text:
    Bomeisler v. Forster.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by Louis E. Bomeister against Elsa Forster.
   No opinion. Motion denied, with $10 costs.


source: Caselaw Access Project

license: Public Domain

text:
    Braine v. Rosswog.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Mary Braine against Julie Rosswog.
   No opinion. Motion denied.


text:
    Braine, Appellant, v. Rosswog, Respondent.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Mary Braine against Julie Rosswog.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Brayman, Appellant, v. Stephens et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.)
    Action by Martha Brayman against William E. Stephens and others, as executors of David W. Langley, deceased.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Breen et al., Respondents, v. Union Ry. Co. of New York City, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    October 27, 1896.)
    Action by Mathew P. Breen and Daniel F. Cohalan against the Union Railway Company of New York City.
   No opinion. Motion denied, with $10 costs.


author: Schuohman. J.

text:
    Briscoe, Respondent, v. Litt, Appellant.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Fannie Briscoe, an infant, by Charles H. Luengene, her guardian ad litem, against Jacob Litt. T. Pinney, for appellant. Fromme Bros., for respondent.
   Schuohman. J.

—This is an appeal by the defendant from a judgment entered in favor of the plaintiff on the verdict of a jury, and from an order denying the defendant's motion for a new trial. The plaintiff brought this action, alleging, and afterwards proving on the trial, that she is an actress, and that the defendant, a theatrical manager, engaged her for the season of 1894 and 1895, which season constituted 30 to 35 weeks, at a salary of $30 per week; that the defendant broke his contract, and discharged her ; that, pursuant to said contract, she would have earned $900 ; that she looked for and found other employment during the term of the contract, and earned $405, and she claimed the difference, to wit, $495, as damages, for which the jury gave her a verdict. The defendant, however, claims that he was only liable for two weeks, to wit, $60, because he claims he could discharge the plaintiff on two weeks’ notice, which notice he claimed he gave by letter of October 20th, being plaintiff’s Exhibit D, and that during those two weeks, the plaintiff being employed by Mr. Wilson and earning $18 a week, making §86, he was only liable for the difference, to wit, $24. The evidence produced by the plaintiff, however, sliows, at folios 44 and 45 of the printed case, that there is a custom in the profession that, when a part is given to an actress, it is for the season, and that, when an actress gives up one engagement to take another, the latter engagement is to last for the season. The plaintiff’s evidence shows that she gave up her engagement with Mr. Wilson to take the engagement with the defendant, and the defendant knew that fact. This evidence is not denied or contradicted by the defendant. The only principal point contended for between the parties in this case was the duration of the employment of the plaintiff by the defendant. The defendant and his witness, Mr. Wilson, on the trial testified that the plaintiff was only engaged for the season of “ Ole Olson,” and, under a custom existing in the profession, was only engaged for the season of the drama “ Ole Olson.” The question in difference between the parties was squarely submitted to the jury, and they found on this contention in favor of the plaintiff. It is true the testimony at folio 51 shows that, if the manager or the employé is not satisfied, either, on giving two weeks’ notice, may terminate the engagement ; but the defendant in this case placed plaintiff’s discharge on the ground that “it is impossible for him to secure the people he desires for the company.” Plaintiff’s Exhibit D. The jury having found in favor of the plaintiff, and there being sufficient evidence in the case to sustain that verdict, we cannot interfere therewith on this appeal. We have examined the exceptions in the case, and also the exceptions to the charge, and we find none of them of sufficient bearing to reverse the verdict. Judgment affirmed, with costs. All concur.


text:
      In re Brooklyn El. R. Co.
    (Supreme Court, Appellate Division, Second Department.
    December 8, 1896.)
    Petition by the Brooklyn Elevated Railroad Company relative to acquiring title to real estate on Lexington Avenue owned by Betsie R. Dexter, in the city of Brooklyn, county of Kings.
   No opinion. Order affirmed, with costs, upon the authority of In re Brooklyn El. R. Co., 87 Hun, 88. All concur.


author: Per Curiam.

text:
    Brown v. James et al.

    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by Timothy Y. Brown against Joshua James and Asa Gibbons. William C. Kellogg, for appellant. John F. Brennan, for respondent.
   Per Curiam.

—This action is brought to recover against the appellant, Gibbons, as indorser of a promissory note. This case has been before us on a previous appeal. On the first trial of the action a verdict was directed in favor of the plaintiff. On appeal, this judgment was reversed, the court holding that the case should have been submitted to the jury. 2 App. Div. 105; 37 N. Y. Supp. 529. On the second trial, the cause was submitted to the jury, who found, a verdict for the plaintiff. There is but little in this case to review. We cannot pass on the question of fact, because there is no certificate that the case contains all the evidence. To sustain his defense it was incumbent on the appellant to show that his indorsement was procured by fraud. The proof on this subject wholly rested upon his own testimony and that of his co-defendant, James. Being the testimony of parties in interest, and incapable of direct contradiction by the plaintiff, the question of fact raised by this evidence was properly submitted to the jury to pass upon. No motion was made to direct a verdict in favor of the plaintiff. No exception was taken to the charge of the court. It is not necessary for us to determine whether the facts proved constituted the plaintiff a holder for value, because, in response to the request of the defendant, the court charged that, if the appellant was induced to sign the note by false representation of James, then the plaintiff was not a bona fide holder, and could not recover. It is true that in previous portions of the charge the court had instructed the jury that the plaintiff could not recover in case the indorsement was obtained by fraud, unless he established that he was a holder for value; but no exception was taken to this submission to the jury of the question whether the plaintiff was a bona fide holder for valué, and the direct instruction that he was not, made in answer to the defendant’s request to charge, eliminated the question from the case. The record before us, therefore, presents no question of law calling for our determination. The judgment and order appealed from should.be affirmed, with costs.


text:
    Brown v. Mayor, etc., of City of New York.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by Walston H. Brown against the mayor, etc., of the city of New York.
   No opinion, Motion granted, upon payment of $10 costs.


text:
    Bryer v. Foerster.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by Peter Bryer against Catherine Foerster, administratrix.
   No opinion. Motion denied.


text:
    Bryer v. Foerster.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    Action by Peter Bryer against Catherine Foerster.
   No opinion. Motion denied, with $10 costs.


text:
    Buek et al., Respondents, v. Metropolitan El. Ry. Co. et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Action by Charles Buek and others against the Metropolitan Elevated Railway Company and others. B. Tolies, for appellants. W. G. Peck-ham, for respondents.
   No opinion. Judgment affirmed, with costs.


text:
    Buell et al., Respondents, v. Searle et al., Appellants (three cases). Van Camp v. Same.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct., 1896.)
    Three actions by George C. Buell and others against Edward P. Searle, late sheriff of Orleans county. The Orleans County National Bank, John Sawyer, and Keeler & Salisbury were made parties to the motion by the order herein, and are appellants. Also an action by Joseph Van Camp against Edward P. Searle and others.
   Per Curiam.

—It appearing that the order of the special term, held March 30, 1896, and subsequent orders, denying motion for a rehearing, were heard upon a remittitur, and a judgment entered thereon, which do not express the judgment of the court of appeals, the remittitur having been subsequently amended by that court in June, 1896 (44. N. E. 1129), it is deemed proper that the aforesaid orders should be vacated without costs to either party, and that the order in the case of Van Camp against Searle should be reversed, without prejudice to the moving party to apply to the supreme court to make the judgment of the court of appeals, as expressed in its amended remittitur, the judgment of the supreme court, and without prejudice to any application the Orleans County National Bank and John G. Sawyer may make for further relief. It is not necessary to determine whether the application for an order distributing the fund should be in the action in which Van Camp is plaintiff, or in the action in which Buell is plaintiff.


text:
    Bugbee, Respondent, v. President, etc., of Delaware & H. Canal Co., Appellants.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by Philemon B. Bugbee against the president, managers, and company of the Delaware & Hudson Canal Company.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Buhannan, Appellant, v. Sowle et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by Charles L. Buhannan against Alexander Sowle, John Cochrane, and Sarah E. Sowle.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Bulkley et al., Respondents, v. Little, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by Jonathan Bulkley and others against Joseph J. Little, as receiver of the Worthington Company.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Burgess, Respondent, v. Ehlers et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Action by William H. Burgess against Oscar Ehlers, impleaded, etc. Payson Merrill,- for respondent.
   Per Curiam.

