author: Coulah, J.

text:
    Anna T. Brady, Resp’t, v. G. Waldo Smith et al., App’lts.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—Conversion—Fraud.
    An appeal from a judgment in favor of plaintiff in an action for conversion, will be affirmed where the testimony discloses a fraud by defendants in procuring a chattel mortgage from plaintiff and selling her property thereunder, perpetrated through the instrumentality of a third person, with the knowledge and approval, if not with the active participation, of defendants.
    Appeal from judgment entered on verdict of a jury and from an order denying a motion for a new trial.

      Uriah W. Tompkins, for app’lts; Burr & Be Lacy, for resp’t
   Coulah, J.

This action was brought to recover the value of a grocery stock, furniture aud fixtures contained in the store known as No. 846 Second avenue in the city of New York, alleged to have been wrongfully and unlawfully seized and converted by the defendants. The answer denies the unlawful taking of the property, but admits that the property was taken by them by virtue of a chattel mortgage executed by the plaintiff to the defendants on the 25th day of July, 1892. The evidence discloses the following facts, viz.: That prior to the 21st day of July, 1892, Patrick Brady, the husband of the plaintiff, was the owner of ami conducting a grocery store at No. 846 Second avenue, in the city of New York, and that on that day he executed a bill of sale of the stock and fixtures contained in said store to Anna Brady, his wife, in payment of an indebtedness of $1,500 for money theretofore loaned and advanced by plaintiff to the said Patrick Brady. That thereafter the plaintiff took possession of said stock and fixtures and was in possession on the 25th day of July, 1892. That on said 25th day of July, one John V. Alexander called at the store of the plaintiff accompanied by one of the deputies of the sheriff of the city and county of New York who had an attachment against Patrick Brady based on a merchandise account due Messrs. Sills & Smith, the defendants. That when said deputy attempted to levy under said attachment the plaintiff asserted her ownership of the stock and fixtures. While in the store Alexander, who is a collector and had charge of the claim of Smith & Sills, said : “ Come along to Smith & Sills’ and we will get you an extension of credit, get you anything at all yon want.” Thereupon the plaintiff and her husband went to the place of business of the defendants in Eighth avenue accompanied by said Alexander. On the way to defendants’ store, Alexander impressed upon the plaintiff and her husband that he would get them an extension of credit; when they reached the office of the defendants they met Mr. Sills and one Gardiner Merritt, who acted as counsel for defendants. Immediately on their arrival two papers were prepared, one turned out to be a confession of judgment from Patrick Brady to the defendants for the amount of his indebtedness and the other a chattel mortgage from the plaintiff to the defendants due on demand, covering the property conveyed to her by her husband. Plaintiff says she was told the paper she signed would take the sheriff out and give an extension of credit. She says: “ Alexander said, this will give you time to pay and we will take the sheriff out.” Before leaving the office of defendants Alexander advised her to go and see a man in Jay street as he thought he would.buy the store, which she did, her husband going with her. Returning after a fruitless search some two hours later she found the defendants in possession of the store claiming under the foreclosure of the chattel mortgage she had been induced to execute but a few hours before. The next morning they sold at public auction all the stock and fixtures then in the store. An examiuation of the testimony in this case discloses a fraud perpetrated on the plaintiff by the defendants, through the instrumentality of Alexander and certainly with the knowledge and approval of the defendants, if not their active participation. The verdict of the jury is abundantly sustained by the evidence and is in consonance with substantial justice.

The judgment should be affirmed with costs.

Fitzsimons and Newburger, J. J., concur.


source: Caselaw Access Project

author: Fitzsimons, J.

license: Public Domain

text:
    William H. Brandt, App’lt, v. Charles Seidler, Individually as Receiver, etc., Resp’t.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—Discretionary.
    A reasonable discretionary order will be affirmed on appeal.
   Fitzsimons, J.

The order appealed from is a discretionary one and it appearing that it is a reasonable one, it is affirmed, with costs.

Oonlan, J., concurs.


author: Conlan, J.

text:
    John Howard, Resp’t, v. John A. Moller, App’lt.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—Conflicting evidence.
    In an action on a note, the question of actual consideration, where the evidence is conflicting and the plaintiff is not a bona fide holder before maturity, should be submitted to the jury.
    Appeal from judgment entered on a verdict, by direction of the court and from an order denying a new trial.

      Johnston & Johnston, for app’lt; John R. Farrar, for resp’t.
   Conlan, J.

This action was commenced against the defendant as maker of a promissory note. The complaint alleges the making of the note payable to Russell Brothers before maturity and for value, also demand, and. non-payment by the maker. The answer denies the.making of the note as alleged and its ownership for value, by the plaintiff, and alleges that the note was made to one Michael McMunn who was doing business as Russell Brothers as an accommodation and to enable him to gain an extension of credit where be was then indebted, and upon a promise by said McMunn, who was the Russell Brothers named as payees in the note, that he would, in about a week, return said note to defendant and that the plaintiff had knowledge of this undertaking. The evidence of the plaintiff is as follows: “I had no interest in nor did I become the owner of this note until after it was protested.” The evidence of the defendant is to the effect that the note in question was one of a series of three notes made about February 20 th, of same year, to the order of Bussell Brothers, payable in two, three and four months, the note in suit being the last of said series. That he was induced to make said notes for the accommodation of the said McMunn; that at the same time the said McMunn executed a receipt to the effect that the notes in question were for rent of a portion of premises Kos. 149,151 and 153 Leonard street. The defendant testified: “ The rent was to be paid with the work I should receive from McMunn as far as those notes were concerned, I did not agree to pay it with these notes.” I only loaned him the notes and he put them for rent/1 We agreed that the rent should be paid in work.” The testimony of the defendant is somewhat confusing and contradictory, but we think the question of actual consideration, the plaintiff not being a bona fide holder before maturity should have been submitted to the jury. I am of the opinion that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hewbubgeb and Fitzsimons, JJ., concur.


author: Newburger, J.

text:
    Jacob Hurwitz, Resp’t, v. Callman Hurwitz et al., App’lts.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Trial—Fraudulent conveyance.
    An action at law will lie to set aside a fraudulent conveyance of personal property

      Abraham Gruber, for app’lté; Jacob Manheim, for resp’t.
   Newburger, J.

The complaint alleges that the plaintiff on the 7th day of January, 1893, recovered a judgment against the defendant Hurwitz; that thereafter, and on the 18th day of January, 1893, execution was issued and returned unsatisfied. That on the 9th day of January, 1893, the defendant, Hurwitz, for a consideration of nine hundred dollars transferred certain personal property to the defendant Bouse; that the bill of sale was given without consideration and with the intent to hinder, delay, and defraud the plaintiff; that on the 9th day of January, 1893, the defendants wrongfully, unlawfully, maliciously, wilfully, and fraudulently combined and conspired together to hinder, delay, cheat, and defraud the plaintiff, and to prevent the collection of the judgment recovered by the plaintiff against the defendant Hurwitz, and to remove the property of the defendant and to so dispose of the same that the same might not be reached by said execution, and that as a result of such wrongful, wilful, malicious, and fraudulent acts of conspiracy on the part of the defendants the said personal property of the defendant Hurwitz was removed and disposed of by the defendants so that the same could not be reached by said execution, and that the plaintiff was ■damaged in the sum of $617.90. The answer of the defendant Rouse is a general denial and alleges that the bill of sale was given for a valuable consideration and in good faith. The answer of the defendant Hurwitz is in substance a general denial. On the trial, both at the opening as well as at the conclusion of plaintiff’s case, defendant moved to dismiss the complaint on the ground: That the action should have been brought in equity to set aside the bill of sale from the defendant Hurwitz to Rouse, and not in law as this action is brought, which motions were denied and exceptions duly taken. We think the trial justice properly denied the motions and correctly stated the law in his charge to the jury. See Quimby v. Strauss, 90 N. Y. 664. The case df Braem v. The Merchants' National Bank, 127 N. Y. 509 ; 40 St. Rep. 827, to which the appellants' counsel has referred, has no application to this case. In that case the plaintiff recovered a judgment against a manufacturing company, on the same day the defendant obtained a judgment against the same company upon an offer and acceptance. In an action against the defendant for damages for fraud in obtaining the judgment the court properly held that it was a subject of equitable jurisdiction as to who was entitled to the fund arising from the sale under the several executions. In this case no such question arises. We think, therefore, that the judgment must be affirmed, with costs.

Fitzsimons, P. J., and Conlan, J., concur.


text:
    Charles Kranichfelt, Respt, v. John Slatterly, App’lt.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—Charge.
    Where the printed case does not contain the charge or any exception thereto, the appellate court will assume that there was no error in the submission of the case to the jury.

      James P. Campbell for app’lt; F. P. Trauiman, for resp’t.
   Newburger, J.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff. This action is brought against the defendant as a surety for work to be done under two contracts for the .plaintiff by one Lynch, but which the latter failed to complete. The answer of the defendant was a general denial. On the trial, plaintiff offered in evidence the contracts between himself and Lynch, and also bond given by the defendant. The defendant denied having executed the bond or that he acknowledged the same before the notary. There is no_ dispute as to failure on the part of Lynch to carry out the contracts, and therefore the only question remaining was: Did the defendant- execute the bond sued on ? This was a mere question of fact and was properly submitted to the jury.

The judges charge or any exception thereto, not appearing in the printed case, we assume that there was no error on the part of the trial justice in his submission of the case of the jury. There appears to be no error in the admission or rejection of testimony that would warrant us in disturbing the judgment. Judgment affirmed with costs. Fitzsimons and Conlan, J. J., concur.


text:
    Alfred W. Law, App’lt, v. Frank R. Pemberton, Resp’t.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—discretion,
    Where an amendment of a complaint is discretionary with the trial court, the appellate court will not interfere with a reasonable exercise of such discretion in refusing it.
    Appeal from judgment entered on a verdict by direction of the court, and from an order denying a motion for a new trial.

      Charles Haldane Johnson, for app’lt; Frank Sullivan Smith, for resp’t.
   Conlan, J.

This is an appeal from a judgment entered in favor of the defendant, on a verdict directed by the court. This action was brought to recover rent upon an allegation in the complaint : “That on or about the 9th day of September, 1893, plaintiff leased to the defendant an apartment m the building known as 34 Grarnmercy Park in the city of New York for one year at one hundred dollars a month and asks for a judgment for six hundred and eight dollars and 36 cents which amount is made up of items of commissions, advertising and the difference between what he claims the defendant had agreed to pay and what he subsequently let the premises for. The answer denies the making of the lease in question but admits a demand of rent prior to the commencement of the action. The only evidence introduced was that of one McHale who was the general superintendent of the premises in question except one witness as to value. The witness McHale testified that the defendant called on him in September 1893, in regard to apartments, and that witness showed him the only apartment he had to let; that defendant then stated to him that the apartments he then occupied were taken until Nov. 1st, and if he would make the term begin November 1st, he would take it provided it was put in order which witness says he agreed to do, but that rent must begin October 1st. Defendant said he would take the apartment at $1,200 per year, but prefered to have Ins wife examine it first, witness giving him until the Monday following for such purpose. That witness was called on the telephone about seven o’clock of the same day and asked to have the letting begin November 1, as he, defendant was going to Chicago and would like everything settled ; that witness answered him that he could have it from October 1st, and defendant replied, “All right, I will take it from October 1st, the landlord to do all the necessary repairs.” The witness to make out lease, and bring it down to defendants office for signature and receive check for installment of rent. There is no evidence that anv lease was ever presented for his signature, and on cross-examination he says :

“I was to make the leases between plaintiff and defendant; I made them out and destroyed them when I received defendant’s letter I did not present them to defendant.” The witness wrote to the defendant, under date September 16, 1893, seven days after the conversation by telephone, to the effect, that owing to the absence of the plaintiff from the city, he had been unable to get the leases signed, but would do so on Monday or Tuesday of the following week. To this letter the defendant sent the following reply, under date September 18, 1893 :

“ Mew York, Sept. 18, 1893.

