author: Bradley, J.:

text:
      FREDERICA BAKER, Respondent, v. GEORGE JOHNS and CHARLES NETZ, Appellants.

      Lease of lands in the Indian reservation —validity of— who entitled to renewals of— regularity of the proceedings at meetings of the councilors of the Seneca nation —■ when they cannot be questioned.

    On May 26, 1871, George Jemison, a Seneca Indian, residing on the Allegany Indian reservation, leased to the plaintiff certain premises therein for the term of twelve years. On June 16, 1874, the same Jemison leased to the defendant Johns a portion of the said premises so leased to the plaintiff. December, 35, 1879, the council of the Seneca nation granted an application, made by the defendant Johns, for a renewal of his lease, and on January 30, 1880, the council granted an application made by the plaintiff for a renewal of her lease. The plaintiff had made and owned improvements upon a portion of the premises leased to her Upon that portion of the premises leased to the defendant Johns a house had been built in 1873, by a brother of the plaintiff, which was bought by the defendant, in 1874, from one Nelson, who had purchased it at a sale under a mechanic ’s lien. In April, 1879, improvements were also made by the defendant Johns upon the land leased to him. In 1876 and 1879 the plaintiff commenced actions against the defendant Johns for trespassing on the said lands and to recover the possession thereof, in which she recovered damages. Subsequently, this action was brought to recover the possession of that portion of the premises leased to the plaintiff which the defendant Johns claimed under his lease.

      Held, that prior to the passage by congress, in 1875, of the act to authorize the Seneca nation to lease certain of their lands, leases given by Indians to white persons were, in a strict legal sense, invalid.
    That the said act of oongress confirmed the leases then outstanding and made them valid, and established in the lessees, who had made improvements, a right of renewal for a period not exceeding twelve years, on such conditions as might be agreed on by them and the councilors of the nation, or in case of their disagreement, by referees.
    That the plaintiff’s lease being prior in point of time to that given to the defendant was entitled to priority over it.
    That as the plaintiff was under the said act entitled to a renewal as a matter of right, the conditions only being subject to the action of the councilors of the nation, the defendant could not object to the conditions imposed or as to the mode of their proof, so long as no objections thereto were made by either the plaintiff or the nation.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the Cattaraugus Circuit, and from an order denying a motion for new trial.

      Ansley do Davie, for the appellants.

      Henderson do Wentworth, for the respondent.

      Decided March Term, 1885.

   Bradley, J.:

The action is ejectment to recover the possession of land which is part of the Allegany Indian reservation, and situated in the village of Salamanca, county of Cattaraugus.

On the 26th day of May, 1871, George Jemison, a Seneca Indian, residing on the reservation, made to the plaintiff a lease of certain premises (of which those in question are a part) for the term of twelve years. And on the 16th day of June, 1874, the same Jemi■son executed and delivered to the defendant a lease of the land in -question to the defendant Johns, and the defendant Netz is his tenant and in possession of it. The plaintiff had a verdict and judgment from which, and from order denying a new trial, this appeal is taken.

By act of congress of February 19, 1875, entitled “ An act to Authorize the Seneca nation of New York Indians to lease lands within the Cattaraugus and Allegany reservations, and to confirm existing leases,” it was provided that the president of the United States apppoint three commissioners to survey, locate and establish proper boundaries of the villages of Yandalia, Carrollton, Great Yalley, Salamanca, West Salamanca and Red House, on the Allegany reservation, make maps thereof, and designate on the maps ■defined, as near as may be, the lands therein then leased, and to deposit the surveys and maps in the clerk’s office of that county for record and preservation; that the then existing leases within those boundaries should be valid and binding for the term of five years thereafter, unless by the terms thereof they expired before that time, and at the end of that time, and on the expiration of term of leases before then, the Seneca nation should be entitled to the possession of the lands so leased. But it was further provided that the leases should, at expiration of the term, or of that time, be renewable for a period not exceeding twelve years, and that the persons who may be, at such time, the owner or owners of improvements erected on such lands shall be entitled to such renewed leases, .and continue in possession on such conditions as may be agreed upon by them and the councilors of the nation, and if they cannot agree, the terms to be fixed by referees selected in a manner prescribed by the act. (18 U. S. Stat. at Large, 330.)

The surveys and maps were made, filed and recorded pursuant to that act of Congress. The defendant made application to the counsel -of the Seneca nation on the 25th day of December, 1879, for renewal of the lease before mentioned to him, which was granted and lease made of that date. And on the 20th day of January, 1880, the plaintiff made a like application for renewal of her lease which was .granted by the councilors at a meeting on the 8th day of May, 1880, and lease of that date made to her, which included the land in the lease, to the defendant.

The plaintiff had made improvements on the land covered by her lease and within the meaning of the act of congress was the owner of them, and therefore entitled to a renewal of her lease. The only question is whether she had the right to include within her renewed lease that portion of the land in question.

The defendant Johns claims that he had made and owned improvements on it, and that he was within the act entitling him to renewal of his lease. There is evidence tending to prove that he made improvements on this land in April, 1879, that there was a house on it built there in 1873, which he bought of one Nelson, in 1874, who had purchased it on a mechanic’s lien sale shortly before, that the plaintiff was advised of the purchase by Nelson and of his purpose to sell it to defendant Johns, and made no objection but said that it belonged to her brother and she had no claim on it. And it appears that her brother, with her permission, built the house and lived in it for a short time and left it. And that the plaintiff improved and cultivated the land in question until the defendant Johns took possession without her consent in 1879.

As between persons competent to contract, the one prior in time of two stipulations to the same effect would give the superior right And such rule should be applied here unless the anomalous situation before the act of congress, and the effect of its provisions since, do not permit the application of such rule. For many years prior to that act the Seneca nation had a system of allotment of lands to respective Indians, for occupation, cultivation and improvement, and in aid of such purpose there was some legislation of the State. (Laws of 1845, chap. 150, § 6; Laws of 1849, chap. 378), pursuant to which individual occupancy was observed. And it was also common for those occupants, or those so entitled to occupy, to make leases. But our attention is not called to any law which gave legality to any leases to white persons prior to the act of congress before referred to. Except so far as relates to police regulations, and to preserve the peace, and to prevent intrusion upon the reservation, the legislative power in respect to the tribe, and the lands occupied by them, is exclusively in congress. And the relation of the Indians is that in the nature of ward of the general government. It, therefore, may be assumed that the leases to the plaintiff and defendant Johns were, in the strict legal sense, invalid prior to the act of congress of 1875, and that they had no legal right in respect to the leased premises except that afforded by possession; but that act confirmed, made leases then outstanding valid, and ■established rights under them as effectually as of the time of their execution as if they had been made by persons competent to vest the rights they purported to give. In that' view the plaintiff became lessee of the entire premises covered by her lease, by the force of the act from the time it was made, and that to the defendant Johns was ineffectual to vest in him any right to the land embraced in it.

Then comes the effect of the act in respect to the right to have renewal. That necessarily related to an existing lease and one under which rights were vested by virtue of it, in view of the confirming act, and limited such right to those lessees who were the owners of improvements erected on the lands covered by their leases respectively. And except so far as the lessee had relinquished to another, the right to renewal of the lease is not qualified so as to permit the reduction or severance of the premises covered by it. While the act in terms does not distinguish between ■conflicting lessees nor declare a preference of those of the earlier dates in such case, it must be assumed that the purpose of the statute was that the rights of the lessees and their assigns, such as the law would recognize in respect to priority should be observed, and such is the fair and proper construction and effect of the act and the equitable rule to be applied. (Ryan v. Knorr, 19 Hun, 540.)

If this proposition is correct it follows that the plaintiff was ■entitled to renewal of her lease entire, and the continued possession of the premises covered by it, and the defendant, Johns, had in fact no existing lease and no right to any renewal in respect to the premises in question, unless the plaintiff had relinquished them to him in such sense that he might be treated as in possession as her lessee or assignee. The evidence does not permit the conclusion of any such relation between them. There is nothing appearing in connection with the circumstances of his purchase of the house on her part, which can be construed as the surrender of the possession of the premises in question to him. And as between those parties the defendant had no right to the possession.

The provision in the act of congress for renewal of leases to persons who own improvements has reference to those only who, at the time the application is made, lawfully claim under a lease or under some one who has taken a lease which is then valid, and does not include one who has unlawfully, as against such leaseholder (entitled to renewal), entered and made improvements upon some portion of the premises. It appears that the plaintiff resisted the interference by the defendant Johns with her possession and enjoyment of the premises which he claims. That in June, 1876, she prosecuted him by action for trespass committed on them in the years 1872, 1873 and 1874 in the County Court, and a trial was had and she recovered. And that about the 1st of May, 1879, she commenced an action in this court against him to recover the possession of the same premises which he defended. And at the trial (May 24, 1880), it appearing that the plaintiff’s title, on which the action was based at the time of its commencement had expired on 19th February, 1880, a verdict was rendered for the plaintiff for damages for the wrongful detention from her of the premises by the defendant, upon which judgment was entered against the defendant, with costs, pursuant to the statute in such case. (2 R. S., 308, § 31; Lang v. Wilbraham, 2 Duer, 171; Van Rensselaer v. Owen, 48 Barb., 61.)

This recovery is conclusive evidence as to the title of the plaintiff as against the defendant Johns up to the 19th day of February, 1880, and has no greater or other force or effect beyond that action, between them as an adjudication. (2 R. S., 309, § 36; Beebe v. Elliott, 4 Barb., 457; Briggs v. Wells, 12 id., 567; Cagger v. Lansing, 64 N. Y., 417; Dawley v. Brown, 79 id., 390.) And this-conclusive effect is wholly given by the statute. (Bates v. Stearns, 23 Wend., 482.) Thus it is con elusively established, by adjudication, that the defendant Johns derived no right to the possession of the premises from the plaintiff. And if we are right in the views above given ? he had no position which enabled or permitted him, as against the plaintiff, to apply for or take the renewal lease under which he claims, but the right was exclusively in the plaintiff to have a renewal lease covering the entire premises embraced within that first taken by her.