—The appellant having made no argument, and having submitted no points, and the record showing that the appeal is frivolous, it is, on motion of Mr. Payson Merrill, of counsel for the respondent, ordered that the judgment appealed from be, and the same hereby is, affirmed, with costs.


text:
    Burtis, Appellant, v. Paradis, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Action by James M. Burtis against Adrian Paradis.
   No opinion. Order affirmed, with costs. All concur.


text:
    Butcher, Appellant, v. Henning et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by Edward Butcher, Jr., against John L. Henning and William H. McCall.
   No opinion. Motion denied, without costs,


text:
    Callan, Appellant, v. Callan, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by William Callan against Margaret Callan.
   No opinion. Judgment modified by reducing the recovery to $30, with costs in courts below, and, as so modified, affirmed, without costs to either party of this appeal. All concur.


text:
    Cantoni v. Forster.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Salvatore Cantoni against Elsa Forster.
   No opinion. Motion granted.


text:
    Catoir v. Budenbender.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by John Catoir against George F. Budenbender.
   No opinion. The papers on this application will be filed with the clerk of this court; the motion to stand over until after the trial of the action brought by the moving party against the attorney. It may then be brought on for hearing upon these papers, together with such additional papers as shall then be served by either party.


text:
    Cerney v. D. Mayer Brewing Co.
    (Supreme Court, Appellate Term, First Department.
    October, 1896.)
    Petition of Joseph Cerney against the D. Mayer Brewing Co. M. Hallheimer, for petitioner. B. Lewinson, for respondent.
   No opinion. Affirmed upon argument.


text:
    Chappell, Appellant, v. Rochester Printing Co., Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Clara W. Chappell against the Rochester Printing Company.
   No opinion. Motion fpr a new trial denied, with costs and judgment ordered for the defendant, with costs. All concur.


text:
    Christie, Appellant, v. Kahaly, Respondent.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by George Christie against John G. Kahaly. Frank Moss, for appellant. Herbert W. Grindal, for respondent.
   Per Curiam.

—The motion was properly denied because the action was not against the receiver, but the individual. The order appealed from should be affirmed, with $10 costs and disbursements.


author: Follett, J.

text:
    Citizens’ Nat. Bank of Adams, Respondent, v. Fuller et al., Appellants.
    (Supreme Court, Appellate,Division, Fourth Department.
    Oct. 16, 1896.)
    Action by the Citizens' National Bank of Adams against Harrison Fuller, impleaded with De Alton Dwight, Austin W. Ingraham, A. Kent Hale, and John Sinclair. Daniel G. Griffin, for appellants. John Lansing, for respondent.
   Follett, J.

—The facts in this case are the same as those in Sinclair v. Fuller (Sup.), 41 N. Y. Supp. 193, except the plaintiff did not know of the sale made December 27,1893, by the appellant of his shares to Sinclair, and the debts due this plaintiff arose October 1, 1894, and January 9,1895, after the sale by the appellant of his shares to Sinclair had been registered ; and the decision in that case controls this case. The judgment should be reversed, and a new trial granted, with costs to abide the event. AIL concur.


text:
    Clark, Respondent, v. Middletown-Goshen Traction Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Action by Harriet W. Clark against the Middletown-Goshen Traction Company. O’Neill & Royce, for appellant. George T. Clark, for respondent.
   Per Curiam.

—The judgment appealed from perpetually enjoins the defendant from maintaining its tracks and operating its street railway in the city of Middletown, in front of the plaintiff’s premises, until such time-as the defendant shall have paid to the plaintiff the sum of $750 ; being the amount of permanent loss and damage to such premises sustained by reason of the location of defendant’s track and operation of its railway in front of such property. It is in the usual form of judgments in elevated railroad cases in New York and Brooklyn, where the easements of abutting owners have been injuriously affected by the structure in the street. The plaintiff is the owner of the fee of the street in front of her property, and under the authority of Craig v. Railroad Co., 39 N. Y. 404, the occupation and use of the street by the defendant for its trolley railroad clearly entitled her to compensation. The court at special term held, upon evidence sufficient to support the finding, that the plaintiff’s property had been injured by the proximity of the rail to the curb, which prevented her premises from participating in the advantage which it would otherwise have received from the general enhancement of property values in Middle-town. The learned counsel for the appellant, in their brief, assume that the trial judge, in what he said about the enhancement which comes from the construction of public improvements, referred to the appreciation of values occasioned by the construction and operation of the railroad itself ; but we think it is plain that such was not his meaning, especially when reference is had to the testimony on the subject. That he meant a general increase, independent of the existence of the railroad, is shown by this extract from the testimony of a witness in respect to values : “ The Court: Q. Suppose the railroad had not been built, I understand you to say that the property appreciated in value ? A. Yes, sir; the property was enhancing in value before the railroad was built out that way. I think the railroad has depreciated the stores for renting purposes. It would be harder to rent now than it was before.” The judgment must be affirmed, with costs.


text:
    Clothier, Respondent, v. Aldrich et al„ Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Elmer E. Clothier, an infant, by gudrdian ad litem, against Isaac A. Aldrich and others.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Cochran v. Stephens.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by William F. Cochran against H. Clay Stephens.
   No opinion. Motion granted, with $10 costs.


text:
    Cohen, Respondent, v. Rouse, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Tobias Cohen against Callman Rouse.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Colby, Appellant, v. National Broadway Bank et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    Action by Bainbridge Colby, as receiver, against the National Broadway Bank and others. M. H. Regensburger, for appellant. R. B. Kelly, for respondents.
   No opinion. .Order modified by reducing the amount of security to be given by the plaintiff to the sum of §250, as required by section 3272 of the Code, and, as modified, affirmed, without costs.


text:
    Coleman, Respondent, v. Village of Clinton, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Elon G. Coleman against the village of Clinton.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Collins, Respondent, v. Collins et al., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by John A. Collins against George K. Collins ’and others.
   No ■opinion. Motion denied, with costs. All concur.


text:
    Commercial Bank of Chicago v. Hand.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by the Commercial Bank of Chicago against Elwood S. Hand.
   No opinion. Motion denied. See infra.


text:
    Commercial Bank of Chicago v. Hand.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by the Commercial Bank of Chicago against Elwood S. Hand.
   No opinion. Motion denied.


text:
    Condon, Respondent, v. Metropolitan Life Ins. Co., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Ellen Condon against the Metropolitan Life Insurance Company.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Cooke et al., Appellants, v. Butler, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 20, 1896.)
    Action by Elizabeth Cooke and another, as administrators of the estate of W. W. Cooke, deceased, against Concetta Butler.
   No opinion. Motion for leave to go to the court of appeals denied.


text:
    Cosgrove et al., Respondents, v. Brooklyn El. R. Co. et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 20, 1896.)
    Action by Mary Cosgrove and others against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company.
   No opinion. .Judgment affirmed, with costs. All concur.


text:
      In re Crabtree’s Will.
    (Supreme Court, Appellate Division, Fourth Department,
    Oct. 16, 1896.)
    Petition of the executors of the last will and testament of William Crabtree, deceased, for a judicial settlement of their accounts.
   No opinion. Motion denied, without costs. Decision made by the concurrence of all.


text:
    Crozier, Respondent, v. Read, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Action by Sophia Crozier against George R. Read. Joseph P. Daly, for appellant. Frederick W. Sherman, for respondent.
   Per Curiam.

—This is an action to recover damages for personal injuries sustained from a collision of one of defendant’s horses with a wagon which the plaintiff was driving. On a previous trial there was a nonsuit. On appeal it was held by the late general term that the case should have been submitted to the jury, and the judgment entered on the nonsuit was, reversed. 78 Hun, 181; 28 N. Y, Supp. 914. In the opinion there delivered by Mr. Justice Pratt we entirely concur. The facts as disclosed on the last trial do not vary materially from those presented at the former trial. The decision of the general term must, therefore, control the disposition of this appeal. We think it is too clear to require extended discussion that one aspect of the case presented a question of negligence for the jury. If the horses of the defendant were prancing across the road before the defendant’s servant met the plaintiff’s vehicle, the jury might well have-found that the defendant’s driver should have passed plaintiff’s vehicle at a distance sufficiently great to avoid any chance of the led horse colliding with the vehicle. In fact, from the number of reported cases in which accidents have arisen from this cause, and from our own observation, it would seem that there is generally danger of a led horse swerving, and the jury might find that it was the duty of one leading a horse through a village or city street to have this danger in mind, and to take care to avoid collisions from this cause. When the plaintiff saw the horses approaching, she sought to escape an accident by driving along the extreme right of the highway. Had the defendant’s servant taken the same precaution, and gone well to his side of the road, which was clear of obstruction, the accident would not have happened. The judgment and order appealed from should be affirmed, with costs.


text:
    Cross et al., Respondents, v. Van Nostrand, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 20, 1896.)
    Action by Marvin Cross and John H. Ireland, composing the firm of Cross, Austin & Co., against J. Wells Van Nostrand.
   No opinion. Motion to dismiss appeal granted, with $10 costs.


text:
    Cunningham, Respondent, v. Lake Shore & M. S. Ry. Co., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by James F. Cunningham against the Lake Shore & Michigan Southern Railway Company.
   No opinion. Order affirmed, with $10 costs, and disbursements. See Petrie v. Trustees of Hamilton College, 92 Hun, 81; 36 N. Y. Supp. 636.


text:
      In re Curtiss’ Estate.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Judicial settlement of the accounts and of the proceedings of Frank Curtiss and Frederick De Billier, as executors of and trustees under the-last will and testament of Abijah Curtiss, deceased, and their application for leave to resign as such executors and trustees.
   No opinion. Decree affirmed upon the opinions of the surrogate of Westchester county (37 N. Y. Supp. 586), with costs to all parties payable out of the estate.


text:
      In re Curtiss’ Estate.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 20, 1896.)
    Judicial settlement of the accounts and of the proceedings of Frank Curtiss and Frederick De Billier, as executors of and trustees under the last will and testament of Abijah Curtiss, deceased.
   No opinion. Order resettled and order signed. See supra.


text:
      In re Danner.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    In the matter of the application of Harry R. Danner.
   No opinion.. _ The-_ applicant’s papers are defective, in that they fail to show that he is either a citizen of the United States or a resident of the second judicial department. This proof may be supplied.


text:
    Davis, Appellant, v. Abraham, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Sarah Davis against Anna P. V. R. Abraham.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Davis v. Cornue.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Erwin Davis against Ellen S. Cornue.
   No opinion. Motion granted.


text:
    Dawson, Appellant, v. Parsons et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 8, 1896.)
    Action by Annie I. Dawson, as trustee, etc., against John D. Parsons and others.
   No opinion. Judgment modified by deducting from the debit balance charged against the interest of George Dawson, deceased, the sum of $400, and, as thus modified, affirmed, with costs. All concur.


text:
    Degan, Appellant, v. Herrington et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 8, 1896.)
    Action by William Degan against Henry J. Herrington and another.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
      In re De Long.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    In the matter of the application to punish Oscar A. De Long for contempt of court. E. Wetmore, for the motion. Stern & Rushmore, opposed.
   Per Curiam.

