text:
    McCormick Harvesting Machine Company, App’lt, v. Enoch A. Clayson, Resp’t.
    Sup. Ct., 5 D.
    October 16, 1895.
   Ho opinion. Judgment and order affirmed. Adams, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    William H. McDonald, App’lt, v. Binghamton Trust Company, Resp’t.
    Sup. Ct., 4 D.
    July, 1895.
   Ho opini n. See Moshier v. Supreme Sitting of Order of Iron Hall.


text:
    William H. McDonald, App’lt, v. Supreme Sitting of Order of Iron Hall.
    Sup. Ct., 4 D.
    July, 1895.
   Ho opinion. See Moshier v. Supreme Sitting of Order of Iron Hall.


text:
    James B. Mackie, App’lt, v. Isabella Mackie et al., Resp’t.
    Sup. Ct., 1 D.
    November 15, 1895.
   Ho opinion. Order affirmed-, with $10 costs and disbursements.


text:
    William McLaughlin, App’lt, v. William E. Witherspoon, Resp’t.
    Sup. Ct., 5 D.
    October 16, 1895.
   Ho opinion. Judgment and order affirmed.


text:
    Matter of Manhattan Railway Company.
    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Order affirmed, with costs.


text:
    Market and Fulton Natl. Bank of New York et al., App’lts v. Jones et al., Resp’ts.
    Sup. Ct., 5 D.
    October 16, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Conrad Marshall, App’lt. v. City of Buffalo, Resp’t.
    Sup. Ct., 5 D.
    October 16, 1895.
   No opinion. Order granting a new trial affirmed. Ward, J., not voting.


author: McCarthy, J.

text:
    Mason Stable Company, Limited, Resp’t, v. Margaret Lewis, App’lt.
    N. Y. C. C.
    November 26, 1895.

      Ooleman & Donohue, for app’lt; Oannon & Atwater, for resp’t.
   McCarthy, J.

It is certain that, in relation to the boarding of the horses with the plaintiff, Mr. Frederick Lewis was the representative of the defendant, and acted for her, and no other coloring can be given to their relatiohs and these transactions. The law in regard to the liability of a unknown principal when discovered is too well established to need further comment. We find no error in the decision rendered, and therefore must affirm the judgment, with costs.


author: Per Curiam.

text:
    Mayor, etc., of City of New York, Pl’ff, v. Frank A. Bigelow, Def’t.
    N. Y. C. P.
    December 2, 1895.
    Motion for leave to appeal to the court of appeals.
   Per Curiam.

Of the correctness of the decision made by this general term we have no doubt, and it is not questioned by the plaintiff on this application. The language of the statute under consideration is exceedingly plain, and was followed by the court in its decision. There is no question in the case which warrants the submission of this controversy to the court of appeals. Motion denied, without costs.


text:
    Ann C. Maytham, Resp’t, v. Travelers’ Ins. Co. of Haetford, Conn., App’lt.
    Sup. Ct., 5 D.
    June Term, 1895.
   No opinion. Judgment and order affirmed.


text:
    Maurice B. Mendham, App’lt, v. Russell A. Alger, Resp’t.
    Sup. Ct., 1 D.
    October 18, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Rose Meyers, App’lt, v. Leon Hirsh, Resp’t.
    Sup. Ct., 1 D.
    October 18, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Milburn Wagon Co., App’lt, v. William A. Frazer et al., Resp’ts.
    Sup. Ct., 5 D.
    March Term, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Newton Milks, Resp’t, v. John Milks, App’lt.
    Sup. Ct., 5 D.
    March Term, 1895.
   No opinion. Judgment and order affirmed. Dwight, P. J., not voting.


text:
    Edward P. Mills et al., Resp’ts, v. Huntington R. Kenyon et al., App’lts.
    Sup. Ct., 5 D.
    October 16, 1895.
   No opinion. Interlocutory judgment affirmed, without costs. Ward, J., not voting.


text:
    Harry L. Minchen, App’lt, v. Charles D. Gardiner et al., Resp’ts.
    Sup. Ct., 3 D.
    September 27, 1895.
   No opinion. Order reversed, and motion granted, with $10 costs and disbursements, and $10 costs of special term.


text:
    Maria B. Mitchell, App’lt, v. Frank H. Ball et al., Resp’ts.
    Sup. Ct., 5 D.
    June Term, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Bridget Moran, Resp’t, v. Harris Friedman, App’lt.
    Sup. Ct., 3 D.
    September 27, 1895.
   No opinion. Motion to correct order made July 6th. Granted without C°S


text:
    Matilda Mosher, Resp’t v. Manhattan Ry. Co., App’lt.
    Sup. Ct., 1 D.

    November 15, 1895.
   No opinion. Judgment modified by reducing fee damage to $1,000, and rental damage to $319.87, and allowance to $50, and affirmed as modified without costs.


text:
    Kasper Muller et al., Resp’t, v. Manhattan Ry. Co., App’lt.
    Sup. Ct., 1 D.
    October 18, 1895.
   No opinion. Judgment modified by reducing fee damage to $1,000, and past damages to $250, and by striking out allowance, and, as modified, affirmed, without costs.


text:
    Winifred Mulry, Pl’ff, v. William Mulry et al., Def’ts.
    Sup. Ct., l D.
    November 15, 1895.
   No opinion. Motion denied.


text:
    Julia T. Monroe, App’lt, v. Jacob Crouse et al., Resp’ts.
    Sup. Ct., 4 D.
    February Term, 1895.
   No opinion. Order reversed, with $10 costs and disbursements. Exceptions to the reports of the referee overruled, and report of referee confirmed, with $10 costs and disbursements, and final judgment ordered in accordance with ' the report of the referee, with costs, with leave to plaintiff to apply at special term for an extra allowance before entry of final judgment. Judgment to be settled before Hardin, P. J.


text:
    Lewis A. Myers et al. Resp’t, v. American Investment Guaranty Co., App’lt.
    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Order-affirmed, with $10 costs and disbursements.


text:
    Sarah L. Myers et al., Resp’ts, v. Thomas Bolton et al., App’lts.
    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Motion denied.


text:
    National Union Bank, Pl’ff, v. East River Silk Co., Def’t.
    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Anna B. Neal, Resp’t, v. City of Rochester, App’lt.
    Sup. Ct., 5 D.
    June Term, 1895.
   No opinion. Judgment affirmed, with costs, on the authority of Smith v. City of Rochester, 92 N. Y. 463; 38 Hun, 612, and 104 N. Y. 674.


text:
    William H. Neal et al. Resp’ts, v. Christopher Kerrigan, App’lt.
    Sup. Ct., 5 D. General Term,
    October 16, 1895.
   No opinion. Order affirmed, 'with $10 costs and disbursements.


text:
    New York Bank-Note Co., App’lt, v. Hamilton Bank-Note Engraving & Printing Co. et al., Resp’ts.
    Sup. Ct., 1 D.
    October 18, 1895.
    Appeal from an order denying a motion for leave to renew a motion for an injunction pendente lite, and from such an injunction.

      Edward P. Lyon for app’lt; William L. Turner, for resp’ts.
   Per Curiam.

The questions are the same as those presented upon the former appeal, and though the plaintiff’s position is apparently strengthened by the affidavit of Edgecomb, who, upon the former application, made an affidavit which cannot be entirely reconciled, with the one now presented, the same reasons that are enumerated in the opinions upon the former appeal still exist for refusing to determine the questions upon affidavits, and for deferring them until a trial can be had. The facts now relied upon are the same as those formerly presented, the difference consisting in additional evidence now offered in support of plaintiff’s view of knowledge on the part of the defendants. No suggestion as to the irresponsibility of the defendants is made. We think, if the same diligence had been exercised in endeavoring to bring the case to trial as has been shown for the purpose of obtaining an adjudication which would determine the merits of the controversy upon affidavits, the rights of the parties should ere this have been adjudged. Our conclusion is that the order appealed from should be affirmed, with $10 costs and disbursements.


text:
    Emma F. Nelson, Resp’t, v. Village of Oneida, App’lt.
    Sup. Ct., 4 D.
    February Term, 1895.
   No opinion. Judgment and order affirmed, with costs.


text:
    Ida Niggli, App’lt, v. Frank H. Foery et al., Resp’ts.
    Supr. Ct., 5D.
    March Term, 1895.
   Ho opinion. Motion for reargument denied.


text:
    William Oakes, Resp’t, v. August Kimmel, App’lt.
    Sup. Ct., 5 D.
    March Term, 1895.
   Ho opinion. Judgment affirmed.


text:
    Alice L. Oishei, Resp’t, v. Achille J. Oishei, App’lt.
    Sup. Ct., 5 D.
    June Term, 1895.
   Ho opinion. Order affirmed, without costs. Dwight, P. J., not voting.


text:
    Charles E. Orvis, v. William H. Curtiss.
    N. Y. C. C.
    December 2, 1895.
   Ho opinion. Motion for leave to appeal to the court of appeals granted.


text:
    Alfred B. Osgoodby, Resp’t, v. Edward P. Mills, App’lt.
    Sup. Ct., 5 D.
    October 16, 1895.
   Ho opinion. Order affirmed, without costs.


text:
    Anna Osman et al., App’lts, v. Henry J. Teeter, Resp’t.
    Sup. Ct., 4 D.
    February Term, 1895.
   Ho opinion. Judgment and order reversed, and a new trial ordered, with costs to abide the event. Held, that the evidence shows a sufficient consideration for the note.


text:
    Earl D. Ostrom, App’lt, v. Fred D. Squires, Resp’t.
    Sup. Ct., 4 D.
    February Term, 1895.
   Ho opinion. Motion denied.


text:
    George W, Ough, Resp’t, v. William J. Ford, App’lt.
    Sup. Ct., 5 D.
    June Term, 1895.
   Ho opinion. Order affirmed, without costs.


text:
    Silas F. Overton, v. Emily F. Barclay et al., (two cases).
    Sup. Ct., 1 D.
    November 15, 1895.
   Ho opinion. Motion denied.


text:
    Silas F. Overton, Resp’t, v. Annie E. Barclay, App’lt.
    Sup. Ct., 1 D.
    October 18, 1895.
   Ho opinion. Order affirmed, with $10 costs and disbursements.


text:
    Edgar B. Owens, Resp’t, v. John Cable et al., App’lts.
    Sup. Ct., 4 D.
    February Term, 1895.
   Ho opinion. Motion for a new trial denied, with costs; and appeal from the judgment dismissed, without costs.


text:
    Clara Parisette, App’lt, v. Louis Parisette, Resp’t.
    N. Y. Sup. Ct.,
    October 24, 1895.

      John D. Townsend, for app’lt; Frederick O. Steffen, for resp’t.
   Per Curiam.

The denial of the motion herein by the judge at special term was based upon conclusions of fact fully supported by the affidavits. The motion was properly denied. The order appealed from should be affirmed, with $10 costs and disbursements.


text:
    Juan F. Pastor, Resp’t, v. Michael Regan, App’lt.
    Sup. Ct., 5 D.
    October 16, 1895.
   Judgment and order affirmed. Lewis, J., dissenting. Ho opinion.


text:
    People v. Vittela Brudder.
    Sup. Ct., 1 D.
    October 18, 1895.
   Judgment reversed. Ho opinion.


text:
    People v. Thos. Curran.
    Sup. Ct., 1 D.
    October 18, 1895.
   Motion granted. Ho opinion.


text:
    People v. Mary Jones et al.

    N. Y. C. P.
    December 2, 1895.
   Motion to vacate judgment on forfeited recognizance granted. Ho opinion.


text:
    People v. John Lamb et al.