The contention of the defendant’s counsel that the evidence presented a question of fact m respect to the action of the council on the plaintiff’s application for the renewal of her lease, and, therefore, the direction of the verdict was error, is not, we think, supported. It was, and had been, for many years, the custom of the council of the Seneca nation to assemble for the transaction of its business. The action of the councilors, when so assembled, was governed by rules and by-laws, a formal record of the proceedings was kept in a book by the clerk, and a copy of them certified by him are competent evidence. (Laws of 1847, chap. 365, § 7.) It is not necessary to hold that the original record or a copy certified by the clerk is conclusive evidence that they were correctly entered in the book. They would not be such in a direct proceeding within a proper time to attack, directly, action based upon them. But in a collateral action or proceeding to which the nation is not a party and which involves inquiry into the validity of the execution of a contract made pursuant to the record of the proceedings as entered, to which the nation is a party, and executed by the council by its president according to its established rules and custom, it is very questionable whether their proceedings as they appear on the record and the execution of such contract, in fact so made, can be attacked in that manner. But here the plaintiff was entitled to the renewal which she received. The only question open to the council of the Seneca nation was that of terms. The nation do not complain of them, and the defendant cannot, and the terms are in all respects those appearing on the record of the proceedings of the council.

If the propositions we have adopted as applicable to the case are correct, it follows that no error was committed by the trial court, and that the judgment and order should be affirmed.

Haight, J., concurred; Barker J., not sitting.

Judgment and order affirmed.


source: Caselaw Access Project

author: Smith, P. J.:

license: Public Domain

text:
    ABRAM SHAVER, Respondent, v. NELSON B. ELDRED, Appellant.

      Canals — what persons cannot be employed upon them.

    The plaintiff brought this action to recover the damages occasioned by the overflowing of his lands which was caused by the raising of the flush'boards on a dam at the outlet of Owasco lake, by the defendant. The defense was that the dam was owned by the State, and that the defendant, in doing the acts complained of, was acting under its authority and as its agent. It appeared that the dam was usedfby the State to furnish a supply of water for the Port Byron level of the Erie canal. The defendant was a director and the superintendent of the Auburn Water Works Company, which obtained its water from the same dam. In 1881 the assistant superintendent of public works, having charge of the middle division of the canal, authorized the defendant, upon his application for discretionary authority in that behalf, to close and open the gates or flush boards as might be necessary.

      Meld, that the attempt to oonfer this authority upon the defendant was a violation of the statutes providing that no person owning any hydraulic works dependent upon the canals for their supply of water, or who shall be employed in or connected with any such works, shall be employed as a superintendent, lock-keeper, collector of tolls, weighmaster or other agent upon the canals and that it was for that reason void.
    That the fact that an award made some years ago by the canal appraisers, upon an application for damages for injuries arising from the use of the same flush boards, was adverse to the plaintiff’s claims, was not a bar to this action, as there was no privity between the State and the defendant.
    Appeal from a judgment of the Cayuga County Court, upon a decision in favor of tbe plaintiff, rendered on a trial in that court, without a jury, upon an appeal from a justice’s judgment.

      Charles M. Baker, for the appellant.

      David Wright, for the respondent.
   Smith, P. J.:

The plaintiff complained in the Justice’s Court that, in the year 1883, the defendant wrongfully raised the upper dam a-t the outlet of Owasco lake, and thereby flooded and injured the farm of which the plaintiff was in possession, in the Owasco valley, in Moravia, and injured his crops. The defendant pleaded, among other defenses, that the said dam was built and maintained by the State ■of New York; that the State had the right to keep up said dam and to overflow the plaintiff’s premises, as complained of; and that the defendant, in doing the acts complained of, acted under the authority of the State and as its agent. On interposing that plea, the defendant presented to the justice what he claimed was an undertaking, prescribed by section 2952 of the Oode of Civil Procedure, but the justice did not approve of the undertaking, and it was not received. Thereupon, by agreement of the parties, the cause was adjourned, and on the adjourned day the parties appeared and proceeded to tidal. The return of the justice states that the ■defendant asked to amend his answer and the motion was granted, but ■the nature or effect of the amendment does not appear. The justice rendered a judgment in favor of the plaintiff for thirty dollars, besides costs, and the defendant appealed from such judgment to the County Court for a new trial, where the plaintiff recovered $150 damages.

The justice having declined to approve of, and receive, the undertaking tendered by the defendant, the ease was in the same position ■as if no undertaking had been offered; that is to say, the justice had jurisdiction of the action and was required to proceed, and the defendant was precluded, in his defense, from drawing the title in question, by setting up the right of the State alleged in his answer. {Code Civ. Pro., § 2955.) The defendant seems to have acquiesced in that view of the matter, as he does not appear to have objected to the refusal of the justice to receive the undertaking, and he thereafter consented to an ad journment of theicause. The justice, of course, had not jurisdiction to try the question of title, and it isto be presumed he did not take it into consideration in rendering his judgment.

The issue of title presented by the answer not having been before the Justice’s Court, it was not before the County Court on appeal, and if objection had been made, it could not properly have been tried there (O’Donnell v. Brown, 3 Lans., 474), although within the general jurisdiction of that court. (Const., art. 6, § 15; Oode Civil Pro., § 340, sub. 3.) This view of the case is not in conflict with section 3071 of the Code of Civil Procedure, which provides that the action shall proceed in the appellate court as if it had been commenced there, inasmuch as the cause is to be treated as if the answer did not contain a plea of title. The question of title seems, -however, to have been tried in the County Court, without objection, and the decision of that court was put upon the ground that the sole authority under which the defendant claimed to act, to wit, an appointment from the assistant superintendent of public worlds, was beyond the power of that officer, and was an authority to the agent to act in his discretion, and was therefore void. That ruling: presents the principal question for review.

It appears that prior to the commission of the acts complained of, the dam referred to had been appropriated and used by the State for the purpose of raising and holding the waters of the lake, and drawing therefrom to supply the Port Byron level of the Erie canal. Flush boards were placed upon the crest of the dam, by the use of which the level of the water in the lake could be temporarily raised. The defendant was found by the trial court to be a director and the superintendent of the Auburn Water-Works Company, and that company obtained its water power from the same dam. The trial court also found, upon sufficient evidence, that in March, 1881, Mr. Van Rensselaer, the assistant superintendent of public works having charge of the middle division of the Erie canal, authorized the defendant, upon his application for discretionary authority in that behalf, to close the gates or flush boards at the dam when the water lowered sufficiently, and to open them temporarily, if it became necessary. The court also found that the defendant, by closing the flush boards on said dam and keeping them closed during the spring and summer of 1883, by virtue of his supposed appointment as agent by Mr. Van Rensselaer, caused the injuries complained of.

It is provided by statute that no person owning any hydraulic works dependent upon the canals for their supply of 'water, or who shall be employed in or connected with any such works” * * * “ shall be employed as a superintendent, lock-keeper, collector of tolls, weighmaster, or other agent upon the canals.” (Laws 1826, chap. 314, § 30; 1 R. S., 250, § 185.) The statute evidently intends that no person having a direct interest in the use of the waters designed for the supply of the canals, adverse to the interests of the State, shall have control of the use of such waters, as the officer or agent of the State. By another provision of statute, any canal officer or person holding an appointment under the canal commissioners or any one of them, forfeits his office or appointment on becoming interested in any hydraulic work dependent on the canals for a supply of water. (Laws 1843, chap. 181.) In our opinion, the authorization or appointment, attempted to be conferred upon the defendant by the assistant superintendent, was a violation of the statute first above cited and was void. It purported to vest him with discretionary authority in respect to the use of the flush boards. It was unlimited as to time, and the testimony of the defendant shows that, acting under that authority alone, he, for a long time, directed the flush boards to be removed or replaced when, in his judgment, it was proper. During all that period he was the superintendent of the water-works company, and from the dam, the height of which was thus regulated by the-defendant acting ostensibly as the agent of the State, the waterworks company drew its supply. Although the company took its water from the feeder, and not from the canal, yet, as the water was accumulated in the feeder by the State for the purpose of supplying the canal, the case is within the spirit and intent of the statute. If the defendant had been authorized merely to take off or put on the flush boards upon a single occasion, or to act only under specific instructions, leaving nothing to his judgment, the case would probably have been different; but the unlimited discretionary power attempted to be given him, if it had been valid, would have enabled him, under the guise of State authority, to control the water for the exclusive benefit of the company in which he was interested, without reference to the needs of the canal. For an injury to riparian owners, caused by him in the exercise of such pretended authority, he could not make the State responsible, nor can he claim protection as the agent of the State. This, we think, is theunavoidable effect of the statute.

Note. — The balance of the cases decided at this term of the court will be found in (39 Hun) the next volume.

The award made some years ago by the canal appraisers, adverse to the plaintiff’s claim against the State for damages, by reason of alleged injuries resulting from the use of the flush boards, is not a bar to the present action, for the reason that, if the views above expressed are correct, there is no privity between the defendant and the State, and the award, so far as the defendant is concerned, is res i/mter alios aota.

The judgment should be affirmed.

All concur.

