text:
    Joseph Sawyer et al., App’lts, v. Otis G. Clark et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Tenue—Change of—'Affidavit.
    An affidavit in opposition to a motion to change the place of trial for the convenience of witnesses stated that it would he necessary to examine four witnesses for plaintiffs and also the managers of three mercantile agencies to prove representations made by defendants which were repeated to plaintiffs, but did not disclose what the representations were, in what their falsity consisted nor that any communication had been made to counsel as to what the witnesses would be expected to testify to, and the only reference to counsel followed the statement that the witnesses were material and necessary. Held, that such affidavit was defective and presented no answer to the application to change the place of trial.
    Appeal from an order changing the place of trial from the county of New York to the county of Bensselaer.

      Henry L. London, for app’lts; Edward W. Douglas, for resp’ts.
   Daniels, J.

The action is replevin for the recovery of the possession of twenty-four hundred and twenty-seven pounds of combed cotton yarn, style No. 12; twenty-four hundred and ninety pounds of cotton yarn, Jaeger 0., style No. 12, which had been manufactured into two hundred and ninety-six and one-sixth dozen shirts and drawers. The plaintiffs issued the necessary requisition to entitle them to the immediate possession of the property, and under which it is claimed to have been taken. But the defendants afterwards gave the necessary undertaking, under which the possession was returned to them. And by their answers they claim title to the property.

In support of the motion it was alleged that the yarn was purchased, and also manufactured, at Troy, and three witnesses are named whom it is expected will give evidence in support of these facts. And added to these are witnesses by whom the defendants expect to prove that the goods taken were manufactured from other yarn than that purchased from the plaintiffs. And still others are named whose evidence is to be relied upon to prove the transfer and mortgage upon the goods to the defendants.

In answer to the affidavits affirming these facts and naming these witnesses is the affidavit of Anthony 0. Brew, the plaintiffs' credit man, who swears to the necessity for the attendance of four different witnesses for the plaintiffs, and also that it will be necessary to examine the managers of three mercantile agencies to prove representations made to them, and that these representations were repeated to this affiant. The affidavit is extremely general in its statements, wholly failing to disclose what representations were made, further than they were false and fraudulent.

In what respect they were false has not been mentioned. Heither is it stated that any communication was made to counsel concerning what the witnesses would be expected to testify to. The only reference made to counsel follows the statement that each and every one of these witnesses will be necessary and material on the trial of this action for the purpose of making proof of the plaintiffs’ claim. And then this reference to counsel is added. And the addition is “ as deponent is informed by Abraham Grurber, counsel for the plaintiffs, and verily believes.”

This affidavit was in all important respects informal and defective. It failed to comply with the well established practice, and presented no answer to the application to change the place of trial. The order should, therefore, be affirmed, with ten dollars costs and the disbursements.

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


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Irvine A. Hodge et al., Resp’ts, v. John H. Drake et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Pleading—Demurrer.
    A demurrer on the ground that “there is a defect of parties plaintiff,” or that “two causes of action have been improperly united in the same complaint, without stating the defects relied upon specifically, is insufficient under § 490 of the Code.
    3. Same—Sufficiency of complaint.
    A complaint alleging that nlaintiffs with one K. performed work and supplied materials to defendants and sold and delivered goods to them; that K. had assigned his interest in the claims therefor to one of the plaintiffs, and that defendants had received money belonging to the plaintiffs which they failed to pay over, states facts sufficient to constitute a cause of action.
    Appeal from a judgment overruling a demurrer to the complaint.

      Arthur G. Butts, for app’lts; George S. Terry, for resp’ts.
   Daniels, J.

The action is upon contract for work, labor, materials and money had and received to the use of the plaintiffs. The first cause of demurrer assigned is that, there is a defect of parties plaintiff.” In what the defect consists has not been stated, as that has been required to be done, by § 490 of the Code of Civil Procedure, to render the demurrer for that cause sufficient. And it was properly overruled by the special term. Anderton v. N. Y. Concert Co., 41 Hun, 571; 4 N. Y. State Rep., 101; Dodge v. Colby, 108 N. Y., 445; 13 N. Y. State Rep., 848.

The second cause of demurrer is, “ that twó causes of action have been improperly united in said complaint.” To make this objection available the section of the Code already mentioned has directed that it must point out specifically the particular defect relied upon. That was not done, and this branch of the demurrer must fail because of that defect.

Beyond that the plaintiffs are stated to have one of them acquired the interest of their co-partner, Frank S. Ketchum, in the several causes of action, which accrued in favor of their firm, by an assignment from him, which added to their own interests vested them with all the interest and right intended to be enforced by the action, and avoided the ground of the first objection, even if it had been specifically enlarged. And there is certainly no better foundation for the second objection, for the causes of action as they have been severally set forth are all upon contract, and equally affect the parties to the action.

The third and last objection is that the complaint fails to state facts sufficient to constitute a cause of action. This is fully answered by the facts alleged, that the plaintiffs together with Frank S. Ketchum performed work and labor at the request of the defendants, and supplied materials for the work and sold and delivered certain materials to the defendants, and that Ketchum had assigned his interest in these causes of action to one of the plainiffs, which vested them completely with the title. Also that the defendants had received money belonging to these two plaintiffs, which they had failed to pay over.

In all these allegations there certainly was one, or more, causes of action stated, and this third ground of demurrer was unfounded. The judgment should be affirmed, with costs.

Yan Brunt, P. J., concurs.


text:
    Frank Ross, Ancillary Adm’r, App’lt, v. Wallace P. Willett et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Pleadino—Complaint—Sufficiency of amended, after motion to MAKE DEFINITE.
    In an action by an administrator for a settlement of a joint adventure under oral agreements in which his intestate had been interested, he was required to make the complaint definite and certain by stating the particulars of the agreements in relation to the sale of the subjects of the adventure. The complaint was then amended by alleging on information and belief that the agreements did not provide for the sale at any particular time, or in any particular manner or by any particular person, and that, defendants refusing to make suggestions as to the sale, intestate sold accord
      ing to the regular course of trade. Plaintiff’s affidavit showed that he was unable to discover from the papers or hooks of intestate that there were any other terms than as set forth. Held, that the complaint as amended was a compliance with the order.
    ' Appeal from order denying motion requiring the defendants’ attorneys to accept the plaintiff’s complaint as a compliance with orders to make it more definite and certain.

      George Bethune Adams, for app’lt; Theo. F. Sanxay, for resp’ts.
   Daniels, J.

The complaint, as it was originally framed, alleged that the intestate, together with the defendants, agreed to import into the United States, and there sell, two cargoes of sugar on their joint account. That the sugar was afterwards imported and sold at a loss. An accounting of the sales was demanded, and of the moneys paid out and received by the intestate, and the payment to him of any sum appearing to be due to him from the defendants. A motion was made on behalf of the defendant Willett to make the complaint more definite and certain by setting forth the provisions of the agreements for the sale of the sugar. That motion was "denied on the apparent ground that there was sufficient set forth to disclose the grounds of the action and to enable the defendants to understand and meet the case intended to be stated.

An appeal was taken by that defendant from the order denying that motion. And while the appeal was pending the defendant Hamlin appeared in the action, and a like motion was then made in his behalf, which was heard and decided by another justice then presiding in the same court. This motion was resisted on the decision made disposing of the first motion. But an order was made requiring the plaintiff to add to the complaint a statement of the particulars of the agreements, and showing the provisions thereof with respect to the sale of the sugars. After that the appeal from the first order was heard at general term and that order affirmed.

On that affirmance a motion for a reargument of the second order was made and that was denied. An appeal from the order requiring the complaint to be made more definite and certain was then taken to the general term, and that order affirmed under the liberal conclusion that it did not materially affect the plaintiff’s rights. And during the pendency of that appeal the second order was extended so as to include the case of the defendant Willett, whose application had been denied by the first order. These proceedings were certainly a little remarkable, showing as they do a disregard of the first order made in the same court.

But nevertheless the plaintiff has endeavored to comply with what he has in this manner been directed to make a part of his complaint. For that purpose it has been further alleged upon the information and belief of the plaintiff that the agreement did not provide for the sale of the sugar mentioned in the first cause of action at any particular time nor in any particular manner or by any particular person. And after the first cargo arrived at the city of Boston, and the defendants had been asked by the intestate for suggestions concerning the sale of it, and they had declined to comply with the request, he sold the sugar according to the regular course of trade. And similar averments are made concerning the arrival and sale of the second cargo of sugar at the city of Hew York. This complaint, with these additional allegations, was served on the defendant’s attorneys, and they refused to accept it as a compliance with the others and returned it to the plaintiff’s attorney, who then made the motion which was denied by the order appealed from.

The practice pursued on the part of the defendants has been very precise, and they have been unusually successful in it, where, as the fact is clearly apparent, they must ¡-have known the terms of their agreement with the intestate much more perfectly than it was possible for the plaintiff to ascertain them, as the agreements for the importation and sale of the cargoes were not in writing. He has brought his action to settle the joint dealings between the deceased party and these survivors, and very general allegations concerning such dealings are commonly tolerated. But added to such allegations are these showing, on the information and belief of the plaintiff, that there were no other terms or provisions of the agreements beyond those set forth by him. And it appears from his affidavit that he is unable to discover anything from the papers or accounts of the intestate, or from information that could be gained by him from other sources, that there were any other or further terms agreed upon between the parties than he has now alleged. And the result must be, if his complaint cannot be served as it has been finally framed, that he must be turned out of court and prevented from maintaining his rights, however meritorious they may be, for an inability to strictly and formally comply with the order, which this general term has held could not seriously operate to his prejudice in the action. It would be a just ground of reproach if that should be sanctioned, after so much liberality has been extended to these defendants. The plaintiff has done all he can, and though not literally, he has substantially complied with the orders. And his complaint should be sustained as such a compliance.

The order, therefore, should be reversed, with ten dollars costs and the disbursements, and the motion granted.