    N. Y. C. P.
    December 2, 1895.
   Motion to vacate judgment on forfeited recognizance granted. Ho opinion.


text:
    People ex rel. Commercial Mut. Ins. Co., Resp’t, v. Michael Coleman el al., App’lts.
    Sup. Ct., 1 D.
    October 18, 1895.
   Order affirmed, with $10 costs and disbursements. Ho opinion.


text:
    People ex rel., Joseph Flynn v. Theodore Roosevelt et al.

    Sup. Ct.., 1 D.
    October 18, 1895.
   No opinion. Writ dismissed, with costs.


text:
    People ex rel. Harry Gale, App’lt, v. Edgar B. Jewett et al., Board of Police, Resp’ts.
    Sup. Ct., 5 D.
    June Term, 1895.
   No opinion. Order affirmed, without costs.


text:
    People ex rel. John Lardner et al., App’lts, v. Carson, Resp’t.
    Sup. Ct., 5 D.
    March Term, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    People ex rel. Thos. Lynch v. James J. Martin et al.

    Sup. Ct., 1 D.
    October 18, 1895.
   No opinion. Writ dismissed, with costs.


text:
    People ex rel. Onondaga County Savings Bank et al., App’lts, v. Butler, Resp’t.
    Sup. Ct., 4 D.
    February, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Chas. Perceval, Resp’t, v. Metropolitan El. Ry. Co., App’lt.
    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Judgment modified by reducing fee damage to $1,500, allowing no rental damage, and reducing allowance to $75, and affirmed as modified, without costs.


text:
    Frank D. Perry et al., App’lts, v. Lehigh Val. Ry. Co., Resp’t.
    Sup. Ct., 5 D.
    March, 1895.
   No opinion. Judgment affirmed, with costs, with leave to plaintiffs to amend complaint within twenty days on payment of the costs of the demurrer and of this appeal.


text:
    Frank D. Perry et al., App’lts, v. Lehigh Val. Ry. Co., Resp’t.
    Sup. Ct., 5 D.
    July, 1895.
   No opinion. Motion denied. See preceding case.


text:
    Geo. N. Pierce et al., App’lts, v. Theo. J. E. Daggett, Resp’t, et al.

    Sup. Ct.. 5 D.
    March, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Poland Paper Co., App’lt, v. American Wheelman Pub. Co., Resp’t.
    Sup. Ct, 1 D.
    November 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Alex. Pollock, v. Pennsylvania Iron-Works Co.
    N. Y. C. P.,
    December 2, 1895.
   No opinion. Motion for leave to appeal to the court of appeals granted.


text:
    Lydia Pritchard, Resp’t, v. Seldon Palmer et al., App’lts.
    Sup. Ct., 4 D.
    July, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Edward C. Quigg, Pl’ff, v. International Shirt and Collar Co., Def’t.
    N. Y. C. C.,
    October 29, 1895.
   No opinion. Judgment and order affirmed, with costs.


text:
    Abraham Rabinowitz, Resp’t, v. Michael F. Burns, App’lt.
    N. Y. C. C.,
    October 29, 1895.
   No opinion. Judgment and order affirmed, with costs.


text:
    Pandia C. Ralli et al., Resp’ts, v. Equitable Mut. Fire Ins. Co. App’lt.
    N. Y. C. C.
    November 23, 1895.

      Charles Wéhle, for resp’ts; Alex. 8. Bacon, for app’lt.
   Per Curiam.

The judgment is modified so as to allow defendant to withdraw demurrer- and serve answer within six days, upon payment of $75.83, the costs taxed below, provided that defendant secures plaintiff’s recovery by undertaking with two sureties, and, as so modified, affirmed, without costs.


text:
    Alpheus P. Ralph, App’lt, v. Industrial Manuf’g Co., Resp’t.
    Sup. Ct., 1 D.
    October 18, 1895.
   No opinion. Order reversed, with $10 costs and disbursements, and leave to renew motion.


text:
    Anthony Ratell, Resp’t, v. Belle Hovey, App’lt.
    Sup. Ct., 5 D.
    October 16, 1895.
   No opinion. Judgment of the county court and that of the justice’s court reversed.


text:
    Louis Ravene et al., App’lts, v. Henry Rogers, Resp’t.
    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Thomas F. Reed, Resp’t, v. Albion Stone Co., App’lt.
    Sup. Ct., 1 D.
    March Term, 1895.
   No opinion. Judgment and order affirmed.


text:
    Margaret Reed, Resp’t, v. Third Avenue R. Co., App’lt.
    N. Y. C. C.
    November 26, 1895.

      Eoadly, Lauterbach & Johnson, for app’lt; M. P. O’Connor, for resp’t.
   McCarthy, J.

From a careful examination of the evidence, we think it is shown that the defendant was not alone negligent, but the plaintiff was guilty of contributory negligence, and therefore cannot recover. It is unfortunate that the plaintiff should be hurt, but, sincé we must obey the law, we are not permitted to exercise our sympathy. Perhaps on a new trial the plaintiff may be able to explain the discrepancies. It is unnecessary to cite authorities. Judgment must be reversed, and a new trial granted, with costs to abide the event.


text:
    Wm. J. Reynolds, Resp’t, v. Joseph Moore, App’lt.
    N. Y. C. P.,
    December 2, 1895.
   No opinion. Reargument ordered upon failure of concurrence. Code Civ. Proc. § 281.


text:
    Mary E. Riddell, App’lt, v. Frank Travis, Resp’t.
    Sup. Ct., 5 D.
    March Term, 1895.
   No opinion. Order affirmed on opinion in Riddell v. Riddell, 85 Hun, 482.


text:
    Riley v. Hallett.
    Sup. Ct., 5 D.
    March Term, 1895.
   No opinion. Motion for reargument denied.


text:
    James Roarty v. Edward C. McDermott et al.

    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Motion for resettlement denied, except as to formal parts of order.


text:
    George B. Robbins, Resp’t, v. William Grimes, App’lt.
    Sup. Ct., 4 D.
    February Term, 1895.
   No opinion. That part of the judgment and order appealed from affirmed, with costs.


text:
    Rochester Lamp Co., App’lt, v. Brigham. Resp’t.
    Sup. Ct., 1 D.
    October 18, 1895.
   No opinion. Order reversed, with $10 costs and disbursements, and defendant ordered to appear for examination.


text:
    Rochester Printing Co. App’lt, v. Patrick Fahy et al., Resp’ts.
    Sup. Ct., 5 D.
    June Term, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Joseph Rudd, Jr., Resp’t, v. Vail, App’lt.
    Sup. Ct., 4 D.
    February Term, 1895.
   No opinion. Interlocutory judgment affirmed, with costs, with leave to answer upon payment of the costs of the demurrer and of this appeal.


author: Fitzsimons, J.

text:
    Charles Rumpf, Resp’t, v. Mrs. S. Gillespie Perkins, App’lt.
    N. Y. C. C.,
    October 29, 1895.

      Black & King, for app’lt; Gruber & Bonynge, for resp’t.
   Fitzsimons, J.

The defendant’s contention that the notes in suit were diverted is not sustained by the evidence ; in fact, the evidence shows just the contrary. The defendant made said notes to Perkins & Co., to be given to plaintiff in part payment of a debt owing to him by defendant, and that is the precise use to which they were applied ; therefore, there was no diversion. The defendant further contends that said notes were procured from her by Perkins & Co. by fraud. Granting that to be true, the evidence does not charge plaintiff with being a party to such fraud, and, as he took said notes and other con-. sideration in payment of his debt, the notes were good in his hands; but, as a matter of fact, no fraud on the part of Perkins & Co. was proven. They evidently hoped that the payment of the notes.to the plaintiff would induce him not to prosecute his claim, and thus stave off the impending financial ruin which threatened them. In this supposition and belief (which was a mere opinion on their part) they were mistaken, for which mistake of judgment, of course, plaintiff is not liable. The judgment is affirmed, with costs. All concur.


text:
    Benj. G. Sanford v. American Dist. Tel. Co.
    N. Y. C. C.
    December 2, 1895.
   No opinion. Motion for leave to appeal to the court of appeals granted.


text:
    Joseph Sawyer et al., Resp't, v. Dan’l E. Sickles, Sheriff, App’lt.
    N. Y. C. C.
    November 26, 1895.

      Says & Greeneba/um, for app’lt; Gruber,-Bon'd & Landon, for resp’ts.
   McCarthy, J.

If this matter came up under the old procedure, I feel the appellant would be correct. The only guide as to the cause of action is the complaint, no matter what provisional remedy may have been used. The appellant may move to set aside whatever steps have been taken in the direction of replevin on the ground that the action is one of conversion. Under the liberal construction placed on pleadings, we see no other way. Order affirmed. No costs.


text:
    Charles Scholl, Resp’t, v. Monroe County, App’lt.
    Sup. Ct., 5 D.
    June, 1895.
   No opinion. Order affirmed, without costs.


text:
    John Schreiner, Resp’t, v. New York El. Ry. Co., App’lt.
    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Judgment affirmed, with costs


text:
    Abraham Schwarz, Resp’t, v. Brooklyn Heights R. Co., App’lt.
    B. C. C.
    October 28, 1895.

      Morris & Whitehouse, for app’lt ; M. Sallheimer, for resp’t.
   Per Curiam.

The verdict in this case was not against the weight of evidence. Pour witnesses testified in favor of the defendant as to what took place at the time of the collision. No exception was taken to the questions submitted to the jury, and counsel seemed to have agreed to the theory of the case adopted by the judge at the trial. No costs were imposed as a condition of granting the new trial, and therefore we may infer that the same was granted as matter of right, and not as matter of favor. We have examined the exceptions at folios 47, 68, 88, 84, 88, and 154, and do not find error, and conclude that the order granting a new trial should be reversed, with costs.


text:
    Jacob Schwarz, Resp’t, v. Metropolitan El. Ry. Co., App’lt.
    Sup. Ct., 1 D.
    November 15, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Robert A. Serrell, Resp’t, v. John Brady, App’lt.
    N. Y. C. C.,
    October 29, 1895.

      Samuel G. Adams, for app’lt; Charles De Sa/rt Brower, for resp’t.
   McCarthy, J.

We have examined very’ carefully the rulings of the trial justice on the various exceptions taken by the appellant, both to the evidence and the charge, and find no error. The verdict of the jury cannot be disturbed, and judgment must be affirmed, with costs.


text:
    In re Selina Shaw.
    Sup. Ct., 1 D.,
    October 18, 1895.
   No opinion. Motion granted.


author: Eitzsimons, J.

text:
    Thomas Shaw, Resp’t, v. Tabernacle Baptist Church, App’lt.
    N. Y. C. C.
    October 29, 1895.

      B. M. Williams, for app’lt; Thornall <6 Pierce, for resp’t.
   Eitzsimons, J.

As it appears to us, only questions of fact were involved in this action. All of them were properly submitted to the jury, and duly passed upon by them, adversely to the defendant. No meritorious question of law is presented by the appeal b.ook, in our opinion. The judgment is therefore affirmed, with costs. All concur.


author: Herrick, J.

text:
    Susie Sheldon v. Cornelia Mott et al.

    Sup. Ct.,
    December 3, 1895.
    Appeal from an order substituting Alonzo P. Strong as attorney of record for the plaintiff in action, in the place and stead of Frank H. Short. Frank H. Short, in pro. per. Alonzo P. Strong, substituted for plaintiff.

      George W. Peatherstonhaugh and A. J. Dillingham, for defendants.
   Herrick, J.