Judgment affirmed.


text:
    Charles F. Rosso, Respondent, v. The Bank of Commerce and Edward W. Hayes, Appellants.
   Order appealed from reversed, and motion to dissolve injunction granted, with ten dollars costs and disbursements, unless the plaintiff, within ten days, pays into court the amount of the judgment, including interest and costs, or in lieu thereof gives an undertaking as prescribed by section 618 of the Code. If such deposit is made or undertaking given, the order appealed from is affirmed,-without costs to either party. Opinions by Haight, J., and Bradley, J.; Smith, P. J., ana Barker, J., concur in the result.


text:
    John Lowrey, Respondent, v. John O. Spencer and others, Appellants.
   Judgment and order affirmed. Opinion by Bradley, J.; dissenting opinion by Haight, J.; Barker, J., not voting.


text:
    Chauncey G. Starkweather, Respondent and Appellant, v. Charles W. Briggs and others, Appellants and Respondents.
   Judgment reversed and new trial ordered, with the costs of this appeal to abide the event, unless the plaintiff stipulates, within twenty days, to deduct, as of the date of the report, §3,101.84 from the amount of the judgment. In that event the judgrae'nt be so modified, and as modified affirmed, without costs. Opinion by Bradley, J.; Smith, P. J., not voting.


text:
    The People of the State of New York, Respondent, v. Almond G. Sullivan, Appellant.
   Judgment and conviction reversed and new trial ordered, and for that purpose the proceedings are remitted to the Court of Sessions of Ontario county. Opinion by Bradley, J.


text:
    Charles Robinson, Appellant, v. Addison R. Baldwin and others, Respondents, impleaded, etc.
   Judgment reversed on a question of fact, and a new trial ordered, with costs to abide the event. Opinion by Smith, P. J.


text:
    Kate L. Rice, Appellant, v. Albert W. Rice, Respondent.
   Judgment and order of the Special Term reversed, with costs of this appeal to the appellant. Memorandum by Haight, J.


text:
    Edward A. Milliman, Respondent, v. John Christgau, Appellant.
   Judgment reversed on a question of fact, and a new trial ordered be-, fore another referee, with costs to abide the event. Opinion by Haight, J.


text:
    John G. Brendel, Appellant, v. Delos Brewer, Respondent.
   Order affirmed, on the opinion of the county judge.


text:
    The Village of Silver Creek, Respondent, v. The Buffalo, New York and Philadelphia Railroad Company, and the New York Central and State Line Railroad Company, Appellants.
   Judgment affirmed, with oosts. Opinion by Haight, J.


text:
    George Wright, Jr., Appellant, v. Adgate Curtis, Respondent, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by Haight, J.


text:
    Eugene Brewster, as Executor, etc., Appellant, v. Spencer Carnes, Respondent, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by Haight, J.; Smith, P. J., not voting.


text:
    George W. Wildrick, Appellant, v. Martin O’Donnell, Respondent.
   Judgment of the County Court affirmed. Opinion oy Haight, J.; Bradley, J., not sitting.


text:
    Horace B. Woodruff and others, Respondents, v. The Rochester and Pittsburg Railroad Company, Appellants.
   —Judgment affirmed. Opinion by Barker, J.; Haight, J., taking no part.


text:
    Bridget Cashen, Plaintiff, v. The City of Auburn and another, Defendants.
   Motion for a new trial deniedj and judgment ordered for plaintiff on the verdict. Opinion by Haight, J.


text:
    William B. Denio, Appellant, v. John W. Tuttle, as Executor, etc., Respondent.
   Judgment affirmed, with costs. Opinion by Haight, J.


text:
    George A. Kyle, Plaintiff, v. Samuel K. Nester, Defendant.
   Motion for new trial denied, and judgment ordered for plaintiff upon the verdict. Opinion by Haight, J.


text:
    Rowley H. Knapp, Respondent, v. Ira M. Deyo, Appellant.
   Judgment affirmed. Opinion by Barker, J.; dissenting opinion by Haight, J.; Bradley, J., not voting.


text:
    Addison R. Baldwin, Respondent, v. Elmendorf Rood, Appellant.
   Judgment and order reversed and a new trial ordered, with costs to abide event. Opinion by Haight, J.


text:
    Valentine Blatz, Appellant, v. Martha G. Potter, Respondent.
   Order reversed and motion to vacate denied, with ten dollars costs and disbursements. Opinion by Bradley, J.


text:
    The People of the State of New York ex rel. Andrew J. Beswick, Appellant, v. William W. Houseman and others, as Commissioners, etc., Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Bradley. J.


text:
    In the Matter of the Application of the New York, Lake Erie and Western Railroad Company, Appellant, to acquire lands of Eben C. Sprague and others, Respondents.
   Order appealed from modified by striking therefrom all after the word “ either ” in line two of the decretal part of said order as printed, to the end thereof, and inserting the following: “In this matter as it may be advised, and that, in default thereof, the proceedings shall be deemed abandoned by the petitioner, and on filing an affidavit showing such default, the landowners may enter an order, of course, to that effect, and requiring the petitioner to pay to the landowners their reasonable costs and expenses in the proceeding, to be ascertained by a referee to be appointed by the court at Special Term for that purpose.” Neither party allowed costs of this appeal.


text:
    Hayden & Havens Company, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed. Opinion by Smith, P. J.


text:
    Charles Carney, Respondent, v. Perry G. Wadhams, as Executor, etc., Appellant.
   Judgment and orders appealed from reversed and new trial ordered, costs of the appeal to abide the final determination of costs. Opinion by Barker,, J.


text:
    In the Matter of the Judicial Settlement of the Account of Edward F. De Lancey, as the executor of the last will and testament of Elizabeth C. De Lancey, deceased.
   Decree of surrogate affirmed, with costs to the respondent. Opinion by Smith, P. J.


text:
    George H. Schroeder, Appellant, v. Anton Becker, Respondent.
   Judgment and order affirmed. Opinion by Smith, P. J.


text:
    Da A. Acer, Respondent, v. Daniel L. Roberts, Appellant.
   Judgment affirmed. Opinion by Barker, J.


text:
    Michael Carr, Respondent, v. The Security Insurance Company, Appellant.
   Judgment affirmed. Opinion by Barker, J. (See opinion in Carr v. Providence Washington Insurance Company, reported, ante, p 86.)


text:
    Christopher W. Anderson, Respondent, v. Charles B. Wallace, Appellant.
   Order reversed. Opinion by Barker, J.; Bradley, J., taking no part.


text:
    Mial H. Peck, Appellant, v. Martin Goodberlett, Respondent.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by Barker, J.; Smith, P. J.. not voting.


text:
    James C. Moore, Plaintiff, v. The E. M. Birdsall Company, Defendant.
   Motion for new trial denied and judgment of nonsuit ordered for defendant. Opinion by Bradley, J.


text:
    The Flour City National Bank of Rochester, Appellant, v. The Traders’ National Bank of Rochester, Respondent.
   Judgment affirmed. Opinion by Smith, P. J.


text:
    George W. Dodge and another, Respondents, v. George W. McCormick and others, Appellants.
   Judgment affirmed, with coBts. Opiniou by Bradley, J.


text:
    Daniel C. Chapman, Respondent, v. The Atlantic Refining Company, Appellant.
   Judgment and order affirmed. Opinion by Barker, J.; Bradley, J., not sitting.


text:
    William G. Rogers, Respondent, v. The Grand Trunk Railway Company of Canada, Appellant.
   Judgment and order affirmed. Opinion by Barker, J.


text:
    John O’Brian and another, Appellants, v. George Newbrook, Respondent.
   Judgment of County Court affirmed. Opinion by Bradley, J.


text:
    Myron L. Burrell, Respondent, v. John Chadwick, Appellant.
   Judgment affirmed. Opinion by Smith, P. J.


text:
    William J. Reedy and others, Respondents, v. Uriah C. Whitlock and others, Appellants.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by Barker. J.


text:
    Richard L. Whiting, Appellant v. Peter Hood and another, Respondents.
   Judgment reversed and new trial granted before another referee, costs to abide the event. Opinion by Bradley, J.


text:
    Henry Hallett, Plaintiff, v. The New York, Lake Erie and Western Railroad Company, Defendant.
   Motion for new trial denied and judgment ordered for the plaintiff on the verdict. Opinion by Smith, P. J.; Bradley, J., not sitting.


text:
    Edward Garrett, respondent, v. The City of Buffalo, Appellant.
   Order reversed, and new trial granted in the Erie County Court, costs to abide event. Opinion by Smith, P. J.


text:
    Theodore Poorman, Appellant, v. Henry Moore, Respondent.
   Judgment affirmed. Opinion by Barker, J.


text:
    Joseph F. Moore, Appellant, v. Pulaski D. Westcott and another, Respondends, Impleaded, etc.
   So much of the order as opens the default and vacates the judgment and permits the defendant to answer, reversed, and so much of said order as sets aside all proceedings subsequent to the judgment, including the sale, is affirmed, without costs of this appeal to either party. Opinion by Barker, J.; Bradley, J., not sitting.


text:
    James Sargent, Respondent, v. Marion Warren, Appellant.
   Order reversed and attachment vacated, with ten dollars costs and disbursements. Opinion by Barker, J.


text:
    John K. Forsyth, Respondent, v. Jacob F. Rickenbrode, Appellant.
   Judgment affirmed. Opinion by Smith, P. J.


text:
    The People of the State of New York ex rel. The New York, Lake Erie and Western Railroad Company v. The Common Council of the City of Dunkirk.
   Writ quashed and proceedings dismissed, with costs and disbursements, not exceeding fifty dollars in all, to the defendant. Opinion by Smith, P. J.


text:
    The People of the State of New York, Respondents, v. Alonzo E. Carr, Appellant.
   Judgment and conviction affirmed, and proceedings remitted to the Court of Sessions of Erie County. Opinion by Barker, J.


text:
    Harry J. Wilcox, Respondent, v. Walter W. Evans, Appellant.
   Judgment reversed, and new trial ordered before another referee, costs to abide the event, unless the plaintiff stipulates within twenty days to deduct from the judgment the sum of seventy-four dollars and thirty-four cents as of the date of the-report, m which case the judgment be modified, and as so modified, affirmed, with costs. Opinion by Bradley, J.


text:
    Thomas J. Kerr, Respondent, v. Samuel R. Saunders and others, Appellants.
   Judgment affirmed. Opinion by Smith, P. J.; Barker, J.* not sitting,


text:
    Ansel T. Becker, Respondent, v. John Greenway, Appellant.
   Judgment affirmed. Opinion by Barker, J.


text:
    The Town of Mentz, Respondent, v. Roswell Cook, Appellant.
   Judgment reversed and new trial granted, costs to abide the event. Opinion by Barker, J.


text:
    The People of the State of New York ex rel. Alfred P. Wright, Respondent, v. The Common Council of the City of Buffalo, Appellant.
   Order affirmed, with fifty dollars costs and disbursements, on opinion of Daniels, J., at Special Term.


text:
    In the Matter of the Contested Administration of the estate of Louis Molter, deceased.
   Decree reversed, and proceedings remitted to the surrogate of Erie county with directions to proceed. The costs of this appeal to abide the final award of costs. Opinion by Barker, J.


text:
    Elvira Vick, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Order affirmed Opinion by Bradley, J.


text:
    John B. De Villers, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, on the opinion of Macomber, J., at Special Term.


text:
    Buffalo Lubricating Oil Company, Respondent, v. The Standard Oil Company of New York and others, Appellants.
   Ordered, that the order appealed from be amended by inserting therein after the word “ten” the following: “ Also from and including the word “ that ” in the fourth line of folio 17, to and including the .word “corporations” in fifth line, folio 19; also from and including the words “the-amount ” in ninth line, folio 20, to and including the word “ market ” in sixth line, folio 21; also from and including the words “ and was ” in line three, folio 26, to and including the word “ organized ” in line sixth, same folio,, and as so modified affirmed, without costs.