—It appearing that the papers submitted by the appellant upon the settlement of the order entered upon the appeal herein, by some mistake, were not presented to the justice who entered the order, the motion for resettlement is granted, and the questions to be submitted upon the appeal to the court of appeals are settled as follows': First, whether Oscar A. DeLong, who, at the time of the entry of the judgment or decree in this action, had been president of the defendant corporation, and practically the owner of the corporation, and who had actual knowledge of said judgment or decree at the time it was entered, and who had fraudulently loaned the use of his name to the corporation for the express purpose of engaging in an unfair and fraudulent competition with plaintiff, and which decree ran against the corporation, its clerks, servants, etc., was enjoined from continuing in his individual name the hook and eye business, and from adopting features common to the hook and eye business, such as carding, hooks, etc., and did he carry on such business after the decree in such a way as to constitute fraudulent competition, within the meaning of the decree. Second, whether the lending, by the said Oscar A. De Long, of his name to the said corporation, and the use of it by the said corporation while he was the president of it, impaired or affected his general right to the use of his name in the hook and eye business, after such corporation had been adjudged guilty of fraudulent methods in and with the use of the said name, to such an extent as to deprive said De Long of the use of his name in carrying on the hook and eye business in his own name, and on his own account, if he conducted the same in a manner entirely distinct from that of the corporation.


text:
    De Long v. De Long Hook & Eye Co.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Frank E. De Long against the De Long Hook & Eye Company.
   No opinion. Motion granted.


author: Patterson, J.

text:
    Department of Buildings of City of New York v. Field.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Action by the Department of Buildings of the City of New York against Richard Field. John Y. Dahlgren, for plaintiff. George Hill, for defendant.
   Patterson, J.

—In the condition of the agreed state of facts as it is presented to us, this matter cannot be considered. It is specifically stated that Mr. Elbridge T. Gerry is the present owner of the premises mentioned in the submission. All that is stated with reference to the defendant, Field, is that he became the owner of the property in its existing condition; but that does not show that he is the owner of the property, and that the proceeding is taken against the owner. As we are not authorized to draw any inferences, or to import anything into the submission, we cannot act on these papers, but the matter may be resubmitted on a proper statement. All concur.


text:
    De Wolfe, Appellant, v. Abraham et al., Respondents.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by Florence Angelí De Wolfe against Abraham Abraham and others.
   No opinion. Motion for leave to appeal to the court of appeals granted.


text:
      In re Dillon’s Estate.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    In the matter of Robert J. Dillon, deceased.
   No opinion. Motion granted, with §10 costs.


text:
    Dinnihan et al., Respondents, v. Lake Ontario Beach Imp. Co., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by John Dinnihan and another, administrators, etc., against the Lake Ontario Beach Improvement Company.
   No opinion. Motion denied, with §10 costs. All concur.


text:
    Dolan, Appellant, v. Brooklyn Heights R. Co., Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by James H. Dolan against the Brooklyn Heights Railroad Company.
   No opinion. Judgment unanimously affirmed, with costs.


text:
    Donner, Respondent, v. Rochester Herald Pub. Co., Limited, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action- by John A. Donner against the Rochester Herald Publishing Company, Limited.
   No opinion. Judgment and order affirmed, with costs." All concur.


text:
    Donahue, Appellant, v. Syracuse & E. S. Ry. Co. et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Thomas Donahue against the Syracuse & East Side Railway Company, impleaded, etc.
   No opinion. Judgment and order affirmed, with costs. Decision made by the concurrence of Hardin, P. J., and Folleto and Green, JJ. Ward, J., not voting. :


author: Per Curiam.—In

text:
      In re Dorthy.
    (Supreme Court, Appellate Division, Fourth Department.
    June, 1896.)
    Proceeding to disbar John F. Dorthy. See 40 N. Y. Supp. 1141.
   Per Curiam.—In

the general term, held in Buffalo in June, 1895, the Rochester Bar Association presented charges against the defendant, supported by affidavits. The defendant interposed a general denial under his oath, and thereupon an order was made that Hon. Clarence A. Farnum be appointed a referee to take evidence, and report the same, with his opinion thereon. Pursuant to that order, the parties were heard before the referee at great length, and voluminous evidence was taken, and the referee has made a report, in which he sustains the 2d, 3d, 4th, 5th, 6th, 7th, and 8th charges. The referee’s report and the evidence taken by him have been filed with the clerk of this court, and on the 10th day of April, 1896, the parties were heard in extenso in oral arguments, and briefs have been submitted in behalf of both sides. Section 67 of the Code of Civil Procedure provides as follows: “An attorney and counselor, who is guilty of any deceit, malpractice, crime or misdemeanor, or who is guilty of any fraud or deceit in.proceedings by which he was admitted to practice as an attorney and counselor of the courts of record of this state, may be suspended from practice, or removed from office, by the appellate division of the supreme court.” Section 68 of the Code of Civil -Procedure provides that, viz.? “ Before an attorney or counselor is suspended or removed as prescribed in the last section, a copy of the charges against him must be delivered to him, and he must be allowed an opportunity of being heard in his defense.” Ample opportunity has been allowed the defendant to be "heard in his defense. The evidence taken before the learned referee has been delivered to the court for examination, and it seems to support the findings made by the referee. The learned counsel for the defendant calls our attention to In re Husson, 36 Hun, 130. In that case it appeared that Husson had borrowed money from one of his clients, who had applied to him for advice as to investing it, and delivered mortgages to her to secure the repayment thereof, and that he subsequently induced her to surrender and satisfy one of the mortgages to enable him to sell the property covered by it; he stating that he had plenty of other property, and could and would replace the mortgage by another just as good. He failed to do so, and his client •applied for and procured an order requiring him to pay over the amount ■of the mortgage and the costs and expenses of the application, and providing that, in case he failed so to do, a warrant to arrest him as for a contempt should issue ; and it was held that he did not receive the property in his professional character, and that the court erred in making the order. That was not a proceeding to disbar, and it was held that the remedy in that case was an ordinary action, and not a proceeding for contempt. We think the case has little application to the one now in hand. In Re Burd, 9 Wkly. Dig. 563, it appeared that there had been a conversion to his own use, by an attorney, of a sum of money delivered to him, as such, by his ■client, to be applied on a bond and mortgage outstanding against the client; and the concealment of such conversion was held to be a fraud and deception, which justified and required the disbarment of the attorney from practicing in the courts of the state. In disposing of the case the court observed : “It is our duty, therefore, not only to find the respondent guilty of fraud and deceit, alleged against him, but to hold that he is no longer worthy to be a member of the bar.” In Re Eldridge, 83 N. Y. 161, an attorney had been guilty of improper conduct in respect to a deposition of a witness taken on commission, and of professional misconduct therein, more particularly stated, and the general term suspended him frofn practicing for a period of three years on account of the alleged professional misconduct. In reviewing that case, the opinion was delivered in the court of appeals by Finch, J., in confirmation of the action of the general term ; and near the close of the opinion he said: “ It is impossible not to feel sympathy for him in his struggle, and yet our plain duty is to shrink from no conclusion which the purity and integrity of the profession demands.” The order of the general term was affirmed by the unanimous judgment of the court of appeals. That case was referred to with approval in Re------, 86 N. Y. 564. In Matter of Charges against Opdyke, 143 N. Y. 538, the general term made an order removing the accused from the office of attorney and counselor at law for deceit and fraud in the practice of his profession. An order to show cause summoned the accused, who appeared and the charges were denied by him on his appearance, pursuant to the order, and thereupon the matter was referred to a referee to take evidence in regal’d to the issues thus formed, and to report the evidence taken, together with the referee’s opinion, to the court. The referee made a report, in which he made certain findings of fact which he regarded as ■established by such evidence, and thereupon the whole question was before the supreme court at general term upon the report of the referee, and the evidence taken ; and the court, after hearing the parties, confirmed the referee’s report, and removed the accused from the office of attorney and ■counselor at law. In that case the court came to the conclusion that the proof sustained the conclusions of fact arrived at by the referee, and in disposing of the case used language not inappropriate to be. applied to the •case now before us, viz. : “The testimony has been examined in this court without prejudice against the defendant, and with a most anxious desire upon our part to take as charitable a view of the evidence as could fairly be reconciled with the proper discharge of our duty in the matter. We are fully impressed with the great gravity of the case, and of the painful consequences to defendant which must follow our affirmance of the order of the supreme court. At the same time we cannot forget that it rests with the courts to aid and further the efforts on the part of the profession to maintain the honor and integrity of its own members, and, whenever a ■case is presented which shows that an individual member of that profession has been guilty of dishonest conduct in his professional character, it is the duty of the court, when the "case is properly proved, to administer the proper punishment. This is not only justice to the profession itself, but is a protection to the public, which ought to be justified in its belief that any one holding a license to practice in the courts of this state is at least of good moral character, and fit to be intrusted with the duty of protecting the interests of others.” Our conclusion is that the referee’s report should be confirmed, and the defendant should be disbarred, and his license revoked. Order to be entered with the clerk in accordance with the conclusion stated in the opinion.