— The" power of a court, upon the request of a client, to make an order substituting one attorney for another, is undoubted. When such an order- should be made upon the payment of the attorney’s costs, and when it may be made without providing for such payment, is discussed in Re Prospect Avenue, 85 Hun, 257; 32 N. Y. Supp. 1013. I agree with the conclusion arrived at there, and see no occasion for indulging in any further discussion of it. That decision covers the questions raised upon this appeal. The affidavits disclose a state of facts which seem to me to be sufficient to have authorized the special term in making the order made in this case. A discussion of facts will neither be of advantage to the cause of justice, nor for.the benefit of the parties to this appeal. The order appealed from should be affirmed, with §10 costs and disbursements.


author: McOabthy, J.

text:
    Luther E. Shimm, Resp’t, v. Exchange Broadway Bath Co., Lim., App’lt.
    N. Y. C. C.,
    October 29, 1895.

      Kudlick <& Mnck, for app’lt; Brooke <& Brooke, for resp’t.
   McOabthy, J.

— The issues of fact in this case were properly submitted to the jury, and were clear and favorable to the defendant. The verdict of the jury cannot be disturbed, and, finding no errors, judgment must therefore be affirmed, with costs. All concur.


text:
    In re Emily C. Shipman.
    Sup. Ct., 4 D.,
    February, 1895.
   Ho opinion. Motion denied, with §10 costs.


text:
    Harry P. Simpson, Resp’t, v. James L. Hatch et al., App’lts.
    Sup. Ct., 5 D.,
    June Term, 1895.
   Ho opinion. Judgment affirmed.


text:
    Thomas Simpson, App’lt, v. Abram Kling, Resp’t.
    Sup. Ct., 1 D.,
    October 18, 1895.
   Ho opinion. Motion to dismiss appeal granted.


text:
    Thomas Simpson, App’lt, v. Abram Kling, Resp’t.
    Sup. Ct., 1 D.,
    October 18, 1895.
   Ho opinion. Order affirmed, with §10 costs and disbursements.


author: Peb Cubiam.

text:
    James M. Sinclair et al., Resp’ts, v. Robert A. Hollister et al., App’lts.
    N. Y. C. C.
    May 28, 1895.
   Peb Cubiam.

Judgment appealed from is affirmed, on the opinion of the general term of this court in Sinclair v. Hollister, filed December 27, 1890. See Austin v. Holland, 69 N. Y. 571. All concur.


text:
    Allan Lee Smidt, App’lt, v. A. C. Dessar, Resp’t.
    N. Y. C. P.,
    December 2, 1895.
    Motion for reargument of appeal, or for leave to appeal to the court of appeals.
   Peb Cubiam.

The general term construed the contract without reference to any other evidence than its own contents, and this was proper, for the writing was free from ambiguity. The plaintiff was to have for trying cases before commissioners forty dollars per case, and defendant guaranteed him two cases per week. If the plaintiff were not able to dispose of two trials per week, he could not claim a weekly payment for two cases, for he was not guaranteed the fee independently of the trial. It appears that, although he had fifty cases, he was only able to finish seventeen in the period of ten weeks covered by the action, for which he had been paid. He has no claim for cases not tried. Motion denied, without costs.


text:
    Standard Fertilizer Co v. Edward D. Cleary.
    Sup. Ct., 3 D.,
    September 27, 1895.
   Ho opinion. Motion for leave to go to the court of appeals denied, with §10 costs.


text:
    Johanna Steinhauer, Resp’t, v. Anna B. Acker, App’lt.
    Sup. Ct., 5 D.,
    June Term, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    Eugene Storms, App’lt, v. John Skillett, Resp’t.
    Sup. Ct., 5 D.,
    June Term, 1895.
   Ho opinion. Judgment and order affirmed.


text:
    Joseph H. Sulzbacker v. J. Cawthra & Co., Lim.
    N. Y. C. C.,
    December 2, 1895.
   Peb Cubiam.

Defendant’s motion to reduce the amount for which the attachment was granted is not inconsistent with its appeal from the order denying the motion to vacate the attachment. Both motions were availed of by the defendant as of right. Hence this motion for dismissal of the appeal should be denied, with §10 costs.


text:
    David Thomson v. Lorenzo Goodwin et al.

    Sup. Ct., 1 D.,
    October 18, 1895.
   Ho opinion. Motion granted, with §10 costs.


text:
    Matter of Abraham Tompkins’ Will.
    Sup. Ct., 4 D.,
    February Term, 1895.
   Mo opinion. Decree of the surrogate’s court affirmed, with costs to the respondents, payable out of the estate.


text:
    Traders’ Nat. Bank, Resp’t, v. Weaver Lumber Co., App’lt.
    Sup. Ct., 5 D.,
    March Term, 1895.
   Mo opinion. Order affirmed, with $10 costs and disbursements.


text:
    Fidelia Trembly v. New York, L. E. & W. R. Co.
    Sup. Ct., 5 D.,
    October 16, 1895.
   Mo opinion. Motion for new trial denied, and judgment directed for the defendant on the nonsuit. Bradley, J., not sitting.


text:
    Ferdinand A. Trippansee, Resp't, v. New York Cent. & H. R. R. R. Co., App’lt.
    Sup. Ct., 5 D.,
    October, 16, 1895.
   Mo opinion. Judgment and order affirmed.


text:
    United Glass Co., App’lt, v. Sleight, Resp’t (two cases.)
    Sup. Ct., 5 D.,
    March Term, 1895.
   Mo opinion. Order affirmed, with $10 costs and disbursements.


text:
    Jerome P. Uptegrove et al., Respt’s, v. Central R. Co. of New Jersey, App’lt.
    N. Y. C. C.,
    November 26, 1895.

      JDeForest Bros., for app’lt; M. P. O’Oonnor, for resp’ts.
   McCarthy, J.

—Both sides, having moved for a direction of a verdict, left the questions of law and fact to the trial justice to determine. We have examined the facts very carefully, and, under Park v. Preston, 108 N. Y. 434, 437; 15 N. E. 705, think the judgment should be affirmed, and it is so ordered, with costs. See Jennings v. Railroad Co., 127 N. Y. 449; 28 N. E. 394.


text:
    In re Cornelia Varney.
    Sup. Ct., 5 D.,
    June Term, 1895.
   Mo opinion. Judgment affirmed, with costs of thi£ appeal against the appellant personally.


text:
    Wm. B. Weaver v. Weaver Lumber Co. et al.

    Sup. Ct., 5 D.,
    March Term, 1895.
   . Mo Opinion. Order affirmed, witii $10 costs and disbursements.


text:
    Kate B. West, App’lt, v. Bush, Resp’t.
    Sup. Ct., 1 D.,
    October 18, 1895.
   Mo opinion. Order affirmed; with $10 'costs and disbursements.


text:
    Western Nat. Bank of City of New York, Resp’t, v. William W. Flannagan, App’lt.
    N. Y. C. C.,
    December 2, 1895.
    Motion for reargument. For decision on appeal.
   Per Curiam.

The decision of the court upon the appeal in this action, was undoubtedly correct, as upon the evidence, there was a question which might have been submitted to the jury if request therefor had been properly made, 'but which was left to the court to decide by the motions for the direction' of a verdict; and the decision of the court, like that of the jury, cannot be disturbed by the appellate court if there be any evidence to uphold it. The evidence of the defendant and the witness Tinkham of diversion and notice to the plaintiff was not conclusive, but only required the submission of the question to the jury, that they might determine whether the note was diverted as the defendant alleged. Nickerson v. Ruger. 76 N. Y. 279 (see page 283, at the conclusion of the opinion). The opinion of the general term in this case shows that no proper motion was made for leave to go to the jury, and no proper exception was taken to the refusal of the inconsistent applications which were coupled, to wit, for the direction of the verdict and the submission of the case to the jury. Motion denied, with $10 costs.


text:
    U. H. Wheeler, Resp’t, v. S. M. Peters, App’lt.
    Sup. Ct., 4 D.,
    February Term, 1895.
   Mo opinion. Judgment affirmed, with costs.


text:
    In re James R. Whitney’s Will.
    Sup. Ct., 5 D.,
    June Term, 1895.
   Mo opinion. Reargument ordered.


text:
    Dennis B. Wiggins, Resp’t, v. Frank N. Alderman, App’lt.
    Sup. Ct., 5 D.,
    March Term, 1895.
   Mo opinion. Order affirmed, with §10 costs and disbursements.


text:
    Fred H. Williams v. C. C. Dodge.
    N. Y. C. C.,
    December 2, 1895.
   Mo opinion. Motion for reargument denied, with §10 costs. That the point referred to upon this motion was not overlooked very clearly appears from the opinion, where it is referred to and discussed.


text:
    Charles A. Wench, Pl’ff, v. Third Ave. R. Co., Def't.
    N. Y. C. C.,
    December 2, 1895.
    Motion for reargument or for leave to appeal to the court of appeals.
   Per Curiam.

That the plaintiff was guilty of contributory negligence is conclusively established by the adjudication of the court of appeals in Scott v. Railroad Co., 130 N. Y. 679; 39 N. E. 289. The court did not overlook the rule that if the defendant could, by the exercise of ordinary care, have prevented the accident, the plaintiff was, notwithstanding his own negligence, entitled to recover; but we held that the case is not within the rule, because there was no proof that the defendant could, by the exercise of ordinary care, have avoided the collision complained of. Motion denied, with §10 costs.


text:
    Maria L. Winterson, Resp’t, v. Hector M. Hitchings et al., App’lts.
    N. Y. C. P.,
    December 2, 1895.
    Motion for resettlement of judgment rendered at general term.
   Per Curiam.

The entry of a judgment in accordance with the opinion of the court at general term was advisedly remanded to the special term. A dispute may arise between the parties with regard to the amount which the plaintiff should be directed to pay as a condition of granting her the equitable relief demanded, and such a dispute can more satisfactorily be determined at special term. Motion denied, without costs.


text:
    Millicent U. Wiss, Resp’t, v. Buffalo, R. & P. Ry. Co., App’lt.
    Sup. Ct., 5 D.,
    October 16, 1895.
   Mo opinion. Judgment and order affirmed.


text:
    Samuel Zurich, Resp’t, v. Thomas Mills et al., App’lts.
    Sup. Ct., 5 D.,
    October 16, 1895.
   Mo opinion. Judgment of county court affirmed.


author: Pratt, J.

text:
    In re Charles J. Ahrenfeldt.
    Sup. Ct., 2 D.
    December 2, 1895.

      JRbadly, Lauterbach & Johnson, for app’lts Fredericka Ohrtmann, Jules C. Ohrtmann, Alphonse A, E. Ohrtmann, Henry L. Schenerman, for William H. Page, Jr., as guardian ad litem of Margaretka Ohrtmann ; Briston, Peek & Opdyke, for resp’ts.
   Pratt, J.

— The surrogate correctly held that the contestants are not interested in the question they seek to raise. Order appealed from affirmed, with costs.


text:
    Dante Amorosa, App’lt, v. Antonio Gallella, Resp’t.
    N. Y. C. P.
    December 16, 1895.
   Mo opinion. Judgment reversed; new trial ordered; costs to appellant, to abide event.


text:
    Sabia M. Ashley, v. Harford Ashley.
    Sup. Ct., 2 D.
    December 2, 1895.
   Mo opinion. The counsel fee is reduced to §100, and defendant is allowed twenty days after the service of the order to pay the same. If not then paid, the answer to be stricken out. Order appealed from modified accordingly. All concur.


text:
    Francis T. Baker v. Sarah F. Georgi et al.
    Sup. Ct., 1 D.
    January 24, 1896.
   Mo opinion. Motion denied.


text:
    In re William Baltz’s Will.
    Sup. Ct., 2 D.
    December 2, 1895.