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


author: Van Brunt, P. J. Daniels, J.

text:
    Joseph Marrone, Resp’t, v. The New York Jockey Club, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Discovert—Breach of contract.
    Plaintiff entered into a written contract to excavate rock on defendant’s grounds according to a certain profile and survey at a certain price per cubic foot, but the contract was not drawn in defendant’s name, nor did it provide that plaintiff should do all the excavating called for by the profile and survey. In an action for breach of the contract in stopping the work before all the rock shown in such profile and survey was removed, Held, that plaintiff did not show that he had a cause of action against the defendant and was not entitled to an inspection of the profile and survey to enable him to frame his complaint. , •

      Appeal from order of special term, granting a motion for discovery to enable plaintiff to frame his complaint.
    It appeared that plaintiff had entered into a contract with the Westchester Jockey Club, which name it is claimed was used by mistake for defendant’s, by which he was to be paid a certain sum per cubic foot for blasting and excavating rock on defendant’s premises as required by a certain profile and survey. After he had performed work thereunder for several months he was stopped and told that there was no more work to be done under the contract. Plaintiff then brought this action for breach of contract, and sought an inspection of the profile and survey to enable him to frame his complaint.

      Alfred B. Cruikshank, for app’lt; John J. Joyce, for resp’t.
   Van Brunt, P. J.

The difficulty with the plaintiff's application is, that he does not show that he has a cause of action.

He not only does not show that he has a cause of action against the defendant, but he fails to set out a cause of action against anybody. Hot only was the contract in writing, but under seal, but in the name of a party other than the defendant And there is no agreement therein contained that the party contracting with the plaintiff shall allow the plaintiff to do all this work. The plaintiff contracts to take out rock, etc., and the other party contracts to pay him a certain price for what he does take out and nothing more.

It is conceded that the plaintiff has been paid for all work done, and this action is brought to recover damages for not being allowed to do more. As there was no obligation to give the plaintiff more to do, its refusal could not give rise to an action for damages sustained by such refusal.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied.

Daniels, J.

I concur, also, on the ground that the discovery does not appear to be necessary to enable the plaintiff to frame a complaint. If the contract was in fact made by the defendant, and it has refused to permit its performance, the plaintiff has all the knowledge that can be required to allege his cause of action, as he may state the quantity of stone yet to be excavated large enough to fully meet his claim as it may appear on the trial

Lawrence, J., concurs.


author: Van Brunt, P. J.

text:
    John B. Smith, Resp’t, v. William F. Lennon et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Partnership—Agreement to share profits.
    One party has the right to agree with another for a loan of money for the prosecution of an enterprise and may agree as compensation to pay a certain proportion of the profits arising therefrom, without the relation of partners arising between themselves.
    2. Same—Foreclosure—Defense.
    In an action to foreclose a mortgage the defendant claimed that the mortgaged premises were bought by himself and plaintiff’s assignor as a joint adventure, said assignor furnishing the purchase money, defendant to repair the buildings, the assignor to sell them and receive a portion of the profits, and that the mortgage was only given as a voucher for the advances so made by the assignor. It appeared that the agreement between defendant and the assignor of the mortgage did not make them partners and that defendant had paid interest to plaintiff. Held, that the defense was not made out.
    Appeal from, judgment of foreclosure and sale entered after trial of the action at the special term.

      George W. Miller, for app’lts; A. C. Fransioli, for resp’t.
   Van Brunt, P. J.

This action was brought to foreclose a mortgage given by the defendant Lennon to one Arthur L. Meyer to secure the sum of five thousand two hundred and fifty dollars and by said Meyer assigned to the plaintiff.

The defendant claimed that the house upon which the mortgage was an apparent lien was bought as a joint adventure of Meyer and Lennon, that Meyer was to furnish the purchase price over and above, a first mortgage upon the premises and that the defendant Lennon was to repair the house, and Meyer was to sell it at $25,000, and the profits were to be divided in certain proportions, the bond and mortgage in suit being given simply as a voucher to Meyer for his contribution of capital in the enterprise. If the defendant Lennon has in this action established any defense which would have been available to him had this action been brought by the original mortgagee, Meyer, he can insist upon such defense against the plaintiff, the assignee of Meyer, because it is well established that the assignee of a mortgage takes it subject to all of the equities existing between the original parties thereto, and so far as the remedies thereon are concerned stands precisely in the shoes of his assignee.

But it is not equally true that even if there was an agreement between Lennon and Meyer to divide the profits upon a sale of the houses, that they thereby necessarily became partners inter sese. Whatever in respect to creditors of the enterprise might be the effect of such an agreement, as between the parties themselves their rights and obligations were to be determined by the agreement.

One party had the right to agree with the other for a loan of money for the prosecution of the enterprise and might agree as compensation to pay a certain proportion of the profits arising therefrom without the relation of partners arising between themselves.

This is the kind of agreement that the court found existed between Meyer and the defendant Lennon in the case at bar, and that no copartnership was established. It is true that Lennon swore to a partnership agreement and that he was uncontradicted by oral testimony, but he was contradicted by all the documentary evidence in the case, by the bond and mortgage, by the agreement of May 26, 1886, and it was shown by his evidence in the case of Lennon v. Stiles that he was willing to swear to anything which he thought necessary to advance his interests and that he could not be believed under oath.

The true agreement between the parties was undoubtedly contained in the agreement of May 26th. It may be that Meyer said he could sell the house for $25,000, when finished, but it was no part of the agreement that he should not get his money back if he did not do so. The mortgage was given in order that he should do so, and when Meyer assigns the mortgage Lennon pays the interest to the mortgagee, although, if his story is correct, he was under no greater obligation to pay than Meyer. Upon the whole case we see no reason for disturbing the conclusion of the learned judge below and the judgment appealed from should be affirmed, with costs.

Daniels and Lawrence, JJ., concur.


text:
    John B. Smith, Resp’t, v. William F. Lennon et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Appeal -from judgment of foreclosure and sale entered after trial at special term.

      George W. Miller, for app’lts; A. C. Fransioli, for resp’t.
   Van Brunt, P. J.

The decision in the case of Smith, v. Lennon, action No. 1, disposes of this case, and upon the opinion therein rendered this judgment should be affirmed, with costs.

Daniels and Lawrence, JJ., concur.


author: Daniels, J. Van Brunt, P. J.

text:
    In the Matter of the Application for Letters of Administration of the Goods, etc., of Katharina Strutzkober, Deceased.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Executors and administrators—Preference as to administration— Estates of married women.
    Where a married woman dies, her husband is entitled to preference in administration, and where he dies leaving any of the assets unadministered the same pass to his personal representative, and the latter is entitled to letters of administration on the estate of the wife. Under no construction of the statute can the public administrator become entitled to letters in such a case.
    Appeal from an order of the surrogate of the county of Mew York, directing letters of administration on the unadministered estate of Katharina Strutzkober, deceased, to be issued to Mary Kunkel, and denying the application of the public administrator for the same.

      Frank W. Arnold, for app’lt; John Fennel, for resp’t.
   Daniels, J.

The deceased intestate, Katharina Strutzkober, left no descendant, but left her husband, surviving her, to whom letters of administration upon her personal estate were issued. He afterwards died, leaving a part of that estate unadministered. The value of the part so left has not been stated, but as the whole estate was of no greater value than the sum of sixty-four and 19-100 dollars, the residue still remaining to be administered is probably so small as to have rendered it the duty of the public administrator to have acquiesced in the decision of the surrogate and thereby avoided the danger of wasting it in unnecessary litigation.

The petitioner for the letters on this unadministered estate, and to whom they were directed to be issued, is the sole legatee of the deceased husband, and the executrix of his estate, to whom letters testamentary have already been issued by the surrogate. And it was evidently under the impression that letters of administration on the unadministered estate of the wife were still necessary to complete her authority, that she made the application which was presented in her behalf. Whether that view was well founded or not it is not necessary now to decide. ’ For under no justifiable construction of the statute did the public administrator become entitled to such letters.

That clearly follows from the language of the statute, declaring that “in case of a married woman dying intestate her husband shall be entitled to administration in preference to any other person, as hereinafter provided.” The further provision in this manner referred to declares the husband, when otherwise competent, to be solely entitled to administration on the estate of his deceased wife, and to be liable for her debts to the extent of the assets received by him, and it then proceeds, “if he shall die leaving any assets of his wife unadministered they shall pass to his executors or administrators as part of his personal estate, but shall be liable for her debts in preference to the creditors of the husband.” 3 R. S., 6th ed., 77, § 33.

The effect of these provisions was to vest the unadministered estate of the wife in the executrix of the husband, by virtue of her appointment to that office. And it would be plainly inconsistent with that vesting to appoint another person to administer it. For the plain intent of the law by vesting the estate in her as executrix was to empower her, and also to render it her duty, to administer it And so it was considered by the chancellor, maintaining the power of the personal representative of the husband to collect the outstanding obligations of the estate of his deceased wife, in Roosevelt v. Ellithorp, 10 Paige, 415, 419, 420, and Lockwood v. Stockholm, 11 id., 88, 91, 92.

Her personal estate vested in her husband at the time of her decease, through his right of administration, for his own exclusive benefit, after the payment of her debts. This was the common law, perpetuated by the statute, and it was not changed where the wife left no" descendants by anything contained in chapter 782 of the Laws of 1867. Barnes v. Underwood, 47 N. Y., 351. And all that he left unadministered vested in his personal representative, after his own decease, as part of his own personal estate. And that letters may be issued to his representative, for the administration of the part of the wife’s estate left unadministered by him, was held in the case of Harvey, 3 Redf., 214, which in a note added to the report of the decision is stated to have been affirmed by the general term, in this department A different conclusion appears to have been adopted by the surrogate of Livingston county, in Matter of O'Niel, 2 Redf., 544. But as this was not consistent with the provisions of the statute, and was in effect overruled in the later case just mentioned, it cannot be permitted to apply to the disposition of this appeal.