text:
    Douglass et al., Respondents, v. Brooklyn El. R. Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by Elizabeth S. Douglass, Hannah S. Douglass, and Margaret J. Douglass against the Brooklyn Elevated Railroad Company.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Brake, Respondent, v. McKibbon et al., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Fred E. Drake, as executor, etc., against Thomas G. McKibbon, impleaded with others.
   No opinion. Judgment affirmed, with costs.


text:
    Dubois, Respondent, v. Cosgrave, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct, 27, 1896.)
    Action by William B. Dubois against James Cosgrave.
   No opinion. Order affirmed, with 010 costs and disbursements. All concur.


text:
    Duffus, Respondent, v. Howard Furnace Co., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1893.)
    Action by William Duffus against the Howard Furnace Company.
   No opinion. Motion denied, with 010 costs. All concur.


text:
    Duge, Respondent, v. Morris et al,, Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by William Duge against Nelson Morris, Frank E. Vogel, and Edward Morris, composing the firm of Nelson Morris & Co.
   No opinion. Judgment and order unanimously affirmed, with costs.


text:
    Dunn et al. v. Travis et al.

    (Supreme Court, Appellate Division, First Department.
    Oct. 28, 1896.)
    Action by Samuel P. Dunn and others against James H. Travis, impleaded.
   No opinion. Motion denied. Application should be made to court below to be relieved from printing all the papers.


text:
    Dwyer v. Rorke.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by Thomas N. Dwyer against James Rorke.
   No opinion. Motion denied.


text:
    Eades, Appellant, v. Goit et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Alvah Eades against Henry Goit and Lucinda Goit.
   No opinion. Judgment of the county court reversed, with costs, and the justice’s judgment affirmed, with costs.


text:
    Elliot, Respondent, v. Rochester Ry. Co., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Sarah M. Elliot against the Rochester Railway Company.
   No opinion. Motion denied, with 010 costs. All concur.


text:
    Ennis v. Moderati.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by James S. Ennis against Clito Moderati.
   No opinion. Motion; denied, upon payment of $10 costs.


text:
    Eno, Respondent, v. New York El. R. Co. et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by Amos R. Eno against the New York Elevated Railroad Company and others. B. Tolies, for appellants. W. Mitchell, for respondent.
   No opinion. Judgment affirmed, with costs.


text:
    Esberg-Bachman Leaf Tobacco Co., Respondent, v. Worms et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by the Esberg-Bachman Leaf Tobacco. Company against Abraham Worms and others.-
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Evans, Respondent, v. Frey et al. Appellants. Same v. Dolan. Same v. Kircher. Same v. Falvey.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by William L. Evans against Francis Frey and others, and three other case's. E. W. S. Johnston, for appellants. S. Hanford, fox-respondent.
   No opinion. Ox-der affirmed, with §10 costs and disbursements on one appeal.


text:
    Evans v. Kircher.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by William L. Evans against Louis H. Kircher.
   No opinion.. Motion denied.


text:
    Evans, Respondent, v. Kircher et al., Appellants. Same v. Dolan et al. Same v. Falvey. Same v. Frey.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by William L. Evans against Louis H. Kircher and another, and three other cases. E. W. S. Johnston, for appellants. S. Hanford, for respondent.
   No opinion. Order's made by Mr. Justice Andi'ews on May 20, 1896, modified by adding the same provisions as were inserted ixx the orders made by Justices Giegerieh, Truax, and Stover with respect to the payment of the expenses of the oi'al cross-examination, and also adding leave to the defendants to subject the witxxesses to an oral re-direct examination, the plaintiff, however, to pay the expenses of such oral x-e-direct examination ; and, as thus modified, the order is affirmed, without costs.


text:
      In re Fairchild.
    (Supreme Court, Appellate Division, Third Department.
    Oct. 29, 1896.)
    In the matter of objection to the cex-tificate of nomination of Ben. L. Fairchild for representative in congress for the sixteenth congressional district.
   No opinion. Order appealed from affixmed, with costs and disbursements.


text:
    Fancher, Respondent, v. Pinon, Appellant.
    (City Court of New York, Genex-al Term.
    October 30, 1896.)
    Action by Ezra B. Fancher against Bonifacio Pinon. Coudert Bros.,, for appellant. J. R. Fancher, for respondent.
   Scotchman, J.

—This is an appeal from a judgment recovered herein on a contract for tuition, board, and incidentals furnished to Louis Pinon, the son of the defendant, while attending, as a boar-ding pupil, the school of tlxe plaintiff situated at Yonkers, Westchester county, N. Y., during the school year of 1893 to 1894. The plaintiff in his complaint alleges, and at the trial proved, a contract for the tuition and board of the defendant’s son for tlxe school year beginning the 25th day of September, 1893, and ending on June 8, 1894, at §500, payable half-yearly in a'dvance ; the second installment being payable on February 1, 1894. The defendant withdrew his son from said school on February 12 or 16, 1894. The plaintiff also proved that he furnished the defendant’s son clothing and other incidentals of the value of §123.40. Defendant’s son was a pupil at plaintiff’s boarding school for two previous years, under the same agreement for said tuition and board and for incidentals. The action is brought for a breach on the part of the defendant of said agreement for tuition, board, etc. The plaintiff and his wife were the only witnesses on the trial on behalf of the plaintiff. The defendant offered no evidence whatsoever, and at the end of the trial made certain motions and requests to charge, which were denied by the court, and duly excepted to. We have examined these exceptions, and the only one worthy of any notice is the one denying the request to charge “ that the question involved is a question of damages, and not a question of what the plaintiff is entitled to recover under the contract, and, as this included board, and board not having been furnished, the sole question before the jury is what damages the plaintiff sustained by reason of the defendant’s alleged failure to comply with his contract.” The damages in such an action for the breach of contract are prima facie the amount stipulated in the contract for the full term. Howard v. Daly, 61 N. Y. 362. The law, however, for wise reasons, imposes upon the party subjected to injury by the breach of the contract the active duty of making reasonable exertion to render the injury as light as possible. Public interest and sound’morality accord with the law in demanding this. A party ought not to recover more than his actual damage ; but the burden of proving that the damages which have been sustained in such cases could have been prevented unquestionably rests upon the party guilty of the breach of contract. Hamilton v. McPherson, 28 N. Y. 77. In this case, therefore, the burden of proof was upon the defendant to show that the damages sustained on account of his breach of contract were less than the contract price. Not having done so, the law gives him no remedy on this appeal, and the ruling of the judge at the trial was correct. Judgment affirmed, with costs. Fitzsimons, J., concurs.


text:
    F. E. Teves Coal Co., Respondent, v. Neff et al., Assessors, Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 30, 1896.)
    Application of the F. E. Teves Coal Company for a writ of certiorari to B.'C. Neff, Henry Bristow, and others, assessors of the city of Brooklyn.
   No opinion. Order affirmed, with §10 costs and disbursements. All concur.


text:
    First Nat. Bank of Friendship, Respondent, v. Weston, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by the First National Bank of Friendship, N. Y., against Abijah Weston, survivor, etc.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Fisher et al., Respondents, v. Tunbridge, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Conrad J. Fisher and Theodore D. Allen against Spencer J. Tunbridge.
   No opinion. Appeal dismissed, with costs.


text:
    Fogassi v. New York Cent. & H. R. R. Co.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Marie Fogassi against New York Central & Hudson River Railroad Company. A. Green, for appellant. R. Campora, for respondent.
   No opinion. Judgment and order affirmed, with costs.


text:
    Foley v. Foley.
    (Supreme Court, Appellate Division, First Department.
    July, 1894.)
    Action by Helen M. Foley against John R. Foley.
   No opinion. Motion denied ; but appellant must be ready at September session.


text:
    Fowler, Appellant, v. Dearing, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by George" H. Fowler against George B. Dearing.
   No opinion. Motion for leave to appeal to the court of appeals denied.


text:
    Frichette v. Alice Falls Co.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by Henry Frichette against the Alice Falls Company.
   No opinion. Application for leave to appeal to the court of appeals denied.


text:
    Friendly, Respondent, v. Parsons.et al., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Adolf Friendly against William A. Parsons and others.
   No opinion. Judgment and order affirmed, with costs. All concur.


author: Fitzsimons, J.

text:
    Frischman, Respondent, v. Zimmerman et al., Appellants.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Ignatz Frischman against Moses Zimmerman and Herman Walke. S. D. Levy, for appellants. J. Fromme, for respondent.
   Fitzsimons, J.