      Jeheil T. Hurd, for app’lt; John R. T-residder, for resp’ts.
   Pratt, J.

The testator was shown to be competent. There is no suggestion that he was influenced. All the formalities were regarded, and the probate of the will must be affirmed, witli costs.


text:
    Mandeville J. Barker et al., v. Laney.
    Sup. Ct., 5 D.
    December 28, 1895.
   No opinion. Motion for reárgument denied. For decision on appeal.


text:
    Joseph A. Barr, Resp’t, v. Henry L. Fish et al., App’lts.
    Sup. Ct., 5 D.
    December 28, 1895.
   No opinion. Motion to reconsider the order previously made and for leave to appeal to the court of appeals, granted.


text:
    John D. Barrett, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.
    Sup. Ct., 4 D.
    December, 1895.

      O. D. Prescott, for app’lt; Beans <6 Eneeland, for resp’t.
   Per Curiam.

—A careful examination of the evidence contained in the appeal book has led us to the conclusion that the question whether the defendant was liable in this action, under the doctrine of Rounds v. Railroad Co., 64 N. Y. 170; Hoffman v. Railroad Co., 87 id. 25; McCann v. Railroad Co., 117 id. 505, 23 N. E. 164 ; Hogan v. Railroad Co., 124 N. Y. 647 ; 26 N. E. 950; Ansteth v. Railway Co., 145 N. Y. 210 ; 39 N. E. 708— and other kindred cases, was a question of fact, was properly submitted to the jury, and that Its verdict should be upheld. Nor do we think the judgment should be disturbed upon the ground that the plaintiff’s recovery was excessive. In this case the plaintiff lost his right hand, and one of his legs was seriously injured. After examining the evidence which- shows the extent of the plaintiff’s injuries, we find no reason to believe that the jury was misled by passion or prejudice, or coerced by any improper influence. We have examined the various exceptions to which our attention has been called by the appellant in his brief, but have found none which requires us to reverse the judgment. Judgment and order affirmed, with costs.


text:
    Alfred W. Barrows, Resp’t, v. New York Cent. & H. R. R. Co., App’lts.
    Buff. Supr. Ct.
    July, 1895.
   No opinion. Judgment and order appealed from affirmed/, with costs. White, J., does not sit in this case.


text:
    In re Andrew Beattie.
    Sup. ct., 2 D.
    January 14, 1896.
   No opinion. Order affirmed, without costs, on condition that the plaintiff amend her pending action so as to make the appellant a party thereto, and serve him with the summons and complaint within twenty days. On failure to comply with this condition, order reversed, with $10 costs and disbursements. All concur.


text:
    Mary E. Beckwith, Resp’t, v. New York, O. & W. Ry. Co., App’lts.
    Sup. Ct., 4 D.
    December, 1895.

      Howwi’d D. Newton, for app’lt; Olney & Wiggins, for resp’t.
   Per Curiam.

When before this court on a former appeal (31 N. Y. Supp. 1135), it was held in this case that the questions whether the plaintiff’s intestate was free from contributory negligence, and whether the defendant was guilty of negligence which caused the plaintiff’s injury, were questions of fact which-should have been submitted to the jury. 'As on the last trial the evidence on the part of the plaintiff was essentially the same as on tbe former trial, and as the evidence given by the defendant, was not controlling upon those questions, the former decision was followed, and they were properly submitted to the jury. After a careful perusal of the evidence contained in the record now before us, we again reach the conclusion that the questions whether the defendant was negligent, whether such negligence caused the injury which resulted in the death of the plaintiff’s intestate, and whether the plaintiff’s intestate was free from contributory negligence, as well as the question of damages, were all questions of fact, and properly submitted to the jury. We have examined the various exceptions to which our attention has been called by the appellant’s brief, but have found none that would justify us in disturbing the judgment or that requires special consideration. Judgment and order affirmed, with costs. All concur.


text:
    Cecilla Beebe, Resp’t, v. New York & N. E. R. Co., App’lt.
    Sup. Ct., 2 D.
    December 2, 1895.

      Walter C. Anthony, for app’lt; John M. Gardner, for resp’t.
   Pratt, J.

—This is an appeal from a judgment entered upon a verdict of a jury. There is no order in the record denying a new trial upon the'judge’s minutes, and no certificate that the case contains all the evidence given upon the trial; therefore, under the rule, all we can consider upon this appeal are questions of law contained in the record. Upon examining the case there only appears one exception, to wit, that at folio 143, to a question put by the court, which was clearly competent. Under these circumstances there is no alternative to an affirmance of the judgment. Judgment affirmed, with costs.


text:
    Ferdinand Beinhauer. Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.
    December 18, 1895.
   Ho opinion, Judgment modified by reducing the fee damage to §1,000, the rental damage to §800, and extra allowance to §90, and, as so modified, affirmed, without costs.


text:
    Sidney Bell v. John Breen.
    Sup. Ct., 2 D.
    December 2, 1895.
   Ho opinion. Judgment affirmed, with costs. All concur.


text:
    Robert Bell, App’lt, v. Lee B. Webb, Supervisor, Resp’t.
    Sup. Ct., 3 D.
    January 20, 1896.
   Ho opinion. Order affirmed, with $10 costs and disbursements.


text:
    Matthew L. Bennett. Resp’t, v. Town of Hecor, App’lt.
    Sup. Ct., 3 D.
    January 20, 1896.
   Ho opinion. Order affirmed, with $16 costs and disbursements.


author: Dykman, J.

text:
    Charles M. Bierschenk et al., v. John Dunphy.
    Sup. Ct., 2 D.
    December 2, 1895.

      Wilson, Barker & Wilson (Frank Barker, of counsel), for app’lt; Henry Pressprich, for resp’ts.
   Dykman, J.

— This is an appeal by the owner from a judgment in favor of the plaintiffs in an action to foreclose a mechanic's lien. The case was tried before a judge without a jury, and the findings are supported by the evidence. The record presents no error of law, and the judgment should be affirmed, with costs. Brown, J., dissents, without opinion.


text:
    Jennie May Billings, Resp’t, v. Francis O. Tweedie et al., Appl’ts.
    Sup. Ct., 3 D,
    December 3, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    Lena Bolstein, Resp’t, v. Joseph Mentz, App’lt.
    Sup. Ct., 2 D.
    January 21, 1896.
   Ho opinion. Order reversed, with $10 costs and disbursements, to abide event of action, and motion granted to extent of directing plaintiff to furnish bill of particulars of expenses paid or incurred for medical attendance and medicines. All concur,


text:
    Charles A. Booth, App’lt, v. Wiilliam H. Jenkins, Resp’t.
    Sup. Ct., 3 D.
    January 20, 1896.
   Ho opinion. Order affirmed, with $10 costs and disbursements.


text:
    Thomas Brady et al., Resp’ts, v. Michael E. Duffy, App’lt.
    N. Y. C. P.,
    December 16, 1895.
   Ho opinion. Judgment reversed; new trial ordered; costs to appellant to abide the event.


text:
    Albert A. Brock, Resp’t, v. Rochester Ry. Co., App'lt.
    Sup. Ct., 5 D.
    December 28, 1895.
   Ho opinion. Judgment and order affirmed.


text:
    Ida S. Brockett et al., Resp’ts, v. Whitcomb, App’lt.
    Sup. Ct. 5 D.
    December 28, 1895.
   Ho opinion. Judgment affirmed, with costs, payable out of the estate.


text:
    Elizabeth Burkhardt, Resp’t, v. New York El. R. Co. et al., App’lts.
    N. Y. Supr. Ct.,
    December 18, 1895.
    . Ba/eies, Short & lownsend (Julien T. Baríes and Qeoi'ge T. Aldrich of counsel), for app’lts: E. W. Tyler and Edward A. Hibbard, for resp’t.
   Per Curiam.

The judgment should be affirmed, with caste.


text:
    James C. Byrne, Resp’t, v. Mary E. Reardon, App’lt.
    N. Y. C. P.,
    December 16, 1895.
   Ho .opinion. Judgment affirmed, with costs.


text:
    In re Daniel L. Cady et al.

    Sup. Ct., 2 D.
    January 21, 1896.
   Ho opinion. Applications granted.


author: Brown, P. J.

text:
    In re William C. Camp et al.

    Sup. Ct., 2 D.
    December 2, 1895.

      William, G. Beecher, for app’lt; F. B. Jennings, for resp’ts.
   Brown, P. J.

— The rights of the petitioners and their father, Calvin B. Camp, in and to the fund in question, were fully discussed and settled in the proceeding instituted during Mr. Camp’s life time. The court of appeals decided that Calvin B. Camp received the fund as guardian for his children subject to his individual right to the use of the same for his own life; that the surrogate had power to direct an accounting; but that payment to the infants could not be directed during the guardian’s life-time. Accordingly, the decree of the surrogate directing immediate payment to the petitioners was reversed, and the accounting directed to proceed anew. In re Camp, 126 N.Y. 377; 27 N.E. 799. Pending the new accounting, Mr. Camp died. Thereupon this proceeding was instituted. Jurisdiction to direct the executor of a deceased guardian to account is conferred upon the surrogate by section 2606 of tho Code of Civil Procedure. There is no denial in the answer of the allegations in the petitioner as to the prior proceedings against Mr. Camp ; and it having been there determined that he was bound to render an account of his proceedings as guardian, that question is not open for consideration here. It is to be taken as a fact that the fund was received by Mr. Camp as guardian. The appointment as guardian having been admitted, the right of the petitioners to an accounting was established. The order must be affirmed, with $10 costs and disbursements. All concur.


text:
    Mary Jane Campbell, App’lt, v. Joseph B. Robertson, Resp’t.
    Sup. Ct., 5 D.
    December 28, 1895.
   No opinion. Judgment aOrmed, without costs.


text:
    Lizzie J. Canda v. John Totten.
    Sup. Ct., 2 D.
    December 27, 1895.
   No opinion. Motion to resettle order of reversal granted.


text:
    Guiseppi Cantore, v. Metropolitan St. Ry. Co.
    Sup. Ct., 2 D,
    January 14, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur, except Pratt, J., not sitting.


text:
    City of Buffalo v. David F. Day.
    Buff. Supr. Ct.
    July, 1895.
   No opinion. Order appealed from affirmed, with costs and disburseinents.


text:
    City of Buffalo, v. Louis H. Houck.
    Buff. Supr. Ct.,
    July, 1895.
   No opinion. Exceptions sustained, and verdict set aside, and a new trial ordered, with costs to abide the event. White, J., does not sit in this case.


text:
    In re Joseph Cohen's Will.
    Sup. Ct., 2 D.
    December 2, 1895.
   No opinion. Decree of surrogate affirmed, with costs, to be paid by the appellant. -All concur.


text:
    Zaccheus Colby et al., App’lts, v. James H. Doty, Resp’t.
    Sup. Ct., 5 D.
    December 28, 1895.
   No opinion. Interlocutory judgment affirmed, with costs.


text:
    Charles W. Cool, App’lt, v. Francis D. Terhune, Resp’t.
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    John Corse et al., v. Sarah M. Chapman et al.

    Sup. Ct., 1 D.
    December 18, 1895.
   No opinion. Motion for new trial denied, with costs.


text:
    William H. Craighill, Resp’t, v. Fredericka Crossman, Resp’t.
    Buff. Supr. Ct.,
    July, 1895.
   No opinion. Judgment and order appealed from affirmed, with costs. White, J., did not sit in this case.


text:
    Charles B. Crowell, Resp’t, v. Lidie S. Crowell, App’lt.
    Sup. Ct., 2 D.
    December 2, 1895.
    Appeal from an order placing the cause on'the circuit court calendar for the month of June, 1895, to be heard in Queens county.