“Mr. McHale, Superintendent,

“ Grammercy Co., Grammercy Park,

“Mew York City:

“Dear Sir—I have just returned from Chicago. Mrs. Pemberton promptly advised me that she inspected the apartments yesterday and they will not su:b at all, which I deeply regret, and I am somewhat annoyed at having had you hold the apartments for a week, and can only express the hope that you may readily find a tenant for them.

“(Signed) H. E. Pemberton.’’

This terminated all negotiations; the witness never replying to said letter. We think the plaintiff failed to establish the fact alleged as the very ground upon which he seeks to recover, viz.: that there was a lease which was broken by defendant’s failure to pay rent. Plaintiff's counsel conceded that there was no lease signed, but simply an agreement to take a lease, to take effect in future, and asked leave of the trial judge to amend his complaint in that respect to conform to what he deemed the proof to be. We are unable to say that the court erred in its refusal to grant this request of plaintiff’s counsel. It was discretionary with the trial judge, and so we see no reason for interfering with the reasonable exercise of that discretion. The action was founded on a contract of hiring, and the amendment, if allowed, would have converted it into one exclusively for damages for the breach of a contract to hire. The two causes of action are entirely different in form and character. We are of the opinion that the trial judge properly directed a verdict for the defendant, and the judgment should be affirmed, with costs.

Mewburger, J., concurs.


author: Mewburger, J.

text:
    Rudolph Sommer, App’lt, v. Jacob Greenberg, Resp’t.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Pleading—Complaint—Replevin.
    In an action of replevin against a sheriff, a statement' that the cause of detention is an alleged process in the hands of the sheriff against parties other than the plaintiff, sufficiently shows the cause of the wrongful detention.

      A. A. Joseph, for app’lt; Samuel Campbell, for resp’t.
   Mewburger, J.

This is a motion by plaintiff for a new trial ' on exceptions taken at trial term on a dismissal of the complaint, to be heard in the first instance at general term. This action is brought in replevin, and was originally commenced against the sheriff, and the defendants were substituted as indemnitors. The complaint alleges that the plaintiffs were owners and entitled to the possession of certain goods and chattels. That the sheriff had possession of said property and wrongfully detained same from the plaintiff herein. That the sheriff’s ground of detention of said chattels was that he was entitled to possession by virtue of certain process issued to him as sheriff. That before the commencement of the action the plaintiff duly demanded from the sheriff a return of the property, which the said sheriff refused. That subsequently, and after the commencement of the action, an order was made substituting the present defendants in the place of the sheriff as defendants in this action. The answer is, in substance, a general denial. On the trial, and before any of the witnesses were sworn, the justice dismissed the complaint on the grounds:

First. That the complaint did not state facts sufficient to constitute a cause of action.

Second. That no action could be maintained on the facts set forth in the complaint, to which ruling an exception was d uly taken.

We think the trial justice erred. The complaint states facts sufficient to constitute a cause of action. It is claimed by defendant’s counsel that the complaint does not show the cause of the wrongful detention. A careful examination of the complaint convinces us that the plaintiff clearly states the cause of detention to be an alleged process in the hands of the sheriff against parties other than the plaintiff. But it is claimed that this action cannot be maintained under the decision of the court of appeals in Wise v. Grant, 140 N. Y. 593; 56 St. Rep. 496. That case had no application here. The court of appeals simply held that there was a failure of proof in that case to entitle plaintiff to recover in replevin. In this case, however, there was no proof offered, and non-constat, but what plaintiff might have offered, the proof of the court of appeals in Wise v. Grant, supra, say is necessary to sustain an action in replevin where a sale is sought to be rescinded, to wit, notice of intention on the part of the vendor to rescind. For these reasons the order appealed from must be set aside, and a new trial granted, with costs to plaintiff to abide the event.

Conlan and Fitzsimons, JJ., concur.


text:
    Owen Toher, Resp’t, v. Cecelia L. Lappine, App’lt.

      (New York City Court, General Term,

      Filed June 20, 1894.)

    Appeal—Findings.
    The appellate court is not disposed to disturb findings of fact which embrace calculations or additions in figures, or have been determined by the court after hearing all the evidence in the case.
    This is an appeal from a judgment entered after a trial without a jury, of an action for the foreclosure of a Mechanics’ Lien.

      Bernard Metzger, for app’lt; Samuel B. Buffey, for resp’t.
   Conlan, J.

The action is to recover the sum of six hundred and fifteen and 66-100 dollars ($615.66) and interest from September 1st, 1891, made up of a balance of three hundred dollars claimed under a contract and three hundred and fifteen and 66-100 dollars for extra work and material. The answer alleges nonperformance in conformity with the plans and specifications, and that defendant was obliged to expend two hundred dollars to complete the same, and asks judgment for a dismissal of the complaint and for a judgment for seven hundred dollars, including the two hundred dollars alleged and five hundred dollars the amount fixed by.the contract as damages to be paid by the failing party. We have examined the case and evidence very carefully for errors alleged to have been committed and which it is claimed have resulted in a judgment against the defendant which the court on appeal is called upon to reverse. The findings of the trial judge award to the defendant the sum of two hundred and thirteen and 01-100 dollars ($213.01) folio 541-542 to be deducted from any amount found to be due the plaintiff; and this is in excess of the sum claimed by the defendant in her answer to have been expended in what she terms a completion of the contract, and this is thirteen dollars and one cent more than is claimed in her answer to have been paid. He also finds at folios 537 and 538 that the plaintiff performed extra work outside of the contract amounting in all to the sum of three hundred twenty-four and 22-100 dollars as against three hundred and fifteen and 66-100 dollars, the amount claimed by the plaintiff in his complaint, so that by a computation of figures there is a balance in defendant’s favor on this award of $4.45 in adjusting balances. We are not disposed to disturb findings of fact which embrace mere calculations or additions in figures, nor where the court has determined them after hearing all the evidence in the case. The notice of lien sufficiently described the defendant and the property and we cannot say that the defendant has been misled or affected to her injury by anything in the contract or specifications or any alleged variance between them. By the terms of the contract the plaintiff agreed “to furnish all the materials and perform all the necessary labor to complete,” etc., “according to the plans and specifications,” and the trial judge has found a substantial compliance with the terms of the contract, awarding to the defendant a credit of two hundred and thirteen and 01-100 dollars for work claimed by her to have been necessary to complete and restore that portion of the work for which it is claimed by the plaintiff that the elements were responsible, and this adjustment by the trial court of the equities between the parties we are not inclined to vary. No other or further damages were proven by the defendant on account of any alleged non-performance than the sum allowed to her in the adjustment as made by the findings, and her right to recover anything beyond the credit awarded does not appear. There is no contention by the defendant, but that with the allowances made in the findings, as a credit to the defendant, the contract and specifications were completed and performed, and for this reason we are disinclined to disturb any of the findings or con-conclusions of the trial judge, which appear to be not unfavorable to the defendant as we have examined them, and are in accord and harmony with the whole case and the evidence adduced on the trial. There does not appear to us anything in the defendant’s request or exceptions calling for a different conclusion than that which was reached by the trial judge.

The judgment should, we think, be affirmed, with costs.

Fitzsimoxs, J., concurs.


author: Parker, J.

text:
    Josephine G. Cambreleng, Resp’t, v. Eliza Ward Graham, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Evidence—G-ift—Inter vivos.
    The statement by a father, before purchasing a piano, that it was for his daughter, and, after it was brought home, that it was his daughter’s piano, is not sufficient to establish a completed gift.
    Appeal from a judgment in favor of plaintiff.

      Robert T. Varnum, for app’lt; Henry L. Sprague, for resp’t.
   Parker, J.

The referee found that plaintiff’s father, by a valid gift inter vivos, vested in her the title to a piano, which he afterwards undertook to transfer by bill of sale, properly executed, through a third person, to his wife, this defendant, and adjudged that plaintiff was entitled to recover its possession from the defendant. To constitute a valid gift inter viuos, the doner must be competent to give, and the donee to receive; the donor’s dominion over the property must be such that he has a present right to give it; he must intend to make the gift; there must be an actual delivery of the property so far as it is capable of delivery, that the donor may not be in a position to revoke the gift; and the donee must accept it. The evidence before the referee authorized him in finding the presence of all these essentials to a gift, as we think, except one. We do not find any evidence to support the finding of delivery. Plaintiff’s father purchased the piano of Steinway & S >ns in the early part of May, 1886. He was an old friend of William Steinway, and for that reason the head of the firm gave to the matter his personal attention. His description of what was said and done on that day by and between plaintiff, her father, and himself constitutes the most important part of the evidence presented. He said that when Colonel Graham (plaintiff’s father) came in, he referred to his daughter, and said he wanted to buya piano for her; that they tried several, selected one, agreed upon the price, and, continued the witness, “Now comes an episode that I remember distinctly every word of, because it is a part of our business policy. He said: ‘Mr. Steinway, I want to give you a check for this to-morrow. You need not send it until you have pay for it.’ I told him that was unnecessary ; he could pay later on; that I knew who he was; and he turned around, and said: ‘Joe, this piano is now your own property.’ I distinctly remember that; and he said: ‘Mr. Steinway, you- had better have the bill made out in her name.’ I said: ‘Colonel, allow me to ask you one question: How old is your daughter? And I distinctly remember he said, 1 sixteen years.’ I said ; ‘ Colonel, in our experience with several lawsuits we have hail, it is not a good idea to have a money transaction with a minor, make a sale to a minor; and, although this is of almost daily occurrence with a father or mother or an adult member of a family, we always advise our friends to make the transaction with themselves. Your check pays for it, and it is a perfect chain of evidence. If you want to give it to your daughter, indorse on the back of it: “In consideration of my love and affection, I hereby give the within-mentioned piano to my daughter, Josie.”’ He said he would do it. Q. That is a full account of the transaction, so far as you now remember? A. With the exception that he came in the next day, and handed us a check for $750, and .received our check as a drawback, being an intimate personal friend, for $100, and received a bill of sale with a warranty; and he came in there on the 3d and 5th, and on- 6th and 7th, four consecutive days, and spoke about the mortgages and about the piano, and he said he would—In fact he took it right down as I dictated it: In consideration of my love and affection, I do hereby give the within-described piano to my daughter, Josephine.' Q. You merely know he took down at that time what you said? A. Yes; he said-he would indorse it on the bill.”