The surrogate was plainly right in refusing letters to the public administrator, and his decision should be affirmed, without costs.

Van Brunt, P. J.

I concur. I do not think the cases cited in the 2nd or 3d of Red field are to be considered as any more authority upon the question involved than was the decision of the surrogate in the case at bar,


author: Lawrence, J.

text:
    Ophelia J. Cuthbert, Pl’ff, v. Cordelia D. Chauvet et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Injunction—Determination op claims to heal estate.
    In an action to determine claims to real estate under §§ 1638, 1639 of the Code, an injunction pendente life may properly be granted to restrain the prosecution of ejectment suits brought against the plaintiff.
    2. Same.
    Where several suits have been begun by the same party, there is no inconsistency in staying all of such actions but one and allowing that one to proceed. This is the proper practice where a multiplicity of suits are sought to be prevented.
    Appeal by plaintiff from an order modifying a preliminary injunction and appeals by defendants Schermerhorn and Ives from an order granting a motion to continue a preliminary injunction.

      Hoadley, Lauterbach & Johnson, for pl’ff; Robert Sewell, Christopher Fine and Aaron Kahn, for def’t, Schermerhorn; Charles F. MacLean, for def’t, Ives; Donohue, Newcombe & Cardozo, for def’t, Chauvet.

       Affirming 37 N. Y. State Rep., 564.

   Lawrence, J.

This action is brought under § 1638 and the following section contained in article 5 of title 1 of chapter 14 of the Code of Civil Procedure, and is an action to compel the determination of claims to real property.

The plaintiff, Mrs. Cuthbert. is an heir-at-law and a devisee under the will and codicils of Francis W. Lasak, deceased, and the defendants, Mrs. Schermerhorn, Ives, Chauvet and McKenzie, are also heirs-at-law of the deceased. The defendant, The Mew York Life Insurance & Trust Company, has succeeded Mr. Wendell as trustee under the will of Lasak.

The defendant Schermerhorn has already commenced ten actions of ejectment against the plaintiff and the other defendants, to recover the interest in certain lands in the counties of Mew York and Westchester, to which she claims to be entitled as heir at law of said Francis W. Lasak, and it is alleged that the defendants Ives and Chauvet have threatened to institute similar suits.

This intention is denied by the defendants Chauvet and Ives, but the latter avers that she has the right to commence such actions, and that such right should not be abridged or interfered with.

The property in question consists of ten parcels of land, one of which, described as parcel 10, is situated in the county of Westchester and nine other parcels in the county of New York.

A preliminary injunction was obtained, on an order to show cause, restraining Mrs. Schermerhorn from proceeding in the actions commenced by her, and also restraining the other defendants from proceeding in said actions or from instituting or commencing any further actions or proceedings in any new or other actions at law, for the recovery of said premises.

Upon the hearing of the order to show cause, Mr. Justice Beach continued the injunction as to the nine actions which related to the property in New York, but vacated it as to the action pending in Westchester county.

Cross appeals have been taken by the plaintiff and the defendants Schemerhorn and Ives, from the orders entered on this decision.

We are of the opinion that the disposition made of the motion at the special term was right, and that the orders should be affirmed.

There can be no doubt of the power of the court to restrain proceedings in other courts, where the exercise of such jurisdiction is essential to the complete administration of justice. The Erie Railway v. Ramsey, 45 N. Y., 637; Fielding v. Lucas, 87 id., 197; The Third Ave. R. R. Co. v. The Mayor, etc., of New York, 54 id., 159 ; Garrison v. Marie, 7 Civ. Pro. Rep., 113.

This power is exercised to prevent a multiplicity of suits and to prevent parties from being harassed by numerous actions relating to the same subject matter.

The question which is presented on the appeal in this case was considered by the general term of this department in Stamm v. Bostwick, 65 How., 358, Justice Daniels writing the opinion, and it was held, that in an action brought under § 1638 of the Code of Civil Procedure, to compel the determination of a claim to real property adverse to the plaintiff, an injunction might be issued where it appeared that the defendant was actually interfering with the possession of the premises by the plaintiff. Such an interference exists in this case, if the plaintiff can establish the allegations in her complaint.

There was no inconsistency in allowing the action in Westchester county to proceed while restraining the prosecution of the other actions. The right of the heirs-at-law of Francis W. Lasak can as well be disposed of in one action of ejectment as in ten, and where a multiplicity of suits are threatened or are sought to be prevented, it is proper practice to restrain the prosecution of every suit but one, and to allow that one to proceed to trial and final determination for the purpose of testing the legal questions upon which all the actions are dependent. Marvin Safe Co. v. The Mayor, etc., of New York, 22 W. Dig., 523.

It was purely discretionary with the learned justice who heard the motion as to which action he would permit to proceed, and with his exercise of that discretion this court should not interfere.

The orders appealed from should be affirmed, with costs and disbursements.

■ Daniels, J., concurs; Van Brunt, P. J., concurs in result.


text:
    William M. Kingsland, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Case—Settlement.
    Where the appeal is taken on the ground that the rights of the appellant were infringed by the reading by the opposing counsel of authorities to the jury in his summing up, the case need not contain all the authorities so read. The insertion of one or two is sufficient to raise the question of law involved, and more would he surplusage and should of necessity he excluded.
    Appeal from order denying motion to- re-settle case.

      C. Blandy, for app’lt; W. W. MacFarland, for resp’t.
   Van Brunt, P. J.

The appellant in this case claims that his rights were infringed by the reading by the counsel for the plaintiff, in his summing up, of authorities to the jury.

That question is presented upon the case as settled in respect to two authorities; and it is claimed by the counsel for the appellant that more were referred to which were not contained in the case. The court denied the motion to re-settle the case by insertion of the additional authorities, and from such order this appeal is taken.

We think this appeal is entirely without merit The question is fairly raised upon the case as settled. If it was error in respect to the two cases cited in the appeal book as settled, the question is raised as completely as though it contained pages of cases.

This being simply a question of law, in respect to which the jury had nothing to do, the court was bound to abbreviate the recital of the point as much as possible so long as the record presented fairly and squarely the exception, and there is no complaint but that the exception is fairly presented in respect to the two authorities contained in the case on appeal, and the only dissent is from the - fact that the court refused to multiply other cases from which it is alleged the plaintiff's counsel read to the jury.

As already stated, all that we think the court was bound to insert in the case was sufficient to raise the question of law involved, and that anything beyond that was surplusage, and must of necessity be excluded; and we may say that the court may have refused to insert these cases because in its opinion they were not referred to. But it is not necessary to place our decision upon this ground, as the one already stated is sufficient

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

Daniels, J., concurs.


text:
    The People ex rel. Henry Butts v. Charles F. MacLean et al., Police Com’rs.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Municipal corporations—Police—Removal.
    . Relator was charged with lying down while on duty. The testimony of the roundsman was positive as to the truth of the charge, while relator testified that he sat down to unlace his shoe, but said that he raised on his hand as the roundsman approached. Held, that the finding against him was not against the weight of evidence and should not be disturbed.
    Certiorari to review the removal of the relator from the police force.

      John M. Tierney, for relator; G. L. Sterling, for resp’ts.
   Van Brunt, P. J.

We see no reason to interfere with the finding of the respondents. The punishment inflicted for this particular offense might by itself seem harsh, but when taken in connection with the record of the relator it does not seem so excessive.

The evidence of the roundsman was positive as to the truth of the charge, and although the relator denied that he was lying down, and says that he had been sitting down to unlace his shoe, yet he states “ I raised on my hand ” when the roundsman approached. If he had only been sitting down, it is difficult to see why he should have raised on his hand to see who was ■coming.

The writ should be dismissed, with costs.

Daniels and Lawrence, JJ., concur.


text:
    In the Matter of George W. McLean, Receiver of Taxes, Resp’t, v. The New York & South Brooklyn Ferry & Steam Transportation Co., App’lt.

      Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Taxes—New York city—Personal property.
    Before the receiver of taxes of New York city can issue his warrant for the collection of taxes against a corporation under § 853 of the Consolidation act, the demand required by § 848 must be made. A warrant issued without such demand is void.
    Appeal from order imposing fine for non-payment of personal tax.

      G. Zabriskie, for app’lt; John G. H. Myers, for resp’t.
   Van Brunt, P. J.

This proceeding was instituted to punish the appellant for its misconduct in neglecting and refusing to pay a tax imposed upon its personal property.

The petition upon which the order to show cause was founded alleged the imposition of the .tax, demand of payment, refusal, return of warrant issued to marshal unsatisfied and that the tax is still unpaid.

The appellant admits non-payment of tax, avers want of knowledge of return of warrant unsatisfied, denies demand and refusal to pay, and avers that at all times it had goods and chattels belonging to and in its possession upon which said tax might have been levied by distress and sale according to law.

In answer to the denial of demand the respondent, the receiver -of taxes, averred that on the 16th of January, 1889, a warrant was issued to one of the marshals of the city of New York for the collection of said tax, which had been returned unsatisfied, and also submitted the affidavits of one John Long to the effect that he was the cashier and clerk of said marshal, and that while said warrant was in said marshal’s possession in force and unreturned, he acting for said marshal duly demanded from the president of the appellant the amount of the said tax.

Upon these facts the court fined the appellant for its alleged misconduct the amount of the tax and interest, and the costs of these proceedings, and from the order thereupon entered this appeal is taken. The Consolidation act, § 848, provides “ that said receiver (meaning receiver of taxes), shall demand payment of all taxes assessed on incorporated companies in said city from the president or proper officer of such companies, and if not paid shall proceed in the collection and payment thereof in the same manner as in other cases and his receipt shall be evidence of the payment of said tax.”

Section 853 provides for the issuance of his warrant by the receiver of taxes for the collection of unpaid taxes.