      B. G. Galvin, for app’lt; McKoon & Luclcey, for resp’t.
   Pratt, J.

The stipulation obviously contemplated a speed trial, which had however, been evaded, and defendant showed no eagerness to bring it on. Under the circumstances, the plaintiff had a right to regard the stipulation as abandoned, and move the trial. The proper county was Queens, and when defendant objected to Kings county, the special term judge properly ordered it to bo tried there. Order affirmed, with $10 costs and disbursements.


text:
    Joan Franciso De Freitas, Resp’t, v. William H. Greenhow, App’lt.
    Sup. Ct., 5 D.
    December 28, 1895.
   No opinion Judgment affirmed.


text:
    Concezio Del Sejnore, Resp’t, v. James A. Hallinan et al., App’lts.
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    In re Disbarment of Attorney.
    Sup. Ct., 1 D.
    December 18, 1895.
   No opinion. The attorney suspended for six months.


text:
    James P. Donnelly v. Archer V. Pancoast.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Motion granted, with §10 costs.


text:
    George A. Duether et al., Resp’ts, v. William J. Thomas App’lt.
    Buff. Supr. Ct.,
    December 23, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    John E. Dusseldorf, Resp’t, v. Charles J. Warren, App’lt.
    N. Y. C. P.,
    December 16, 1895.
   No opinion. Judgment affirmed with costs.


text:
    Artemus H. Earl, Resp’t, v. Helen L. Beeman et al., App’lts.
    Sup. Ct., 3 D.
    January 20, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Artemus H. Earl, App’lt, v. Helen L Beeman et al., Resp’ts.
    Sup. Ct., 3 D.
    January 20, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Walter J. Eaton, App’lt, v. Edgar W. Philo, Resp’t.
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    John Edwards, App’lt, v. Niagara Fire Ins Co., Resp’t.
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Nathan Elkau et al., App’lts, v. Charles R. Hitchcock et al., Resp’ts.
    Buff. Supr. Ct.,
    July, 1895.
   No opinion. Judgment of the municipal court set aside, with §10 costs and disbursements, and new trial ordered in the municipal court August 19, 1895, at 10 o’clock a. m. White, J. dissents.


text:
    Richard Elting, Resp’t, v. Annie E. Homer, App’lt.
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Order affirmed, witli costs and disbursements.


text:
    Patrick Evers et al., v. Long Island City.
    Sup. Ct., 2 D.
    December 2, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Fall Brook Coal Co., App’lt, v. Robert C. Hewson, Resp’t.
    Sup. Ct., 5 D.,
    December 28, 1895.
   No opinion. Judgment and order affirmed. Bradley, J., not voting.


text:
    William A. Farrell, Resp’t, v. Anna C. Haeger, App’lt. Sigmund Fliegman, Resp’t, v. Samuel Mendel, App’lt.
    N. Y. C. P.,
    December 27, 1895.

      Jacob JFromme'. for app’lt Haeger; Mashbir & Gukor, for app’lt Mendel; James O. De La Mare, for resp’t Farrell; Morris H. Botlieb, for resp’t Fliegman.
   Per Curiam.

The appeal in these cases brings up for review questions of fact only. The judgment in both cases seems to be supported by evidence, and, although the evidence was contradicted by the respective defendants, it was peculiarly the province of the court having the witnesses before it to determine the credibility of the witnesses aud the weight to he given to their testimony. The judgment in each case should be affirmed, with costs to respondent.


text:
    Edward D. Farrell, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    December 18, 1895.
   No opinion. Judgment modified by reducing the fee damage to §6,500 and the allowance to §400, and, as modified, affirmed, without costs.


text:
    First Nat. Bank of Ballston Spa v. Carolina Oil & Creosote Co. et al.

    Sup. Ct., 3 D.,
    December 3, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    First Nat. Bank of Paterson, App’lt, v. Seth M. Tuttle, Resp’t.
    N. Y. Supr. Ct.,
    December 18, 1895.

      Preston Stevenson, for app’lt; Wells, Waldo & Snedehen' (G. E. Waldo, of counsel), for resp’t.
   Per Curiam.

The order should be affirmed, with $10. costs and disbursements.


text:
    First Nat. Bank of Perry, Resp’t, v. Perry Salt Co. et al., App’lts.
    Sup. Ct., 5 D,,
    December 28, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Daniel Foster, Resp’t, v. Walter W. Hooker et al., App’lts.
    N. Y. Supr. Ct.,
    December 23, 1895.

      Abram E Servin, for app’lts; Abram Kling, for resp’t.
   Per Curiam.

The order should be affirmed, with $10 costs and disbursements.


text:
    Margaret Fox v. De Graff.
    Sup. Ct., 2 D.,
    December 2, 1895.

      Albert B. Genet, for app’lt; John Gibney. for resp’t.
   Dykman, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff entered upon the report of a referee. The action was brought to recover for the board of Robert De Graaf under the contract,with the defendant’s testator. The agreement was established, and the report is sustained by proof, and no question of law is involved. Judgment should be affirmed, with costs.


text:
    In re Gowdy.
    Sup. Ct., 2 D.,
    December 2, 1895.
   No opinion. The court finds the respondent guilty of misconduct and deceit, and suspends him from practice for the term of one year from the date of this decision; the fees of the referee to be paid by the county treasurer of Rockland county out of any money in his hands applicable to the expenses of the courts. All concur.


text:
    Henry L. Gregg, Resp’t, v. Granger & Gregg Brewing Co., App’lt.
    Sup Ct., 3 D.,
    December 3, 1895.
   No opinion. Order affirmed, with costs and disbursements.


text:
    John L. Gross, App’lt, v. William L. Moore et al., Resp’ts.
    Sup. Ct., 1 D.,
    December 18, 1895.

      G. Brainerd, for app’lt: JJ. Kettell, for resp’t.
   Per Curiam.

We do not understand the practice which has been pursued in the case at bar. There is nothing in the record to indicate the character of the action, as it commences, after the formal statement, with a so-called “ interlocutory decree,” and it also contains another interlocutory decree appointing a referee. The referee reported, and a motion was made to confirm the report, and from the order thereupon entered the appeal was taken. It seems to us that the proper practice would have been at least to have printed the judgment roll, and, upon the coming in of the referee’s report, to have entered a final judgment, and to appeal from such final judgment. There is nothing in the Code which authorizes the practice which has been pursued in the case at bar. The appeal should be dismissed.


text:
    Sabino Guarino et al., Resp’ts, v. Webster White et al., App’lts.
    Sup. Ct., 2 D.,
    January 14, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur, except Bartlett, J., not sitting.


text:
    Joseph R. Guernsey, Resp’t, v. Elias H. Gault et al., App’lts.
    Sup. Ct., 5 D.,
    December 28. 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Charles E. Hadden v. Edward B. Hall.
    Sup. Ct., 2 D.,
    December 2, 1895.

      Burr & Ooombs (Bobert E. Wilson, of counsel), for app’lt; Joseph M. Williams, for resp’t.
   Pratt, J.

The verdict substantially gave plaintiff all that he claimed, and made slight, if any allowance for the deficiencies in execution of the building contract which were many and practically undisputed. It is therefore impossible to sustain the verdict of the jury to its full extent. Giving all proper effect to the plaintiff’s testimony and to the verdict, we are of opinion that the sum of $1,694 should be deducted from the verdict, or, in the alternative, a new trial be granted. The plaintiff may elect between such modification and a new trial. In case he elects to accept the modification, the allowance of 5 per cent, upon $1,694 will also be deducted from the judgment, which, as thus modified, is affirmed, without costs of appeal; otherwise judgment reversed, and new trial granted, costs to abide event.


author: Parker, J.

text:
    William Hanrahan, App’lt, v. Mayor, etc., of City of New York, Resp’t.
    Sup. Ct., 1 D.,
    December 18, 1895.

      L, E. Wa/rren, for app’lt; Jamies T. Malone; for resp't.
   Parker, J.

The dismissal of the complaint by the court at circuit was required by the decision of this court in Kelly v. Mayor, etc., 70 Hun, 208; 24 N. Y. Supp. 1. The material facts in that case and in the one under revieew are precisely alike. The judgment should be affirmed, with costs. All concur.


text:
    John L. Harris, Resp’t, v. David Gregg, App’lt.
    Sup. Ct., 3 D.,
    January 29, 1896.
   Ho opinion. Motion denied, on condition that appellant refund to respondent the sum of $35 within ten days after service of a certified copy of this order; otherwise, granted, with $10 costs and disbursements.


text:
    William P. Heath v. Knapp et al.

    Sup. Ct., 2D.,
    December 2, 1895.

      Henry M. laylor, for app’lts; Wood & Morschausir, for resp’t.
   Dykman, J.

This is an appeal from an order of the special term denying the defendants’ motion to vacate an attachment which was issued against the defendants on the ground that they were about to dispose of their property with an intent to defraud their creditors. The defendants moved to set aside the attachment upon affidavits, and on the motion the plaintiff filed further affidavits to sustain the same. The affidavits are somewhat conflicting, but the issuance of the attachment was justified in the first instance by the papers upon which it was based, and the affidavits upon which the motion to vacate the attachment was based failed to destroy the case. There was sufficient evidence of fraudulent intent to justify the denial of the motion to vacate the attachment, and the order should be affirmed, with $10 costs and disbursements.


text:
    Isban Hess, Resp’t, v. Bridget Barnwell et al., App’lts.
    Sup. Ct., 3 D.,
    December 3, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    Jonah Hess et al., Board of Water Com’rs, Resp’ts, v. Joseph Keck et al., App’lts.
    Sup. Ct., 3 D.,
    January 20, 1896.
   Ho opinion. Order affirmed, with $10 costs and disbursements.


text:
    John Hill, Resp’t, v. John McGregor, App'lt.
    Buff. Supr. Ct.,
    December 23, 1895.
   Ho opinion. Judgment and order appealed from affirmed, with costs. Hatch, J., did not sit in this case.


text:
    William Hollingsworth v. Long Island R. Co.
    Sup. Ct., 2 D.,
    December 2, 1895.

      William J. Kelly, for app’lt; A. H. Weller (Jacob Fromme, of counsel), for resp’t.
   Pratt, J.

The case went to the jury on the point as to whether the-injury was caused by the defective brake. The verdict establishes that to be the fact, and from that we think defendant’s liability results. We are not able to agree with defendant’s counsel that the railroad company owed no duty to the plaintiff in respect to that brake. The perils of his occupation which he assumed did not include defective rolling gear of which he had no notice. The court correectly held that concurring negligence of a co-employee did not relieve defendants from responsibility. Lilly v. Railroad Co., 107 N. Y. 566; 14 N. E. Rep. 503. The verdict was not excessive. Judgment affirmed, with costs. BiíoyiN, J., dissents, without opinion.


text:
    In re Edward Howard’s Estate.
    Sup. Ct., 5 D.,
    December 28, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    Interstate Steamboat Co. v. First Nat. Bank of Syracuse et al.