This testimony clearly shows an intention to purchase the piano for the plaintiff; but, as he had not acquired either title or possession at the time when the conversation took place, necessarily that which he said did not amount to a gift or delivery, for a man cannot give what he does not¡ own, nor deliver that which he has not the possession of. That he did not expect a delivery by Steinway & Sons until after payment is shown by his statement to Mr. Steinway: “ I want to give you a check for this to-morrow. You need not send it until you have pay for it.” It is true that the reply was, “ You can pay later on ; ” but the suggestion of Colonel Graham was not modified, and the piano was not delivered until after it was paid for. Had Colonel Graham accepted the suggestion, and replied that he would take the piano and pay for it later, still the contract would have been void, under the statute of frauds.- But it may be said that the delivery of the piano two days later operated to validate the void oral agreement. Jackson v. Tapper, 101 N. Y. 515. Grant it,, and the plaintiff is not aided, because Graham did not come into possession of the piano until its delivery by Stein way & Sons, which was two days later than the conversation we have quoted. Certainly he could not make actual delivery of the piano until after its delivery to him by his vendor, and, as there is no pretense that a symbolic delivery was at that time attempted, we need not consider whether subsequent validating of the contract would have operated to make such a delivery effectual.

As we have observed, the evidence warranted the finding that Colonel Graham intended to make the gift, and now we must inquire whether he made delivery after the piano was sent to "his house by Steinway & Sons. From the testimony of Mr. Steinway, it appears that he advised Colonel Graham that the bill of sale be made out to him, and that, if he wished to give the piano to his daughter, he then indorse on the back of it, “In consideration of my love and affection, I hereby give the within-mentioned piano to my daughter, Josie,” and deliver it to her. This Colonel Graham said he would do. Had he done so, it would have constituted as good a delivery as the thing was capable of, in view of the fact that this plaintiff was living-with her father. But it seems he did not do it, but instead, later on, by a bill of sale, transferred it, through a third person, to this defendant. By that act he not only asserted dominion over the piano, but indicated that he did not regard himself as having made a completed gift of the instrument, whatever he may have intended originally. The only thing said or done by Col. Graham after the piano reached his house which it is claimed tends to show delivery is found in the testimony of Victorie Graham. She said : “ After the piano had got home, he came up stairs, and said he wished I would go down and try Josie’s piano. I remember that distinctly.” We do not think this declaration, under the circumstances attending its making, and in view of defendant’s subsequent assertion of ownership, warrants the inference that the piano had then been delivered to the plaintiff. In a great, majority of families, doubtless, the real owner of all the personal property used by the family speaks of certain articles as if they were the property of the children,—such as, “ This is Charlie’s saddle horse, or Mary’s piano, or Sarah’s new bookcase,”—without intending to convey the impression that he had made a complete, gift of them, such as would enable the children to obtain an adjudication that they were severally the owners of such property. This expression, so frequently employed by fathers, generally means only that the article has been acquired by the father, for the use and pleasure of this child while a member of his household. The judgment should be reversed, and new trial ordered, with costs to abide the event.

All concur.


author: Van Brunt, P. J.

text:
    In the Matter of the Application for the Probate of the Will of Sophia Moss, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Appeal—New trial.
    Where the true issue involved has been lost sight of in the court below and the judgment rendered was not based only upon'evidence pertinent to such issue, a new trial will bo ordered.
    3, Same—Opinion of appellate court as to facts.
    The appellate' court will not express an opinion as to the facts, on reversing a judgment in a case triable by jury.
    Appeal from a decree of the surrogate denying an application for the probate of a will.

      J. W. Weed and Louis Marshall, for app’lt; K A. Jacob, for resp’t.
   Van Brunt, P. J.

It is impossible, in the disposition which is to be made of the appeal in the case at bar, to discuss in this opinion, at any length, the evidence which is contained in the record, without giving expression to opinions formed bj' a consideration of this evidence, to which undue and improper weight may be given upon a retrial of this proceeding before a jury. It has become too much the practice to permit the presentation to juries of the opinion of courts upon given questions of fact, with which opinion the jury has nothing to do. The jury has to determine the questions of fact, governed by the impression which the evidence offered during the progress of the trial makes upon their judgement,—such impressions to he guided and controlled by the rules of law which may he laid down for their guidance by the charge of the court. The opinions of an appellate court in the discussion of evidence have no place in the jury box. But they are so often used for the purpose of influencing the judgment of juries that it has become hazardous to indulge in such discussion. In the case at bar we have determined, therefore, simply to state the conclusion to which we have arrived, and to give some expression of opinion as to the general character of the rulings of the court below in respect to the large mass of evidence which makes up the record upon this appeal.

• It is undoubtedly true that the door was thrown wide open for the admission of evidence upon the trial of this case,—so wide open that a vast amount of irrelevant and improper material has been embraced within this record, and has probably influenced the mind of the surrogate in coming to the conclusion at which he arrived. The question which was to be determined upon the trial of the issues presented was as to whether the will in question ■was the will of the testatrix, and not as to whether, subsequent to the time of the date of that will, her sons robbed her. A consideration of the evidence in this case leads us irresistibly to the conclusion that the true issue which was involved was lost sight of, and that there never has been any judgment based only upon evidence pertinent to such issue. We think, therefore, under the circumstances, that a new trial should he ordered upon issues to be framed in the order to be entered upon this decision, and the case sent to the court of common pleas..for such retrial, with costs to the appellant, to abide the event.

All concur.


author: Per Curiam

text:
    Hewlett Scudder et al., as Trustees, etc., App’lts, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Municipal cosfokations—Assessment—Injunction.
    The enforcement of an illegal assessment will not he enjoined under chap. 410 of 1882.
    Appeal from a judgment dismissing the complaint on the merits.

      Joseph A. Flannery, for app’lts; George L. Sterling, for resp’t.
   Per Curiam

This suit is brought to restrain the sale of certain real property in the city of New York, owned by plaintiffs, for an unpaid assessment for a local improvement. The complaint was dismissed upon the grounds—First, that the assessment was void upon its face; and, second, that the remedy by injunction has been taken away by statute. Laws 1882, chap. 410, § 897. The facts appearing bring this case clearly within the authorities of Sixth Ave. R. R. Co. v. Mayor, etc., 63 Hun, 271; 43 St. Rep. 759; and People ex rel. Consolidated Gas Co. v. Myers, 65 Hun, 14; 47 St. Rep. 70, which are decisions of this court, and therefore controlling. It was suggested upon the argument that these cases were questioned or overruled by some later decisions in the court of appeals, and reference was made to the case of People ex rel. Martin v. Myers, 135 N. Y. 465; 48 St. Rep. 467. We are unable to understand how this contention can be sustained, in the face of the language of the opinion, which, among other cases, cites with approval People ex rel. Consolidated Gas Co. v. Myers, supra.

The judgment should accordingly be affirmed with costs.


author: O’Brien, J.

text:
    Frederick K. Feist, App’lt, v Alfred Schiffer et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Contract—Promise for benefit of third person.
    Where a person seeks to base his right to maintain his action against a third party upon a contract made between such party and another, it must not be merely one to indemnify the latter party but a promise made for his own benefit.
    Appeal from a judgment dismissing the complaint.

      Edward W. S. Johnston, for app’lt; M. ~ffiarley Platzelc, for resp’ts Schiffer and others; IF. IF. Bryan, for resp’t David.
   O’Brien, J.

This action was brought by a judgment creditor of Albert A. David against the obligors under the following agreement :

“ Agreement made this third day of December, eighteen hundred and eighty-seven, by and between David, Schiffer & Company, Denzer, Stern & Company, and Bernheim, Bauer & Company, parties of the first part, and Albert A. David, party of the second part, witnesseth: Whereas, the party of the second part, at the request of the parties of the first part, undertook to effect settlement of the claims of the parties of the first part against H. S. Simon, of Eugene City, Oregon; and whereas, in order to effect such settlement, the party of the second part deemed it necessary and desirable to purchase of one Samuel Simon a certain judgment held by him against said H. S. Simon, and for which he gave his check to said Samuel Simon on the Tradesmen’s National Bank of the city of New York for eighteen hundred and sixty dollars ; and whereas, for good and sufficient reasons, and in furtherance of the interests of the parties of the first part, and with their approval, he ordered said bank to refuse the payment of such check when presented; and whereas, such refusal.may involve him in litigation. Now, in consideration of the premises and of the sum of one'dlollar by each of the parties to the other or others in hand paid, the receipt whereof is hereby acknowledged, these presents witness: (1) That in the event that action is brought against the said party of the second part by said Samuel Simon, his assigns or legal representatives, said parties of the first part will defend such action at their own cost and expense, and will pay any judgment that may be rendered against the party of the second part or his legal representatives in any such action. (2) That the parties of the first part between themselves agree that they will pay the costs, expenses, and judgment resulting from any action which may be brought as aforesaid in the same proportion as they were interested in the affairs of H. S. Simon,—to wit, David, Schiffer & Co., in the sum of thirty-eight hundred and fifty-one dollars and fifty cents; Bernheim, Bauer & Co., in the sum of six hundred and' nine dollars and ninety-eight cents; Denzer, Stern & Co., in the sum of one hundred and fifteen dollars.”

The plaintiff through mesne assignments, became the owner of the check referred to in the agreement, and brought suit against David thereon, and obtained a judgment, execution upon which was returned unsatisfied, and such judgment still remains unpaid. The theory of the action is that the agreement inures to the benefit of the plaintiff, having been made between David and the respective firms therein mentioned in favor of the one who should recover judgment on the check. If this theory finds support in the evidence, then under the familiar principle laid down in the case of Lawrence v. Fox, 20 N. Y. 268, that “ an action will lie on a promise by a defendant, upon a valid consideration, to a third person for the benefit of plaintiff, although the plaintiff was not privy to the consideration,” this action is maintainable. It has been many times said by the court of appeals that the principle of that case should not be extended, but should be confined to its original limits. Lorillard v. Clyde, 122 N. Y. 498; 34 St. Rep. 224; Durnherr v. Rau, 135 N. Y. 222; 48 St. Rep. 394. And in Beveridge v. N. Y. El. R. R. Co., 112 N. Y. 26; 20 St. Rep. 962, Judge Gray, writing the opinion, says: “Within the principle of adjudged cases in this court, where the plaintiff seeks to base his right to maintain his action against a third party upon a contract made between that party and another, it must be one made or intended for his benefit. Such a beneficial intent must be clearly found in the agreement. * * * But in all of the cases which I have examined where the action was sustained, the facts showed that the promise clearly was for the third person’s benefit, and made with that distinct intention.”