—The plaintiff’s testimony, which evidently the jury believed, shows that the note in suit was given for the rent of the Coney Island property, and was accepted by the plaintiff because of the defendant Zimmerman’s indorsement, and was in no sense an accommodation indorsement. The fact that Zimmerman indorsed the note evidently induced the plaintiff to lease the premises just described to the defendant Walke, and it was accepted by plaintiff in payment of the rent therein mentioned. Of course it was the plaintiff’s duty, in view of the fact that Zimmerman’s indorsement was irregular, to show by the weight of evidence that the note was given, and said indorsement made, for the purpose of obtaining credit with the payor. This duty he fully performed, in our judgment, as the appeal record shows. We have been unable to find any errors herein, and the judgment must be affirmed, with costs. Van Wyck, C. J., concurs in the result.


text:
    Frost, Appellant, v. Baker, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 8, 1896.)
    Action by Maud F. Frost against James H. Baker/
   No opinion. Judgment of county court affirmed, with costs. All concur.


text:
    Furman et ux., Respondents, v. Furman et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by Giarrit Furman and wife against William H. Furman and others.
   No opinion. Motion to resettle order denied.


text:
      In re Galpin.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Application by Henry F. Galpin for admission as attorney and counselor at law.
   No opinion. Application granted, and the applicant may take the oath of office.


text:
    Gamble v. Lennon.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Annie Gamble, as administratrix, against William Lennon.
   No opinion. Motion denied; but papers must be served by August 31.


text:
    Gamble v. Lennon.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by Annie Gamble, as administratrix, against William F. Lennon.
   No opinion. Motion denied, with $10 costs. See 41 N. Y. Supp. 277.


text:
    Garlock v. Garlock.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Jason Garlock against Orilla C. Garlock and Jane C. Church, individually and as administratrix with the will annexed of John B. Grow, deceased.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Gideon, Appellant, v. Dwyer, Respondent.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by David Gideon against Philip J. Dwyer.
   Per Curiam.

—The court, having control over its own judgments, decided that, in furtherance of justice, this case should be heard on the merits (40 N. Y. Supp. 1053); there being an excuse presented, and a defense alleged to exist. No abuse of discretion is shown, and the terms imposed are more than an indemnity to the plaintiff for the expenses to which he has been put, and the delay he has suffered. The order should be affirmed, with $10 costs and disbursements.


text:
    Gillig v. George C. Treadwell Co.
    (Supreme Court, Appellate Division, Third Department.
    Oct. 2, 1896.)
    Action by Henry F. Gillig against the George C. Treadwell Company.
   No opinion. The order appealed from is modified by striking out, after the figures $3,685.49, the words, “ with interest thereon from the 5th of January, 1895,” and inserting in lieu thereof the words, “ with interest thereon from May 9, 1896 ” ; and, as so amended, affirmed, with costs. All concur.


text:
    Gillin, Respondent, v. Canary, Appellant (two cases).
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Robert F. Gillin against Thomas Canary. Joseph C. Rosenbaum, for appellant. Oppenheim & Severance, for respondent.
   Fitzsimons, J.

—These two actions were, on motion of the defendant, consolidated and made one action, and he now complains because judgment was rendered against him for the sum of $4,227.50, contending that in no event can a judgment for more than $2,000 be rendered in this court. This question was passed upon adversely to th.e appellant’s contention by this court (Bush v. Abrahams, 2 N. Y. Supp. 391) in a case similar to this one. We nave examined the record carefully, and find no reason to question the judgment herein. It is therefore affirmed, with costs. ScHUCHman, J., concurs.


text:
    Gilloren, Appellant, v. Board of Sup’rs of Oneida County, Respondent.
    (Supreme Court; Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Richard Gilloren against the board of supervisors of Oneida county.
   No opinion, Order (38 N Y. Supp. 954) affirmed, with $10 costs and disbursements. Held (1) that, before petitioner was entitled to avail himself of the provisions of section 16, c. 686, of the Laws of 1892, he must state facts sufficient to confer jurisdiction upon the county court; (2) that one of such facts is that the board of supervisors refused to correct the error complained of after being requested so to do, and, inasmuch as this fact is not stated in the petition, the county court failed to obtain jurisdiction of the proceedings. See In re Buffalo Mut, Gas-Light Co., 144 N. Y. 228. All concur.


text:
      In re Ginsberg.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    In the matter of the general assignment of Morris Ginsberg to MaxHallheimer for the benefit of creditors.
   No opinion. Order modified by striking out the words, “such part of the estate, or its proceeds, as may be necessary to satisfy the provisions of the judgment of the superior court in the cases above mentioned,” and by inserting in lieu thereof the words, “ so much as he shall actually have paid at the time of the accounting to satisfy the judgment of the superior court in the cases above mentioned ” ; and, as so modified, affirmed, without costs.


text:
    Goldman, Appellant, v. Levy et al., Respondents.
    (Supreme Court, Appellate Term( First Department.
    September, 1896.)
    Action by Benjamin Goldman against Isaac Levy and others. Hays & Greenbaum, for appellant. Ritch & Woodford, for respondents.
   No opinion. Affirmed upon argument.


text:
    Goldman v. Levy.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Action by Benjamin 'Goldman against Isaac Levy and others. Motion by defendants for reargument. For decision on appeal, see supra. Hays & Greenbaum, for the motion. A. H. Sarasohn, opposed.
   Per Curiam.

—The points raised on the motion were well discussed "and considered at the argument of the appeal. No ground for reargument has therefore been presented. Hand v. Rogers, 16 Miso. Rep. 364. Motion denied, with $10 costs.


text:
    Goodsell, Respondent, v. Veeder, Appellant.
    (Supreme Court, Appéllate Division, Third Department.
    Dec. 8, 1896.)
    Action by Fred R. Goodsell, an infant, by William R. Goodsell, his guardian, against Melvin Veeder.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Gordon, Respondent, v. Moquin et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 30, 1896.)
    Action by William Gordon against William A. Moquin and Carsten Offerman.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Gordon, Appellant, v. Strong, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by William Gordon against William L. Strong, mayor, etc.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Graves et al., Appellants, v. Bradley, Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Maurice A. Graves and another, as executors, etc., against Christopher C. Bradley.
   No opinion. Motion to dismiss appeal denied, without costs to either party.


text:
    Graves et al., Appellants, v. Bradley, Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Maurice A. Graves and another, as executprs, etc., against Christopher G. Bradley.
   No opinion. So much of the order of the special term as denies the plaintiffs’ motion for leave to amend their complaint is reversed, and the order is modified so as to allow the amendment asked for, on condition that, within 20 days from the entry of this order and service of a copy thereof, the plaintiffs serve their amended complaint, and stipulate that the trial of the action proceed before the referee, heretofore appointed, upon the evidence already taken, and such additional proofs as may be offered by either party, and at the same time pay to the •defendant’s attorney a trial fee of $30 ; and on the further condition that the defendant be permitted to answer such amended complaint within 20 days after its service, as aforesaid. And, as so modified, the order is affirmed, with $10 costs and disbursements to the respondent. In case of noncompliance with the above conditions, or any of them, the order appealed from is affirmed, with $10 costs and disbursements to the respondent.


text:
    Griffith, Respondent, v. United States Industrial Ins. Co., Appellant.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by Sarah Griffith, as administratrix, against the United States Industrial Insurance Company. E. W. S. Johnson, for appellant. T. W. McKnight, for respondent.
   No opinion. Order affirmed, with $10 costs and disbursements,


text:
    Groof, Respondent, v. Bliss, Appellant.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Frederick G. Groof, as general assignee, etc., of Henry W. Benedict and Robert A. Fowler against Clara E. Bliss. Clin, Rives & Montgomery, for appellant. A. R. Bunnell, for respondent.
   Fitzsimons, J.

—This is an action brought to recover for goods sold and delivered. The defendant’s contention upon this appeal is that certain notes which she gave to the plaintiff assignor prior to the assignment to the plaintiffs for the benefit of said assignor’s creditors, and which were given to said assignors for their accommodation, should be considered as a payment of the claim in question. The trial justice refused to concur in defendant’s view, except as to one of the said notes, and hence this appeal. It appears that all of said notes except the one allowed by the trial justice as a proper subject of counterclaim became due and were paid by the defendant after the assignment. Under such circumstances, it was proper for the trial justice to rule that said notes were not proper counterclaims herein. Defendant, as to such notes, occupied the same position as the other creditors of the plaintiff’s assignor. The notes, as before stated, were not due at the time of the making of the assignment, and therefore they constituted no claim upon the estate of the assignor due when the assignment was made (see Fera v. Wickham, 135 N. Y. 328), and cannot-be presented in this action as a counterclaim. Finding no error herein, the judgment must be affirmed. All concur.


text:
    Grubert, Appellant, v. City of Oswego et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Dora Grubert against the city of Oswego, Martin Golden, as administrator, etc.
   No opinion. Motion denied, without costs. Decision made by the concurrence of all.


text:
    Haas v. Watson.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by Louis Haas against Thomas Watson.
   No opinion. Motion granted, with $10 costs.


text:
    Haight et al., Appellants, v. Pine et al., Respondents.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by John B. Haight, as executor, etc., of Underhill L. Purdy, deceased, and others, against Sullivan M. Pine, administrator, etc., of' James Pine, deceased, and others.
   No opinion. Motion to dismiss appeal denied, without costs.


text:
    Hall et al. v. Boston.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    Action by Henry J. S. Hall and others against Rafala S. Boston.
   No opinion. Motion granted.


text:
    Hand v. Shaw et al.