It seems to be clear that before the receiver can issue his warrant under § 853, against a corporation who has neglected to pay a tax imposed upon it, the demand required by § 848 must be made. The only proof of demand is that made by the clerk of the marshal whose whole authority, if he had any, to make the demand, sprang from the warrant, issued to the marshal.

This warrant was void, because no demand for payment required by § 848 had been made, and consequently, being void, could confer no authority to make a demand of any kind.

Without passing upon the questions as to whether this demand could be made by any other person duly authorized than the receiver of taxes or his deputy, or whether a marshal could authorize a deputy to execute a warrant duly issued to him, we are of the opinion that there is no proof that the demand contemplated by § 848 has ever been made, and that the court had no jurisdiction to entertain this application.

The order appealed from should be reversed, with costs, and the motion denied, with costs.

Daniels and Lawrence,. JJ., concur.


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    Frederick A. Schroeder et al., Resp’ts, v. Daniel Frey et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    .1, Depositions—Filing.
    The right to use the deposition of a deceased witness, taken under an agreement that it might be so used, arising out of the condition of the case when on the calendar for trial, is not lost by a failure to file it.
    2. Bankruptcy—Discharge—Stipulation in action.
    A stipulation made while bankruptcy proceedings were pending, relieving the defendants from liability to arrest, is to be construed according to-the import of its language in view of the circumstances under which it was made, and evidence to prove the understanding or intention of the-stipulation is not admissible.
    3. Same—Evidence.
    In an action for goods sold, brought subsequent to the discharge of the. vendees in bankruptcy, on the ground of fraud in procuring the sale, an oral statement by their counsel in the bankruptcy proceedings as to their financial condition may be proved by a person who was present by repeating from his notes what was said at the time, no objection being made to proof of such statement by the defendant, who was not present at such, time.
    4. Sale—When notes need not be surrendered.
    In an action for the price of goods on the ground of fraudulent representations, brought after a discharge in bankruptcy of the defendants, notes given for the purchase price, which were presented to the register in bankruptcy in proving the debt, and which are barred by the statute of limitations, need not be surrendered.
    5. Same—Partnership—Fraud.
    Where a purchase of goods by means of fraudulent representations, by a member of a firm, is made for the benefit of the firm, and the goods are received and disposed of by it, all the members of the firm are civilly liable for the fraud, although they did not know of it or participate therein, and therefore a discharge in bankruptcy of the firm does not operate to relieve either of its members from liability for the debt so contracted.
    The defendants in this action appeal from a judgment recovered on the verdict of a jury for the price of goods sold and delivered, and from an order denying a motion for a new trial. The-appeal was previously heard and decided and a rearguinent ordered afterwards as to the effect of the defendants’ discharge in bankruptcy.

      M. H. Regensburger, for app’lts; John Henry Hull, for resp’ts.
   Daniels, J.

The answers admitted the sale and delivery and the amount unpaid upon the price of the goods. But the right of the plaintiffs to recover that price was resisted, chiefly on the ground of bankrupt discharges issued to each of the defendants under the authority of the bankrupt laws of the United States. The regularity of the proceedings in which these discharges were issued was not impeached. But it was alleged in the reply that, the plaintiffs had been induced to part with the goods by reason of false and fraudulent representations made to them prior to the sales- and deliveries made. And evidence was given having a direct tendency to prove the truth of' these allegations. And in the event of proving this fact, then, by § 33 of the Bankrupt Act, the discharges were deprived of the effect they would otherwise-have, even after the creditors had proved their debt and participated in the dividend made out of the estate of the bankrupts, as these, plaintiffs were shown to have done.

But to overcome the effect of the discharges under this section of the Bankrupt Act, proof of positive or intentional fraud has. been required. The debt must have been created by fraud, and that involved actual wrong on the part of the debtor. Palmer v. Hussey, 87 N. Y., 308, 307. And its continued existence is in the nature of a punishment of the person guilty of the wrong. To that extent he certainly forfeits the benefit of his discharge.

But the fraud which the evidence tended to establish was actually that alone of the defendant Isidore Frey. He was the partner who applied to the plaintiffs for the goods which they sold, and to induce the sales, as the jury must have found the facts, materially misrepresented the financial ability of his firm. For instead of having an unimpaired capital in their business of $20,000, as he stated the fact to be, the firm at the time was fatally insolvent. It is true that he denied making these representations, but the evidence against him was such as to make this a matter of fact to be decided by the jury, whose verdict against him must now be followed as conclusive. And it was not error to allow the deposition of the deceased witness Frederick A. Dreyer to be' used as a part of this evidence. For it was shown to have been taken under an agreement that it might be so used arising out of the condition of the case when the action was upon the day calendar for trial at a preceding circuit. And the right to use it as evidence was not lost by the omission to file it, as the Code in ordinary cases has required that to be done. That omission may have been an irregularity, but under these circumstances certainly it was not one which could legally lead to the exclusion of this testimony.

Neither can this defendant legally complain of the exclusion of evidence offered to prove the understanding or intention of the stipulation made while the bankruptcy proceedings were pending, relieving the defendants from liability to arrest under the order which had been obtained, and was then in the hands of the sheriff to be executed. For that stipulation was to be construed according to the import of the language it contained in view of the circumstances under which it was made, and which were fully before the court at the trial. And nothing is to be found in the decision of the court of appeals when this case was there for decision, which sanctions any greater liberality in the evidence which might be received for this object Schroeder v. Frey, 114 N. Y., 266; 23 N. Y. State Rep., 254.

The statement made by Mr. Cohen at the meeting of creditors concerning the financial condition of the firm might very well have been held incompetent against this defendant, if that objection had been made to it. For it was not proved, except inferentially, to have had either his sanction, or authority, and he was not present, as the other two partners were, when it was made. But it may be inferred from this omission to raise that objection, that this defendant understood that this statement was to be made by Cohen to the creditors, and that it was also truthful. And this inference receives further confirmation from the fact that the defendant gave no evidence whatever in the least differing from this statement of the condition of the firm, as he might be expected to have done if the statement bad not been correct

The statement was made for the information of the creditors, and no legal rule was violated by permitting Mr. Baronsky to repeat from his own notes, what was said at the time. If the statement itself had been presented to, or circulated among the creditors present, then its presence at the trial might regularly have been insisted upon as the best evidence of the communication made. But that was not done; Mr. Cohen only orally repeating what was the financial condition of this firm, and the witness testifying to it, with the aid of his own statement m9.de at the time, repeating that at the trial. His evidence given in this manner was admissible, and the exception to the ruling allowing it cannot be sustained.

Notes were given by the defendants to the plaintiffs and credited in the account for the goods. They were not produced and surrendered at the trial. And the right of the plaintiffs to recover was also resisted for that failure. But these notes were worthless as obligations, they were long past due, and they had been handed to the register in bankruptcy, in making proof of the plaintiffs’ debt. The defendants, therefore, were not injured by the failure to produce these notes, all remedy ujDon which had long been barred by the effect of the statute of limitations.

Other obj ections were raised for this defendant during the trial,but the;y are too trivial to require the devotion of time to their consideration. The case was legally presented upon the inquiry whether he had been guilty of the fraud upon which it depended. The evidence so far proved the fact against him as to place it within the province of the jury to decide it. Their decision was adverse to him and there is no cause for setting it aside.

But as to the defendants Daniel Frey and Jacob L. Hans, the other two members of the firm, there was no evidence actually implicating them in the fraud of their partner Isidore Frey. He was the buyer of the firm. And it is not proved that the other two member’s knew of or had in any way sanctioned the making of these representations. Neither did it appear that they knew or had any reason to believe that their firm was at the time incapable of paying its debts. It is true that this did not relieve them from liability for the debt itself, for in its creation their partner was clothed with power so far to bind them. And so also he was entitled to bind them to the legal consequences of the false representations made by him in obtaining the goods from the plaintiffs. This subject was considered in Bradner v. Strang, 89 N. Y., 299, where the members of the firm were held to be liable for the fraud perpetrated by one of their number. And it was there said, with the apparent approval of the court, that the other defendants in that action, “ while they did not actually participate in perpetrating this fraud, are liable civiliter for the fraud to the same extent as if they had participated.” Id., 305. And this principle seems to be sufficiently broad to subject these other defendants in this action to all the consequences in an action of this description resulting from the fraudulent representations of the other partner. They were made in the course of the partnership business and the firm reaped their benefit by receiving and disposing of the goods which the false representations had obtained.

Their price was a debt against the firm and its members, which had been fraudulently contracted. And under § 5117 of the U. S. Revised Statutes, being § 33 of the bankrupt act, the bankrupt discharges did not operate to relieve either of them from liability for its payment. By that section it is the debt itself which has been created by fraud that is not to be discharged under the proceedings in bankruptcy. This was such a debt. And as each one of the defendants was civilly liable for the consequences of the fraudulent representations, it seems to follow that they have no ability to resist their liability in this action on the ground that they have been discharged as bankrupts. This of course is at variance with the conclusion previously adopted in the former decision of this appeal. But from the application of the authority last mentioned to the language of this section of the statutes, there seems to be no escape from the conclusion that the defendants have remained liable for the payment of this indebtedness, notwithstanding the discharges issued to them in the bankrupt proceedings. The veidict and judgment consequently must be sustained. There is no ground disclosed by the case upon which either one of the defendants can be relieved, and the judgment and order should be affirmed.

Van Brunt, P. J., concurs.


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    Charlotte M. Parker, App’lt, v. George W. Murray, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891. )
    1. Will—Action to constbue—Dismissal.
    Defendant was executor of a will probated in New Jersey, and as such held a fund in trust for plaintiff, and had made accumulations of the surplus income. This action was brought for the construction of the will and an accounting. After its commencement defendant paid said accumulations to plaintiff, and a stipulation was entered into by which plaintiff should prosecute the action to obtain a construction, and defendant should make and file his account, which he accordingly has proceeded to do in the surrogate’s court in New Jersey. Held, that in view of the payment to plaintiff, the limitation of the scope of the action, and the fact that all matters in relation to the accounting could be fully settled by the surrogate’s court, the action was properly dismissed.
    2. Same—Costs.
    As plaintiff may have had the right to maintain the action at the time it was commenced, and the parties having virtually settled the controversy between themselves, there was no reason for charging the plaintiff with costs.
    Appeal from judgment dismissing complaint entered after trial before the court without a jury.