The question here presented, therefore, narrows down to a construction of the agreement itself, as to whether it was a contract of indemnity for David’s benefit or a contract to pay the judgment creditor. If the language of the agreement were susceptible of the view that the parties thereto promised David that they would pay the judgment creditor, then there would be much force in the argument that this was within the principle laid down in Lawrence v. Fox and kindred cases. But it is equally clear that, if it was a mere contract of indemnity to David, then, not being a promise or agreement with David for the benefit of a third person, it would not be within the principle of those cases, and the plaintiff, having no contractual relation with the parties to the agreement, and not being himself privy thereto, could not under such circumstances maintain this action. That this was a contract of indemnity we think is clear, not alone from the language of the agreement itself, but in the light of the circumstances surrounding its execution. The parties thereto undertook to pay any judgment which one Samuel Simon or his assigns might recover against David upon the check with David had given to Simon in the interest of the parties, but the payment of which he stopped with their approval and in their interest, agreeing between themselves, in the event of liability thereon, to contribute in certain fixed proportions. They therefore occupied towards the holder of the check an attitude of hostility and resistance, and did not undertake to pay plaintiff, or make a promise which was to inure to his benefit, but, on the contrary, entered into an agreement for the purpose of inducing David to resist the paym'ent of the check given to Simon, and which subsequently passed into the hands of the plaintiff. We think that this consideration alone, in view of the language which we have quoted from the case of Beveridge v. N. Y. El. Railroad Co., supra, is conclusive against the plaintiff’s right to maintain the action. For, as already said (quoting from the opinion in that case), in all cases where the action was sustained “the facts showed that the promise clearly was for the third person’s benefit, and made with that distinct intention.”

There are other objectionsurged with much force against the plaintiff’s right to maintain this action, but, as we have reached a conclusion upon the main ground, it is unnecessary to discuss them. We think, therefore, that the judgment below was right, and should be affirmed, with costs. All concur.


author: Lewis, J.

text:
    William Engelhardt, as Administrator, etc., App’lt, v. Delaware, Lackawanna and Western Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Master and servant—Fellow servant—Incompetency.
    The evidence, in this case, was held not to be sufficient to establish that the injuries to the fireman were caused by the incompetency of the engineer, either through the latter’s nearsightedness or intoxication.
    Motion for a new trial on exceptions ordered "to be heard at general term in the first instance.

      George W. Cothran, for the motion ; John G. Milburn, opposed.
   Lewis, J.

This motion was brought to recover damages for the negligent killing of plaintiff’s son while in the employ of the defendant as a fireman on a locomotive engine, through the alleged incompetency of the engineer in charge of the engine. The case was tried at the Erie circuit, and at the close of plaintiff's case the court granted a nonsuit, upon the ground that the plaintiff had failed to establish a cause of action.

The accident occurred upon the line of the defendant’s road, at the village of Gfroveland, H. Y., on the evening of the 10th day of February, 1891. The deceased was a fireman in the employ of the defendant, and he was, at the time he received the injuries, upon one of the defendant’s locomotives, which was at the time in charge of an engineer by the name of Schrieber. A freight train of cars had been drawn into Gfroveland, from the east, by this engine, on the evening of the accident. The train was manned by a conductor, engineer, fireman, and three brakemen. It was run off from the main track upon one of the side tracks for the purpose of allowing the regular express passenger train, going easterly, the use of the main track. After leaving the main track, the freight engine was uncoupled from the train, and was run upon another side or switch track, at a place from 15 to 20 rods distant from the main track. The conductor directed the engineer to remain there with his engine until the passenger train mentioned had passed. Instead of doing as directed, the engineer ran the engine along the switch track, toward the main track, and so near to it that the express train, running at the rate of 38 miles an hour, came into collision with the freight engine. Both engines were wrecked, and the deceased and one of the brakemen, who were upon the freight engine at the time, were killed. The engineer was not killed. It is the contention of the plaintiff that the accident was the result of the incompetency of the engineer Schrieber; that his incompetency consisted of defective vision and habitual intoxication. The evidence upon which the.plaintiff relied to establish the defect in the engineer’s eyesight came from the witness Thomas Lauer. His testimony upon that subject is as follows : “I know that Schrieber was near-sighted. I was on the engine with him. Some days he could see a little further than others, but he could not see a great distance. I should judge he could not see over 350 feet, very seldom. It was not from intoxication. The man lost the sight of his eyes when he was a lake fireman or lake engineer, before he came to work for the defendant at all. His eyesight was in the same shape when he was running on an engine on the Lake Shore. When I went to work for the defendant, in 1883 or 1884, he was then in the defendant’s employ as a yard engineer.”

The witness, upon his cross-examination, testified that the way he knew that Schrieber could not see further than 350 feet was by giving him signals on the track. There was no evidence that within the distance named, 350 feet, his vision was not perfectly good. It was not shown that he had any difficulty in seeing well enough to discharge his duties as engineer. It was not necessary for him to see but a very few feet, to determine how near he was to the main track, at the time of the collision. He was undoubtedly guilty of negligence in running his engine so near the main track. The deceased and one of the brakemen were on the engine when it was run down to the place of the collision, and they do not seem to have discovered the proximity of the engine to the main track. It cannot, with any propriety, be claimed that the accident resulted from any delect in the engineer’s eyesight.

The plaintiff gave evidence tending to show that Schrieber was in the habit of drinking beer, whisky, and other liquors, and that on two occasions he was intoxicated. The latter occasion occurred some two or three weeks prior to the accident. Three of the defendant’s officials called him to account for it, and threatened to dismiss him from the company’s employ if it was repeated. The witness who testified to seeing him intoxicated on the occasion mentioned had lived near him five or six years, saw him, almost daily during a part of the time, and never saw him under the influence of liquor, except this once. There was an absence of any evidence that he drank any liquor on the day of the accident. The evidence failed to show that his drinking habit had rendered him either mentally or physically incompetent to discharge the duties of an engineer when he was sober The head brakeman of the train was with Schrieber during the entire day of the accident, and testified that he did not drink that day, and that he was sober on the evening in question.

The plaintiff, we think, failed to make a case entitling him to recover. His motion for a new trial should be denied, and judgment directed for the defendant upon the verdict

All concur.


author: Follett, J.

text:
    Louisa Stokes, App’lt, v. Laura Pease, as Executrix, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Married women—Services.
    A married woman may sue in her own name for services rendered with the consent of her husband.
    Appeal from a judgment dismissing the complaint.

      T. Me Gants Stewart, for app’lt; William K Wyatt, j'or resp’t.
   Follett, J.

Since some time anterior to February 1,1888, the plaintiff has been a married woman, residing with her husband at Ho. 125 West Twenty-seventh street. Mi's. Mary Ann Banks, a widow, and the plaintiff, were sisters. For many years prior to her death, Mrs. Banks was a paralytic, and unable to care for herself. From February 1, 1888, until August 1, 1891, —three years and six months—she was cared for by the plaintiff as a member of her family at Ho. 125 West Twenty-seventh street, under an agreement made with the plaintiff that she would give and devise her property to the plaintiff. April 15, 1893, Mrs. Banks died, leaving a will, which was probated June 2, 1893, and letters testamentary thereon were issued to the defendant. Testatrix left an estate of §1,300. On the 16th of June, 1893, the plaintiff presented a claim for §20 a week for her services as nurse from February 1, 1891, which was rejected, and the claim was referred, pursuant to the statute. There is no dispute about the facts of the case. It was proved that the testatrix agreed with this plaintiff to compensate her for her care by bequeathing to her her property. That the care was rendered is conceded, together with the fact that nothing has been paid therefor, and that the testatrix bequeathed no part of her estate to the plaintiff. The referee dismissed the claim, and ordered a judgment against the plaintiff, upon the theory that, she beinga married woman, her services belonged to her husband, and that they could not be recovered in her own name. In this, under the facts proved, we think he erred. Section 2 of chapter 90, Laws of 1860, provides: “Sec. 2. A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property, and may be used or invested by her in her own name.’’

Chapter 381 of the Laws of 1884 provides: “Section 1. A married woman may contract to the same extent, with like effect and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary.”

Under these statutes, if a married woman, witli the knowledge of her husband, renders services to a third person, pursuant, to a contract for compensation, she may maintain an action to recover the price agreed or the value of the services rendered. Adams v. Curtis, 4 Lans. 164; Sheldon v. Button, 5 Hun, 110; Snow v. Cable, 19 Id. 280; Rowe v. Comley, 11 Daly, 317; In re Kinmer, 14 St. Rep. 618; Brooks v. Schwerin, 54 N. Y. 343 ; Birkbeck v. Ackroyd, 74 Id. 366. In addition to the express contract between the plaintiff and the testatrix, it appears that the former was engaged in business on her own account as a laundress, and it was shown on the trial that she was compelled to hire extra service because her time was occupied in caring for her sister. The contract and the facts bring this case within those, above cited, and without Reynolds v. Robinson, 64 N. Y. 589 ; 82 Id. 103, and Coleman v. Burr, 93 Id. 17. The common law prestimption that the services of the wife belong to the husband exists notwithstanding the statutes above cited, but under them the presumption may be rebutted, and it was in this case. When services are rendered under an agreement that compensation for them shall be made by will, which is not done, the value of the services may be recovered against the decedent’s estate. Robinson v. Raynor, 28 N. Y. 494; Reynolds v. Robinson, 64 Id. 589.

The judgment should be reversed, and a new trial granted before a referee to be appointed by this court, with costs to the appellant to abide the event.

All concur.


text:
    Court of Appeals.
    Filed April 10, 1894.
    Bailey, Resp’t, v. Bailey, App’lt.

      W. E. Osborn, for app’lt; T. 0. Campbell, for resp’t.
   Ño opinion. Judgment affirmed, without costs, on opinion below. All concur.


text:
    Ferdinand C. Bamman, App’lt, v. Theresia Binzen, Resp’t.

      Monde Ash, for app’lt; Thos, McAdam, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 47 St. Rep. 67.


text:
    George M. Beebe, Resp’t, v. Board of Sup’rs of Sullivan County et al., App’lts.

      Lewis E. Carr, for app’lts; J. A. Thompson, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 46 St. Rep. 222.


text:
    Edwin W. Butler, Resp’t, v. Garrett D. Clark et al., App’lts.

      Wm. H Arnoax, for app’lts; Henry P. Starbuele, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 133.


text:
    Simon Butts, App’lt, v. Addison B. Fillmore, Resp’t.

      John Desmond, for app’lt; Geo. D. Forsyth, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 45 St. Rep. 452.


text:
    Frances Connolly, Resp’t, v Buffalo, R. & P. Ry. Co., App’lt.

      Henry G. Danforth, for app’lt; Eugene Van Voorhis, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 937.


text:
    Louis P. De Bautte et al., Resp’ts, v. Herman A. Curiel et al., App’lts.

      E. J. Myers, for app’lts; Milton S. Guiterman, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 49 St. Rep. 622.


text:
    Ernest De Bavier et al., Resp’ts, v. Hugo Funke, App’lt.

      W. P. Knapp, for app’lt; Samson Laehman, for resp’ts.
   Ño opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 50 St. Rep. 442.


text:
    Frederick L. Degener, Resp’t, v. John T. Underwood et al., App’lts.

      James A. Hudson for app’lts; J. E. Hadden, for resp’t.
   No opinion. Judgment affirmed, with costs, wiih five per cent, damages, under § 3251, Code Civ. Proc. All concur. Aff’g 49 St. Rep. 324.


text:
    Louisa Freeman, App’lt, v. Glens Falls Paper Mill Co., Resp’t.

      T. F. Hamilton, for app’lt; J. S. L'Amoreaux, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 53 St. Rep. 786.


text:
    Sebastian Gilzinger, Resp’t, v. Saugerties Water Co., App’lt.