text:
    Byron Alfred, and another, Respondents, v. Eugene M. Cobb, Appellant.
   Order affirmed, without costs. Opinion by Bradley, J.


text:
    Byron Alfred v. Eugene M. Cobb.
   Motion denied, without costs.


text:
    Mary Murray v. Arthur G. Fox.
   The case, in each action, sent hack to the trial judge for resettlement.


text:
    Nichols v. Martin.
   Motion for reargument denied.


text:
    Jennings v. Bayer.
   Motion denied, without costs.


text:
    Overton v. The Trustees of Olean.
   Motion denied. Memorandum by Bradley, J.


text:
    Smith v. Kerr.
   Motion denied. Memorandum by Bradley, J.


text:
    Stevens v. Hughes.
   Motion for reargument granted.


text:
    Horton v. Parsons.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Horace B. Claflin and others, Respondents, v. Wesley Millspaugh and another, Appellants.
   On stipulation and consent in open court, ordered, that the case herein he amended by inserting therein the statement that it contains-all the evidence given on the trial. On filing this order in the office of the clerk of Chautauqua county, said clerk is authorized to insert such statement in the case with the same effect as if it had been made before the bearing and decision in said case in this court.


text:
    Swan v. Wheat.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Ida E. Parks v. Charles H. Ellsworth and others.
   Motion to dismiss appeal from order directing the defendant to appear and be examined as a witness before the trial, denied. Motion to dismiss appeal from order requiring defendant to answer particular question, granted. No costs of either appeal to either party.


text:
    Joel Sprague v. Melvin L. Smith.
   Motion denied.


text:
    George B. Kent and another, Appellants, v. Michael Kalb and others, Respondents.
   Judgment reversed and new trial ordered* costs to abide event. Opinion by Barker, J.; dissenting opinion by Bradley, J.


text:
    Edward Hughes, Appellant, v. Joseph H. Jones and others, Respondents.
   Judgment affirmed, with costs. Opinion by Barker, J.


text:
    The Mutual Life Insurance Company, Respondent v. Willett Bronson and others, Appellants
   Order affirmed, without costs. Opinion by Davis, P. J.


text:
    Morris Newman, Respondent, v. George A. Reynolds, Appellant.
   Order reversed and motion to change the place of trial from New York to Oneida county granted, with ten dollars costs of motion, and ten dollars costs of appeal and disbursements to abide event.


text:
    In the Matter of Adam W. Spies, to vacate assessment.
   Order affirmed, without costs. Davis, P. J., dissenting.


text:
    In the Matter of Leonard Scott,
   order affirmed, without costs.


text:
    Ernest E. Drewson, Respondent, v. The American Surety Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    In the Matter of John H. Fraser.
   Order reversed, without costs. Opinion by Brady, J.


text:
    Mary E. Crotty and another, Respondents, v. Richard B. Kimball, Appellant. Same v. Same.
   Order affirmed so far as it vacates the order of arrest, and reversed so far as it requires the defendant to stipulate not to sue, witli ten dollars costs and disbursements to the defendant. Opinion by Brady, J.


text:
    Manly N. Cutter, Appellant, v. Cora Morris, Respondent.
   Order modified by striking out the stenographer’s fees and ten dollars of the trial fees, and affirmed as modified, without costs.


text:
    James H. Hume and another, Respondents, v. James A. Barrus, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Emily D. Jex and another, Appellants, v. The Mayor, etc., of the City of New York, Respondent.
   Judgment affirmed.


text:
    The People of the State of New York ex rel. William Z. Mullin, v. Stephen B. French and others, Respondents.
   Proceedings affirmed, without costs. Opinion by Brady, J.


text:
    Walter S. West, Appellant, v. Edwin R. Livermore, Respondent.
   Order reversed, without costs, and motion to amend allowed, on payment of costs, up to the time of application to be adjusted.


text:
    Henry Clews and another, Respondents, v. Cornelius Reilly, Appellant
   Order affirmed, with ten dollars costs and disbursements, to abide event.


text:
    Edgar Williams and another, Appellants, v. Elaworth L. Striker and another, Respondents.
   Judgment reversed, new trial granted, costs to abide event, and order denying motion for new trial reversed, without costs.


text:
    John Scannell, Respondent, v. Lewis J. Phillips and others, Appellants.
   Judgment affirmed.


text:
    William J. Ladd, Appellant, v. Marinus Willett, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels; J.


text:
    The Land Company of New Mexico (Limited), Appellant, v. Stephen B. Elkins and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    George W. Van Siclen, Respondent, v. Charles Rayher, Appellant.
   Order affirmed, with ten dollars costs and disbursements to abide event.


text:
    Isaac Frank, Appellant, v. Henry Mayer, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    The Unexcelled Fireworks Company, Respondent, v. Richard M. Collins, Appellant.
   Order reversed, with ten dollars costs and disbursements, with leave to renew the motion in the court below.


text:
    Benjamin L. Briggs, Respondent, v. Joseph Freedman, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied. Opinion by Davis, P. J.


text:
    John H. Robbins, Respondent, v. Charlotte P. Robbins, Appellant.
   Order affirmed, without costs.


text:
    Julia Nugent, Respondent, v. Lucy Vandeveer, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by raay, J.


text:
    Charles T. Russell and another, Appellants, v. Samuel W. Allerton, Respondent.
   Judgment affirmed on argument.


text:
    Eleanor B. King, Respondent, v. William Mackellar, Appellant.
   Judgment affirmed, with costs.


text:
    Mary Wetmore, as Administratrix, etc., Appellant, v. George C. Wetmore and others, Respondents.
   Judgment affirmed on opinion of Barrett, J., without costs.


text:
    Peter McGinness, Respondent, v. John W. Ellis, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Adolph Schloss and others, Appellants, v. Abraham Wallach and others, Respondents.
   Order I reversed and motion denied, with ten dollars/ costs and disbursements. ^


text:
    Mary J. Olmstead, Respondent, v. Benjamin E. Olmstead, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Helen A. Babcock and others, Appellants, v. Oliver M. Arkenburgh, Respondent.
   Order, so far as relates to continuing injunction* reversed, and order made as directed in opinion, and so far as relates to amending the complaint, affirmed with costs to abide event. Order to be settled by Daniels, J. Opinion by Daniels, J.


text:
    Algernon S. Sullivan, Respondent, v. Isaiah C. Babcock, Appellant, Impleaded, etc.
   Order affirmed, without costs.


text:
    The People of the State of New York, Plaintiffs, v. Knickerbocker Insurance Company, Defendant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William M. Baxter, Respondent, v. Robert Colgate, Appellant.
   Order affirmed, with ten ollars costs and disbursements.


text:
    Henry Wurtz, Plaintiff, v. Union Chemical Manufacturing Company, Defendant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Francis S. Driscoll, Respondent, v. Thomas H. Robbins, Appellant.
   Older reversed and motion granted, with ten dollars costs and disbursements.


text:
    Julius Lessynsky, Appellant, v. Samuel H. Lessynsky, Respondent.
   Order reversed and motion denied, on condition that a stipulation be given in accordance with the statements contained in the affidavits of Nathaniel Myers, one of the plaintiff’s attorneys, reducing the number of items in dispute, and confirming the issue to such items as are stated in his affidavit to be subjects of controversy; otherwise affirmed, without costs.


text:
    Mary S. Bradley, Respondent, v. Mary L. Van Ba en, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The Mayor, etc., of the City of New York, v. Nathaniel Sands.
   Order affirmed, without costs.


text:
    Henrietta Spitz v. Rinaldo C. Tousey James M. Fitzgerald, Appellant.
   Order reversed and motion granted, and order made bringing in the appellant as a party to the action nunc pro tunc.


text:
    Henry Knickerbocker, Plaintiff, v. Mary E. Decker, Defendant.
   Order modified as directed in opinion, and affirmed as modified, without costs. Opinion Per OuHam.


text:
    Devi M. Bates and others, Appellants, v. The Board of Supervisors of the County of Chautauqua and others.
   Order affirmed, with ten dollars costs aud disbursements.


text:
    The People of the State of New York ex rel. Francis McGinley v. Board of Fire Commissioners, Respondents.
   Proceedings affirmed.


text:
    Henry Day, Respondent, v. Albert Palmer Company, Appellant. Same v. Cornelia Palmer, Appellant.
   Order reversed, and motion granted, without prejudice to a motion on the part of plaintiff, after the return of the commission for its suppression, without costs to either party. Opinion Per Uuriam.


text:
    Richard H. Spencer, Appellant, v. Benjamin A. Clarke, Respondent.
   Judgment affirmed, with costs. Opinion by Daniels, J.


text:
    John H. Tynan, Respondent, v. Manuel Cardenas and another. Appellants. Juan R. Higuera and another, Respondents, v. The Same, Appellants.
   Order reversed on the rule stated, in Baltimore County v. Arthur (90 N. Y., 237, 234, and § 820 of the Code of Civil Procedure).

