text:
    Lewis W. Hudson, as Administrator, etc., Resp’t, v. The Rome, Watertown and Ogdensburgh Railroad Company, App’lt.

      (Court of Appeals,

      Filed March 22, 1895.)

    Appeal—Review oe pacts
    All questions as to the weight of evidence are final in the general term and not reviewable in the court of appeals; but, where the evidence, which appears to be in conflict, is nothing more than a mere scintilla, or where it is met by' well-known and recognized scientific facts, about which there is no conflict, the latter court will exercise jurisdiction to review and reverse if justice requires.
    Appeal from judgment of the general term of the supreme court m the fourth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      D. J. Griffin, for app’lt; John N. Carlisle, for resp’t.

      Reversing 56 St. Rep. 39.

   Haight, J.

This action was brought to recover damages for causing the death of Harry L. Hudson, the plaintiff’s intestate. Hudson was in the employ of the defendant engaged as a fireman on engine No. 103. George H. Grower was the engineer in charge. On the 8tli day of October, 1890, at 1.45 P M. they took the engine in question from the yard in Watertown and started out with a freight train for Oswego. They took water at Water-town, Pierrepont Manor and Richland. On arriving at Mexico they stopped at the water column to again take water. The engineer then left the engine in charge of Hudson and went into the depot. A few minutes thereafter the crown sheet of the engine collapsed, allowing the steam to escape into the fire box and blow out through the door thereof, inflicting injuries upon Hudson from which he shortly thereafter died. An examination of the engine, after the accident, disclosed the fact that the crown sheet had been scorched throughout its entire length, covering an area -of thirty-two inches at the front of the firebox and gradually dimimshing until, at the back end the scorched area was sixteen, inches m width. The scorched part was white, of a bluish cast, and perfectly clean, having no soot, or other substance attached to it The crown sheet had been" convex, but had reversed its arch and pressed down into the fire box a distance ot seventeen and a half inches, so as to become concave Prior to the accident the crown sheet bad been supported by numerous stay bolts, screwed into the plate and riveted on the fire box side. These bolts had drawn out, leaving holes in the sheet through which the steam had escaped into the fire box The sheet itself, after the-collapse, was extended longitudinally from ten to fourteen inches,, and the holes caused by the withdrawing of the stay bolts had become elongated. The engine was- nearly new ; of first-class con struction, and in other respects was in perfect condition.

It is conceded by all parties that the accident occurred m con sequence of the scorching of the crown plate. It is contended on behalf of the plaintiff that the scorching had taken place at some previous time, and that the defendant ivas negligent in sending the' engine out upon the road while it was m that condition On behalf of the defendant it is claimed that the scorching took place at the time of or just preceding the accident.

The question is thus presented as to when and where the scorching took place. The only evidence presented on behalf of the plaintiff bearing upon this question is that of the engineer m charge and the hostler in the yard at Watertown The engineer testified that he kept the crown sheet covered with water throughout the entire trip, and that on arriving at Mexico it still had two full gouges, which would be about six inches of water over the sheet. The hostler testified that he kept the engine watered whilst it stood in the yard at Watertown under his charge B'rom this evidence the jury was asked to find as a fact that the crown sheet had been scorched on some occasion prior to the accident Opposed to this are the facts disclosed by the examination ot the engine after the collapse and the testimony of the experts, from which it appears that the crown sheet was constructed ot steel; that scorching tended to make it more dense and less ductile, so that it would be more liable to crack and less liable to expand; that it could not scorch or become red hot whilst covered with water, and that in their judgment the crown sheet must have been red hot at the time it collapsed.

The plaintiff, m order to recover, was bound to establish negli gence on the part of the defendant by a preponderance of evidence All questions as to the weight of evidence are final in the General Term, and this court has no power to review the determination of that court with reference thereto. But where the evidence which appears to be in conflict is nothing more than a mere scintilla, or where it is met by well-known and recognized scientific facts, about which there is no conflict, this court will still exercise jurisdiction to review and reverse if justice requires. People ex rel. Coyle v Martin, 142 N. Y. 852; 59 St. Rep 34; Hemmens v Nelson, 138 N Y 517-529; 53 St. Rep. 94 ; Linkauf v Lombard, 137 N Y. 417 , 51 St. Rep. 63 The judgment of the experts is based upon well-known and recognized scientific facts which to our minds is controlling. The crown sheet was found to have been scorched. It was white with a bluish cast and perfectly clean, tending to show that the scorching was- recent; had it been worked after the scorching evidence of soot and discoloration would be expected. The stay bolts had drawn out, the arch inverted, the sheet extended and the holes elongated without sign of a crack or other flaw. Could this have occurred with this steel sheet cool and under water; could it be stretched ten to fourteen inches and inverted in that condition ? The experts say no. And their judgment accords with our learning and experience.