      A T. Clearwater, for app’lt; Howard Ohipp, Jr., for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 9 St. Rep 308.


text:
    John E. Harrington, Resp’t, v. Franklin Fire Ins. Co. of Philadelphia, App’lt.

      Evert Fowler, for app’lt; John E. Van Etten, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur, except Earl and Bartlett, JJ., dissenting. Aff’g 49 St. Rep. 138.


text:
    Charles Herdt, Resp’t, v Rochester City & B. R. Co., App’lt.

      Theodore Bacon, for app’ll.; Eugene Van Voorhis, for resp’t.
   No opinion. ,1 udgment affirmed, with costs. All concur. Aif’g48 St. Rep. 46.


text:
    James B. Horton, Resp’t, v. William H. S. Wood, App’lt.

      WalUr Edwards. fur app’lt; Andrew J. Frowst, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 50 St. Rep. 679.


text:
    Thomas D. Hurst, Resp’t, v. Trow’s Printing & Bookbinding Co. et al., App’lts. (Two cases).

      Frederic JR. Krll-gg, for app’lts; Andrew Gilhooly, for resp’t.
   No opinion. Judgment affirmed, wiili costs, on opinion below. All concur. Aff’g 51 St. Rep. 206.


text:
    Charles R. Knowles, Resp’t, v. American Ins. Co. of Boston, App’lt.

      Jacob L Ten Eyck, for app’lt; B. 8. Halt, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur, except Bartlett, J., dissenting. Aff’g 49 St. Rep. 7.


text:
    Giles E. Leach et al., Resp’ts, v. Charles Linde, App’lt.

      Edward 8. Clinch, for app’l'; Lorenzo Semple, for resp’ts.
   No opinion. Order affirmed, with costs, on opinion below. All concur. Aff’g 54 St. Rep. 18.


text:
    John McGoldrick, Resp’t, v. New York Cent. & H. R. Co., App’lt.

      C. JO. Prescott, for app’lt; John 1). McMahon and T. G. Curtin, for resp’t.
   No opinion. Judgment affirmed, with costs. A11 concur, except Pinch and Gray, JJ., not voting. Aff’g 49 St. Rep. 566.


text:
    James McNeil, App’lt, v. New York, L. E. & W. R. Co., Resp’t.

      John IK Lyon, for app’lt; Lewis E. Car ■, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Andrews, O. J., not voting. Aff’g 54 St. Rep. 201.


text:
    Matter of Charles E. Gallagher, as Committee, etc.

      Wm. II. Henderson, for app’lt; Ihulsm Anley, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 43 St. Rep 581.


text:
    In Matter of Third Methodist Episcopal Church.

      Frank Moss, for app’lt; TF/ti. J. Groo, for resp’ts.
   No opinion. Order affirmed, with costs, on opinion below. All concur. Aff’g 51 St. Rep. 406.


text:
    Eliza J. Murray, App’lt, v. Catherine Molloy et al., Resp’ts.

      8. 8. Hemingway, for app’lt; Frederick Cobb, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 44 St. Rep. 744. .


text:
    Herbert Cecil Pelly, Resp’t, v. Andrew J. Robinson, App’lt.

      Eugene II. Pomeroy, for app’lt; Luden Birdseye, for resp’t.
   No opinion. Judgment reversed, and new trial granted, costs to abide event, on authority of Pelly v. Naylor, 139 N. Y. 698. All concur. Rev’g 49 St. Rep. 792.


text:
    People, Resp’t, v. Philip Derringer, App’lt.

      B. P. JRyan, for app’lt; John JD. Lindsay, for the People.
   No opinion. Judgment affirmed. All concur. Aff’g 56 St. Rep. 136.


text:
    People, Resp t, v. Alexander B. Terwilliger, App’lt.

      Wm. Lounsbery. for app’lt; F. A. Westbrook, for resp’t.
   No opinion. Judgment affirmed, with costs, on prevailing opinion below. All concur. Aff’g 56 St. Rep. 255.


text:
    People ex rel. Henrietta Fisk, App’lt, v. Board of Education of City of New York, Resp’t.

      B. C. Chetwood, for app’lt; JR. G. Beardsley, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 53 St. Rep. 314.


text:
    People ex rel. James M. Patterson, App’lt, v. Edward Reed, Resp’t.

      Louis M. Brown, for app’lt; Chas. J. Buchanan, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements for printing, on opinion below. All concur. Aff’g 46 St. Rep. 597.'


text:
    Simon Rawitser et al., App’lts, v. William T. Pettingill et al., Resp’ts.

      Otto Rondiz and Z. 8. Westbrook, for app’lts; W. L. Van Benbergh, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. Al) concur. Aff’g 49 St. Rep. 462.


text:
    Jennie R. Sherman, Resp’t, v. Village of Oneonta, App’lt.

      W. H. Johnson, for app’lt; Isaac II Maynard, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 49 St. Rep. 267.


text:
    Roxanna J. Sleeper, Resp’t, v. Sidney S. Sleeper, App’lt.

      Adelberi Moot, for app’lt; Wallace Thayer, for resp’t.
   No opinion. Judgment affirmed, with costs All concur. Aff’g 48 St. Rep. 41. .


text:
    P. Clayton Stevens, Resp’t, v. Metropolitan Life Ins Co., App’lt.
    IF. 11. Arnoux, for app’lt; Edward F. O’Dwyer, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 51 St. Rep. 575.


text:
    James Stott, Resp’t, v. New York, L. E. & W. R. Co., App’lt.

      Lewis E. Oarr. for app’lt; W. F. O’Neil, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Afl’g 50 St. Rep. 500.


text:
    William Sutton, Resp’t, v. New York, L. E. & W. R. Co., App’lt.

      Lewis E. Carr, for app’lt; John M. Gardner, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 514.


text:
    Harrison A. Tucker et al., App’lts, v. Alexander McLean et al., Resp’ts.

      Chas. M. Stafford, for app’lts; Jas. & l’hos. II Troy, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 936.


text:
    Walter Van Houten, Resp’t, v. Charles Fleischmann, App’lt.

      G. Bainbridge Smith, for app’lt; James McKeen, for resp’t.
   No opinion. Judgment -affirmed, with costs. All concur. Afl’g 48 St. Rep. 763.


text:
    John Van Tassel, Resp’t, v. New York, L. E. & W. R. Co. App’lt.

      Frederic B. Jennings, for app’lt; Artemas B. Smith, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Earl, Finch, and Gray, JJ., dissenting. Aff’g 48 St. Rep. 767.


text:
    John Van Tassel, Resp’t, v. New York, L. E. & W. R. Co., App’lt.

      Frederic B. Jennings, for app’lt; Artemas B. Smith, for resp’t.
   No opinion. Appeal from order dismissed, with costs. All concur. See 48 St. Rep. 782.


text:
    Charles J. Webb et al., App’lts, v. William T. Pettingill et al., Resp’ts.

      Otto Ilorwitz and Z. S. Westbrook, for app’lts; W. L. Van Denbergh, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Afl’g 49 St. Rep. 462.


text:
    Chauncey Whitcher, App’lt, v. Holland Waterworks Co., Resp’t.

      Fi ank C. Laughlin, for app’lt; Wallace Thayer, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Afl’g 48 St. Rep. 196.


text:
    W. J. Johnston Co. (Limited), App’lt, v. Walter T. Hunt et al., Resp'ts.

      Thos. J. Keigharn, for app’lt; John Henry Hull, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Afl’g 50 St. Rep. 124.


text:
    Filed April 17, 1894.
    Anna M. Arnold v. Norfolk & N. B. Hosiery Co.
   No opinion. Motion to advance denied; $10 costs. See 58 St. Rep. 851.


text:
    John Crosby Brown et al., App’lts, v. United States & Brazil Mail Steamship Co. et al., Resp’ts.
   No opinion. Appeal dismissed, with costs. All concur. See 59 St. Rep. 466.


text:
    Galinger, App’lt, v. Iowa Cent. Ry. Co., Resp’t.
   No opinion. Motion to stay proceedings granted.


text:
    Angel K. Jorgensen, App’lt, v. Flavius S. Squires et al., Resp’ts.
   No opinion. Motion to open default granted on payment of $50 within 15 days after service of notice of entry of this order. See 50 St. Rep. 161.


text:
    Matter of John P. Adams, as Commissioner, etc.
   No opinion. Motion for reargument denied; $10 costs. See 57 St. Rep. 408.


text:
    People, Resp’t, v. Peter Clark, Jr., App’lt.
    «7. B. Hallen, for app'lt; John B. Fellows, for the People.
   No opinion. Motion to dismiss granted. See 41 St. Rep. 448.


text:
    People, Resp’t, v. John Eichler, App’lt.

      John Fennell, for app’lt; John B. Fellows, for the People.
   No opinion. Motion to dismiss granted. See 58 St. Rep. 177.


text:
    Henrietta W. Wood, App'lt, v. Horace G. Young, Resp’t.
   No opinion. Motion for reargument denied. See 50 St. Rep. 820.


text:
    Filed April 24, 1894.
    Colorado State Bank, Resp’t, v. Patrick H. Gallagher, App’lt.

      L. B. Beckley, for app’lt; Geo. W. Van Slyck, for resp’t.
   No opinion. Appeal dismissed, with costs. All concur. See 59 St. Rep. 86.


text:
    Elmira Sav. Bank v. Charles Davis.
   No opinion. Motion to advance granted. Case to be put on calendar, and argued any day of week commencing April 30th. See 55 St. Rep. 912.


text:
    In Matter of East Eighteenth St.

      John H. Kemble, for app’lts; Wm. B. C. Mayer, for resp’ts.
   No opinion. Order affirmed, with costs. All concur. Aff’g 59 St. Rep. 628.


text:
    Milhau, App’lt, v. Milhau et al., Resp'ts.

      Edward O. Belaven, Jr., for app’lt; G errará I. Whitt head, for resp’ts.
   No opinion. Order affirmed, with costs. All concur.


text:
    People v. Madison Square Bank. In Matter of George T. Fitzgerald.

      Moses Weinman, for app’lt; Lyman W. Bedington, for resp’t.
   No opinion. Order affirmed, with costs. . All concur. AfE’g 57 St. Rep. 797.


text:
    People, Resp’t, v. New York, N. H. & H. R. Co., App’lt.

      John M. Bowers, for app’lt; T. B. Hancock, for the People.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 46 St. Rep. 962.


text:
    People ex rel. Andrew D. Baird v. Board of Sup’rs of Kings County.
   No opinion. Motion to put on calendar granted. See 51 St. Rep. 690.


text:
    People ex rel. Whitney v. Board of Sup’rs of Kings County.
   No opinion. Motion to put on calendar granted.


text:
    Plaut, Resp’t, v. Moores et al., Resp’ts.

      L. B. Beckley, for app’lts; G. J. Wiederhold, for resp’t.
   No opinion. Order affirmed, with one bill of costs. All concur. Aff’g 58 St. Rep. 870.


text:
    Mary Spencer v. Citizens’ Mut. Life Ins. Ass’n.
   No opinion. Motion for substitution granted. See 52 St. Rep. 442.


text:
    Augusta Stelling, Resp’t, v. Louis R. Grabowsky, App’lt.
   No opinion. Appeal dismissed,- without costs. All concur. See 46 St. Rep. 700.


text:
    Daniel W. T. Tallmadge et al., App’lts, v. Phineas C. Lounsbury, Resp’t.