Order directed for the inter-pleader of the plaintiff in the two suits, upon payment by the defendants into court of the sum of $480 with interest, with ten dollars costs and disbursements of appeal to appellants.


text:
    In the Matter of Charles R. Purdy v. Orlando L. Stewart.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Henry A. Spafard, Respondent, v. John Hogan, Appellant.
   Order vacated, without costs; order to be entered as directed in opinion. Opinion Per Ouriam.


text:
    Sarah T. Cross, Appellant, v. James W. Brooks, Respondent.
   Order offirmed, without costs.


text:
    Harry Marion Sims, Plaintiff, v. United States Trust Company, Defendant.
   Judgment affirmed.


text:
    Annie C. Lawrence, Respondent, v. Sarah Cook, Appellant.
   Judgment affirmed, with costs.


text:
    Charles J. Bilwiller and another, Respondents, v. Gustave Simon, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted.


text:
    Edward Tuck, Executor, Respondent, v. Albert Bierstadt, Appellant.
   Order reversed, and motion granted, with directions that the deposition be suppressed, and that the commission be re-executed on due notice of thirty days to be given to defendant of the time and place of executing the same.


text:
    Jean B. M. Duché v. Charles H Wilson.
   Motion for reargument denied.


text:
    John L. Davenport, Plaintiff, v. Bank for Savings, Defendant.
   Motion for leave to go to the Court of Appeals denied.


text:
    Joseph S. Mayer, Respondent, v. Louis Schissel, Appellant.
   Motion denied.


text:
    Edward Wood, Plaintiff, v. Caroline Kroll, Defendant.
   Reference ordered to G. A. Strong, Esq. Order to be settled on notice by Daniels, J.


text:
    The People of the State of New York ex rel. James McCoy, Appellant, v. Warden of City Prison, Respondent.
   Order affirmed, and. writ dismissed. Opinion by Daniels, J.


text:
    Cullen P. Grandin, Respondent, v. Ysidoro H. Morijon, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Charles H. Ostrander, as Executor, etc., Respondent, v. George W. Weeks, as Executor, etc., Appellant.
   Judgment modified, as directed in opinion, and affirmed, as modified, without costs. Opinion by Biady, J.


text:
    Jacob J. Banta, Appellant, v. James Naughton and others, Respondents.
   Decision modified, as directed in opinion, with costs to abide event. Opinion by Daniels, J.


text:
    Anna C. Devlin, as Administratrix, etc., Respondent, v. William Kelly, Appellant. Same v. Same.
   Judgment affirmed. Opinion by Brady, J.


text:
    William G. Jones, Appellant, v. Lula V. Jones, Respondent.
   Judgment affirmed, with costs. Opinion by Daniels, J.


text:
    George H. Jones and others v. Mary J. Freeman.
   Judgment ordered for plaintiff, without costs. Opinion by Daniels, J.


text:
    Thomas Richardson, Appellant, v. Richard English and Savillion F. Traffarn, Respondents.
   Motion for reargument denied, with ten dollars costs.


text:
    Joseph Esmond, Z. Titus Esmond, Appellants, v. Moses L. Abbott, Respondent.
   Motion for leave to appeal to Court of Appeals or reargument denied, with ten dollars costs.


text:
    Patrick Collins, Respondent, v. J. A. Jones, Appellant.
   Motion for reargument or for leave to go to Court of Appeals denied, with ten dollars costs.


text:
    William Crabtree, Respondent, v. Richard W. Pritchard, Appellant.
   Judgment and order reversed and new trial ordered, with costs to abide the event. Opinion by Kennedy, J.


text:
    Quentin McAdam and others, Respondents, v. Charles F. Lovatt, Appellant.
   Order reversed,with ten dollars costs and disbursements.


text:
    Thomas E. Joyce, Respondent, v. Elizabeth F. Spafford, Appellant.
   Order affirmed, with ten dollars costs, on the opinion of Kennedy, J., delivered at Special Term; Kennedy, J., not sitting.


text:
    Anna McGrath, Respondent, v. Timothy Harty and others, Administrators, etc., Appellants.
   Order and judgment affirmed, witn costs, on opinion of Kennedy, J., delivered at Special Term ; Kennedy, J., not sitting.


text:
    Frances Jewhurst, Respondent, v. The City of Syracuse, Appellant.
   Judgment affirmed, with costs.


text:
    Norman C. Newell and another, Respondents, v. The City of Utica, Appellant.
   Leave granted to resettle the case and the cause ordered over the term, with ten dollars costs and disbursements.


text:
    Erastus K. Burnham, as Assignee, etc., Respondent, v. William Isdell, Appellant.
   Judgment and order affirmed, with costs.


text:
    R. Nelson Gere, Plaintiff, v. The Syracuse Iron Works, Defendant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Hardin, P. J.


text:
    The People of the State of New York, Respondents, v. Warren Shipman, Appellant.
   Conviction and judgment affirmed, and proceedings remitted to the Court of Sessions of Herkimer county, with directions to proceed. Opinion by Boardman, J.


text:
    The People of the State of New York, Respondent, v. Deloss W. Wentworth, Appellant.
   Judgment and conviction of the Court of Sessions of Herkimer county affirmed, and proceedings remitted to that court with instructions to proceed with enforcement of the judgment. Opinion by Follett, J.; Hardin, P. J., not voting.


text:
    David Stevens and others, Respondents, v. Riley E. Horton, Appellant.
   Judgment 'and order affirmed, with costs. Opinion by Boardman, J.


text:
    Thomas Powell, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment and order affirmed, with costs. Opinion by Follett, J.


text:
    The People of the State of New York, Respondents, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellants.
   Judgment and order affirmed, with costs. Follett, J., not voting.


text:
    The People of the State of New York ex rel. Willard B. Munroe, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
   Judgment and order affirmed, with costs. Follett, Jy not sitting.


text:
    George Rogers, Respondent, v. John H. Murray and another, Appellants.
   Judgment affirmed, with costs. Opinion by Boardman, J.


text:
    Mary Dallarmi, Respondent, v. Joseph H. Wilcox and another, Appellants.
   Judgment affirmed, with costs. Opinion by Follett, J.


text:
    William Thurston, Appellant, v. Christopher R. Frink and others, Respondents.
   Judgment affirmed, with costs. Opinion by Hardin, P. J.; Follett, J., not sitting.


text:
    Edmund Earl, Respondent, v. Porter P. Collins, Appellant.
   Order of the Oounty Court or Oswego county affirmed, with ten dollars costs and disbursements. Opinion by Follett, J.


text:
    Kate Wilmot, as Administratrix, etc., Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   Judgment and order reversed, ana a new trial ordered, with costs to abide the event. Opinion by Boardman, J.


text:
    Milo P. Winters, an Infant, by Guardian, Appellant, v. Thomas McMahon, Respondent.
   Judgment of the County Court of Oswego county reversing a justice’s judgment reversed, and the judgment of the Justice’s Court affirmed, with costs. Opinion by Follett, J.


text:
    William H. Summerville, Appellant, v. William Nipper, as Trustee, etc., Respondent.
   Judgment of the County Court of Oswego County reversing a justice’s judgment reversed, and judgment of the Justice’s Court affirmed, with costs. Opinion by Hardin, P. J. ; mem. by Boardman, J.


text:
    George A. Judd, Appellant, v. Burrett Brown, Respondent.
   Order granting a new trial affirmed, with costs. Opinion by Boardman, J.


text:
    William H. Wait, as Receiver, etc., Appellant, v. Elizabeth H. Freer and others, Respondents.
   Judgment affirmed, with costs. Opinion by Follett, J.


text:
    Daniel S. Brewster, Appellant, v. Jesse Brockway, Respondent.
   Judgment reversed and new trial ordered before another referee, with costs to abide event. Opinion by Hardin, J.


text:
    Levi Crocker, as Trustee, Respondent, v. The New York, Lackawanna and Western Railway Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by Boardman, J.


text:
    Edmund D. Crosby, Respondent, v. Calvin F. Cobb, Appellant.
   Order affirmed, with costs to abide the event of the action, jper Curiamopinion filed with reporter.


text:
    Herbert E. Vanderbogart, Respondent, v. Wallace J. Nash, Appellant.
   Judgment and order affirmed, with costs. Opinion by Board-man, J.


text:
    Samuel Monroe, Respondent, v. Andrew Y. Washbon, Appellant.
   Judgment of the Oounty Court of Oswego county affirming a justice’s judgment affirmed, with costs. Opinion by Follett, J.


text:
    The People of the State of New York ex rel. Hudson C. Tanner, Appellant, v. The Board of Supervisors of Herkimer County, Respondent.
   In the matter of stenographer’s notes, taken by the late stenographer of the Supreme Court, Fifth Judicial District, of notes that have been damaged by water and fire. Order affirmed, with ten dollars costs and disbursements in one-case only. Opinion by Boardman, J.


text:
    In the Matter of the Probate of the Last Will of Peter Huestis, deceased
   Decree of the surrogate of Otsego oounty, affirmed, with th®' respondents costs, payable out of tue estate. Opinion by Hardin, P. J.


text:
    Cassius M. Scott, by Guardian, Respondent, v. Oscar Hopkins, Appellant.
   Judgment of the County Court of Otsego county, affirming a. justice’s judgment, affirmed, with costs. Opinion by Hardin, P. J.


text:
    Henry C. Cook, Respondent, v. The Utica and Black River Railroad Company, Appellant.
   Judgment reversed and new trial ordered, with, costs to abide the event. Opinion by Board-man, J.


text:
    William R. McNair, Respondent, v. Arthur G. Newey, Appellant.
   Judgment and order affirmed, with costs. Opinion by Hardin, P. J.


text:
    Robert F. Wilcox, Appellant, v. James Crowley Respondent.
   Order denying motion for new trial affirmed, with, costs. Opinion by Board-ma^ J.


text:
    The First National Bank of Richfield Springs, Respondent, v. G. Hyde Clarke, Appellant.
   Judgment and order affirmed, with costs. Opinion by Follett, J.


text:
    John W. Young, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.
   Judgment of the County Court or Broome county affirmed, with costs on the opinion of county judge.


text:
    RobertP. Hughes, Respondent, v. Jane E. Ferguson, Appellant.
   Judgment and order of Oneida County Court affirmed, with costs. Opinion by Hardin, P. J.


text:
    John Edwards, Appellant, v. The City of Watertown, Respondent.
   Order appealed from modified by addition of the words, viz.: “ TU® substitution of Richard B. Sparks as a ooplaintiff, is subject to lien of Anson B. Moore who-is to be continued as the plaintiff’s attorney until his lien is paid”; and as so modified affirmed, without costs. Opinions by Hardin, P. J., and Follett, J.


text:
    George W. Elkins, Respondent, v. James D. Kilbourne, Appellant. Same v. Same.
   Motion for reargument denied, with ten dollars costs. — Order affirmed, with costs. Opinion by .Boardman, J.; Follett, J.,. not sitting.


text:
    Florence M. Gibbs, Respondent, v. Jesse A. Hathaway, Appellant.
   Judgment affirmed,, with costs. Opinion by Boardman, J.; dissenting opinion by Hardin, P. J.


text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railway Company to acquire lands owned by William A. Judson and others.
   Motion for reargument denied. Leave granted to apply at Special Term for the appointment of new commissioners.


text:
    James M. Holt, Jr., by Guardian, Appellant, v. Erastus W. Kent and others, Respondents.
   Judgment affirmed, with costs, on the oninion of the referee, and mem. of Hardin, P J.