    Sup. Ct., 2 D.
    December 2, 1895.
   No opinion. Order reversed, with $10 costs and disbursements. AH con- . cur.


text:
    Mary Johnson, Resp’t, v. Charles Reuter, App’lt.
    Sup. Ct., 2 D.
    January 21, 1896.
   _ _ No opinion. The court having already ruled that it had no power to compel arguments at the present term of the court; the motion is denied, without costs.


text:
    Truman Jones, App’lt, v. Aetna Ins. Co., Resp’t.
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Truman Jones, App'lt, v. Aetna Ins. Co. of Hartford et al., Resp’ts.
    Sup. Ct., 3 D.
    January 20, 1896.
   No opinion. Motion denied, with $10 costs and disbursements.


text:
    William H. Jones, Resp’t, v. Brooklyn Heights R. Co., App’lt.
    B’klyn C. C.,
    December 23, 1895.

      Morris & Whitéhouse, for app’lt; Baldwin F. Strauss, for resp’t.
   Per Curiam.

Action to recover damages for negligently causing the death of plaintiff’s intestate, a child four years of age. Plaintiff had a verdict, and' defendant appeals from the judgment entered thereon, and the order denying motion for a new trial. The learned counsel for the appellant contends that the motion to dismiss the complaint should have been granted on the grounds: First, that plaintiff failed to prove any negligence on the part of the defendant’s servants ; and, second, that plaintiff failed to prove freedom from contributory negligence on the part of the parents of the deceased child. On a previous appeal in this case (10 Misc. Rep. 543 ; 31 N. Y. Supp. 445), this court held, on substantially the same evidence on the part of the plaintiff, that neither of these points was well taken. A careful examination of the evidence adduced on behalf of the defendant on this trial affords no ground for altering the former decision. The questions as to negligence of defendant and freedom from contributory negligence on the part of the child’s parents were properly-left to the jury to decide, and the verdict is well sustained by the evidence. Judgment and order denying a motion for a new trial affirmed, with costs.


text:
    Olaf K. Knudson. Resp’t, v. Charles W. Boyes, App’lt.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    John R. Langworthy, Resp’t, v. Elverton B. Cressey, App’lt.
    Sup. Ct., 5 D.
    December 28, 1895.
   No opinion. Judgment and order affirmed. Ward, J., not sitting.


text:
    Francis W. La Rue, App’lt, v. John G. Smith, Resp’t.
    Sup. Vt., 3 D.
    December 3, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Merriman J. Lester et al., App’lts, v. Harmon W. Worden et al., Respt’s.
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Judgment affirmed, with costs. Mayham P. J¡, not sitting.


text:
    Merriman J. Lester et al., App’lts, v. Harmon W. Worden et al., Resp’ts.
    Sup. Ct., 3 D.
    January 20, 1896.
   No opinion. Motion granted. No costs to either party.


text:
    Adelbert P. Little, App’lt, v. Alfred W. Callus et al., Resp’ts.
    Sup. Ct., 5 D.
    December 28, 1895.
   No opinion. Reargument ordered.


text:
    Isaac S. Long, App’lt, v. New York El. Ry. Co., Resp’t.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    John McClave, v. John Gibb.
    N. Y. Supr. Ct.,
    December 18, 1895.

      W. B. JUllison, for app’lt; Parrsons, Shepard & Ogden, for resp’t.
   Per Curiam.

The findings of fact and conclusion of law find support in the record, which discloses no error requiring anew trial. The judgment must therefore be affirmed, with costs.


text:
    Lulu R. McDowell, Resp’t, v. Sobert D. Williamson, App’lt.
    Sup. Ct., 3 D.
    December 3, 1895.
   Mo opinion. Judgment affirmed, with costs.


text:
    In re Alice McGee.
    Sup. Ct.. 2 D.
    January 14, 1896.
   No opinion. Motion to dismiss the appeal denied, without costs. All cob* ir.


text:
    Rosanio Maggio, Resp’t, v. Lake Shore & M. S. Ry. Co., App'lt.
    Buff. Supr. Ct.,
    December 23, 1895.
   Mo opinion. Judgment and order appealed from affirmed, with costs.


text:
    Catharine Mahoney, App’lt, v. City of Niagara Falls, Resp’t.
    Sup. Ct., 5 D.
    December 28, 1895.
   _ Noopinion. Order affirmed, costs of this appeal to abide the event.


text:
    Daniel Mahoney v. Jarvis McWalters et al.

    Sup. Ct., 2 D.
    December 27, 1895.
   Mo opinion. Motion for reargument granted.


text:
    David Mardin, Resp’t, v. New York Cent. & H. R. R. Co., App’lts.
    Buff. Supr. Ct.,
    December 23, 1895.
   Mo opinion. Judgment and order appealed from affirmed, with costs.


text:
    Louis Marinelli, Resp’t, v. Nelson A. Ferrand, App’lt.
    N. Y. C. P.,
    December 16, 1895.
   Mo opinion. • Judgment reversed ; new trial ordered ; costs to appellant to abide event.


text:
    Eugene Martineau, Resp’t, v. Town of Santa Clara, App’lt.
    Sup. Ct., 3 D.
    December 3, 1895.
   Mo opinion. Judgment affirmed, with costs.


text:
    Adam S. Matheson et al. v. Alonzo E. Smith.
    Sup. Ct., 2 D.
    December 2, 1895.
   Mo opinion. Order affirmed, with costs. All concur.


text:
    In re Mayor, etc. In re Anderson et al.

    Sup. Ct., 1 D.
    December 18, 1895.

      Beeves & Todd, for petitioner; Francis M. Scott, Corp. Counsel, for, the mayor, etc.
   Per Curiam.

This not being an action for the recovery of an award, the provisions of the statute in regard to interest do not apply. Mo interest should, therefore, have been allowed upon the award, and the referee’s report should be confirmed, except as to such allowance of interest.


text:
    Mercantile Trust Co., App’lt, v. Atlantic Trust Co., Resp’t.
    Sup. Ct., 1 D.
    December 18, 1895.
   Mo opinion. Order to be entered reversing order appealed from unless defendant give security, to be fixed upon application to special term. See memorandum Per Curiam.


text:
    George Miller v. John King et al.

    Sup. Ct., 2 D.
    December 2, 1895.
   Mo opinion. Judgment and order reversed, and new trial granted; costs to abide event. All concur.


text:
    Harry L. Minchin, App’lt, v. Charles D. Gardiner et al., Resp’ts.
    Sup. Ct., 3 D.
    December 3, 1895.
   Mo opinion. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.


text:
    Howarth Miska, Resp’t, v. Angus H. Smith, App’lt.
    N. Y. C. P.,
    December 16, 1895.
   Mo opinion. Judgment affirmed, with costs.


text:
    Ellen J. Mitchell, App’lt, v. James E. Ford et al., Resp’ts.
    Buff. Supr. Ct.,
    July, 1895.
   Mo opinion. Judgment appealed from affirmed, with costs.


text:
    George C. Montgomery v. William J. Ryan et al.

    Sup. Ct., 2 D.
    December 2, 1895.

      Hyland & Zahrishie, for app’lts ; Gustave S. Draahman, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion to change The place of trial of this action from the county of Westchester to the county of New York. There is no merit in the appeal, and the order should be affirmed, with $10 costs and disbursements.


text:
    William Moore, App’lt, v. Simeon Brown, Resp’t.
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Order affirmed, with costs and disbursements.


text:
    Mary A. Moore, Resp’t, v. James Cleary, App’lt.
    Sup. Ct., 3 D.
    December 3, 1895
   No opinion. Judgment affirmed, with costs.


author: Per Ctjriam.

text:
    John Moore, Resp’t, v. Long Island Exp. Co., App’lt.
    N. Y. C. P.
    December 23, 1895.

      Wm. J. Kelly, for app’lt; A. Bell MalcoVmson, for resp’t.
   Per Ctjriam.

The plaintiff, a shipper of goods concededly lost when in the ■custody of the defendant carrier, brought suit for their reasonable value, and recovered $50, the amount of the defendant’s liability as limited by the shipping receipt. True,' as claimed by the appellant, a payment had been made to the plaintiff’s wife, but upon the facts disclosed by the record we cannot hold that this affected the plaintiff’s cause of action. As to attendant 'details of the transaction there was a fair conflict of evidence, not unreasonably resolved in favor of the respondent, and the damages in suit were sufficiently proven by affidavits as to the value of the chattels, which documents were further entitled to credit under the plaintiff’s sworn statement as to their truth in open court. The judgment is to be affirmed, with costs.


text:
    Jerome S. Moore. Resp’t, v. Albert E. Norton, App’lt.
    Buff. Supr. Ct.
    July, 1895.
   No opinion. Judgment of the municipal court affirmed, with costs.


author: Gildbrsleeve, J.

text:
    Albert Most v. John McArdle.
    N. Y. Supr. Ct.
    December 18, 1895.

      B. J. Mahon, for pl’ff; B. M. Williams, for def’t.
   Gildbrsleeve, J.

— This appeal is from a judgment rendered at special term, dismissing the complaint on the merits. The action was brought in equity for a rescission of a settlement of indebtedness owing by respondent to appellant upon the ground of fraud, alleged to have been perpetrated by the respondent in procuring the settlement. A careful examination of the record-fails to disclose any errors of law. The conclusions of fact reached by the learned trial judge are fully supported by the evidence, and the judgment should not be disturbed. Judgment affirmed, with costs to respondent.


text:
    Edward C. Murphy, App’lt, v. William Schnitspan et al., Resp’ts.
    Sup. Ct, 2 D.
    January 21, 1896.
   No opinion. Order affirmed with $10 costs and disbursements, on opinion in Petterson v. Van Wart, 36 N. Y. Supp. 1009. All concur. For decision of special term.


text:
    Abbie S. Nash et al., App’lts, v. Hall Signal Co. et al., Resp’ts.
    Sup. Ct., 1 D.
    December 18, 1895.
   No opinion. Motion granted.


text:
    New Britain Hardware Manuf’g Co., Resp’t, v. Buffalo Wheel Co., App’lt.
    Buff. Supr. Ct.
    December 23, 1895.
   No opinion. Judgment and order appealed from affirmed, with costs. Titus, C. J., did not sit in this case.


text:
    Henry Nichols, App’lt, v. Hugh J. Grant, Resp’t.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Order affirmed, with costs.


text:
    Noyac Cottage Ass’n v. Whiteside. Same v. Henry G. Atwater. Same v. Lucius J. Whitney.
    Sup. Ct., 2 D.
    December 2, 1895.
   No opinion. Exceptions overruled, and judgment ordered on the verdicts with costs. All concur.


text:
    Noyac Cottage Ass’n v. Atwater.
    Sup. Ct., 2 D.
    December 27, 1895.
   No opinion. Motion to resettle order denied, without costs. See ubi supra.


text:
    Noyac Cottage Ass’n v. Whiteside.
    Sup. Ct., 2 D.
    December 27, 1895.
   No opinion. Motion to resettle order denied, without costs. See ubi supra.


text:
    Noyac Cottage Ass’n v. Whitney.
    Sup. Ct., 2 D.
    December 27, 1895.
   No opinion. Motion to resettle order denied, without costs. See ubi supra.


text:
    Otten v. Manhattan Ry. Co. Recke v. Same. Bamberger v. Same.
    N. Y. Supr. Ct.
    December 18, 1895.
   No opinion. Defendant’s motions to strike cases from the calendar and for judgment, etc., denied, without costs, with leave to renew in the first case on the next motion day of the appellate division, and in the other two when the stay as to them is vacated. .


text:
    Fannie G. Parsons, v. Charles W. Parker.
    Sup. Ct., 2 D.
    December 2, 1895.
   No opinion. Judgment affirmed, with costs. Dykman, J., not sitting.


text:
    Thomas G. Patterson, Resp’t, v. John P. McGovern App’lt.
    Sup. Ct., 1 D.
    December 18, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    People, App’lt, v. William Bennett, Resp’t.
    Sup. Ct., 3 D.
    December 28, 1895.
   No opinion. Judgment of conviction reversed.


text:
    People v. Otto Braune.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Motion granted.


text:
    People, Resp’t, v. Irving Cumaer. App’lt.
    Sup. Ct., 3 D.
    December 28, 1895.
   No opinion. Motion for reargument granted.


text:
    People v. John J. Donovan.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Motion granted.


text:
    People, App’lt, v. Oscar England, Resp’t.
    Sup. Ct., 3 D.
    December 28, 1895.
   No opinion. Judgment reversed, and demurrer overruled on opinion in. People v. Madill.


text:
    People v. Henry Hosier.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Motion granted.


text:
    People v. Walter L. Langerman.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Motion granted.


text:
    People v. Dennis Mullins.
    Sup. Ct., 1 D.
    January 24, 1896.
   No opinion. Motion denied.


text:
    People, Resp’t, v. George Nelson, App’lt
    Sup. Ct., 3 D.
    December 3, 1895.
   No opinion. Judgment affirmed.


text:
    People v. William Nooney.
    Sup. Ct., 2 D.
    December 2, 1895.