    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Action by Elwood S, Hand against William A. Shaw and others. Motion for reargument or for leave to appeal to the court of appeals denied. For decision on appeal, see 41 N. Y. Supp. 16. Chas. De Hart Brower, for the motion. D. J. Newland, opposed.
   Per Curiam.

—The plaintiff has failed to bring himself within the rule permitting a reargument. Hand v. Rogers, 16 Mise. Rep. 864; 38 N. Y. Supp. 2. The point urged now was not raised at the argument, and comes too late. Besides, it is not of sufficient importance to warrant the application. The motion to dismiss the complaint was made substantially upon one ground, viz. the insufficiency pf the evidence to support the cause of action, and, as it was but one motion, required but one ruling by the court; consequently but one exception was needed to review the error, if any, in denying the motion. The case is not within the rule laid down in Myers v. Rosenback, 14 Misc. Rep. 638 ; 36 N. Y. Supp. 7,—that one. exception to three different motions is insufficient to require a review of each separately. No ground is presented for an appeal to the appellate division. Lynch v. Sauer, 16 Misc. Rep. 362; 38 N. Y. Supp. 1. Motion denied, with $10 costs.


text:
    Hanna, Appellant, v. Larmon et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by David J. Hanna against William C. Larmon and others.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Hassett, Respondent, v. Knickerbocker Ice Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by Mary Hassett against the Knickerbocker Ice Company.
   No opinion. Judgment and order unanimously affirmed, with costs.


text:
      In re Hatch.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    In the matter of the application of Metcalf B. Hatch.
   No opinion. The applicant’s papers are defective, in that they fail to show that the appli«ant has practiced three years before the highest ‘court of law in the state of Michigan, as required by rule 2, relating to the admission of attorneys. This proof may be supplied.


text:
      In re Havemeyer’s Estate.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    In the matter of the judicial settlement, etc., of J. Lee Humfreville, one of the executors, etc., of Mary J. Havemeyer, deceased.
   No opinion. Order reversed, and case sent back to the surrogate to hear and determine de novo the claim against the estate, with $10 costs and disbursements to the appellant.


text:
    Heepe et al., Respondents, v. Mead, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Action by Richard Heepe and Otto Heepe against George W. Mead.
   No opinion. Judgment affirmed, with costs, upon the authority of Allen v. Patterson, 7 N. Y. 476. All concur.


text:
    Heepe et al., Respondents, v. Mead, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Richard Heepe and Otto Heepe against George W. Mead.
   JSTo opinion. Motion denied, with $10 costs.


text:
    Herder, Appellant, v. Bloomer, Respondent.
    (Supreme Court, Appellate Term, First Department.
    October, 1896.)
    Action by Peter Herder against Theophilus J. Bloomer. J. J. Bennett, for appellant. J. Callahan, for respondent.
   No opinion. Affirmed by -default.


text:
    Hetterline, Appellant, v. Stoddard et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 8, 1896.)
    Action by Frederick Hetterline against Willard F. Stoddard and others.
   No opinion. Judgment affirmed with costs. All concur.


text:
    Hirschberg, Appellant, v. Metropolitan St. Ry. Co., Respondent.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    Action by Michaelis Hirschberg, as administrator, against the Metropolitan Street Railway Company. S. Fleischman, for appellant. Brown-son Ker for respondent.
   No opinion. Judgment affirmed, with costs.


text:
    Hirshbach v. Ketchum.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Simon Hirshbach against Alexander P. Ketchum.
   No «pinion. As this court, as now constituted, cannot hear this application, the motion must stand over to be brought on before the court at its next session on September 8.


text:
      In re Hodgman’s Estate.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    In the matter of the estate of Frederick Hodgman, deceased.
   No opinion. Motion denied, with $10 costs and disbursements. All concur.


text:
    Holden et al., Respondents, v. Kutscher, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by William Holden and Charles Holden against Satie E. Kutscher.
   No opinion. Judgment affirmed, with costs. All concur.


text:
      In re Hone.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    In the matter of the accounting of Frank J. Hone, as the receiver of the property of Charles F. Lighthouse.
   No opinion. Order affirmed, with $10 costs and disbursements. Adams, J., not voting.


text:
    Hopkins v. Clark.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Henry C. Hopkins against Janies F. A. Clark.
   No opinion.. Motion denied.


text:
    Horowitz v. Hamburg-American Packet Co.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Action by Isabella Horowitz against the Hamburg-American Packet Company. Motion for leave to appeal to appellate division. J. J. Frank, for the motion. Mashbur & Cukor, opposed.
   Per Curiam.

—We consider that the point in respect to which the justices of this term differed, viz. whether the question of permanent injuries should have been submitted to the jury in the absence of the evidence of' medical experts, is of sufficient importance to justify the granting of the motion. Motion granted upon condition that the appellant files a stipulation that, for the purpose of such appeal, it will waive all objections to-the judgment except those which raised that point.


text:
    Howell, Respondent, v. Hawkins et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by Lucy C. Howell against William M. Hawkins, individually, etc., and others, including Martha Martin.
   No opinion. Judgment affirmed, with costs. All concur.


text:
      In re Hunt.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Proceeding to remove Frank H. Hunt, a justice of the peace of the town of Urbana, in the county of Steuben.
   No opinion. Order filed with the-clerk with directions to cause the service of the same to be made.


author: Schuchman, J.

text:
    Hutkoff, Respondent, v. Elting, Appellant.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Nathan Hutkoff against Samuel Elting. P. Wilcox, for appellant. Leventritt & Nathan, for respondent.
   Schuchman, J.

—This is an appeal from a judgment entered upon the verdict of a jury in favor of plaintiff, and from an order denying defendant’s motion to set aside the verdict, and for a new trial. The complaint alleges a cause of action for $270 for goods sold and delivered by the plaintiff to the defendant. The answer denies each and every allegation of the-complaint. On the trial the plaintiff proved that the goods were sold to-the defendant, that credit was given to him, and that he directed the goods-to be delivered to the firm of L. Elting & Son, Kingston, N. Y. The defendant, however, proved that the goods were sold and delivered to the firm of L. Elting & Son, Kingston, N. Y. ; that the defendant was not a. partner of said firm ; that he went along with his brother to the place of business when his brother bought said goods for said firm. The contention thus raised on the trial by the respective parties to this action was squarely and properly submitted to the jury ; the trial judge instructing, the jury : “ The question is, to whom was the credit given, and who agreed to accept the liability ? ” The jury found in favor of the plaintiff. It is convincing that they gave credit to the testimony adduced by the-plaintiff, and that testimony is insufficient to sustain the verdict. We cannot interfere therewith on this appeal, Judgment affirmed, with costs. Vat Wyck, J., concurs.


text:
    Hutkoff, Appellant, v. Gorman, Respondent.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Nathan Hutkoff against Amelia Gorman, as executrix, James; Collins, and Bobert D. White, Jr. H. Joseph, for appellant. D. Leventritt, for respondent.
   Per Curiam.

—The order appealed from must be affirmed, with costs. The entire record and proceedings herein show that all the above persons named as defendants were actually defendants ; that they appeared at the trial, and each one tried the issues raised by their respective pleadings. Because of the result of such trial, a judgment was entered in favor of said defendants, and each of them, and therefore the costs taxed herein were properly allowed, and the judgment entered was right. Judgment affirmed, with costs. All concur.


text:
    Hyland, Appellant, v. New York Cent. & H. R. R. Co., Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by George Hyland against the New York Central & Hudson River Railroad Company.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Isear, Appellant, v. Daynes et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Oct. 23, 1896.)
    Action by Sacharize Isear against William Daynes and others. A. Perry, for appellant. L. J. Langbein, for respondents.
   No opinion. Order affirmed, with $10 costs and disbursements. Williams and O’Brien, JJ., dissenting.


text:
    Jones, Respondent, v. Rochester Gas & Electric Co., Appellant (two cases).
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by W. Martin Jones against the Rochester Gas & Electric Company.
   No opinion. Motion denied, with $10 costs. All concur,


text:
    Kalley, Respondent, v. Zeigler, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Frederick D. Kalley, executor, etc., of Julius Kalley, deceased, against William Zeigler.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Kane, Respondent, v. Middletown-Goshen Traction Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 30, 1896.)
    Action by George Kane against the Middletown-Goshen Traction Company.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Kane, Respondent, v. Middletown-Goshen Traction Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by George Kane against the Middletown-Goshen Traction Company.
   No opinion. Motion for leave to appeal to the court of appeals denied.


text:
    Kapff, Respondent, v. Gottschalk, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by Sixt Carl Kapff against Julius Gottschalk.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Kauffman, Appellant, v. Hudson River Bridge Co., Respondent.
    (Supreme Court, Appellate Division, Third Department.
    Oct. 2, 1896.)
    Action by Stephen Kauffman against the Hudson River Bridge Company.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    King, Appellant, v. Holland Trust Co. et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by Barrington King, as receiver, etc., of Samuel Schuyler, against the Holland Trust Company and others.
   No opinion. Motion denied, with $10 costs.


text:
      In re Kings, Q. & S. R. Co.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    In the matter of the application of the Kings, Queens & Suffolk Railroad Company.
   No opinion. Motion to resettle the order denied, without costs.


text:
    Kirby, Appellant, v. Carroll, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 8, 1896.)
    Action by Joseph C. Kirby, as sole surviving partner of the late firm of Kirby & McBride, against Patrick Carroll.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Kohberger, Appellant, v. Coughlin et al., Respondents.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by Catharine Kohberger against Catharine Coughlin and John F. Coughlin.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Lagace, Respondent, v. Troy Waste Manuf’g Co., Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 3, 1896.)
    Action by Joseph Legace, by; guardian, against the Troy Waste Manufacturing Company.
   No opinion. Judgment and order affirmed, with costs. All concur, except Parker, P. J., andPüTNAM, J.


text:
    Lampman, Respondent, v. Marvin, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by James H. Lampman against George Marvin.
   No opinion. Order affirmed, with $10 costs and disbursements, All concur.


text:
    Lant v. Rasines et al.