      C. Strauss, for app’lt; A. S. Murray, Jr., for resp’ts.
   Van Brunt, P. J.

One John V. Beam died in May, 1874, in and being a resident of Passaic county, 1ST. J., leaving a last will and testament, by which he appointed the defendant Murray and his son John V. Beam, Jr., executors. This will was duly admitted to probate in June, 1874, by the surrogate of Passaic county, and letters testamentary were issued to the defendant, said John V. Beam, Jr., having died prior to the probate of the will. The plaintiff is a legatee and devisee under the will, and was twenty-four years of age at the time of the commencement of this action. The defendant as executor pursuant to the terms and provisions of the will during the minority of the plaintiff, and until she became of the age of eighteen years, accumulated a surplus income, such income arising from a share or portion of the estate which was given and devised to the defendant to hold in trust for the plaintiff until she should become of the age of thirty years.

At the time of the commencement of this action the defendant held such accumulations of income, and claimed that the same did not become the property of the plaintiff absolutely until she attained that age.. This action was commenced for a construction of the will in question, and to compel the executor to account for his proceedings as such executor, and for the appointment of a new trustee if it should be deemed advisable.

In accumulating and holding the surplus income as above mentioned, the defendant Murray acted under the advice of the counsel who drew the will. Subsequent to the commencement of this action the defendant was advised that the advice above given was erroneous, and that the plaintiff was entitled absolutely to such accumulations, and, after ascertaining the amount thereof, he paid the same over to her.

■ A stipulation was thereupon entered into between the parties by which it was stipulated that the plaintiff should prosecute the action for the purpose of obtaining a construction of the said will and in which the defendant agreed that he would proceed with diligence to make and file his account as such executor, from the date of his letters testamentary to the then present time, notice of the filing thereof to be given to the plaintiff.

It further appears that subsequent to the commencement of this action the defendant took, means to have his account filed in the surrogate’s office of the county of Passaic, and to have the same passed according to the laws of the State of New Jersey. The plaintiff and defendant are residents of the state of New York, and he has the personal property belonging to the estate.

There is no claim of any wrong doing upon the part of the executor, or that he was dishonest, or had been in any way guilty of malversation in office. The plaintiff had never taken any steps to require the defendant to render an account of his proceedings in the surrogate’s court in the county of Passaic.

Upon this state of facts the court dismissed the complaint, with costs; and from the judgment thereupon entered this appeal is taken.

Upon the facts appearing as above we think the court was right in dismissing the complaint, and refusing to entertain the action, because by the stipulation entered into between the parties the scope of the action, in view of certain things to be done by the executor, was limited to the construction of the will in question, and at the time of the trial there was nothing left for the purposes of construction.

The parties had evidently by stipulation eliminated all questions of account, as it is clear that the account to be filed by the executor was the one which he immediately set about to file in the surrogate’s office of the county of Passaic.

While the court undoubtedly had jurisdiction and it would be proper to exercise it where otherwise there would be a failure of justice, it appearing in the case at bar that all the questions involved upon the accounting can be authoritatively disposed of bv the surrogate’s court of Passaic county, from which the defendant derived his authority to act, it seems to us that the parties should be remitted to that court, rather than call upon the courts of this state to settle controversies which more properly belong to, and ■should be disposed of by, the courts of another state.

We think, therefore, that there being no trust which it was necessary to consider, and there being simply a right of action by a legatee for a legacy due, and it appearing from the record that the legacy has been paid, there seems to be no reason why the courts of this state should be troubled with the' controversy, especially as the parties, by their stipulation, evidently contemplated that the accounting, which is the point claimed upon tliis appeal, should be had before the surrogate of Passaic county.

It is not necessary to decide what the court might have done had not the parties, by their own stipulation, limited the scope of the action. The plaintiff, after having procured what she did through her consent to limit the scope of the action, cannot now claim all that she possibly might have claimed had she not limited her rights by the stipulation above referred to.

We think, however, that under the circumstances there was no ■good ground for charging the plaintiff with costs. When she brought the action she may have had the right to maintain it; and she cannot be said to nave come into court without any warrant whatever; and the parties having virtually settled the controversy between themselves as far as it would be considered by the courts of this state, there does not seem to be any reason why .she should have been mulcted in costs.

The judgment should be modified by striking out the costs, and, as modified, affirmed, without costs of this appeal.

Daniels, J., concurs.


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    Margaret Devlin, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

      T Eminent domain—Award—Interest.
    Where the owner of porperty taken failed for over two months after confirmation. of the award to deliver satisfaction pieces of mortgages and a deed of the land, and then received the amount of the award under protest, Held, that she could not thereafter maintain an action for the interest on the award.
    3. Same.
    _ The owner was not entitled to the award until the incumbrances were discharged, and hence the city was not in default, and the owner was not entitled to inte. est. (Per Daniels, J.)

      Appeal from judgment entered after trial at circuit.

      G. Connoly, for app’lt; E. E. Souther, for resp’t.
   Van Brunt, P. J.

On the 5th of July, 1889, there was awarded to the plaintiff in proceedings to condemn certain property for school purposes for certain lots owned by her the sum of $61,500. At this time said lots were mortgaged for various sums. No satisfaction pieces of these mortgages were delivered or tendered to the comptroller prior to the 20th of September, 1889, although it is claimed that demands for the payment of this award were made prior to that time. On said last mentioned date satisfaction pieces of the mortgages and a quit claim deed of the premises were delivered to the comptroller, and upon such delivery the comptroller gave a warrant for the face of the award, payable to the order of the plaintiff. At the time of the receipt of this warrant and of the delivery of the quit claim deed and satisfaction pieces, the plaintiff filed a paper with the comptroller stating that the same were delivered under protest, and with the distinct understanding that all rights were reserved on behalf of the owner and the mortgagees for the recovery of interest upon the amount of the award from the date of its confirmation. Thereupon this action was brought to recover said interest, and upon the foregoing facts the court directed a verdict for said interest with interest from the 20th of September, 1889; and from|the judgment thereupon entered this appeal is taken.

It seems to us that the acceptance of the principal by the plaintiff prevents an action for the recovery of interest.

If the plaintiff meant to demand the interest, she ought not to • have received the principal. The fact that she protested against the denial of the interest can have no effect, because in face of the fact of receiving the principal a protest against the refusal of the defendant to pay interest is of no consequence.

Since the year 1794, it has been the rule that where the principal has been paid there can be no recovery of - interest. Dixon v. Parkes, 1 Esp., 110. This rule has been repeatedly recognized in the courts of this state, notably in the cases of Cutter v Mayor, 92 N. Y., 166, and Hamilton v. Van Rensselaer, 43 id., 244, and the cases therein cited.

It is said that the case of Cutter v. Mayor is no authority because of the form of the receipt. It is to be observed that all that the receipt did was to receipt in full an account simply showing the amount of the award without anything in reference to the interest at all; the receipt being “in full payment of the above account.” Therefore the use of the words “ in full payment ” only referred to the amount received, and had nothing to do with the disputed item of interest

It is evident that under the acts under which these proceedings were taken the interest is given as damages for non payment or detention of the amount awarded, and does not constitute a debt capable of a distinct claim, precisely the same as was held in the-case of Cutter v. Mayor.

We think, therefore, under the principles laid down in the cases cited, that the plaintiff having received the principal, although she did protest against accepting, yet, notwithstanding such protest, having accepted, she cannot now recover that which was a mere incident of the award, namely, the interest for the detention of the same.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels, J.

The plaintiff had no right to receive the award, until the incumbrances on her property were discharged. Then, for the first time, the money was due to her, and then it was paid. There being no default in payment on the part of the city, the plaintiff was not entitled to interest. For this reason, also, I agree to the reversal of the judgment and the direction for a new trial.


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    Pierre C. Richards, App’lt, v. Mary H. Moore and George E. Moore, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Bill op sale—Tbust.
    Plaintiff, being the owner of a vegetable compound, voluntarily made an absolute bill of sale of his interest therein, and in the recipe therefor to his mother, the defendant Mary, who afterward transferred it to the other defendant, her son. In this action it was alleged, and plaintiff gave testimony to show that the bill of sale was not delivered to the vendee, but to her brother, in trust during plaintiff’s life for his wife and child, and that it was not to be delivered until his death; that it was made to enable plaintiff's brother, who was insolvent, to carry on the business without danger from his creditors, and that it was so carried on until the brother died in 1887. Defendant gave testimony to show that she gave a power of attorney to plaintiff’s brother to conduct the business; that the bill of sale was not among her brother’s papers at his death, but that it had been in the possession of herself and the other defendant from about the time of its execution. Held, that upon this state of the evidence a judgment in favor of defendants would not be disturbed.
    Appeal from a judgment recovered at the special term, and from an order making an additional allowance of costs for the-sum of $350.

      Charles S. Simpkins, for app’lt; Sidney S. Harris, for resp’ts.
   Daniels, J.