There is no evidence that the scorching was done on any other occasion, aside from the inference that might be possibly drawn from the testimony of the engineer already alluded to. He could determine the amount of water over the crown sheet by trying the-gauge cocks. But in trying these he may have mistaken steam for water. However that may be, in the absence of further evidence showing that the sheet had been scorched on some prior occasion, we cannot regard it as presenting more than a scintilla of evidence, and will not justify a verdict against the physical and scientific facts that leave no room to doubt that the crown sheet had become dry and partially melted at the time of the collapse.

It appears from the testimony of the experts, that in case a crown sheet has been scorched and then cooled, that the stay bolts will be affected, and that thereafter there will be a leakage by the side of the bolts, and it is contended that, this crown sheet had been known to leak before the accident. One witness spoke of its having leaked, but was unable to state whether it was before or after the accident. The place where it leaked, however, was stated by him to be where the crown sheet was joined on to the side of the boiler and was not at the place where it was scorched. The evidence was, therefore, unimportant. If the crown sheet was scorched at the time of the accident, it was the fault of the engineer, the co-servant of the deceased, and not that of the defendant.

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

All concur.

Judgment reversed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Fred T. Remmel, Resp’t, v. Martha L. Townsend, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Election op remedies—Undisclosed principal.
    The recovery of a judgment against the purchaser for the price of goods, in ignorance that he was the agent of another person in the transaction, does not estop the seller from suing such principal.
    Appeal from a judgment, affirming a judgment of the municipal court of the city of Eochester.

      F. A. Mann, for app’lt; H. B. Hallock, for resp’t.
   Lewis, J.

It is a well-settled rule of law that if a creditor, after the discovery of the principal, elect to hold the. agent who purchased goods without disclosing his agency, he is bound by the election, and cannot pursue the principal. It is the contention of the appellant that the same rule applies if the creditor prosecutes the agent to judgment, in ignorance that he purchased as an agent, upon the theory that, he having once elected to sue the agent, he is estopped from pursuing the principal. It is difficult to see upon what theory a creditor can be said to have made an election in such a case when he was not aware that there was an opportunity for him to make a choice. In the case at bar the plaintiff supposed, when he brought the action against the husband, that his claim was against him only. There was, so far as he then knew, but one thing for him to do, and that was to bring his action against the person who he then supposed and understood purchased the goods as principal. Had he known the true situation, he would then have been in a position to have made a choice. The act' of electing between two remedies presupposes knowledge on the part of the one performing the act that he has an opportunity of choosing between two or more courses to pursue. If he understands there is but one thing for him to obtain, or but one course that he can take, he cannot be said to have made a choice. The like rule regarding the selection of remedies obtains where the vendor has been induced to part with his property by the fraud of the vendee. He is, in such a case, at liberty to waive the fraud, and affirm the contract, and sue for the value of the goods sold, or replevy the goods. If, with full knowledge of all the facts, he pursues the first course, he is thereafter estopped from disaffirming the contract and pursuing the goods. If the prosecution of an action for the value of the goods to judgment in such a case in ignorance of the fraud does not estop the creditor from maintaining an action to recover the possession of the goods upon discovery of the fraud, there is no reason apparent why he should be estopped, under the circumstances of this case.

In the case of Rochester Distilling Co. v. Devendorf, 72 Hun, 428 ; 54 St. Rep. 864, the plaintiff had sold a bill of goods to the defendant’s "husband. An action was brought against the husband, and a judgment recovered for the purchase price of the goods. Hpon examination in proceedings supplementary to execution, the plaintiff learned for the first time that the goods were fraudulently purchased by Devendorf, and that Devendorf had, after purchasing the goods, transferred them to his wife, the defendant in this action, without any consideration being paid there-fer, and thereupon he commenced an action in replevin for the goods, making the wife the defendant. The judgment against the husband was pleaded in bar of the action. We held that the creditor was at liberty, notwithstanding the judgment, to prosecute the action for the recovery of the property, for the reason that he prosecuted the former action in ignorance of the fraud. If the judgment there was not a bar, why should it be in this case ? A distinction is sought to be made between the two cases by the appellant’s counsel. He suggests that a claim arising upon a contract for the purchase price of goods sold and one arising out of fraud in the purchase of goods are of a very different nature, while that" is so, it does not occur to us that it has any bearing upon the question' here. If the vendor, with knowledge of the fraudulent sale of goods, elects to waive the fraud and affirm the sale, and brings an action for the purchase price of the goods, the judgment would be a bar to an action to recover possession of the property. He cannot, thereafter, elect to disaffirm the sale. It is an election he made with knowledge of the facts, which estops him, and so if, after the sale of goods to an agent for an undisclosed principal, the creditor, with knowledge of the facts, elects to proceed against the agent, he is bound by his election. It is the election with knowledge of the facts that estops him in both cases.