text:
    James W. Chrystal, an Infant by guardian Respondent, v. The Troy and Boston Railroad Company, Appellants.
   Judgment and order affirmed, with costs. Opinion by Learned,P.J.


text:
    The People of the State of New York, Respondent, v. Charles G. Sherman and others, Appellants.
   Judgment and conviction affirmed. Opinion by Landon, J.


text:
    Arthur Young, Respondent, v. Eli Harcourt and another, Appellants.
   Judgment reversed, new trim granted, and referee discharged, costs to abide event. Opinion by Learned, P. J.


text:
    In the Matter of the sale of the real estate of John P. Dodge, deceased.
   Reargument ordered.


text:
    Catharine Shook, Respondent, v. The City of Cohoes, Appellant.
   Judgment and order affirmed, with costs. Opinion by Landon, J.


text:
    Samuel A. Foster, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
   Motion for new trial denied, with costs. Opinion by Learned, P. J.


text:
    Christopher G. Dunn, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
   Motion for new trial denied, with costs. Opinion by Learned, P.J.


text:
    David H. Flack and others, Appellants, v. The Village of Green Island, Respondent.
   Reargument ordered.


text:
    John M. Helck, Administrator, etc., Appellant, v. Henry Reinheimer and others, Respondents.
   Reargument ordered.


text:
    Walter S. Church, Respondent, v. Newton Ketcham, Appellant.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Albert Huncken and another, Respondents, v. Emily Knocke, Appellant.
   Judgment and order affirmed, with costs. Opinion by Landon, J.


text:
    Catharine Draper, Respondent, v. The Delaware and Hudson Canal Company, Appellant.
   Judgment reversed, new trial.granted, costs to abide event. Opinion by Learned, P. J.


text:
    Eli Tinklepaugh, Respondent, v. Chester Miller, Appellant.
   Judgment and order affirmed, with costs. Opinion by Landon, J.


text:
    James J. O’Dea, Plaintiff, v. James A. Norcross, Defendant.
   Motion for reargument denied, with ten dollars costs. Opinion by Learned, P. J.


text:
    Agnes E. Abel, Executrix, etc., Plaintiff, v. The Delaware and Hudson Canal Company, Defendant.
   Motion for new trial denied, with costSj and judgment ordered for defendant. Opinion by Bockes, J.


text:
    Alexander Selkirk, Plaintiff, v. Wheeler-Melick Company, Defendant.
   Judgment and order affirmed, with costs. Opinion by Learned, P. J.


text:
    Sabrina Kaveny, Respondent, v. The City of Troy, Appellant.
   Judgment and order affirmed, with costs. Opinion by Learned, P. J.


text:
    The People of the State of New York, Respondent, v. Matthew Urban, Appellant.
   Judgment and conviction reversed, and defendant discharged. Opinion by Landon, J.


text:
    William Swatling, Appellant, v. Felix Weinbrecht, Respondent.
   Judgment affirmed, with costs. Opinion by Bockes, J.


text:
    Elizabeth Coggshal, Respondent, v. Daniel T. Steele, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by Learned, P. J.


text:
    Sarah A. Wood, Plaintiff, v. Jeremiah Young and another, Defendants.
   Judgment and order affirmed, with costs. Opinion by Landon, J.


text:
    Maria G. Winne, Respondent, v. The Ulster County Savings Institution, Appellant.
   Motion for leave to go to Court of Appeals denied, with ten dollars costs.


text:
    Samuel Bigelow, as Executor, etc., Appellant, v. Elisha P. Abbott and others, Respondents.
   Motion to correct order denied. Motion for reargument denied.


text:
    The People of the State of New York ex rel. Charles F. Dowd v. Cornelius Fonda and another, Same v. Lewis Wood.
   Judgments and orders affirmed, with costs of one appeal. Opinion by Learned, P. J.; Bockes, J., not acting.


text:
    Constance B. Price, Plaintiff, v. Stephen Brown and others, Defendants.
   Order modified, according to opinion. Opinions by Learned, P. J., and Landon, J., and by Bockes, J., dissenting.


text:
    William F. Howard, Respondent, v. The Pennsylvania Fire Insurance Company, Appellant.
   Order affirmed, with ten dollars costs, and printing disbursements. Opinion by Bockes, J.


text:
    Samuel Taylor, Appellant, v. John Mitchell and others, Respondents.
   Order affirmed, with • ten dollars costs and printing disbursements.


text:
    Olney L. Carpenter, Respondent, v. The Boston and Albany Railroad Company, Appellant.
   Judgment and order affirmed, with costó. Opinion by Landon, J.; Learned, P. J., not acting.


text:
    Edwin R. Hawkins and another, Appellants, v. Joseph Langloss and another, Respondents.
   Judgment and order affirmed, with costs. Mem. by Learned, P. J.


text:
    Horace Inman, Respondent, v. Lewis E. Harrower and another, Appellants.
   Judgment affirmed, with costs. Mem. by Learned, P. J.


text:
    Leonard Y. Gardiner and another, Plaintiffs, v. Gabriel Schwab and others, Defendants.
   Judgment affirmed, with costs. Opinion by Bockes, J.


text:
    In the Matter of the Accounting of Susan Schoonmaker, Administratrix, etc.
   Decree affirmed, with costs against appellant.


text:
    Porter G. Denison, Appellant, v. William F. Taylor, Respondent.
   Judgment reversed, new trial granted, costs to abide event. Opinion by Learned, P. J.


text:
    David H. Van Gelder v. James H. Van Gelder. David H. Van Gelder and Jacob Van Gelder v. James H. Van Gelder.
   Order reversed as to Jacob Van Gelder, with ten dollars costs and printing disbursements, and motion denied as to him, with ten dollars costs. Opinion by Landon, J.; to be settled by Landon J.; Bockes, J., not acting.


text:
    James Mingay and others, Plaintiffs, v. The Holly Manufacturing Company, Defendant.
   Order modified by reducing allowance to $500.


text:
    Joseph M. Blake, Respondent, v. Frederick Goetzman and another, Appellants.
   Order reversed and motion granted, provided in twenty days defendant stipulates to admit the plaintiff sought employment with diligence and did not find it, and pay costs and printing disbursements; otherwise denied, with ten dollars costs and printing disbursements. Order to be settled by Landon, J.; Bockes, J., not acting.


text:
    Charles Lavier, Appellant, v. Sidney R. Phelps, Respondent.
   Judgment affirmed, with costs. Mem. by Learned, P. J.


text:
    Peter Blake, Plaintiff, v. Jacob Blum, Defendant.
   judgment affirmed, with costs.


text:
    William Doran, Plaintiff, v. The City of Troy, Defendant.
   Judgment affirmed, with costs.


text:
    Job Sidebottom, Respondent, v. Julia Donovan, Appellant.
   Judgment affirmed, with costs.


text:
    Thomas H. Robbins, Appellant, v. George W. Brown and others, Respondents.
   Order affirmed, with cost6 and disbursements. Opinion by Barnard, P. J.


text:
    Elizabeth H. Taylor, Respondent, v. Edwy L. Taylor, Appellant.
   Judgment affirmed, with costs. Opinions by Barnard., P. J., and Pratt, J.


text:
    Edward D. James, Appellant, v. Julia L. James and others, Respondents.
   Decree of surrogate affirmed, with costs. Opinion by Dykman, J.


text:
    John Sullivan and another, Respondents, v. The Village of Sing Sing, Appellants.
   Judgment reversed and new trial granted at Circuit, unless the respondent stipulate to deduct all sums allowed in excess of contract price. If stipulation be filed, judgment will be affirmed as to residue of judgment, with costs to appellant. Opinion by Dykman, J., and order to be settled by him.


text:
    Elizabeth A. Baxter. Plaintiff, v. Rebecca Stickler and others, Defendants.
   Order reversed, with costs and disbursements, and motion denied. Opinion by Barnard, P. J. ; Dykman, J., not sitting.


text:
    William H. Gale and another, Respondents, v. John H. Haverly, Appellant.
   Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    Eliza A. Munoz, as Administratrix, etc., Appellant, v. George Wilson and others, Respondents.
   Judgment reversed and new trial granted, costs to abide event. Opinion by Barnard, P. j ; Dykman, J., not sitting.


text:
    John W. Harway, Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., not sitting.


text:
    George W. Varian, Respondent, v. Robert A. Johnson, Appellant.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    Isaac Terwilliger and another, Respondents, v. Daniel McEnerny, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., not sitting.


text:
    Daniel Truesdell, Respondent, v. Henry J. Sarles and others, Appellants.
   Judgment modified; decree to be settled in accordance with opinion. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    Ellen E. Anderson, Plaintiff, v. Aaron S. Robbins, Defendant.
   Appeal withdrawn.


text:
    Samuel Harriott, Plaintiff, v. John M. Masterton, Defendant.
   judgment affirmed, with costs. Opinion by Pratt, j.; Dykman, J., not sitting.


text:
    Risk Wallace, Plaintiff, v. John Devlin and others, Defendants.
   Motion denied, with ten dollars costs. Opinion by Dykman, j.


text:
    Elizabeth H. Taylor, Respondent, v. Edwy L. Taylor, Appellant.
   Order modified by deducting trial fee, and affirmed otherwise, without costs. Opinion by Platt, J.


text:
    Leopold Bossange, Respondent, v. Louis Boisse, Appellant.
   Order reversed and motion denied, with costs and disbursements. Opinion by Dykman, j.


text:
    Daniel Cromwell, Plaintiff, v. John H. Hall, Defendant.
   Appeal withdrawn.


text:
    Timothy Connors and others, Appellants, v. Peter A. Tilyou and others. Respondents.
   Order affirmed, with costs. Opinions by Pratt and Dykman, jj.; Barnard, P. J., not sitting


text:
    Alonzo J. Chadsey, Appellant, v. Alice Frost, Executrix, etc., Respondent.
   Order reversed, with costs and, disbursements, and motion denied, with costs. Opinion by Barnard, P. J.; Dykman, J., dissenting.


text:
    Alfred B. Post, Respondent, v. Sophia Smith, Appellant.
   Order affirmed, with costs and disbursements. Opinion by Dykman, J.