      Alex 8. Bacon, for app’lts; Joseph G. Gray, for resp’t.
   No opinion. Appeal dismissed, with costs. All concur. See 50 St. Rep. 531.


text:
    United States Trust Co. of New York, Resp’t, v. Stanton, App’lt.
   No opinion. Motion for reargument denied,without costs. See 57 St. Rep. 866.


text:
    Filed May 1, 1894.
    Nelson Beardsley, App’lt, v. Eleanor D. Gaylord et al., Resp’ts.

      James B. Oox, for app’lt; F. B. Wright, for resp’ts.

   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 54 St. Rep. 234.


text:
    Gustav Daniel, Resp’t, v. New York News Pub. Co., App’lt.

      Boger M. Sherman, for app’lt; 8. L. Samuels, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff.’g 51 St. Rep. 18.


text:
    Albert F. Gescheidt, App’lt, v. Frederika Drier et al., Resp’ts.

      Lucius L. Van Allen, for app’lt; Wilson Brown, Jr., for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 44 St. Rep. 481.


text:
    Albert Glaser, App’lt, v. Daniel Carroll et al., Resp’ts.

      LL. K. Coddingtou, for app’lt; Earley & Prendergast, for resp’ts;
   No opinion, "judgment affirmed, with costs, on opinion below. All concur. Aff’g 49 St. Rep. 783.


text:
    Hopper v. Updike.
   No opinion. .Motion for leave to discontinue granted on payment of costs in this court before argument.


text:
    John Hughes, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.

      James Eraser Gluck, lor app’lt; John Cunncen, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Pinch, J., not sitting.


text:
    Meyer Jonasson, App’lt, v. Edward E. Eames et al., Resp’ts.

      Alex. Blumensliel, for app’lt; B. F. Mneelantl and Chas. E. Rushmore, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur, Aif’g 51 St. Rep. 13„


text:
    Howard S. Jones, Resp’t, v. Robert L. Moores et al., App’lts.

      L. R. Beckley, for app’lts; Salter S. Clark, for resp’t..
   No opinion. Judgment affirmed, with costs, and 10 per cent, damages for delay, under § 3251 of the Code of Civil Procedure. All concur. Aif’g 51 St. Rep. 544.


text:
    Rosabel Langworthy, Resp’t, v. Village of Olean, App’lt.

      Fred L. Eaton, for app’lt; J. II. Warin,, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 48 St. Rep. 933.


text:
    Maria A. Lewis, App’lt, v. Julia R. Duane, Resp’t.
   No opinion. Motion for reargument denied, with $10 costs. See 57 St. Rep. 410.


text:
    Lynch, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.

      James Fraser Gluck, for app’lt; Geo. W. Cothran, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Earl, J., not voting, and Pinch, J., not sitting.


text:
    Patrick Martin, App’lt, v. Valentine Cook et al., Resp’ts.

      Geo. M. Curtis, for app’lt; Lewis Sanders, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 37 St. Rep. 733.


text:
    Alpheus W. Montgomery, Resp’t, v. James M. Waterbury et al., App’lts.

      J. E. Hinton Hyde, for app’lts; Henry G. Atwater, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 50 St. Rep. 521.


text:
    Catharine Moore, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.

      James Fraser Gluck, for app’lt; John Cunneen, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Pinch, J., not sitting. Aff’g 57 St. Rep 695.


text:
    James F. Mulvaney, Resp’t, v. Brooklyn City R. Co., App’lt.

      Samuel I). Morris, for app’lt; Jesse Johnson, for resp’t.
   iN o opinion. Judgment affirmed, with costs. All concur. Aff’g 49 St. Rep. 637


text:
    Laura E. Owens, Resp’t, v. John H. Ernst et al., App’lts.

      Thos. S. Moore, for app’lts; Isaac M. Mapper, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Peckhaii and Gray, JJ., dissenting. Aff’g 49 St Rep. 640.


text:
    Pennsylvania Mut. Life Ins. Co., Resp’t. v. Edwin C. Bradley, App’lt.

      Rufus Sco't, for app’lt; J. R. Jewell, for fesp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 51 St. Rep. 39.


text:
    Augustus C. Pohl, Resp’t, v. Charles E. Pontier et al., App’lts.

      Chas. Goldaier, for app’lts; Alex. Blwmenstie!. for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 226.


text:
    Erastus Root, Overseer of Poor, ex rel. Arthur C. Fisher et al. v. Albert J. Alexander.

      Chas. H. Brown, for app’h; W. Martin Jones, for resp’ts Fisher and others; Rufus Scott, for resp’t Alexander.
   No oninion. Order affirmi d, with costs, on opinion below. All concur, except Earl and O’Brien, JJ., not voting. Aff’g 45 St. Rep. 57.


text:
    Patrick Sheahan, App’lt, v. National Steamship Co., Limited, Resp’t.

      Dennis Sheahan. for app’lt; John, Ohetwood, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 49 St. Rep. 484.


text:
    Chauncey H. Skidmore, Resp’t, v. Anchor Brewing Co., App’lt.

      William G. Valentin-:, for app’lt; Augusms M. Price, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. AfE’g 51 St. Rep. 937.


text:
    Sarah G. Smith Resp’t, v. John B. Smith et al., App’lts.

      George W. Saudford, N. 8 Aekerly, and A. A. Spear, for app’lls ; Thomas '8. Mount, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. See 58 St. Rep. 552.


text:
    Jane Teeter, Resp’t, v. Andrew Teeter et al., App’lts.

      D. V. Bouton, for app’lts; M. if. Tompkins, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 47 St. Rep. 579.


text:
    Filed May 4, 1894.
    Louis Bourdon, Resp’t, v. Francis A. Martin, App’lt.

      J. W. Atkinson, for app’lt; Thomas O’Oonnor, for resp’t.
   No opinion. Order affirmed, with costs, against appellant personally. All concur. Aff’g 56 St. Rep. 314.


text:
    Cochran Cotton-Seed Oil Co., Resp’t, v. Theodore Haebler et al., App’lts.

      Marshall P. Stafford, for app’lts; Robert B. Hontyman, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 331.


text:
    Nathan Cohen, Resp’t, v. John Simmons, App’lt.

      Edward W. 8. Johnston, for app’lt; Otto Ilorwitz, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 146.


text:
    Etoile De Loraz, Resp’t, v. Fanny Davenport McDowell, App’lt.

      A. J. Dittenhoefer. for app’lt; George M. Pinney, Jr., for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 52 St. Rep 67.


text:
    John Enright, App’lt, v. Montauk Fire Ins. Co. of Brooklyn, Resp’t.

      Delos McOurdy. for app’lt; II. O. M. Ingraham, for resp’t. '
   No opinion. ' Judgment affirmed, with costs, on opinion below. All concur. Aff’g 40 St. Rep. 642.


text:
    Gustave Heye App’lt, v. Henry M. Tilford et al., Resp’ts.

      Edward B. Hill, for app’lt; Peter B. Oluey, for resp’ts.
   No opinion. Appeal dismissed, with costs. All concur. Aff’g 58 St. Rep. 868.


text:
    Christopher Lochmann, App’lt, v. Ellen Meehan, Resp’t.

      Philip L. Wilson, for app’lt; William E. 0. Mayer, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Bartlett, J., taking no part. Aff’g 50 St. Rep. 470.


text:
    In the Matter of Helen M. Kellogg, App’lt.

      L. Laflin Kellogg, for app’lt; Henry A. K ng, for resp’ts.
   No opinion. Appeal dismissed, with costs. All concur. See 56 St. Rep. 889.


text:
    In the Matter of Theodore Scheideler’s Estate.

      John Braden, for app’lt; Henry Schmitt, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 58 St. Rep. 596.


text:
    Metropolitan Sav. Bank, Resp’t. v. New York El. R. Co. et al., App’lts.

      Reuben Leslie Maynard, for-app’lts ; Aug. S. Hutchins, for resp’t.
   No opinion. Judgment affirmed, with costss. All concur. Aff’g 50 St. Rep. 447.


text:
    Jackson Montgomery, Overseer of Poor, App’lt, v. Marcellus C. Odell, Resp’t.

      W. Martin Jones, for app’lt; 8. D. Holliday, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 56 St. Rep. 625.


text:
    Thomas O’Malley, Resp’t, v. New York, L. E. & W. R. Co., App’lt.

      Lewis E. Garr, for app’lt; John M Gardner, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except JEarl, J., not voting. Aff’g 51 St. Rep. 366.


text:
    People ex rel. Frederick E. Bates, App’lt, v. Robert G. H. Speed et al., Resp’ts.

      Frederick Gollin, for app’lt; A. J. Robertson, for resp’ts.
   No opinon. Order affirmed, on opinion below, with costs. All concur. Aff’g 57 St. Rep. 295.


text:
    People ex rel. James C. Fargo, Resp’t, v. Simon W. Rosendale, Att. Gen., App’lt.

      T. E. Hancock, for app’t; Frank Ilasbrouck, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 57 St. Rep. 295.


text:
    E. Stanton Riker, Resp’t, v. Timothy Mahoney et al., App’lts.

      A. A. Henderson,, for app’lts; Franklin Pierce, for resp’t.
   No opinion. Judgment affirmed, on opinion below, with costs, and 10 per cent, damages, under § 3351 of the Code of Civil Procedure. All concur. Aff’g 51 St. Rep. 600.


text:
    Eugene Staubsandt, Resp’t, v. William F. Lennon, App’lt.

      James Kearney, for app’lt; John O. Coleman, for resp’t.
   No opinion. Judgment affirmed, on opinion below, with costs. All concur. Aff’g 51 St. Rep. 754.


text:
    Filed June 5, 1894.
    Charles Banks, App’lt, v. New York Club, Resp’t.

      John G. Goleman, for app’lt; Ira D. Warren, for resp’t.
   No opinion. Judgment affirmed, on opinion below, with costs. All concur, except Peckiiam and Gray, J. J., not voting. Aff’g 52 St. Rep. 245.


text:
    William G. Bates et al., Resp’ts, v. United Life Ins. Ass’n, App’lt.

      Harry Wilber and Matthew Hale, for app’lt; William Ices Washburn, for resp’t.
   No opinion. Judgment affirmed, with costs, and 3 per cent, damages, under § 3351, Code Civil Procedure. All concur. Aff’g 52 St. Rep. 86.


text:
    T. Ella Carpenter, Resp’t, v. Edgar Knapp, App’lt.

      W. Farrington, for app’lt; Fred E. Ackerman, for resp’t.
   No opinion, Judgment affirmed, with costs. All concur. Aff'g 57 St. Rep. 745.


text:
    Luther L. Dean et al., App’lts, v. William J. Benn et al., Resp’ts.

      Matthew Hale, for app’lts ; Edward P. White, for resp’ts.
   No opinion. Judgment affirmed on opinion at special term, with costs. All concur, except Gray, J., not voting. Aff’g 52 St. Rep. 844.


text:
    William E. Devlin, Resp’t, v. Louis O. Kosel, App’lt.