The plaintiff in 1874 was the owner of a recipe or secret formula for a medical compound known as Dutton’s Vegetable Discovery. On the 9th of April, 1875, he executed a bill of sale absolute in form, by which, for the consideration of one dollar and other valuable considerations to him paid by Mary H. Moore, wife of George H. Moore, the receipt of which was acknowledged, he bargained, sold, granted and conveyed unto her, all and singular his right, title, interest, property and estate of every kind, nature and description, both legal and equitable, of, in and to this vegetable discovery or proprietary medicine, together with the secret formula and recipe for compounding the same, with the full, free, absolute and unrestricted right and license to manufacture and sell the same, and also all, each and-every trade-marks and copyrights appertaining to the business, and its good will, fixtures and appurtenances, etc., to have and to hold unto herself, her executors, administrators and assigns forever. This bill of sale it was alleged in his behalf was. not delivered to the vendee therein named, but was at the time of its date delivered to Edward C. Eichards, a brother of the vendee in the bill, to be held by him during the life time of the plaintiff, for the benefit of his wife and child, and until the latter should arrive at his majority, and only to be delivered to the vendee, Mary H. Moore, in case of the death of the plaintiff. And it was averred that this paper was found in the possession of the estate of Edward 0. Eichards after the time of his decease in the year 1880, and that it was obtained in that manner by the husband of the defendant Mary H. Moore, and afterwards withheld from the plaintiff and appropriated to her use.

The business which was carried on in the city of New York by the plaintiff for the manufacture and sale of this vegetable compound was placed in the possession and under the control of Eobert Gf. Eichards, an elder brother of the plaintiff, and moved from the city of New York to New Brunswick in the state of New Jersey, where it was carried on by him, or under his authority, until his decease in the year 1887. And after that it was alleged that the vendee in the bill of sale had transferred the same property to the defendant George E. Moore, her son, who wholly withheld it and its proceeds from the plaintiff.. This -action was brought to maintain the rights of the plaintiff as a beneficiary under the bill of sale, and to set aside the transfer made by the defendant Mary H. Moore, the vendee, to her son George E. Moore. The right of the plaintiff to this relief was controverted by the answer of those defendants, and the court at the trial concluded that the action had not been sustained by the evidence and directed a judgment in favor of the defendants. And it is from that judgment that the main appeal has been taken.

The plaintiff by his own evidence, as well as by the testimony of Mr. Secor, a witness examined in his behalf, and also by the testimony of another witness, Mr. Leete, gave evidence tending to establish the truth of the theory upon which the action had been commenced and was prosecuted. The testimony of the latter witness, however, proceeded no further than to repeat statements testified by him to have been made by Eobert G. Eichards while he was in charge of the business, containing admissions that the plaintiff was a partner in that business, and to instances in which moneys were sent from the business to the plaintiff.

It did not go directly to the proof of any agreement by which the bill of sale to the defendant Mary H. Moore was to be held in trust for the plaintiff by Edward C. Eichards, as that was alleged. But the testimony of the plaintiff himself, and of Mr. Secor, was directed to proof of this as a matter of fact. And they did testify that the object of the bill of sale to Mary H. Moore was to place the business in such a condition as to enable Eobert G. Eichards, who at the time was largely indebted and insolvent, to carry it on without danger from his creditors, and that the bill of sale was in fact placed in the possession of Edward C. Eichards to be held by him. in the manner already stated, and that he received and agreed so to hold it. This evidence it is clear tended to establish the right of the plaintiff to maintain this action, but it was met by proof on behalf of the defendants which tended to exhibit an entirely different state of facts. George H. Moore, the husband of the defendant Mary H. Moore, was appointed the executor of the estate of Edward 0. Richards, and testified that this bill of sale was not found by him among the papers of this deceased testator. And he testified further that he knew of the bill of sale being executed on the 9th of April, 1875; and that himself and his wife Mary H. Moore were requested to go to the office of the attorney who drew the bill of sale, to execute the papers; and that they went there, and that a paper was executed by himself and his wife which was a power of attorney to Robert G. Richards to carry on this business. And that paper was produced in evidence executed by these two persons. It contained in its statement some evidence that this assignment, or bill of sale, was not delivered to Edward 0. Richards, but had been delivered to the defendant Mary H. Moore, for the reason that it was stated therein that the business had been sold and assigned by the plaintiff to this defendant. The same witness testified that he knew that this bill of sale was at one time in the custody of his wife, although at the time of the execution of the power of attorney it had been left in the possession of the attorney who drew the papers.

She, herself, also, without having a distinct recollection of what had taken place, stated that she knew when she executed the power of attorney that the plaintiff had transferred this business to her, although she was unable to say whether the bill of sale had been in her possession. While the defendant George E. Moore testified that the papers had been either in his possession, or the possession of his mother, the defendant Mary H. Moore, from about the time of the execution of the assignment until the time of the trial, which took place in October, 1889. And he added that they were never in the possession of Edward C. Richards, but were in his own possession within two weeks after the time when the assignment and power of attorney were executed. This evidence, directly in conflict as it was with that on the part of the plaintiff, presented a question of fact for the court to determine whether the bill of sale or assignment had been delivered in trust in this manner to Edward C. Richards, or had in point of fact been left with the attorney to be handed over to the defendant Mary H. Moore, and by him afterwards passed into her possession. And the absolute language of the transfer to her, unqualified by any condition or obligation whatever, had a tendency to confirm the fact of the delivery of the instrument as that was found to be proved by the court. And so did the length of time during which the business was carried on by Robert G. Richards under her power of attorney, and the letters written by the plaintiff himself, as well as the claims finally put forth by him, which at no time asserted the invalidity of the bill of sale. And this fact, having been in this manner found against the plaintiff, cannot upon this state of the evidence be disturbed upon an appeal.

It has been stated in the opinion of the judge presiding at the trial that he concluded to strilce out so much of the testimony of Mr. Secor as regarded the circumstances under which the bill of sale was executed, and as to the conversations between him, the plaintiff and Bobert Gr. Bichards. This conclusion is stated to have been reached upon the evidence of the plaintiff himself showing that Mr. Secor was consulted by himself and his brother Bobert Gr. Bichards as a counsel concerning the preparation and delivery of this instrument. And the evidence of the plaintiff is very clearly to that effect, for he states and repeats, that the advice of Mr. Secor, who was formerly the counsel of his brother, was asked as to these matters and given in response to the request which was made. And under the cases of Bacon v. Frisbie, 80 N. Y., 394, and Root v. Wright, 84 id., 72, this conclusion of the presiding justice appears to have been warranted. But the striking out of so much of the evidence of the witness Secor, if that was in fact done, as related to these particular subjects, did not affect that given by him concerning the delivery of the bill of sale to Edward C. Bichards to be held by him in trust. That does not appear to have been included within the statement in this manner made by the justice. And so far as the action is concerned, that was the only important evidence given by Mr. Secor, and was unconnected with the conversations stricken out, and tended to establish the plaintiff’s right of action. For as to the facts of the bill of sale or assignment being concluded upon and being drawn up by the attorney to whom the parties were recommended by Mr. Secor, there' was no question whatever in the case, and striking out this evidence in no manner affected the ability of the plaintiff to maintain his action. That depended wholly upon the alleged delivery of the bill of sale to Edward C. Bichards for the purposes and objects for which that was alleged by the plaintiff to have been made. And as to that the evidence of Secor necessarily remained in the case.

But another difficulty in the way of the plaintiff’s objection to this determination of the justice is that it was not put in any form by which it can certainly be held by the court that even so much of the evidence as has been mentioned was stricken out or disregarded. For no decision was signed by the judge describing or directing, otherwise than the mere statement in his opinion, as to how much or what parts of the testimony of the witness Secor should be excluded from the case.

It has been urged in further support of the appeal that evidence of a legal consideration should have been- given on behalf of the defendants to sustain this bill of sale as a disposition of the plaintiff’s interest in this business to the defendant Mary H. Moore. She was his mother, but from none of the evidence does it appear" that she participated in any arrangement with the plaintiff by which this bill of sale was to be made and delivered to or for her. It was, on the contrary, the voluntary act of the plaintiff himself, as he has described it in his testimony, primarily for the benefit of and to give employment to his brother. She exercised no influence over him and offered no inducements to him to execute or deliver the instrument. But it was freely and voluntarily made and delivered, and no attempt has been made to impeach it by the allegations in the complaint beyond the fact that it had been delivered to Edward G. Richards in trust, and after his decease obtained from his papers by his executor, the husband of this defendant Mary H. Moore, and in that manner placed under her authority and control. 3STo case, consequently, has been disclosed by the complaint placing the plaintiff’s right to the recovery of this instrument upon any other ground than the fact of its having been delivered in trust to Edward 0. Richards, while the proof at the trial was such, in the judgment of the judge presiding, as to fail to establish that allegation.

Prior to the execution of this bill of sale the plaintiff had made a transfer of an undivided half of the ■ business and of this proprietary medicine to his brother, Robert Gr. Richards, which was stated by himself, however, to have been overreached by the bill of sale now in controversy. But there was no satisfactory evidence in the case upon which such a conclusion could be adopted. And that left his brother, Robert Gr. Richards, really the owner of a one-half interest in this vegetable compound and the. recipe for manufacturing it, and also entitled as the attorney for the defendant, Mary H. Moore, under her power of attorney to represent her in 'the business so far as she had acquired interest in the compound through the bill of sale executed by the plaintiff to her. This, however, is not an important consideration in the case, for prior to his own decease Robert Gr. Richards, by his will, "bequeathed his property to the defendant, Mary H. Moore. And that after his decease, together with the bill of sale from the plaintiff, in any event created her the sole owner of this business and vegetable compound, with the right to manufacture and sell it. And after the decease of Robert Gr. Richards, leaving his estate in this manner, she transferred this business to the defendant, George E. Moore, her son and half brother of the plaintiff in the action. And as the case has been disposed of upon the conflicting proof relating to the rights of these parties, that transfer seems to have been effectual in the way of vesting this defendant with this business and the right to manufacture and sell this compound.

An affidavit was produced in support of the motion for an additional allowance of costs, showing the recipe for making the .vegetable compound to be of the value of about forty thousand dollars, which was amply sufficient to justify the allowance made of $350. The case appears to have been difficult and extraordinary, and justified the making of this order.

Both this order, therefore, and the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.


