith and others, Respondents, v. Smith Moquette Loom Company and another, Defendants; Charles E. Skinner, Appellant.
   Order affirmed, with costs at.d disbursements. Opinion by

Barnard, P. J.


text:
    Charles H. Greenleaf v. The Brooklyn, Flatbush and Coney Island Railroad Company.
   Ordoraffirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


author: Dykman and Pratt, JJ.;

text:
    Charles G. S. Baker, Appellant, v. Jarvis S. Baker, Respondent.
   Order affirmed, with costs and disbursements. Opinions by

Dykman and Pratt, JJ.;

Barnard, P. J., not sitting.


author: Pratt, J. ,*

text:
    Eugene Odell, Plaintiff, v. Abraham B. Odell Defendant; James G. Powers, Purchaser, Appellant.
   Order reversed and referee directed to pay taxes in question. No costs granted on appeal. Opinion by

Pratt, J. ,*

Dykman, J., not sitting.


text:
    The National Bank of Rahway, Respondent, v. William L. Schoener, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Daniel McMahon, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Martha Maxwell, Respondent, v. Alfred D. McKinstry, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Mary McGuire, as Administratrix, etc., Respondent, v. George Selden and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Georgianna Harron and others, Appellants, v. De Witt C. Carroll, Respondent.
   Judgment modified in accordance with opinion, without costs of appeal. Order to be settled by Pratt, J. Opinion by

Pratt, J.


author: Dykman. J.

text:
    Andre Gusstaf, Respondent, v The American Steamship Company, Appellant.
   Judgment and order denying new trial affirmed,' with costs. Opinion by

Dykman. J.


text:
    Daniel S. Dickinson, Appellant, v. Anna B. Bush and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


author: Barnard P. J.

text:
    John W. Mehl, Respondent, v. John H. Hilliker and others, Appellants.
   Judgment modified in accordance with opinion, with costs of appeal to all parties out of the estate. Order to be settled by Justice Barnard. Opinion by

Barnard P. J.


text:
    Margaretta P. Remsen and others, Appellants, v. George A. Powers, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Charles Brooks, Respondent, v. The Farmers Creamery Association of Turners, Respondent.
   Judgment of County Court affirmed, with costs. Opinion by

Pratt, J.


text:
    Josie Teets, Respondent, v. The Village of Middletown, Appellant.
   Judgment and order denying motions affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Ellen Tilyon, Appellant, v. Town of Gravesend and others, Respondents. Peter A. Tilyon, Appellant, v. The Same, Respondents.
   Judgment in each case affirmed, with costs. Opinion by

Dykman, J.


text:
    Ella J. T. Roche, Respondent, v. The Brooklyn, and Newton Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    James Gould, Appellant, v John Nyce, Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Aaron P. Bates, Appellant, v. Sarah King, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    George F. Muller, Respondent, v. The Bush and Denslow Manufacturing Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Dykman, J.


text:
    Margaret S. Woodbridge, Appellant, v. I. Wayland Cook and others, Respondents.
   Judgmentaffirmed, with costs. Opinion by

Pratt, J.


text:
    Felix Campbell, Plaintiiff, v. Seligman Tryer and another, Defendants.
   Exceptions sustained and judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Charles U. Wing, Appellant, v. The Ansonia Clock Company, Respondent, Impleaded, etc.
   Order sustaining demurrer to complaint and judgment thereon affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., dissenting.


author: Piatt, J.

text:
    Jefferson Jackson and others, Appellants, v. Benjamin Andrews and others, Respondents.
   Parts of judgment appealed from by plaintiff modified by giving no equitable lien to defendants ior outstanding legal claims taken in names oí third parties as decided upon by dcleiidauf.’s appeal, also by allowing the disbursements for roieree’s fees. Opinion by

Piatt, J.


text:
    Matter of Probate of Will of Margaret E. Johnson, Deceased.
   Decree of surrogate reversed and will ordered to be admitted to probate. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. Anthony S Woods, Appellant, v. The Police Commissioners of Long Island City and others, Respondents.
   Order refusing mandamus affirmed, with costs. Opinion by

Dykman, J.


author: Prat.t, J.;

text:
    William H. Nearpass, as Trustee, etc., Respondent, v. Franklin Newman, Jr., and others, Appellants.
   Judgment reversed and neiv trial granted, costs to abide event. Opinion by

Prat.t, J.;

Barnard, P. J., not sitting.