    (Supreme Court, Appellate Term, First Department.
    November 6, 1896.)
    Action by Frank P. Lant against Antonio Rasines and others. Second motion by defendants to resettle order reversing an affirmance by the city court, general term, of a judgment of that court. Alexander & Ash, for appellants. Geo. W. Sandford, for respondent.
   Per Curiam.

—By the order entered by the plaintiff (respondent) May 37, 1896, the judgment appealed from was reversed, and a new trial ordered, with costs “ to the appellant” to abide the event. The defendants (appellants) thereupon moved to resettle the order by making it read as follows: “ Ordered, that the said judgment of affirmance [of the city court] be, and the same hereby is, reversed, and a new trial ordered, with costs of this court and the court below to abide the event.” The plaintiff (respondent) consented to the granting of the motion, and a new order in accordance with the application and consent was accordingly made on June 6, 1896. The new trial has been had in the city court, and there is' again a verdict for the plaintiff. The defendants find that the amended .order of reversal which they induced the court to enter is not as favorable to them, in view of the result of the new trial, as the original order would have been, and they now move to again resettle it by restoring it to its original form, with costs “to the appellant” to abide the event. The defendants (appellants), having, by their own voluntary act, induced the plaintiff (respondent) to consent to change the order by adoptin g their own phraseology, are not in a position to require the court to nullify such act and consent by a third order restoring the one originally made. Not only is the defendants’ present application of too irregular a character to merit approval, but the first amendment obtained upon the consent of the plaintiff made the second order one essentially by consent, and in the nature of a stipulation binding on the parties to it. In re New York, L. & W. R. Co., 98 N. Y., at page 453. To relieve from such a stipulation would be to invite a repetition of the practice attempted. The application must be denied, but without costs.


text:
      In re Laudy.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    In the matter of Kate Laudy, deceased.
   No opinion. Application dismissed. The application should be made at special term.


text:
    Lauer, Appellant, v. Lauer, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by Fred Lauer against, Jacob Lauer.
   No opinion. Motion to dismiss appeal denied, with $10 costs.


text:
    Lauer, Appellant, v. Lauer, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Fred Lauer against Jacob Lauer.
   No opinion. Decree of the surrogate affirmed, with costs against the appellant. All concur.


text:
    Lawson, Respondent, v. Lawson, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Frederick Lawson against Catherine Lawson.
   No opinion. Judgment and order affirmed, with costs.


text:
    Lazarus et al. v. Metropolitan El. Ry. Co.
    (Supreme Court, Appellate Division, First Department.
    Oct. 23, 1896.)
    Action by Sarah Lazarus and others against the Metropolitan Elevated Railway Company.
   No opinion. Motion granted; the case to be reargued before the court as constituted on the former argument.


text:
    Leighton Mach. Co., Appellant, v. Cornell et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    October 2, 1896.)
    Action by the Leighton Machine Company against David C. Cornell and others.
   No opinion. Order affirmed, with $10- costs. All concur.


text:
    Leland v. Sun Printing & Pub. Ass’n.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by Harriet Leland against the Sun Printing and Publishing Association.
   No opinion. Motion denied.


text:
    Lemon v. Smith et al.

    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by J. Samuel Lemon, as administrator, etc., against Adon N. Smith and others, as executors, etc.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Levengston, Respondent, v. New York El. R. Co. et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    May, 1896.)
    Action by Henry M. Levengston against the New York Elevated Railroad Company and another.
   Per Curiam.

—The property which is the subject of this action is situated something over 200 feet east of Third Avenue on East Thirty-Fourth Street. It consists of two houses, Nos. 217 and 219, on the north side of the street, each parcel being 18 feet and 9 inches wide and 98 feet and 9 inches deep. Before the coming of the elevated railroad, the houses were rented to tenants of a high class, and the court would have been warranted, from the testimony, in finding that the yearly rents were $1,350 and $1,400. The testimony also warranted the finding that, after the operation of the elevated railroad began, there was a diminution of the rent to $600 a year, and that the value of the property had diminished in proportion. Subsequent to that time there has been a gradual increase in the amount of rentals and the value of the property, but not such as would have been warranted by the general increase in values of that neighborhood not subject to the depressing influences of the elevated roads. The court allowed for rental value of the two buildings §2,506.86, being at the rate of §120. a year on each house for six years, and fixed the diminution of the fee value at §3,000. Upon a careful consideration of the evidence, we think that this judgment is sustained by the facts made to appear, and for that reason it is affirmed, with costs.


text:
    Lewis et al., Respondents, v. Gould, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    October 2, 1896.)
    Action by Charles W. Lewis, Jr., and Edward D. Lewis against Frank Gould.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Little, Respondent, v. Kingston City R. Co., Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by Thomas Little against the Kingston City Railroad Company.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Little, Respondent, v. Kingston City Ry. Co., Appellant.
    (Supreme Court, Appellate Division, Third Department.
    October 2, 1896.)
    Action by Thomas Little against the Kingston City Railway Company.
   No opinion. Application for certificate to the court of appeals under sec- . tion 191 of the Code of Civil Procedure denied.


author: McAdam, J.

text:
    Livingston v. Spero.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Action by Meyer W. Livingston against Louis Spero. Oppenheim & Severance (W. P. Severance of counsel), for appellant. L. Bronner (M. L. Erlanger, of counsel), for respondent.
   McAdam, J.

—The action is by the plaintiff, as assignor of Mitchell L. Erlanger, an attorney at law, to recover $99 for professional services rendered to the defendant in the following matters : $75 for services rendered in the case of Schultz against Spero ; $25 for services growing out of a report made by Dun’s Agency concerning the defendant; and $5 concerning a satisfaction piece. The answer was á general denial, with a plea of payment, and counterclaim of $250 by reason of the gross negligence of the plaintiff’s assignor as an attorney and counselor, by which the defendant sustained damages in that sum. The justice found for the plaintiff, and awarded him judgment for $75, disallowing the defendant’s counterclaim and the second and third items of plaintiff’s bill. The plaintiff proved the rendition of the services in the Schultz Case at the request of the defendant, and that they were reasonably worth $75, the sum for which the justice rendered judgment. The claim that the services were rendered gratuitously, or had in any manner been paid for, entirely failed. The counterclaim for negligence grows out of the same matters which have been gone over in the opinion filed this day in suit No. 1 between the same' parties (41 N. Y. Supp. 606), and need not be again discussed. This action, like that, is by an assignee, and substantially the same rulings were made here as there, and all these are effectually disposed of by the opinion in that case. We find no error, and the judgment must be affirmed, with costs.


text:
    Lockwood et al., Respondents, v. Williams et al., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Henry C. Lockwood and others against Agnes E. Williams and others.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Loew v. Christ.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by Edward V. Loew, administrator, etc., against Sebastian Christ.
   No opinion. Motion denied.


text:
    Long Island R. Co., Appellant, v. Garvey, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by the Long Island Railroad Company against Bernard F. Garvey.
   No opinion. Motion to dismiss appeal denied, with $10 costs.


text:
    Lord v. New York El. R. Co..
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by John T. Lord against the New York Elevated Railroad Company. M. W. Gallway, for appellant. W. R. Page, for respondent.
   No opinion. Judgment affirmed on the defendant’s appeal. Judgment affirmed on the plaintiff’s appeal. Patterson, J., dissenting on the ground that the amount awarded for fee damages is not sufficient. No costs to either party.


text:
    Love v. Sexton.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Henry M. Love, as receiver, against John B. Sexton.
   No opinion. Motion granted with $10 costs.


text:
    Ludlow, Respondent, v. Johnson et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    Action by James B. Ludlow against Dorothy H. G. Johnson and Genie H. Rosenfeld. 88 N. Y. Supp. 1146. Fettretoh, Silkman & Seybel, for appellants. Henry C. Bryan, for respondent.
   Per Curiam.