      John W. Lyon, for app’lt; M. Ii. Hirshberg, for resp’t.
   Dykman, J.

—This is an appeal from an order made at the special term reducing the costs of the appellant in a former appeal from an order of the county court to the general term from a full bill of costs as on appeal from the judgment, and $10 costs of an appeal from an order. There is no doubt about the legality and propriety of the order, and it should be affirmed without an opinion.


text:
    People, Resp’t, v. Edward C. Van Houten, App’lt.
    Sup. Ct., 2 D.
    December 2, 1895.
    <?. Z. Snider, for app’lt; Alonso Wheeler' and. Bichard 8. Harvey, for the People.
   Pratt, J.

In this case, that the defendant was guilty of violating a village ordinance; that he was tried for the same, and fined a sum authorized by law for such violation—is not disputed. There is no material question raised upon this appeal that is not answered by the opinion of the county judge, and the cases quoted by him therein. Whether we call the decision of the police justice a fine or a penalty is not material, or whether we call the offense for which he was tried a crime .or a violation of a city ordinance is equally immaterial, as a police justice simply imposed what he had power to impose under the law and the village charter. We need go hack no further in point of time than the moment the defendant appeared for trial before the police court, as it is not material how he got there, as no objection was raised to the jurisdiction, but only that the offense with which he was charged was not a crime. The defendant well knew the ordinance under which he was charged, and, upon the facts, made no substantial defense. It seems plain that the legislature intended that villages should have the power to pass such an ordinance as now under consideration, and that the penalty might be imposed for its violation, and its collection enforced by imprisonment not exceeding ten days in county jail, and the decision of the police court here under review was in accordance with such provisions. The request for a jury trial was properly overruled. Ho right of defendant was prejudiced, further than authorized by law. Judgment affirmed. All concur.


text:
    People ex rel. Max Ackerman v. Leonard R. Welles, Police Com’r.
    Sup. Ct., 2 D.
    January 14, 1896.
   Ho opinion. The determination confirmed, without costs. All concur.


text:
    People ex rel. Winsor B. French, Resp’t, v. Town, Tax Receiver, App’lt.
    Sup. Ct., 3 D.
    December 28, 1895.
   Ho opinion. Reargument ordered.


text:
    People ex rel. Illingsworth v. Court of Oyer and Terminer.
    Sup. Ct., 1 D.,
    January 24, 1896.
   Ho opinion. Motion denied.


text:
    People ex rel. Roswell W. Keene, Resp’t, v. Board of Sup’rs of Kings County et al., App’lts.
    Sup. Ct., 2 D.,
    December 2, 1895.

      George F. Elliott, for app’lt Kings county; F. E. Van Vecliten, for app’lt Queens county; Boswell W. Keene, resp’t, in pro. per.

   Dykman, J.

This is an appeal by the defendants from the final order directing the issuance of a peremptory writ of mandamus commanding the defendants to construct a bridge across Hewtown creek at Maspeth avenue, at the joint expense of the two counties, within one year from the issuance of the writ. The proceeding was instituted to compel the construction and maintenance of a drawbridge across Hewtown creek at Maspeth avenue. That creek is a tide-water navigable stream at that point, and forms the boundary line between the counties of Kings and Queens.' There was formerly a bridge at that point, which was long since destroyed. The case was carried to the court of appeals upon a demurrer to the alternative writ, and it was there held that the facts alleged in the writ were sufficient to show that Maspeth avenue was a public highway, and that the bridge constituted a part of the same. The statute which controls the case is as follows: “ But where such bridge shall stand in portions of the navigable ti¿le waters of the state, forming at the point of crossing the boundary line of two counties, such expense shall be a joint and equal charge on the two counties in which the bridge is situated, and the supervisors in each of such counties shall apportion such expense among the several towns and cities.” Laws 1893, c. 18, § 68. It was said by the court of appeals in this case that the duty imposed by the statute upon the boards of supervisors of the two counties is plainly demonstrative and mandatory, and not discretionary. Being a power conferred for the benefit of the public, it is imperative. People v. Board of Sup’rs of Queens Co., 142 N. Y. 277; 36 N. E. Rep. 1063; People v. Board of Sup’rs of Otsego Co., 51 N. Y. 401. The case has now been tried, and the following facts have been specifically; found by the jury by direction of the court: First. That the relator is a citizen and "freeholder of the state, Second. That Maspeth avenue is a public highway, extending from a point near Maspeth Hotel to a point near Bushwick Church, as it was laid out in 1836. Third. That Maspeth avenue did cross Hewtown creek. Fourth. That Hewtown creek is the boundary line between Kings and Queens counties. Thereupon application was made upon such findings and the other papers in the case for a peremptory writ of mandamus, and an order for its issuance was made. We concur with the trial judge in respect to the public character of Maspeth avenue. It has been a public highway for half a century. That creek had adhered to it through all its transmutations and changes. The order should be affirmed, with costs.


text:
    People ex rel. Anna Minott Mitchell v. Long et al.

    Sup. Ct., 2 D.,
    December 2, 1895.
   Mo opinion. Order affirmed, with §10 costs and disbursements. Dykman, J., not sitting.


text:
    People ex rel. Christopher Post v. Clarence T. Barrett et al., Police Com’rs.
    Sup. Ct., 2 D.,
    December 2, 1895.
   No opinion. Determination affirmed, with costs. All concur.


text:
    People ex rel. United Verdi Copper Co. v. James A. Roberts, Comptroller.
    Sup. Ct., 3 D.,
    December 3, 1895.
   Mo opinion. Writ of certiorari quashed, decision of comptroller affirmed, with $50 costs and disbursements.


text:
    People ex rel. John G. Zuchschwerdt, App’lt, v. James J. Martin et al., Resp’ts.
    Sup. Ct., 1 D,
    December 18, 1895.
   Mo opinion. Writ dismissed, with costs.


text:
    Thomas H. Phillips v. Brooklyn Heights R. Co.
    Sup. Ct., 2 D.,
    December 2, 1895.
   Mo opinion. Judgment and order affirmed, with costs. All concur.


text:
    William F. Pilger, Resp’t, v. Rufus M. Choate, App’lt.
    Buff. Supr. Ct.,
    July, 1895.
   Mo opinion. Judgment and order appealed from affirmed, with costs, Titus, C. J., does not sit in this case.


text:
    Margaret Pooler, Resp’t, v. New York El. R. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    January 24, 1896.
   Mo opinion. Judgment affirmed.


text:
    Peter A. Porter, App’lt, v. James E. Murphy, Resp’t.
    Sup. Ct., 5 D.,
    December 23, 1895.
   Mo opinion. Order affirmed, with $10 costs and disbursements.


text:
    Silas W. Prince et al., Resp’ts, v. Louis Frazer et al., App’lts.
    Sup. Ct., 3 D.,
    December 28, 1895.
   Mo opinion. Judgment affirmed, with costs.


text:
    Herman Prince, Resp’t, v. Charles Grossman, App’lt.
    N. Y. C. P.
    December 16, 1895.
   Mo opinion. Judgment affirmed, with costs.


text:
    John J. P. Read, App’lt, v. August Simon, Resp’t.
    Sup. Ct., 5 D.,
    December 28, 1895.
   Mo opinion. Judgment and order affirmed.


text:
    Annie Robinson, Resp’t, v. Alexander Ferguson, App’lt.
    Sup. Ct., 5 D.,
    December 28, 1895.
   Mo opinion. Judgment affirmed, without costs.


text:
    Matter of Rogers’ Estate.
    Sup. Ct., 5 D.,
    December 28, 1895.
   Mo opinion. Decree affirmed and proceeding^ remitted to the surrogate’s court of Wayne county, with costs payable out of the estate of Lucinda Rogers, deceased.


text:
    Edward H. Roos, Resp’t, v. Laird, App’lt.
    Buff. Supr. Ct.,
    July, 1895.
   Mo opinion. Judgment and order appealed from affirmed, with costs. Titus, C. J., does not sit in this case.


text:
    D. F. Rose et al., Resp’ts, v. Thomas J. Reynolds, App’lt.
    Sup. Ct., 5 D.,
    December 28, 1895.
   Mo opinion. Judgment of Monroe county court affirmed, with costs.


text:
    Annie Rutherford, App’lt, v. Town of Madrid, Resp’t
    Sup. Ct., 3 D.,
    December 3, 1895.
   Mo opinion. Judgment affirmed, with costs.


text:
    James H. Ryan v. Francis Pistone.
    Sup. Ct., 2 D.,
    December 27, 1895.
   Mo opinion. Motion to amend order of reversal granted, and leave granted to appeal to the court of appeals.


text:
    Charles R. St. John et al., Resp’ts, v. Oliver A. Colvin, App’lt.
    Sup. Ct., 5 D.,
    December 28, 1895.
   No opinion. Judgment affirmed. ■


author: Pee. Cljbiam.

text:
    William Sauer et al., Resp’ts, v. Angle Lamp Co., App’lt.
    N. Y. C. P.,
    December 27, 1895.

      Qreem <& Johnson, for app’Its; Cromwell Q. Maey, for resp’ts.
   Pee. Cljbiam.

This action was brought to recover for work, labor and services in making a mold for a glass lamp for the defendant. According to plaintiffs’ testimony they first wished a wooden mold for the lamp, of which the defendant furnished a sketch, which upon trial proved successful; but the' defendant desired some change made in the form of the lamp, whereupon the plaintiffs endeavored to make an iron mold, which would produce the required form, but, after several attempts, failed to produce one which would work successfully. The defendant contends that the plaintiifs undertook to produce the required mold which could be used in the business, and, as they did not, they should receive no compensation for their work. The plaintiffs, on the other hand, contend that all that they did was under the direction and supervision of the officers of the defendant company; that they did make a wooden mold which produced a lamp according to the sketch, and that the iron mold did not work satisfactorily because of the changes made under defendant’s direction. The justice allowed the’plaintiffs’ claim so far as the original work was concerned, but refused to allow for the alterations, presumably upon the ground that they would produce a mold embodying the changes proposed by defendant, and would work successfully; and we think the evidence justified him in reaching both of these conclusions, and that the judgment should be affirmed, with costs to respondent.


text:
    Catharine Schoonmaker v. Leonard Blass.
    Sup. Ct., 2 D.,
    December 2, 1895.

      Isaac IF. Miller, for app’lt; John Andrews, for resp’t.
   Dykman, J.