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    Mary A. P. Tucker, Pl’ff, v. Cornelia Gilman, Def’t.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Contempt—Refusal to pay costs as directed.
    One T: was directed to pay the costs of this action as being beneficially interested therein, and such direction was affirmed on appeal. Having refused to pay he was adjudged in contempt and fined the amount of such costs. Feld, that proof of such refusal was sufficient to show damage to defendant, and the fact that the payment was directed to be made to her attorney did not alter the question.
    Appeals by the defendant and one Preble Tucker from order adjudging the said Tucker in contempt for non-payment of certain costs.

      George H. Fletcher, for def’t; Charles J. Hardy, for Preble Tucker.
   Van Brunt, P. J.

On the 2nd day of July, 1890, an order was made and entered directing the payment by Preble Tucker of certain costs of this action upon the ground that he was beneficially interested therein. The said Tucker appealed to the general term and to the court of appeals from said orders. In both these tribunals the order was fully affirmed, with costs, and in January, 1891, certified copies of all the orders were served upon said Tucker and demand made for the payment of said costs. Tucker refused to pay the same and this application was made to punish him for a contempt and the court made an order adjudging him in contempt for failure to pay costs as directed in the order of July 2nd, and fined him the amount of such costs, and both parties appeal.

The first point made by the appellant Tucker is that the order was improperly made because there was nothing before the court to show that his refusal to pay the costs did defeat, impair, impede or prejudice any of the rights of the defendant in this action. The fact that the appellant Tucket has refused to pay a sum of money is apparent; that he has refused to pay it as directed to the attorney of the defendant, for her use, is also conceded, and it needs no further proof to show damage; it follows as a matter of course.

The fact that the orders directed the payment of the money to defendant’s attorney did-not alter the question. That form of order has been approved in this case by the court of last resort and it is now too late for Preble Tucker to quibble at the terms. He was bound to-comply with it and if he did not he was guilty of contempt

The amount of fine imposed fully indemnified the defendant and although the court might have imposed an additional sum, yet we will not interfere with the discretion in this respect of the court below.

The costs of the appeals were not included in the order to show cause and for this reason if for no other were properly refused consideration.

This proceeding was a motion in an action. It was so considered by the moving party, as every paper is entitled in the action.

The order appealed from should be affirmed, without costs.

Daniels and Lawrence, JJ., concur.


author: Daniels, J,

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    In the Matter of the Judicial Settlement of the accounts of Robert C. Reeves, Ex’r.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Executors and administrators—Accounting.
    The mere fact that a decree made upon a prior accounting has been reversed on appeal, the judgment on which had not been entered, is no answer to an application for a final accounting based upon a petition showing that the petitioner is a legatee and that there is a sum of money in the executor’s hands which should be distributed.
    Appeal from an order made by the surrogate of the county of Mew York, directing the executor of the estate of Abraham Denike to file an account of his proceedings on or before the 9th of December, 1890.

      Henry W. Bates, for app’lt; Henry J. Morris, for resp’t.
   Daniels, J,

It was made to appear by the petition presented to the surrogate that more than eighteen months had elapsed since the decease of the testator, and since a preceding account had been filed by the executor, and that the applicant, Charles W. Denikep was interested as a legatee in the estate, and that there was still in the hands of the executor more than the sum of a thousand dollars which should be distributed between himself and his brothers and sister. This petition containing these statements was not denied by the executor. And the facts presented by it were sufficient, within sub. 4 of § 2723 of the Code of Civil Procedure, to require the executor to finally present and settle his accounts. And the answer presented by him contained no statement of facts whatever in any manner relieving him from this obligation under the statute. What he stated therein was that there was still unsettled in the general term of this court an appeal from the decree entered in the last accounting, and that the decision had reversed the decree of the surrogate, and judgment had not been entered thereon, and that there was no basis for an accounting until the judgment on the appeal should be entered. These statements presented „no legal ground of objection against the action taken by the surrogate. For even if a preceding decree had been reversed, it was still a matter of importance to the persons interested in the estate that as to this remaining sum of money in the hands of the executor he should present his account. When it is presented it may be, and probably will be, that the entire account will become the subject of investigation and settlement But without this additional account the proceeding before the surrogate would not be in a condition in which the estate could be finally examined and closed up. As the case was made to appear by the petition and not controverted by the answer, otherwise than by this reference to the proceedings in the general term, the petitioner was entitled to the order which the surrogate made, and it should be affirmed, with ten dollars costs and the disbursements.

Yah Brott, P. J., concurs.


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    Rufus L. Todd, Ex’r, App’lt, v. The Union Dime Savings Institution, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Vendor and purchaser—Title.
    In an action to recover back moneys paid on a contract for the sale of real estate on the ground of defect of title it appeared that the original record of a deed in the chain of title showed a dash after the grantor’s name instead of a seal, but it was again recorded when it was represented as being sealed. Held, that the title was such as a purchaser would be required to take, and that a judgment in favor of defendant was proper.
    (Following Todd v. Union Dime Savings Institution, 118 Ñ. Y., 337; 28 N. Y. State Rep., 697.)
    Appeal from judgment in favor of defendant, entered after trial at special term.
    Action to recover moneys paid on account of an executory contract for the purchase of real estate, on the ground of a defect of title.
    The defect alleged was that a deed of the premises in question from one Catharine Ferris to Griffith Bowe was not sealed at the time of delivery. Said deed was first recorded in 1871, and such record showed no sign of a seal after the grantor’s name, but only a dash. Afterwards, on defendant’s making a loan on the property, this defect in the record was discovered, when the deed was procured, upon which was a seal, and it was again recorded in proper form. The deed itself recited that it was sealed, and the court of appeals has decided that the first record furnished no affirmative evidence that the deed was not sealed when delivered. 118 R Y, 337; 28 R Y. State Bep., 697.

      William A. Boyd, for app’lt; William H. Arnoux, for resp’t.
   Van Brunt, P. J.

Although I am of the same opinion which I expressed upoh the first trial of this case, and that the title in question is not such an one as a purchaser should be required to take, but as the court of appeals was of a different opinion, there remains nothing for the judge below to do but decide as he did, and we must affirm the judgment. The facts are substantially the same as on the previous trial, and the alleged errors in admitting evidence, even if they existed, could not affect the result Judgment affirmed, with costs.

Daniels and Lawrence, JJ., concur.

MEMORANDA

Memorandum of cases in which no opinions were written.


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    Court of Appeals.
    Filed April 14, 1891.
    In the Matter of the Petition of Cynthia D. Rood to revoke Probate of Will of Lyman Soule.

      M. M. Waters, for app’lt; Martin A. Knapp and H. V. Howland, for respt’s.
   Judgment affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 1136.


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    In the Matter of the Application of the Department of Public Works of New York, Opening One Hundred and Eighty-first Street.

      James A. Deering, for app’lts; Peter B. Olney, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 35 N. Y. State Rep., 548.


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    In the Matter of the Estate of Eli B. Smith, Deceased.

      Spencer Clinton, for app’lt; John G. Milburn, for resp’t.
   Order affirmed, with costs against appellant personally. All concur.

Affirming 35 N. Y. State Rep., 705.


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    Abdel Wahed el Tazi, App’lt, v. Abraham Stein, Impl’d, Resp’t.

      Joseph Fettretch, for app’lt; J. Hampden Dougherty, for resp’t.
   Appeal dismissed, with costs. All concur.

See 36 N. Y. State Rep., 548.


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    Fannie Bean, Resp’t, v. George W. Carleton et al., App’lts.

      Alfred B. Cruikshank, for resp’t; Ira B. Warren, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 36 N. Y. State Rep.. 123, 124.


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    Francis B. Brewer, Resp’t, v. James E. Ford, App’lt.

      Wm. C. Fitch, for resp’t; Frank C. Ferguson, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 35 N. Y. State Rep., 967.


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    John H. Maginnis, by Guardian, App’lt, v. The City of Brooklyn, Resp’t.

      Wm. G. Cooke, for app’lt; Almet F. Jenks, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 26 N. Y. State Rep., 689.


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    Peter B. Latourette et al., App’lts, v. Henry H. Persons, Resp’t.

      Frank Brundage, for app’lts; Chas. W. Sickmon, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 18 N. Y. State Rep., 1032.


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    Leander Fitts, Rec’r, Resp’t, v. Nelson Beardsley, Impl’d, App’lt.

      B. F. Payne, for resp’t; John B. Teller, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 28 N. Y. State Rep., 658.


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    The Same v. The Same.

      John D. Teller, for app’lt; H. V. Howland, for resp’t.
   Same as above.

Affirming 28 N. Y. State Rep., 666.


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    Winfield H. Bossout, Resp’t, v. The Rome, W. & O. R. R. Co., App’lt.
    D. G. Griffin, for resp’t; Wm. H. Gilman, for app’lt.
   Judgment affirmed, and judgment absolute ordered on the stipulation fear the plaintiff, with costs, on opinion below. All concur

Affirming 32 N. Y. State Rep., 884.


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    Wm. H. Townsend, Resp’t, v. Robert Allen, Jr., Ex’r, Impl’d, App’lt.

      William Man, for resp't; John R. Tressider, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 N. Y. State Rep., 523.


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    The Dutch Reformed Church of Summit, N. Y., Resp’t, v. William L. Harder et al., App’lts.

      F. R. Gilbert, for resp’t; M. S. Wilcox and W. C. Lamont, for app’lts.
   Judgment affirmed on opinion below, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 34 N. Y. State Rep., 645.


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    Filed April 21, 1891.
    The Concordia Savings & Aid Association, Resp't, v. John J. P. Read et al., App'lts.
    No papers.
   Motion for re-argument denied, with ten dollars costs.

See 35 N. Y. State Rep., 222.


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    John L. Macaulay v. Joseph N. Palmer.
    No papers.
   Motion for re-argument denied, with ten dollars costs.

See 36 N. Y. State Rep., 175.