—No objection to this judgment raised by the appellants is of sufficient dignity to require or even justify discussion. If the assignment of his share* of the mortgage was improperly obtained from Thomas W. Ludlow by the plaintiff, it was of no concern to the defendants. The assignment was not void, but simply voidable, and voidable only at the election of Thomas W. Ludlow or his personal representatives. The action was properly brought by the plaintiff. The assignment vested in him the whole legal title to the mortgage, and, if any trust was created by the assignment, it was not in the mortgage, but in the moneys realized from the mortgage. The judgment appealed from should be affirmed, with costs.


text:
    Lynch et al., Appellants, v. Sanders, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    October 2, 1896.)
    Action by Daniel Lynch and another against William Sanders.
   No opinion. Motion for reargument granted, without costs.


text:
    Maas, Respondent, v. Cunard S. S. Co., Limited, Appellant.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Henry Maas against the Cunard Steamship Company, Limited. Xord, Day & Lord, for appellant. Mashbir & Cukor, for respondent.
   Fitzsimons, J.

—The plaintiff recovered a judgment against the defend-ant for the value of certain baggage lost by the defendant. The plaintiff resides in Brooklyn, and the cause of action arose there. The defendant is a foreign corporation, and was served with the summons and-complaint in this city. Upon this appeal, the defendant contends that the court has no jurisdiction herein. In making this claim, we think the defendant is in error.- The cause of action arose within this state. Plaintiff is a resident •of this state, and defendant was served with process in this city. Under ■such circumstances (see section 1780 of the Code of Civil Procedure), this court has jurisdiction herein. The judgment must be affirmed, with costs. Van Wyck, C. J., concurs.


text:
    McCabe et al., Respondents, v. Scott, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Frank L. McCabe and John B. McCabe, against Allen D. Scott, as receiver, etc.
   No opinion. Judgment affirmed, with costs. All ■concur.


text:
    McCone v. Gallagher.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by Alexander C. McCone against Patrick Gallagher.
   No opinion. Motion granted upon payment of §20 costs.


text:
    McCready, Respondent, v. Manhattan Ry. Co. et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by Nathaniel L. McCready against the Manhattan Railway Company and others.
   No opinion. Judgment modified by reducing fee damage to $2,000. rental damage to §700, and extra allowance to $135; and, as modified, affirmed, without costs.


text:
    McCulloch, Respondent, v. McCulloch et al., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.)
    Action by Martha McCulloch against J. Ashley McCulloch and others.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Macfarlane, Respondent, v. Cass, Appellant.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Action by Peter MacFarlane against Charles W. Cass. H. A. Taylor, for appellant. D. H. Lyon, for respondent.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    McGuirk, Appellant, v. Hough, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    October 2, 1896.)
    Action by Mary McGuirk against Isaac Hough.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Mackay, Appellant, v. Danzig, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Rose Mackay against Abraham A. Danzig.
   No opinion. Judgment unanimously affirmed, with costs.


author: Van Wyck, C. J.

text:
    Mackell v. Hilton.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Bernard Mackell against Henry G. Hilton. Rollin Tracy, for appellant. Coffin & Smith, for respondent.
   Van Wyck, C. J.

defendant (appellant) did not make an objection or take an exception upon the trial, except to denial of his motion on the minutes for a new-trial; nor did he move for nonsuit or dismissal on the merits, or request a direction of verdict. The plaintiff, a coachman, sued for unpaid wages, and contended, by pleading and proof, that the sum of $165 was due him. It was conceded that plaintiff was hired by the month, at $60 per month, and that this employment continued until November 28th. However, it was in hot dispute whether, on that day, he left qf his own accord, or was discharged by defendant without good cause. The defendant contended, by proof, that the coachman had been fully paid up to November 1st, and that plaintiff, on November 28th, left of his own accord, or was justifiably discharged. The jury found with defendant as to payment to November 1st, and against him as to his contention in regard to the determination of the employment, by returning a verdict for $56 for plaintiff; thus allowing him for twenty-eight days of service, at the rate of $60 a month. It was right for the judge to let the jury determine the disputed questions of fact, and not error to deny the motion for a new trial made by plaintiff. The judgment and order appealed from are affirmed, with costs.


text:
    MacMahon, Respondent, v. Brooklyn & N. Y. Ferry Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Kate J. MacMahon, administratrix, etc., against the Brooklyn & New York Ferry Company.
   No opinion. Motion for leave to appeal to the court of appeals denied. Plaintiff’s proceedings.stayed for ten days after entry of the order.


text:
    Markey, Appellant, v. Queens County et al., Respondents.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by Kate Markey, as administratrix of the goods, chattels, and credits of Hugh Markey, deceased, against the county of Queens, impleaded, etc.
   No opinion. Judgment affirmed, with costs, with leave to the plaintiff to appeal to the court óf appeals. All concur.


text:
    Mason, Respondent, v. Edwards, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Anna Mason against Newton N. Edwards.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Merritt, Respondent, v. Merritt et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896.)
    Action by George Merritt,_ as administrator with will annexed of Joshua. Weeks, against John Merritt, as administrator, etc., and against Mary Ann Weeks, impleaded.
   No opinion. Order affirmed, without costs. All concur.


text:
    Merz v. Interior Conduit & Insulating Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by Frank Merz against the Interior Conduit & Insulating Company.
   No opinion. Motion denied, with $10 costs.


text:
      In re Mertz’s Estate.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Judicial settlement of the intermediate accounts of Loren M. Kittsley, as executor, etc., of John Merz, deceased.
   No opinion. Order affirmed, with costs against the appellant personally.


text:
    Miller Brewing Co., Respondent, v. City of Rochester, Appellant.
    (Supreme Court, Appellate Division, Fourth Department,
    April, 1896.)
    Action by the Miller Brewing Company against the city of Rochester.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Miller Manuf’g Co., Appellant, v. Kulinski et al., Respondents.
    (Supreme Court, Appellate Term, First Department,
    September, 1896.)
    Action by the Miller Manufacturing Company against Eugene Kulinski and others. A. Loeser, for appellant. L. Wertheimer, for respondents.
   No opinion. Affirmed upon argument.


text:
    Minck, Respondent, v. Levy, Appellant.
    (Supreme Court, Appellate Term, First Department.
    October, 1896.)
    Action by Franklin J. Minck against Melanie Levy. I. H. Harris, for appellant. R. Marvin, for respondent,
   No opinion. Affirmed upon argument. See 40 N. Y. Supp. 348.


text:
    Moody, Respondent, v. Evarts et al., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by William W. Moody against Merriam W. Evarts and others.
   No opinion. Order affirmed, with §10 costs and disbursements. All concur.


text:
    Mooney, Appellant, v. New York El. R. Co. et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Action by Daniel Mooney against the New York Elevated Railroad Company and others. E. W. S. Johnson, for appellant. B. Tolies, for respondents.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Moore, Appellant, v. Eldridge, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    October 2, 1896.)
    Action by William Moore against Taylor J. Eldridge.
   No opinion. Motion for reargument granted, without costs.


text:
      In re Mosely.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Proceeding for the examination of David E. Mosely, third person in the proceedings supplementary to execution in an action entitled “ George C. Haines against John F. Dorthy.”
   No opinion. Order affirmed, with costs against the appellant.


text:
    Moubray, Appellant, v. Moubray, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by Margaret Moubray against William J. Moubray.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
      In re Murray Hill Bank.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    In the matter of the Murray Hill Bank.
   No opinion. Motion ‘granted. First question allowed as amended.


text:
    Myers et al., v. Polhemus.
    (Supreme Court, Appellate Division, Third Department.
    Oct. 29, 1896.)
    Action by John R. Myers and others against Josephine Polhemus.
   No-opinion. Motion denied, without costs to either party.


text:
    National Bank of Kinderhook v. Farrar et al.

    (Supreme Court, Appellate Division. Third Department.
    Dec. 2, 1896.)
    Action by the National Bank of Kinderhook against Alonzo H. Farrar and others:
   No opinion. Judgment affirmed, with, costs. All concur.


text:
    Niendorff v. Manhattan Ry. Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Action by Otto Niendorff against the Manhattan Railway Company.
   No opinion. Motion denied, with $10 costs and disbursements.


text:
      In re Nisbet et al.

    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896.)
    Application by William F. Nisbet and Martha A. Aborn for a writ of certiorari to Caleb F. Underhill and others, as assessors 'of the city of Yonkers, to review assessments.
   No opinion. Order reversed, andmotion granted, without costs. All concur.


text:
    Nixon, Appellant, v. Tyler, Respondent.
    (Suprepie Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Proceeding for the examination of Carile M. Nixon, third person in proceedings supplementary to execution.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
      In re Noll.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896.)
    Judicial settlement of the account of Frederick Noll, as general guardian.
   No opinion. Order amended by striking out the word “ costs,” and adding the words 1 ‘ one bill of costs to the respondents other than Frederick Noll, and none to him.”


text:
    Noonan, Respondent, v. Union Ferry Co, of New York & Brooklyn, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 20, 1896.)
    Action by William Noonan against the Union Ferry Company of New York & Brooklyn.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Noyes et al., Respondents, v. Metropolitan Bank, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by John S. Noyes and George P. Sawyer against the Metropolitan Bank, impleaded, etc.
   No opinion. Order affirmed, with $10 costs and ■disbursements. All concur.


text:
    Nutting, Respondent, v. Pell et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by Lee Nutting against Albert W. Pell, Arthur C. Pell, and William Pell, Jr.
   No opinion. Order reversed, and motion denied, with1 •costs. All concur.