text:
    George Mitchell, Respondent, v. Joseph Cornell, Appellant.
   Order refusing new trial on the ground of newly discovered evidence affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    George Mitchell, Respondent, v. Joseph Cornell, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    William H. Wisner, Respondent, v. The Lake Milk Company, Appellant.
   Order affirmed, with costs and disbursements. Opinion by Dykman, J.


text:
    John Denna, Respondent, v. Jerome Denna and others, Appellants.
   Order affirmed, with costs and disbursements. Opinion by Dykman, J.: Barnard, P. J., not sitting.


text:
    Michael A. Gearon, Respondent, v. Franklin Murphy, Appellant.
   Order reversed, with costs and disbursements. Opinions by Dyk man and Pratt, JJ.; Barnard, P. J., not sitting


text:
    Matter of Will of Clara W. Perry
   Decree of sun rogate affirmed, with costs. Opinion by Barnard, P. J.


text:
    Matter of Settlement of Clara W. Perry’s Executors.
   Motion to open accounts denied, with costs. Opinion by Barnard, P. J.


text:
    David J. Garth, Respondent, v. Eymer Cappelman, Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by Dykman, J.; Barnard. P. j., dissenting.


text:
    The People of the State of New York ex rel. Francis J. Moissen v. The County Court of Kings County.
   Order denying writ of prohibition affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    James B. Lockwood and others, Appellants, v. William T. Brantley and others, Respondents.
   Judgment affirmed, with costs. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    Christian F. Ammon, Appellant, v. Augustus A. Frank, Respondent.
   Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., not sitting.


text:
    Anthony J. Meagher, Respondent, v. George W. T. Lord and others, Appellants
   Judgment and order denying new trial affirme‘d, with costs. Opinion by Barnard, P. J.


text:
    James Black, Respondent, v. Brooklyn City Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.


text:
    Thomas Murphy, Respondent, v. The New York, Woodhaven and Rockaway Railroad Company, Appellant.
   Judgment and order denying new trial affirmed,with costs. Opinion by Barnard, P. J.


text:
    William P. Clyde and another, Appellants, v. Pierre L. Pierce, Respondent.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by Dykman, J.


text:
    Frederick C. Schmitthenner, Appellant, v. Gustav Dolf, Respondent, Impleaded, etc.
   Order vacating sale and judgment in foreclosure affirmed, without costs. Opinion by Dykman, J.; Barnard, P. J., not sitting.


text:
    Frank E. Kirby, Respondent, v. Henry Clews and another, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    Hiram E. Wanamaker, Respondent, v. Frank Ehoner, Appellant.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by Dykman, J.; Pratt, J., dissenting.


text:
    William D. Lindsay, Respondent, v. The Brooklyn City and Newtown Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    Alexander M. White and others, Respondents, v. James E. Dutcher, as Sheriff, etc., Appellant.
   Order granting new trial affirmed, with costs. Opinion By Pratt, J.


text:
    Frederick Achenbach, Appellant, v. The Order of Germania, Respondent.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.; Pratt, J., not sitting.


text:
    Matter of Application of E. M. Boynton Saw and File Company.
   Order confirming report affirmed, with costs. Opinion by Dykman, J.


text:
    Huldah Organ and another, Appellants, v. Coleman Robinson, as Executor, etc., Respondent.
   Decree of surrogate affirmed, with costs. Opinion by Dykman, J.


text:
    John W. Harper, Appellant, v. William H. Williams and others, Respondents.
   Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard. P. J., dissenting.


text:
    Matter of Will of Stephen F. Beekman.
   Decree admitting will to probate affirmed, with costs, against appellant personally. Opinion by Barnard, P. J.


text:
    Julia Turner, Respondent, v. The City of Newburgh, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Justice Pratt.


text:
    George D. Turner, Respondent, v. The City of Newburgh, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.


text:
    Matter of Probate of Will of John Wilson.
   Decree admitting will to probate affirmed, with costs to all parties out of the estate. Opinion by Barnard, P. J.


text:
    William Armour, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.


text:
    Patrick Ryan, Respondent, v. The Ninth Avenue Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Tratt, J.


text:
    Matter of Application of Staten Island Railroad Company to Acquire Land of Starin and others.
   Order confirming report affirmed, with costs and disbursements. Opinion by Dykman, J.


text:
    Alexander McKeown, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   Order granting new trial affirmed, with costs.

Opinion by Pratt, J.


text:
    Michael McNally, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   Order grantingnewtrial affirmed, with costs. Opinion By Barnard, P. J.


text:
    Alice A. Brennan and others, Appellants, v. Mary A. Brennan and others, Respondents.
   Judgment affirmed, with costs. Opinion by Dykman, J. ; Barnard, P. J., not sitting.


text:
    Matter of Hathorn Avenue, Yonkers.
   Order affirmed, with costs and disbursements. Opinion by Pratt, J.: Barnard, P. J., not sitting.


text:
    Whitson Oakley, Appellant, v. James H. Tuthill and others, Respondents.
   Order affirmed, with costs and disbursements. Opinion by Dykman, J. ; Barnard, P. J., not sitting.


text:
    William F. Prendergast, Appellant, v. The Syracuse Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by; Pratt, J.


text:
    Charles H. Goodsel, Appellant, v. William D. Frear and another, Respondents.
   Order resettling case affirmed, with costs and disbursements. Opinion by Dykman, J.; Barnard, P. J., not sitting,


text:
    Charles H. Goodsel, Appellant, v. William D. Frear and another, Respondents.
   Judgment affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., not sitting.


text:
    William H. Maxwell, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order reversed, with oosts. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    Evelina Banker, Plaintiff, v. George A. Fisher, Defendant.
   Motion denied, without costs. Opinion hy Barnard,!?. J.


text:
    Eliza W. Parkhurst, Respondent, v. Robert H. Berdell, Appellant.
   Judgment affirmed, with costs. Opinion hy Dykman, J.


text:
    Karl Krampp, Appellant, v. Frederick C. Havemeyer and others, Respondents.
   Exceptions overruled, and judgment for defendant on verdict. Opinion by Dykman, £J.; Pratt, J., not sitting.


text:
    Edwin N. Waltermire, Respondent, v. Maria Waltermire, Appellant.
   Judgment reversed and new trial granted, with disbursements of appeal. Opinion tby Pratt, J.; Barnard, P. J., not sitting.


text:
    Stephen W. Monk, Appellant, v. The Town of New Utrecht, Respondent.
   Order granting new trial reversed, and judgment given for plaintiff upon verdict, with costs. Opinion by Barnard, P. J.


text:
    The People of the State of New York, Respondent, v. John Farrell, Appellant.
   Order dismissing writ of habeas corpus affirmed, with costs and disbursements. Opinion hy Dykman, J.


text:
    Ann E. Montfort, Administratrix, Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying nonsuit and new trial affirmed, with costs. Opinion by Dykman, J.


text:
    William Tumbridge, Respondent, v. Cassius H. Read and Edward S. Stokes, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    Charles E. Skinner v. Alexander Smith & Sons.
   Motion denied.


text:
    Sarah E. Ferris v. Benjamin G. Disbrow, Executor, etc.
   Motion denied, with ten dollars costs.


text:
    United States Trust Company v. The New York, West Shore and Buffalo Railroad Company.
   Order affirmed, with costs.


text:
    James S. Blydenburgh and another v. Munson S. Frost and others.
   Judgment modified^ order to be settled by Justice Cullen. Opinion by Callen, J*


text:
    Elizabeth M. Crosby, Appellant, v. Eliza Fitzpatrick, Respondent.
   Order affirmed, with ten dollars costs and disbursements to abide event. Opinion by Brady, J.


text:
    Henry B. Laidlaw, Respondent, v. Edward F. Slayback, Appellant.
   Judgment affirmed, with costs. Opinion by Daniels, J.


text:
    The People of the State of New York, Respondent, v. David H. Crowley, Appellant.
   Judgment affirmed. Opinion by Brady, J.; Davis, P. J., taking no part.


text:
    In the Matter of Charles Denison.
   Order modified. as directed in opinion, and affirmed as modified, without costs to either party. Opinion by Brady, J.


text:
    Attorney General v. Continental Life Insurance Company.
   Order affirmed, without costs. Opinion by Davis, P. J.


text:
    Samuel Weeks and others v. Jacob Weeks Cornwall and others.
   Judgment modified as directed in opinion, and case remitted to the Special Term. Motion for reargument denied, with ten dollars costs. Opinion by Daniels, J.


text:
    Title Guaranty and Trust Company, Appellant, v. John Reilly, as Register etc., Respondent.
   Order denying motion for injunction afiirmed, except as to costs, as to which reversed, without costs of appeal and with liberty to renew the motion for injunction upon further papers whenever that may prove to be necessary for tbe protection of the legal rights of plaintiff. Opinions by Daniels J., and by Davis, P. J., dissenting.


text:
    Edward Fackner, Appellant, v. Peter B. Ross and others, Respondents.
   Judgment affirmed, with costs. Opinion by Brady, J.


text:
    Michael Shaughnessy, Appellant, v. George K. Chase, Respondent.
   Order reversed, with ten dollars costs and disbursements, and with leave to renew the motion to discharge the order of arrest. Opinions by Daniels, J., and Davis, P. J., and by Brady, J., dissenting.


text:
    Dora C. Ranges, Respondent, v. Charles Lyon, Jr., and another, Appellants.
   Judgment affirmed, with costs. Opinion by Davis, P. J.


text:
    Warren Beman, Appellant, v. Louis L. Todd, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by Davis, P. J.


text:
    James Pascoshell, Appellant, v. Twenty-third Street Railway Company, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinions by Brady, J., and Davis, P. J.


text:
    Mary A. Jordan and others, Appellants, v. George W. Poillon and others, Respondents.
   Order modified as directed in opinion, and affirmed as modified, without costs. Opinion by Davis, P. J.


text:
    William W. Tracy, as Executor, etc., Respondent, v. Robert B. Snowden and others, Appellants.
   Judgment affirmed, with costs. Opinion by Davis, P. J.


text:
    Andrew MacLean, Appellant, v. James H. Prentice, Respondent.
   Judgment affirmed, with costs. Opinion by Davis, P. J.


text:
    In the Matter of Flora Hartman.
   Order reversed and border entered -.directing hearing before a new referee, without costs to either party. Opinion by Davis, P. J.


text:
    Abraham B. Conger and others, Respondents, v. Sarah M. Duryea and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Henry W. Sharpless and another, Respondents, v. Walter K. Lits, Appellant.
   Motion denied, with ten dollars costs. Opinion by Daniels, J.