      Widiatn J. Oourtney, for app’lt; William tí. Hurd, Jr., for resp’t.
   No opinion. Judgment affirmed, on opinion below, with costs, and §60 damages, under § 3351 of the Code of Civil Procedure. Aff’g 51 St. Rep. 130.


text:
    Francis A. Dike, Resp’t, v. William Long, App’lt.

      J. B. & (J B. Adams, for app’lt; Abbott & Abbott, for resp’t.
   No opinion. Judgment of general term reverse!, and that entered upon report of referee affi'med with costs. All concur. Rev’g 52 St. Rep. 936.


text:
    James M. Hazelwood, App’lt, v. Daniel Staring et al., Resp’ts.

      Thompson <& Chapman, for app’lt; Elon R. Broten, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 49 St. Rep. 919.


text:
    Aaron Healy et al., App’lts. v. Isaac Brandon et al., Resp’ts.

      Thomas G. Shearman, for app’lts ; James L. Bennett, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 152.


text:
    Adolpheus E. Kinnear, App’lt, v. Robert S. Powell et al., Resp’ts.

      George A. Black, for app’lt; George Bethune Adams, for resp’t.
   No opinon. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 52 St. Rep. 501.


text:
    Augustus N. Lindsley, App’lt. v. Henry W. Van Cortlandt et al., Resp’ts.

      James M. Hunt, for app’lt; Wm. TP. Bcrugham and John H. Ferguson, for resp’ts.
   No opinion. Order affirmed and judgment absolute ordered against plaintiff, with costs. All concur. Aff’g 51 St. Rep 741.


text:
    McElwee Manuf’g Co., Resp’t, v. Benjamin A. Trowbridge, App’lt.

      Geo. S. Coleman, for resp’t.
   No opinion. Judgment affirmed by default, with costs. All concur. Aff’g 52 St. Rep. 64.


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

      George M. Thomson and Austen G. Fox, for app’lts ; Geo. A. Black, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. ,, All concur. Aff’g 51 St. Rep. 88.


text:
    Catharine Mittnacht, App’lt, v. James J. Slevin, Resp’t.

      Bh-nest G. Steelman and John Larkin, for app’lt; B. B. Kenyon, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 51 St. Rep. 438.


text:
    John M. Moore, Resp’t, v. Laura M. Nye, App’lt.
    S. Corbin, for app’lt; L. L. Sheddsn, for resp’t.
   No opinion. Order affirmed and judgment absolute ordered against plaintiff, with costs. All concur. Aff’g, 51 St. Rep. 939.


text:
    Emanuel Popper, App’lt, v. Henry Wallach et al., Resp’ts.

      Fdward W. S. Johnston, for app’lt; Leopold Wallach, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 51 St. Rep. 936.


text:
    Joshua C. Sanders, Resp’t, v. James L. Parshall, App’lt.

      Jacob Fromme, for app’lt; Joshua C. Sanders, in pro. per.

   No opinion. Order affirmed, with costs. All concur. Aff’g, 51 St. Rep. 651.


text:
    Jacob C. Schuyler, Resp’t, v. Hamilton Busbey et al., App’lts.

      K. M. Whitehead, for app’lts ; Grant Squires, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g, 52 St. Rep. 652.


text:
    Skenandoa Cotton Co., Resp’t, v. Mary E. Lefferts, App’lt.

      Boyle & Fitts, for app’lt; Nicholas tt. Kernan, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 36 St. Rep. 63.


text:
    Catherine Toumey, Resp’t, v. O’Reilly, Skelly & Fogarty Co., App’lt.

      Fdward W. S. Johnston, for app’lt; Horace Clark Skelly, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 52 St. Rep. 119.


text:
    William T. G. Weymouth, Resp’t, v. Broadway & Seventh Ave. R. Co., App’lt.

      Thos. S. Moore, for app’lt; Thos. P. Wickes, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 51 St. Rep. 612.


text:
    William S. Williams, App’lt, v. Robert Lindblom, Resp’t.

      B. M. Porter, for app’lt; L. A. Gould, for resp’t.
   No opinion. Order affirmed and judgment absolute ordered against plaint iff, with costs, on opinion of Follett, J., below. All concur. Aff’g, 52 St. Rep. 78.


text:
    Filed June 12, 1894.
    Henry A. Bowerman, App’lt, v. Warren D. Bowerman et al., Resp’ts.
   No opinion. Motion to put on calendar denied, without costs. See 59 St. Rep. 633.


text:
    Ellis N. Crow, Resp’t, v. Patrick J. Gleason, App’lt.
   No opinion. Motion for reargument denied, $10 costs. See 57 St. Rep. 583.


text:
    James Cunningham, Resp’t, v. Andrew T. Doyle, App’lt.
   No opinion. Motion to open default denied, $10 costs. See 55 St. Rep. 784.


text:
    Charlotta Hodge, Resp’t, v. Andrew B. Yetter, App’lt.
   No opinion. Motion to show cause, etc., granted, on payment of $20 costs. See 56 St. Rep. 898.


text:
    People ex rel. Roswell W. Keene v. Board of Sup’rs of Queens Co.
   No opinion. Motion for regument denied, $10 costs. See 58 St. Rep. 580.


text:
    Sheahan, App’lt, v. National Steamship Co., Resp’t.
   No opinion. - Motion for reargument denied, $10 costs.


text:
    Worthington Co. et al., App’lts, v. Pfister Book-Binding Co. et al., Resp’ts.
   No opinion. Motion to withdraw appeal granted, without costs. See 52 St. Rep. 448.


text:
    Filed June 19, 1894.
    Edmund F. Bennett, Resp’t, v. John I. Thompson et al., App’lts.

      Henry J. Speck, for app’lts ; Geo. B. Dorman, for resp’t.
   No opinion. Appeal dismissed, with costs. All concur. See 57 St. Rep. 328.


text:
    Central Nat. Bank of Troy, Resp’t, v. Ft. Ann Woolen Co. et al. App’lts.

      Edgar T. Brackett, for app’lts ; Ohas. E. Patterson, for resp’t.
   No opinion. Order affirmed, with costs, on opinion in special term. All concur. Aff’g, 57 St. Rep. 316.


text:
    In Matter of Dorothy Annan.

      Matthew Hale, for app’lt; Wm. 0. DeWPt, for resp’t.
   No opinion. Appeal dismissed, with costs. Ail concur, except Earl and Gray, JJ., dissenting. See 56 St. Rep. 219.


text:
    People ex rel. American Surety Co. of New York, Resp’t, v. Frank Campbell, Comptroller, App’lt.

      T. E. Hancock, for app’lt; John J. Crawford, for resp’t.
   No opinion. Order affirmed, with costs, on prevailing opinion below. All concur. Aff’g, 55 St. Rep. 881.


text:
    Henry W. Sage et al. Resp’ts, v. Shepard & Morse Lumber Co., App’lt.

      Alpheus T. Bulkeley, for app’lt; James V. Cooper, for resp’ts.
   No opinion. Order affirmed, with costs. All concur. Aff’g, 57 St. Rep. 329.


text:
    John A. Smith, App’lt, v. Union Milk Co., Resp’t.

      Henry W. Smith, for app’lt; Qhas. J. McBurney, for resp’t.
   No opinion. Order affirmed, with costs, on opinion below. All concur. Aff’g, 53 St. Rep. 891.


text:
    James V. S. Wooley, App’lt, v. Marie Friedlander, Resp’t.

      J. Ireadwett Bichao’ds, for app’lt; Benjamin FT. Ga/rdozo, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 51 St. Rep. 821.


text:
    Filed June 22, 1894.
    Minnie L. Ackerman, Resp’t, v. Third Ave. R. Co., App’lt.

      Frederick P. Delafield, for app’lt; A. Walker Otis, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 59 St. Rep. 315.


text:
    Charles F. Beach, App’lt, v. Simon Sterne, Resp’t.

      Leopold Wallaeh, for app’lt; E. Ellery Anderson, for re'sp’t.
   No opinion. Judgment affirmed, on opinion below, with costs. All concur. Aff’g 51 St. Rep. 819.


text:
    Robert C. Black et al., Resp’ts, v. Henry McAleeman et al., App’lts.

      George O. Comstock, for app’lts; Joseph Fettretch, for resp’ts.
   No opinion. Appeal dismissed, with costs. All concur. See 60 St. Rep. 712.


text:
    George Bliss et al., Resp’ts, v. Charles B. Fosdick, App’lt.

      William H. Arnoux, for app’lt; J. Hampden Dougherty, for resp’ts.
   No opinion. Appeal dismissed, with costs. All concur. Aff’g 59 St. Rep. 882.


text:
    Clara J. Butler, Resp’t, v. Manhattan Ry. Co., App’lt.

      Edward B. Thomas, for app’lt; Gilbert D. Lamb, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 52 St. Rep. 498.


text:
    Continental Nat. Bank of Boston, Resp’t, v. United States Book Co. et al., App’lts.

      H. Aplington, for app’lts; William B. Hornblower, for resp’t.
   No opinion. Order affirmed, with 'costs, on opinion below. All concur. Aff’g 57 St. Rep. 226.


text:
    Coudert et al., Resp’ts, v. Delogerot et al., App’lts.

      Albert Stiokney and Samuel H. Ordway, for app’lt Sullivan and others ; John, M. Bowers. James W. Gera/rd. Jr., Samson Laehman, and Theodore Ba/umeisiar for resp’ts.
   No opinion. Appeal dismissed, with costs. All concur.


author: Per Curiam.

text:
    Moses R. Crow et al., App’lts, v. William E. Coffin et al., Resp’ts.

      Albertos Perry, for app’lts ; Carlisle Norwood, for resp’ts.
   Per Curiam.

This is an appeal from an order affirming an order granting ’ respondents an addi.iunal allowance of §1,000. An examination ’ of the voluminous record submitted on this appeal discloses that the subj. ct-matter involved is sufficient to warrant the additional allowance granted by the court below. The trial judge decided this to be a difficult, and extraordinary case, under $ 3233 of the Code of Civil Procedure. We see no reason lor i terfering in this matter. The order appealed from should be affirmed, with costs. All concur. Order affirmed. Aff’g 50 St. Rep. 882.


text:
    Emily A. Emerson, Resp’t, v. Jesse M. Emerson, App’lt.

      Citarles J. Hardy, for app’lt; Black (6 Block, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Edith M. Faxon, Resp’t, v. John Ball, App’lt.

      Henry A. Forster, for app’lt; William B. Hornblower, for resp’t.
   No opinion. Appeal dismissed, with costs. All concur. See 59 St. Rep. 882.


text:
    James W. Gerard, Resp’t, v. Frank H. Cowperthwait, App’lt.

      James L.Bishop, for app’lt; H. Kettett, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 592.


text:
    James H. Havens, Pl’ff, v. West Side Electric Light & Power Co., et al., Def’ts. Striker, Resp’t, v. Vincent et al., App’lts.

      James M. Hunt, for app’lts ; George Bliss, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 49 St. Rep. 771.


text:
    Henry Helmke, Resp’t, v. New Jersey & N. Y. R. Co., App’lt. Dennis Moxley, Resp’t, v. New Jersey & N. Y. R. Co., App’lt.