This is an appeal from a judgment overruling a demurrer to the complaint. The action is for the foreclosure of a mortgage, and the defendant, Blass, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and because there was a defect of parties defendant. The complaint was sufficient as against the defendant, Blass, and the judgment should be affirmed, with costs.


text:
    Charles H. Schwarz v. Long Island City.
    Sup. Ct., 2 D.,
    December 2, 1895.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Arthur W. Sherman, Resp’t, v. Charles A. Foster, et al., App’lts.
    Sup. Ct., 3 D.,
    December 3, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Matilda Simmons, App’lt, v. City of Brooklyn, Resp’t.
    Sup. Ct., 2 D.,
    January 21, 1896.
   No opinion. Judgment affirmed, with costs, on authority of Curry v. City of Buffalo, 135 N. Y. 366, and Merts v. City of Brooklyn, 128 N. Y. 617. All concur, except Brown, P. J., not sitting.


text:
    Thomas Simpson v. A. Kling.
    Sup. Ct., 1 D.,
    December 18, 1895.
   No opinion. Motion denied, with $10 costs.


text:
    Annie Singleton, Resp’t, v. Prudential Ins. Co., App’lt.
    Sup. Ct., 3 D.,
    December 3, 1895.
   No opinion. Order affirmed, with costs and disbursements.


text:
    Russell C. Smith, Resp’t, v. Mary McMillan, App’lt.
    Sup. Ct., 3 D.,
    January 20, 1896.
   . No opinion. Motion denied, with $10 costs and disbursements.


text:
    Sarah C. Smith v. John B. Smith.
    Sup. Ct., 3 D.,
    December 28, 1895.
   No opinion. Decision amended so as to read : “ Judgment appealed from,in so far as it denies a divorce to plaintiff, affirmed; and in so far as it grants it to the defendant with costs and disbursements, reversed. The judgment, as so modified, affirmed, without costs to either party upon the trial in the court below, and without costs of this appeal to either party.”


text:
    Nathan C. Smith, Resp’t, v. Lyman J. Smith et al., App’lts.
    Sup. Ct., 3 D.,
    January 20, 1896.
   No opinion. Motion denied, with §10 costs and disbursements.


text:
    Matter of Garret B. Snyder.
    Sup. Ct., 2 D.,
    January 14, 1896.
   No opinion. Motion to dismiss the appeal denied, without costs. All concur.


text:
    Otto G. Span et al., v. Erie Boatmen’s Transp. Co., Lim., App’lt.
    Buff. Supr. Ct.,
    December 23, 1895.
   No opinion. Judgment appealed from affirmed, with costs. Hatch, J., does not sit in this case.


text:
    S. Fleet Speir v. Frank Little.
    Sup. Ct., 2 D.,
    December 2, 1895.

      Niles & Johnson (Wm. W. Niles, of counsel), for app’lt; Walter G. Low (AZbert F. Lamb, of counsel), for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the report of a referee. The action is for an accounting. Both parties to suit are physicians, and the defendant went into the service of the plaintiff in May, 1883, under an agreement to aid the plaintiff in his practice. The first agreement was in writing, and prescribed the salary of the defendant, and provided for his disbursements; but that agreement was modified at different times. The complaint charged the defendant with attending to patients outside of his practice and retaining the money received therefor in violation of his agreement. The answer of the defendant to that charge was that such practice, and the retention of the money received therefor, was in pursuance to an agreement with the plaintiff. Upon that issue the parties went to trial, and it was decided against the plaintiff. The defendant supported his position by his own testimony, and by evidence of other witnesses, and by corroborai ive circumstances. The plaintiff, in his testimony, confirms much of the defendant’s evidence, and the statements rendered by the latter to the firm, and his acquiescence in them, is quite corroborative of the theory of the defendant. In a case like this, involving questions of fact only, where the testimony is plain, it is seldom necessary to recapitulate or analyze the evidence. The referee has made full findings, and we find, upon a careful examination of the case, that they are well sustained by the proof. Judgment should be affirmed, with costs. Brown, P. J., concurs. Pratt, J., not voting.


text:
    Elizabeth G. Standen v. New Rochelle Water Co.
    Sup. Ct., 2 D.,
    January 14, 1896.
   No opinion. Motion denied, with §10 costs. All concur, except Hatch, J., not voting.


text:
    Lena Stange, Resp’t, v. Prudential Life Ins. Co., App’lt.
    N. Y. C. P.,
    December 16, 1895.
   No opinion. Judgment reversed; new trial ordered; costs to appellant to abide event.


text:
    John H. Starin, App’lt, v. Henry B. Payne, Resp’t.
    Sup. Ct., 3 D.,
    January 20, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Frank M. Stearns, App’lt, v. Harvey W. Tew, Resp’t.
   No opinion. Judgment affirmed, with costs. Ward, J., not sitting.


text:
    Anson B. Stewart, Resp’t, v. New York El. Ry. Co.. App’lt.
    Sup. Ct., 1 D.,
    December 18, 1895.
   No opinion. Judgment modified by reducing the rental damage to §750 and the extra allowance to §75, and, as modified, affirmed, without costs.


text:
    Alfred E. Stone, v. Abraham Cohen et al.

    Sup. Ct., 1 D.,
    January 24, 1896.
   No opinion. Motion denied.


text:
    Sarah G. Thalman, App’lt, v. Samuel Thalman, Resp’t.
    Sup. Ct., 1 D.,
    December 18. 1895.

      Andrew Make, for app’lt; Damd Leventritt, for resp’t.
   Per Curiam.

This action was brought to obtain a decree of separation, and was defended on the ground that the plaintiff and defendant are not, and never have been, husband and wife. The trial court so found, and dismissed the complaint. The plaintiff did not claim that a marriage ceremony had been solemnized by minister, priest, or magistrate, but that a verbal marriage contract was entered into between the plaintiff and defendant on the 30tli day of April, 189J2; and the only question presented on this appeal is whether the finding by the trial court that there was no such contract is against the weight of evidence. An attentive examination of the evidence satisfies us that, under the rules which govern this court in reviewing questions of fact, the finding of the special term must stand. As no good purpose can be accomplished by a discussion of the evidence, we refrain from doing it. The judgment should be affirmed, with costs.


text:
    Lemon Thompson et al., App’lts, v. Hiram Harris, Resp’t.
    Sup. Ct., 3 D.,
    January 26, 1896.
   Ho opinion. Motion denied, with $10 costs and disbursements.


text:
    Edward H. Throne et al. v. Lehigh Val. R. Co.
    Sup. Ct., 5 D.,
    December 28, 1895.
   Ho opinion. Order of Monroe special term reversed.


text:
    Unionville Silk Manuf’g Co. v. C. W. Peasley.
    Sup. Ct., 2 D.,
    December 27, 1895.
   Ho opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Orpha D. Van Houten v. Isaac E. Pye.
    Sup. Ct., 2 D.,
    December 2, 1895.

      Garrett Z. Snyder, for app’lt; Frank Gomesky, for resp’t.
   Dykman, J.

This case was before us at a prior term of this court upon an appeal by the plaintiff from a judgment in favor of the defendant. 33 N. Y. Supp. 838. We reversed that judgment, and laid down the law which was to control the case so far as this court was concerned. As we adhere to the opinion delivered at that time, it is unnecessary to re-examine the case now. The trial court followed our decision, and the judgment and order denying the motion for a new trial on the minutes of the court should be affirmed, with costs.


text:
    Village of McGrawville, Resp’t, v. Francelia Sweet, App’lt.
    Sup. Ct., 3 D.,
    January 20, 1896.
   Ho opinion. Judgment of county court affirmed, with costs.


text:
    Vincerzo Vuzzo, App’lt, v. Brooklyn Heights R. Co., Resp’t.
    B’klyn C. C.,
    December 23, 1895.

      Alfred O. Gowan, for app’lt; Morris & Whitehouse, for resp’t.
   Per Curiam.

We have carefully read the record in this case, and conclude that the complaint was properly dismissed on the ground that the plaintiff himself was careless and negligent. Motion for reargument denied without costs.


text:
    Mary D. Wall, Resp’t, v. John C. Howk, App’lt.
    Sup. Ct., 5 D.,
    December 28, 1895.
   Ho opinion. Judgment affirmed, with costs, payable out of the estate.


text:
    John E. Walsh v. Metropolitan St. Ry. Co.
    Sup. Ct., 2 D.,
    January 14, 1896.
   Ho opinion. Order affirmed, with $10 costs and disbursements. All concur, except Cullen, J., not sitting.


text:
    James M. Waterbury et al. v. Tucker & Carter Cordage Co. et al.

    Sup. Ct., 2 D.,
    December 2, 1895.
   Ho opinion. Judgment and orders appealed from affirmed, with costs. All concur. ■ -


text:
    George Weber, Resp’t, v. Nancy R. Houck, App’lt.
    Sup. Ct., 5 D.
    December 28, 1895.
   Ho opinion. Judgment and order affirmed.


text:
    Abijah Weston el al., App’lts, v. Henry Lovejoy, Resp’t.
    Sup. Ct., 3 D.
    December 3, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    Edwin E. Whitcomb, Resp’t, v. Postal Telegraph Cable Co., App’lt.
    Sup. Ct., 5 D.
    December 28, 1895.
   Ho opinion. Judgment and order affirmed.


text:
    Eliza W. White et al., v. Edward M. Benjamin et al.

    N. Y. Supr. Ct.,
    December 18, 1895.

      Smith & Dougherty and L. S. Tenney, for app’lts; Whitlock <6 Simonds, (W. O. Beecher, of counsel), for respt’s.
   Per Curiam.

To warrant a new trial in this case the practice requires not only that the newly-discovered evidence be material, and that it has been discovered since tlietrial, but that the evidence could not, by the exercise of reasonable diligence, have been sooner discovered; and that it is so decisive in character as to make it appear with reasonable certainity that on another trial it would change the result. The defendants did not present a case bringing them within the rule stated, and no error was committed by the court below in denying their motion. The order appealed from must he affirmed, with costs.


text:
    Ansley D. White, Resp’t, v. James W. Beylrs, App’lt.
    Buff. Supr. Ct.,
    December 23, 1895.
   No opinion. Judgment and order appealed from affirmed, with costs.


text:
    Jonas J. White, App’lt, v. John Loudon et al., Resp’ts.
    Sup. Ct., 5 D.
    October Term, 1895.
   No opinion. Judgment affirmed on opinion of Ward, J., at special term.


text:
    William B. Wiggins v. Elmer S. Smith.
    Sup. Ct., 2 D.
    January 14, 1896.
   No opinion. Order affirmed without costs. All concur, except Brown, P. J., not sitting.


text:
    Fred Williamson, Resp’t, v. Frank W. Carlton et al., App’lts.
    Sup. Ct., 3 D.
    December 28, 1895.
   No opinion. Order affirmed, with $10 costs.


text:
    Catharine Wimmer, v. Patrick Cllary et al.

    Sup. Ct., 2 D.
    December 2, 1895.
   No opinion. Motion for reargument denied. Dykman, J., not sitting.


text:
    Woodstock Nat. Bank, App’lt, v. Town of Waverly, Resp’t.
    Sup. Ct., 3 D.
    December. 1895.
   No opinion. Judg'ment affirmed, with costs.


text:
    Charles E. Woodward, Resp’t, v. Fifteenth Ward Loan Ass’n, App’lt.
    Sup. Ct., 5 D.
    December 28, 1895.
   No opinion. Judgment and order affirmed, with costs.


text:
    Myron Young, Resp’t. v. George E. Nestell, App’lt.
    Sup. Ct., 3 D.
    December 28, 1895.
   No opinion. Order affirmed, with costs.