text:
    In the Matter of Priscilla C. Drinker.
   Decree reversed and application remitted to the surrogate, with costs to abide event. Opinion by Brady, J.


text:
    William C. Hussey, Respondent, v. John J. Coger, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by Davis, P. J.


text:
    The Home Bank, Appellant, v. John C. Drumgoole, Respondent.
   Judgment affirmed. Opinion by Brady, J.


text:
    In the Matter of Reuben W. Howes.
   Order reversed and motion denied, with ten dollars costs and disbursements. Opinion by Davis, P. J.


text:
    In the Matter of Cecelia L. Booth.
   Decree reversed, and order entered directing trial by jury. Motion for leave to supply further proof denied, with costs. Opinion by Daniels, J.


text:
    Charles Gundlich, Respondent, v. Joseph Hensler, Appellant.
   Judgement reversed, new trial ordered, costs to abide event. Opinion by Daniels, J.


text:
    Margaret Harvey, Respondent, v. New York, Woodhaven and Rockaway Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by Daniels, J.


text:
    Moritz Bauer, Respondent, v. Benjamin A. Willis, Appellant.
   Judgment affirmed, with costs. Opinions by Brady, J., and by Davis, P. J., dissenting.


text:
    William Charley, Respondent, v. William Watson and others, Appellants.
   —Judgment modified as directed m opinion, and affirmed as modified, without costs, unless respondent elect to have the judgment reversed and a new trial ordered, with oosts to abide event. Opinion by Daniels, J.


text:
    Virginia International Land, Loan and Trust Company, Respondent, v. James McKaye, Appellant.
   Order reversed, without costs. Opinion by Daniels, J.


text:
    Balthasar Kreischer, Respondent and Appellant, v. Wilson D. Haven, Appellant and Respondent.
   Order affirmed, on both appeals, without costs. Opinion fry Davis, P. J.


text:
    Joseph Bissecks v. Isaac N. Hebbard and others.
   Judgment set aside and vacated, new trial ordered, with costs to abide event. Opinion by Daniels, J.


text:
    John Hudson, Appellant, v. Ocean Steamship Company, Respondent.
   Judgment affirmed, with costs. Opinion by Brady, J.


text:
    John Collins, Appellant, v. Sarah J. Collins, Respondent.
   Order modified as directed in opinion, and affirmed as modified, without costs of appeal to either party. Opinion by Davis, P, J.


text:
    Charles G. Landon and another, Plaintiffs, v. Moritz Bauert, Defendant.
   —Judgment ordered for the plaintiff. Opinion by Daniels, J.


text:
    Christian T. Christensen, Appellant, v. Gardner R. Colby, Respondent.
    [Note. — Further decisions in this department were’handed down January 39, 1886, which will' be found in the next volume. — [Rep.
   judgment affirmed,, with costs. Opinion by; Brady, J.


text:
    AUGUST WEIDNER, Respondent, v. TIMOTHY G. PHILLIPS, Appellant.

      Fraudulent representations — what facts will justify a recovery by a vendor whose purchase was induced by them.

    This action was brought to recover damages alleged to have been occasioned by fraudulent representations of the defendant, by which the plaintiff was induced to purchase certain marble from him. The evidence tended to show that the defendant represented that the marble was worth $3,000; that it had actually cost him that amount, and that it was all what was known as No. 1 marble. Before the sale was completed a person was selected to examine the marble, who appraised it at $3,000. Evidence was given by the plaintiff tending to prove that an unexplained private interview was had between the defendant and the appraiser before the appraisal was announced and while he was making it. It also appeared that the marble was mostly inferior in quality to No. 1, and was what is known as Nos. 2 and 3.

      Held, that these facts, if found by the jury to exist, justified a recovery by the plaintiff.
    Appeal from a judgment, entered upon a verdict at tbe Chautauqua Circuit, and from an order denying a motion for a new trial, made on a case and exceptions.
    The action is for alleged fraud in the sale by the defendant to the plaintiff of a quantity of marble, and to recover the damages alleged to have been sustained thereby. The plaintiff had a verdict of $1,150. The defendant’s motion for a new trial having been denied, and judgment entered, he appeals.

      Allen & Thrasher, for the appellant.

      M. T. Jenkins, for the respondent.
   Bradley, J.:

The parties made an exchange of properties by which the plaintiff let the defendant have a hotel property, including certain personal property, and the latter, as the consideration transferred to the plaintiff a quantity of marble and paid him $1,100 in money. The plaintiff claims that he was induced to take the inarble at the price of $3,000, by the fraudulent representations of the defendant in respect to its cost and value, when in fact it was worth less than $1,000. The evidence tends to prove and the weight of it is to the effect that the marble did not in fact cost more than $1,000, and that its value did not exceed that sum.

The contention on the part of the defendant is, that in any view of the evidence the plaintiff was not entitled to recover because representation in respect to value of property sold does not support the charge of fraud or liability.

That proposition is correct in so far that a naked representation of the value of property sold, by which the purchaser is induced to take it at a price in excess of its value, of which the seller is aware at the time of making the representation and sale, furnishes no cause of action for fraud. (Ellis v. Andrews, 56 N. Y., 83; Chrysler v. Canaday, 90 id., 272.) The reason of this rule is that the representation imports only an opinion, and that the purchaser having the opportunity must, by diligence on his part, use means to .ascertain the value of the property. He cannot, after having supinely taken and relied upon the statement of the seller in that respect, .make such representation the ground of action and recovery for fraud, although it appear that the latter had knowledge that the value was less than so represented by him aud less than the amount paid to him for the property. (Long v. Warren, 68 N. Y., 426.) But this does not give immunity to the seller to take advantage of •the fact that the purchaser has not the opportunity of ascertaining the value, and to make the sale of it by the use of means which cause him to forbear from taking any.steps to obtain information, .and thus induce him to rely upon the representation of value which the seller knows to be excessive. And this may be accomplished by his statements of the cost and an}T other pertinent facts which are false and by him known to he so. The representation of value may, by the aid of such circumstances, charge the seller with liability for fraud. (Simar v. Canaday, 53 N. Y., 298; Chrysler v. Canaday, supra.)

There is some .evidence on the part of the plaintiff tending to prove that the defendant made statements which enabled, and may have induced, the plaintiff to understand that the cost of the marble was $3,000. The evidence given in that respect is not in its terms remarkably decisive, but is sufficient to fairly permit the inference that the defendant intended to have the plaintiff understand that such was the actual cost of the marble, and that the plaintiff was led to so believe by the representations of the defendant. Also, that the marble was all what was known as No. 1. Then before the trade was completed a person was selected to look over and appraise the marble. And the evidence given by the plaintiff was to the effect that it was appraised by such person at $3,000. He also gave evidence tending to prove that an unexplained private interview was had between the defendant and such person before the appraisal was announced and while he was in the act of making it. And it also appeared that the marble was mostly inferior in quality to No. 1, and was what was designated as Nos. 2 and 3, but how much that depreciated the value did not appear.

The plaintiff had no knowledge of quality or value of marble. The evidence on the part of the plaintiff was sufficient to justify the conclusion of fraud in the sale on the part of the defendant. ■

It is, however, insisted by the counsel for the defendant that the verdict was clearly against the weight of evidence, and that a new trial should be for that reason granted. And this contention is not only on the asserted insufficiency of the evidence on the part of the plaintiff to support the action, but that the force of it is overthrown by the evidence on the part of the defense. The evidence given by the defendant and his witnesses is, with conciseness of statement, directly in conflict with that of the plaintiff in all the particulars necessary to support the action; and goes further and to the effect that the plaintiff was advised, and understood, before the trade that the cost and value of the marble was only about $1,000; that the defendant was not present at the appraisal, and had no interview with the person who made it, and that he was selected for that purpose as the choice and upon the suggestion of the plaintiff. This testimony was contradicted by that of the plaintiff. The conflict of the evidence presented a question for the jury, the consideration of which had relation to the several witnesses who gave it. And although the number of witnesses on the part of the defense, and their manner of statement, as the same appear by the record before us, may seem to give a preponderance of proof in favor of the defendant, the question was peculiarly one for the jury, as involved in its consideration was the credibility of the witnesses, the appearance of whom on the trial was an important element (which cannot as well be appreciated elsewhere) in and of the determination of the question of fact. There is no fault found with the manner that the case was, by the charge of the court, submitted to the jury. They found the verdict, and the trial judge, who had the opportunity of observing the apparent situation presented by the trial, has denied a motion for a new trial. ¥e cannot say that the verdict is so against the weight of the evidence as to require or justify the reversal of the judgment and the granting of a new trial. The motions for nonsuit were, therefore,, properly denied.

The defendant took some exceptions to the admission and rejection of evidence. After the appraisal was made, the person making it rode home with plaintiff, who testified that on the way he asked that person if he was pretty positive there was $3,.000 worth of marble there.” Objection made to the conversation being overruled, and exception taken by the defendant, the witness proceeded: “ He said, ‘ yes, I think it will overrun; I have thrown out a good many pieces that I did not figure on at all, and I have done that to be sure and have the whole at $3,000.’ ” This does not differ in respect to the result of the appraisal from that announced a.t the place where it was made. But in respect to the manner that it was done, this statement, as testified to, contained some new features that might tend to satisfy the plaintiff that the marble was well worth the sum named.

This evidence could not be used in aid of proof of collusion between this person and the defendant to go in support of its competency, but we are inclined to think there was other evidence, although perhaps slight, tending to prove collusion between this person and tlie defendant, which might be characterized as conspiracy, and sufficient to permit the reception of the declaration in question, having relation, as it did, to the subject, and in aid of the common purpose (which the jury were permitted to say existed) to consummate the trade by obtaining $3,000 for the marble when it was only worth one-third that sum. The question of the admissibility of this testimony depended upon the evidence as it then appeared and the inferences which were permitted by it. (Tappan v. Powers, 2 Hall, 277; Cuyler v. McCartney, 40 N. Y., 221; Dewey v. Moyer, 72 id., 70.)

All other exceptions taken by the defendant have been considered ; none of them seem to be well taken.

The judgment and order should be affirmed.

Smith, P. J., and Barker, J., concurred; Haight, J., not sitting.

•Judgment and order affirmed.