      F. L. Hall, for app’lt; TV. J. Groo, for resp’t.

       Aff’g 49 St. Rep. 361.

       Aff’g 49 St. Rep. 363.

   No opinion. Judgment affirmed, with costs, on opinion of Barnard J., below.


text:
    Jonas H. Lane et al., App’lts, v. John W. Wheelright et al., Resp’ts.

      G. A. Clement, for app’lts; Hamilton, Wallis, for resp’ts.
   No opinion. Order affirmed, and judgment absolute ordered against plaintiff, with costs, on opinion below. All concur. Aff’g 53 St. Rep. 368.


text:
    Julius Lipman et al., Resp’ts, v. William A. Mathesius, App’lt.

      II. B. Closson, for app It; E. A. Jae -b, for resp’ts.
   No opinion. Order affirmed, with costs. All concur. Aff’g 48 St. Rep. 935.


text:
    Cunigunda Listman, Resp’t, v. John Hickey, App’lt.

      Sidney II. Stuart, for app’lt; Samuel I). Levy, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinions below. All concur. Aff’g 47 St. Rep. 80.


text:
    David Lowenbein et al., Resp’ts, v. Henry Fuldner, App’lt.

      Abram Illing, for app’lt; Otto Horwitz, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 50 St. Rep. 520.


text:
    Matter of Highway Com’rs of Town of Brookhaven

      William J. NeVy, for app’lt; Timothy M. Griffing, for resp’t.
   No opinion. Order affirmed, with costs. All concur.


text:
    In Matter of John A. Phipps’ Estate.

      Edgar J. Levey, for app’lt; J. Hampden Dougherty, for resp’t.
   No opinion. Order affirmed, with costs, on opinion below. All concur. Aff’g 59 St. Rep. 769.


text:
    In the Matter of Trustees of New York & Brooklyn Bridge.

      Abraham E. Fromme. for app’lt; Edward 31. Grout, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Affg 59 St. Rep. 613.


text:
    George Moore, Resp’t, v. Brooklyn Advertising Co., App’lt.

      Edwa.rd if. Grout, for aup’T; Chas. IT. Otis, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff g 52 St. Rep. 611.


text:
    Simon Newman et al., App’lts, v. John C. Wilson et al., Resp’ts.

      Benj. Paterson, for app’lts; Byram L. Winters, for resp’ts.
   No opinion. Appeal dismissed, with costs, and §10 costs of motion. See 60 St. Rep. 243.


text:
    Charles E. Peabody et al., App’lts, v. Charles E. Boutwell, Resp’t.

      G. B. Wellington, fur app’lts; Prank 8. Black, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 52 St. Rep. 692.


text:
    People, Resp’t, v. Matthew T. Dailey, App’lt.

      Wm. F. Howe, for app’lt; JohnB. Lindsay, for the People.
   No opinion. Judgment affirmed, on opinion below. All concur. Aff’g 57 St. Rep. 10.


text:
    People, Resp’t, v. John F. Evans, App’lt.

      Charles 0. Maas, for app’lt; John D. Lindsay, for the People.
   No opinion. Judgment affirmed, on opinion below. All concur. Aff’g 53 St. Rep. 591.


text:
    People ex rel. William G. Lyons, App’lt, v. Nathan Strauss et al., Resp’ts.

      Samuel A. Noyes, for app’lt; L. J. Bean, for resp’ts.
   No opinion. Order affirmed, with costs. All concur. Aff’g 52 St. Rep. 939.


text:
    People ex rel. John E. Roosevelt, App’lt, v. Edward Barker et al., Resp’ts.

      Geo. G. Iiobbe, for app’lt; B. J. Bean, for resp’ts.
   No opinion. Order affirmed, with costs, on opinion at special term. All concur. Aff’g 59 St. Rep. 882.


text:
    Marsden J. Perry, Resp’t, v. Council Bluffs City Water Works, App’lt.

      James L. Bishop,for app’lt; Geo. B. Ashley, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinions below. All concur. Aff’g 51 St. Rep. 326.


text:
    Percy Rich et al. v. Sargent Granite Co.

      Jos. Fettretch, for app’lts; Sami. A. Noyes, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 59 St. Rep. 882.


text:
    Dan S. Richards, Resp’t, v. Levi Crocker et al., App’lts.

      8. O. Millm’d, for app’lts; B. 8. Richards, for resp’t.
   No opinion. Judgment affirmed, on opinion below, with costs. All concur, Aff’g 49 St. Rep. 242.


text:
    Morris Rubens et al., App’lts, v. Ludgate Hill Steamship Co., Limited, Resp’t.

      Wales F. Severance, for app’lts; J. Barker Kirlin, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 48 St. Rep. 732.


text:
    Mary E. Stephens, Resp’t, v. Hudson Valley Knitting Co., App’lt.

      Matthew Hale, for app’lt; Geo. B. Wellington, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 52 St. Rep. 795.


text:
    Superintendent of Poor of Cattaraugus County, Resp’t, v. Superintendent of Poor of Erie County, App’lt.

      Allen & Butterfield, for app’lt; Norman M. Allen, for resp’t.
   No opinion. Judgment affirmed, on opinion below, with costs. All concur. Aff’g 52 St. Rep. 936.


text:
    James Talcott, Resp’t, v. Norris Levy et al., App’lts.

      Ira Leo Bamberger, for app’lts; Arthur O. Rounds, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 51 St. Rep. 946; 47 St. Rep. 399.


text:
    Jacob Tome, Resp’t, v. Charles A. Gerlach, App’lt.

      Hamilton R. Squ-ier. for app’t; Geo. T. Wardwell. for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 46 St. Rep. 485.


text:
    Troy Manuf’g Co. et al., App’lts, v. Star Knitting Co., Resp’t.

      Boyle <& Fitts, for app’lts; 27. Countryman and E. W. Bouglas, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 51 St. Rep. 346.


text:
    John Turney, App’lt, v. Henry M. Van Gelder et al., Resp'ts.

      Blmmenstiel & Hirseh, for app’lt; E. H. Benn, for resp’ts.
   No opinion. Judgment affirmed, on opinion of Follett, J., below, with costs. All concur. Aff’g 52 St Rep. 664.


text:
    United States Trust Co. of New York, Resp’t, v. Stanton, App’lt.

      P. V. B. Stanton, for motion; Edward W. Sheldon, opposed.
   No opinion. Motion for reargument denied, $10 costs.


text:
    Almeda Waterbury, Resp’t, v. James Elephalet Waterbury, App’lt.

      M. N. Kane, for app’lt; J. Y. B. Benedict, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 59 St. Rep. 289.


text:
    Richard C. Wilson, Resp’t, v. Schenevus Village Waterworks Co., App’lt.
   No opinion. Motion to revive and continue granted.


text:
    Supreme Court—General Term—First Department.
    Filed April, 1894.
    Emil Oelbermann et al., App’lts, v. New York and Northern Railway Company et al., Resp’ts.

      Affirming, 58 St. Rep. 462.

   Per Curiam.

Order affirmed, with $10 costs and disbursements, on opinion of court below.


text:
    Filed May 18, 1894.
    Charles T. Barney, as Administrator, etc., Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.
   Van Brunt, P. J.

This case, in its main features, is substantially the same as that of Barney v. Mayor, etc., 59 St. Rep. 459. The taxes in this case were for the years 1885 and 1886, and were paid while Ashbell H. Barney was' living, this action being brought by his administrator. It is urged that there is no evidence to show whether Mr. Barney, Sr., had any knowledge of the facts which it is alleged rendered the assessment illegal, and that, therefore, there is a failure on the part of the plaintiff to show ignorance of the fact and involuntary payment on his part, which it is incumbent upon him to show affirmatively. The evidence shows that Mr. Barney, Sr., was in infirm health at the time of the imposition of the tax in question; that lie attended to but little, if any, of his business; and that his son, the plaintiff, had entire charge of the same. It seems to us that under these circumstances it would be carrying the inference of knowledge too far to hold that there was a failure of proof" because the dead man was not examined as to what his knowledge in respect to these transactions was. For the reasons, however, stated in the opinion in the case cited, we think that the exceptions should be sustained, and a new trial ordered, with costs to the defendant to abide the event. All concur.


text:
    David J. Lees, as Receiver, etc., et al., Resp’ts, v. Eldin B. Hayden et al., App’lts.
   Van Brunt, P. J.

For the reasons assigned in the opinion in the case of Lees v. Hayden, 60 St. Rep. 728, the judgment appealed from should he affirmed, with costs. Parker, J., concurs; Follett, J., concurs in result.


text:
    Filed June 15, 1894.
    Thomas J. McKee et al., as Executors, etc., Resp’ts, v. New York Elevated Railroad Company, App’lt.
   Per Curiam.

For the reasons given in the opinion herewith handed down in the case of McKee v. Railroad Co., (action No. 1) 61 St. Rep.-, the judgment herein should be modified by striking out the alternative as to the payment of the money, and receiving the release or conveyance, and by directing that an injunction absolute issue unless, within six months after the entry of the order upon this appeal, the defendants shall have condemned such easements, with costs to appellants.


text:
    General Term—Third Department.
    Filed February 13, 1894.
    Nathan R. Curtis v. The Delaware & Hudson Canal Company.
   No opinion. Judgment affirmed, with costs. Mayham, P. J., dissenting.


text:
    Orrin J. David, Resp’t, v. Marshall Arnold, App’lt.
   Mo opinion. Judgment affirmed, with costs.


author: Putnam, J. Mayham. P. J. (dissenting).

text:
    Filed May 8, 1894.
    The People ex rel. Singer Manufacturing Company, App’lt, v. Edward Wemple, as Comptroller, etc., Resp’t.
   Putnam, J.

I think the determination of the comptroller should be reversed, with the usual costs, for the reasons stated in opinion in case between the same parties, and standing as Mo. 2 on the calendar. 60 St. Rep. 662. Herrick, J., concurs.

Mayham. P. J. (dissenting).

This case does not differ essentially from one of the same title argued with this' and standing as Mo. 2 on the calendar, (60 St. Rep. 602), which has been considered and disposed of at this term, and consequently no opinion is required herein. The determination of the comptroller is confirmed, with §10 costs and printing disbursements in favor of the respondent.


author: Mayham P. J.

text:
    Filed May 26, 1894.
    John J. Sheldon, Resp’t, v. Rufus Heaton, App’lt
    Appeal from an order striking the denial out of the answer.
   Mayham P. J.

The same question raised in this appeal was raised and dis, posed of in an appeal between the same parties, standing Mo. 13 on this calendar. 60 St. Rep. 818. Mo opinion is required on this appeal. Thd order of the special term is reversed, with $10 costs and printing disbursements, and $10 costs of special term, to the defendant. All concur. .


author: By the Court.

text:
    New York Superior Court—General Term.
    Filed July 2, 1894.
    Robert Fitch Shepard et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    Appeal by defendants from judgment rendered at equity term.
   By the Court.

The judgment herein must be affirmed with costs.


text:
    Louisa L. Strang, Resp’t, v. Metropolitan Elevated Railway Co. et al., App’lts
    Appeal by defendants from judgment rendered at equity term.
   By the Court.

The judgment herein must be affirmed with costs.