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    Frederic G. Smedley, Assignee, Resp’t, v. George V. Smith et al., App’lts.
    No papers.
   Motion for re-argument denied, with ten dollars costs.

See 36 N. Y. State Rep., 1014.


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    Eugenia A. Penfield, Resp’t, v. The N. Y. & Mt. Vernon Water Co., App’lt.
    pers.
   reinstate, etc., granted.

Y. State Rep., 726.


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    Filed April 28, 1891.
    Fred J. Frowein et al., App’lts, v. Moses Lindheim, Resp’t.

      Geo. W. Wickersham, for app’lts; E. J. Myers, for resp’t.
   Appeal dismissed, with costs. All concur, except Gray, J., absent.

See 35 N. Y. State Rep., 604.


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    The People, Resp’t, v. E. Remington & Sons. In re Claim of Lee Arms Co.

      Wm. B. Hornblower, for Lee Arms Co.; Thos. Richardson, for receiver.
   Order affirmed on opinion in general term, with costs. All concur, except Gray. J., absent, and O’Brien, J., not sitting.

Affirming 36 N. Y. State Rep., 282.


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    In the Matter of the Petition of Walter J. Eaton, Assignee.

      Geo. L. Stedman, for app’lt; Matthew Hale and Marcus T. Hun, for resp’ts.
   Order affirmed on opinion below, with costs. All concur, except Gray, J.. absent.

Affirming 35 N. Y. State Rep., 497.


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    Daniel W. Tallmadge et al., App’lts, v. Phineas C. Lounsbury, Treas’r, Resp’t.

      Alex. S. Bacon, for app’lts; James A. Blanchard, for resp’t.
   Order affirmed, with costs. All concur, except Gray. J., absent.

Affirming 36 N. Y. State Rep., 684.


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    Delora M. Hunter et al., Adm’rs, Resp’ts, v. The Cooperstown & S. V. R. R. Co., App’lt.

      C. B. Pierce and E. Countryman, for motion; E. M. Harris, opposed.
   Motion for re-argument denied, with costs.

See 36 N. Y. State Rep., 367.


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    Filed May 5, 1891.
    Sam’l H. Cohen et al., Resp’ts, v. Elias Irion, Assignee, App’lt.

      Wm. Townsend, for resp’ts; S. M. Lindsley, for app’lt.
   Judgment reversed, new trial granted, costs to abide event, on the dissenting opinion of Martin, J., below. All concur, except Gray, J., absent.

Reversing 26 N. Y. State Rep., 1.


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    Filed May 8, 1891.
    Emma A. Marson, App’lt, v. Charles A. Purdy et al., Resp’ts.

      Chas. H. Luscomb, for app’lt; H. B. Closson, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 31 N. Y. State Rep., 130.


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    Michael Meehan, App’lt, v. Wm. B. Morewood et al., Resp’ts.

      Wm. McArthur, for app’lt; Geo. A. Strong, for resp’ts.
   Judgment affirmed, with costs, on opinion below. All concur, except Gray J., absent.

Affirming 23 N. Y. State Rep., 487.


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    Thomas E. Walker, Resp’t, v. The Second Ave. R. R. Co., App’lt.

      Chas A. Flammer, for resp’t; Aug. S. Hutchins, for app’lt
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 961.


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    Sarah J. Pirsson et al., Resp’ts, v. Oliver M. Arkenburgh, App’lt.

      John Alex. Beall, for resp’ts; Robert F. Little, for app’lt.
   Judgment affirmed, witn costs. All concur, except Gray, J., not voting.

Affirming 36 N. Y. State Rep., 82.


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    The First Nat. Bank of Jersey City, App’lt, v. Orren G. Staples et al., Resp’ts.

      D. G. Griffin, for app’lt; Jno. C. McCartin, for resp’ts.
   Judgment affirmed on opinion below, with costs. All concur, except O’Brien, J., who takes no part.

Affirming 34 N. Y. State Rep., 503.


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    James Medler, Resp’t, v. The Atlantic Ave. R. R. Co., App’lt.

      Thos. E. Pearsall, for resp’t; Chas, J. Patterson, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 N. Y. State Rep., 89.


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    Leopold Wormser et al., App’lts, v. Isaac Levy, Resp’t.

      Edward W. S. Johnston, for app’lts; Otto Horwitz, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 35 N. Y. State Rep., 78.


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    Second Division.
    Filed April 7, 1891.
    Augustus A. Levey, as Trustee, et al., App’lts, v. The Union Print Works, Resp’t.

      Geo. W. Wingate, for app’lts; John H. V. Arnold, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 34 N. Y. State Rep., 900.


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    Alfred H. Smith et al., Resp’ts, v. Henry Clews, App’lt.

      Chas. H. Woodbury, for resp’ts; Albert A. Abbott, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 35 N. Y. State Rep., 669.


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    The Delaware, Lack. & W. R. R. Co., Resp’t, v. John M. Burkard et al., App’lts.

      Wm. Nottingham, for resp’t; Wm. F. Cogswell, for app’lts.
   Judgment affirmed, with costs. All concur, except Bradley, J., dissenting, and Haight, J., not voting.

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


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    John Peterson, App’lt, v. John Swan, Resp’t.

      George H. Hart, for app’lt; Joseph A. Shoudy, for resp’t.
   Judgment affirmed, with costs. All concur.

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


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    In the Matter of the Final Judicial Settlement of Accounts of Brewster J. Allison et al., Ex’rs.

      Calvin Frost, for app’lt; Garrett Z. Snider, for resp’t.
   Judgment affirmed, with costs to the respondent, payable out of the estate. All concur.

Affirming 35 N. Y. State Rep., 323.


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    Jane Higgins, Adm’rx, Resp’t, v. The Village of Glens Falls, App’lt.

      J. S. L’Amoreaux, for resp’t; Richard L. Hand, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 33 N. Y. State Rep., 111.


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    Isaac M. Adams, App’lt, v. Charles M. Speelman, Resp’t.

      Wm. F. Cogswell, for app’lt; Chas. S. Baker, for resp’t.
   Judgment affirmed, with costs. All concur, except Parker, J., not sitting.

Affirming 32 N. Y. State Rep., 266.


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    Lizzie Guibert, Resp’t, v. Carrie P. Saunders et al., App’lts.

      James M. Hunt, for resp’t; Edwin Countryman, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 14 N. Y. State Rep., 936.


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    James B. Titman et al., Adm’rs, Resp’ts, v. The Twelfth Ward Bank, Impl’d, App’lt,

      L. Laflin Kellogg, for resp’ts; Wheeler H. Peckham and J. Newton Fiero, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 1016.


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    Helen S. Wright, Resp’t, v. The Syracuse, B. & N. Y. R. R. Co., App’lt.

      John A. C. Wright, for resp’t; Louis Marshall for app’lt.
   Judgment affirmed, with costs. All concur, except Follett, Ch. J., not sitting.

Affirming 23 N. Y. State Rep., 78.


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    Filed April 14, 1891.
    Hubbard J. Goodrich, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Edwin Countryman, for resp’t; Hamilton Harris, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 26 N. Y. State Rep., 767.


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    The Leather Manf’rs Nat. Bank, App’lt, v. Laura P. Halsted et al., Resp’ts.

      Chas. E. Hughes, for app’lt; Wm. Pierrepont Williams, for resp’ts.
   Judgment affirmed, with costs, upon opinion of Bradley, J., in Knower v. Central Nat. Bank, 37 N. Y. State Rep., 89. All concur.

Affirming 25 N. Y. State Rep., 1034.


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    Enos B. Wood, as Sup’r, Resp’t, v. The Board Sup’rs Monroe Co. et al., App’lts.

      Cassius C. Davy, for resp’t; W. A. Sutherland, for app’lts.
   Judgment affirmed, with costs, on opinion of Haight, J., in Crowninshield v. Board of Sup’rs Cayuga Co. 37 N. Y. State Rep 96. All concur.

Affirming 30 N. Y. State Rep. 706.


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    Filed April 21, 1891.
    Mary Ann McGahy, Resp’t, v. Catherine Duffy, Impl’d, App’lt.
    No papers.
   Ordered, That John McArdle, individually, and as administrator of the estate of Catherine Duffy, deceased, be and he is hereby substituted as a party defendant in the place of Catherine Duify, deceased, and this action is revived and continued in his name.


text:
    Isaac Fenno et al., App’lts, v. John W. Hannan, Sheriff, Resp’t.

      Fanning & 'Williams, for app’lts; David Hays, for resp’t.
   Judgment affirmed, with costs. All concur, except Potter and Bradley, JJ., not voting.

Affirming 32 N. Y. State Rep., 760.


text:
    Fannie Higgins et al., App’lts, v. The Union Trust Co., as Adm’r, et al., Resp’ts.

      Daniel S. Remsen, for app’lts; Wm. C. Beecher and Hoffman Miller, for resp’ts.
   Judgment affirmed, with costs. All concur, except Vann and Brown, JJ., absent.

Affirming 32 N. Y. State Rep., 197


text:
    Filed April 28, 1891.
    In the Matter of the Judicial Settlement of the Accounts of Hannah McGowan, as Ex’rx of John F. Wallace, deceased. William Carroll, App’lt.

      Malcolm Campbell, for app’lt.
   Motion for re-argument denied, with ten dollars costs.

See 36 N. Y. State Rep., 686.


text:
    Emily Ford, Adm’rx, Resp’t, v. The L. S. & M. S. R’way Co., App’lt.

      Tracy C. Becker, for resp’t; James Fraser Gluck, for app’lt.
   Motion for re-argument denied, with ten dollars costs.

See 36 N. Y. State Rep., 494.


text:
    George T. Newhall, Resp’t, v. Wm. H. Appleton et al., as Surviving Partners, App’lts.

      Wm. W. Badger, for motion; Edward Winslow Paige, opposed.
   Motion denied, with ten dollars costs.

See 36 N. Y. State Rep., 697.