The appellant relies upon the case of Priestly v. Fernie, 3 Hurl. & C. 977. There an action had been prosecuted to judgment against a master of a vessel for supplies, and thereafter an action was brought against the owner for the same account. It was held by Bramwell, B., that the former judgment was a bar to the action. The action in that case was against the defendant, as master of the vessel acting for its owner. It does not appear from the opinion whether, at the time of furnishing the supplies, the creditor was informed as to who owned the vessel; but, the supplies having been purchased by the master as such, the presumption was that he was acting for an owner, and not as the owner.

There will be found in the text-books and .in the opinions of the courts statements which would seem to sustain the appellant’s contention ; but we think, upon examination, it will be found that the current of authority in this country and in England is not in conflict with our conclusions. In most of the cases to which our attention is called the election to sue was made with full knowledge of the facts; in other cases it does not appear whether the election was made or not in ignorance of all the facts. The judgment appealed from should be affirmed, with costs. All concur.


author: Haight, J.

text:
    Alonzo C. Pickard, App’lt, v. Adam V. Pickard, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)
    Attorney and client—Compensation.
    Where the value of an attorney’s services has not been agreed upon, but he is retained in a case upon the implied understanding that he shall have what his services are fairly and reasonably worth, he may properly ask from time to time for advances with which to pay the expenses of the litigation, and to apply upon his services ; and, if the client unreasonably refuses to advance money for such purposes in a reasonable amount during the progress of a long litigation, sufficient cause may be furnished to justify the attorney in withdrawing from the employ of his client.
    Appeal from a judgment, entered on a verdict directed by the court in favor of defendant.

      A. C. Wade, for app’lt; Obed Edson, for resp’t.
   Haight, J.

This action was brought to recover for services and disbursements rendered and paid by the plaintiff as the attornev for the defendant. The answer alleged negligence in the performance of the services ; that they had not been fully performed, and set up a counterclaim. The counterclaim,' to the extent of $45.35, was admitted. Upon the trial the plaintiff showed that he was an attorney and counselor in the court, and that he had been retained by the defendant to prosecute an action in the county court of Chatauqua county, upon an appeal from a justice’s judgment, in which the defendant in this action was plaintiff, and one Norman Strong was the defendant; that he appeared in such action, prepared the case for trial, put it upon the calendar, and conducted the case upon the trial; and that it resulted in a nonsuit Thereupon the plaintiff told the defendant that he knew he was right; that he would make a motion for a new trial on the judge’s minutes, and, if the judge decided against him, take an appeal to the general term, and, if he did not succeed in getting the case back upon the calendar, he would not charge anything for what he should do in the matter ; and the defendant then told him to go on and do it In that conversation it appears there was -nothing said about the plaintiff’s pay for what had been done. The plaintiff thereon procured a stay for 60 days, and made a motion before the judge for a new trial; but, in consequence of adjournments agreed to by counsel, the motion had not been argued when.this action was brought. It also appeared that one Johnson Y. Goodwill and another brought an action in the supreme court against the defendant, and this plaintiff was employed to defend him in such action, and that there was another action brought in the supreme court by the defendant against one Jeffords and another, which the plaintiff, as attorney for this defendant, prosecuted. These cases were referred to a referee and tried. In one this defendant was beaten, and in the other he was successful. It also appeared that the plaintiff had performed other services for the defendant in drawing papers, and that he had paid some disbursements in the prosecution and defense of the actions above •referred to. After the trial of the two actions before the referee, they were summed up by counsel, and, after this plaintiff had finished, he testifies that he told the defendant that he wanted some money, and asked him if he would not pay him some or give him a note. The defendant then answered, saying that he would be in Jamestown the next Tuesday, and would come in and settle with him. He said he had the money, and would rather pay the money than give a note. The plaintiff further testified that, on the Tuesday following, the defendant came to Jamestown, but did not come near him. That thereupon he wrote him a letter, and, after writing the letter, the defendant again came to Jamestown to a Mr. Green’s office, who called the plaintiff up through the telephone. That Green did the principal talking, but the plaintiff knew that the defendant was there at the time, because he could hear him speaking to Green, and could distinguish his voice. Green wanted to know how much the plaintiff claimed the defendant owed him. That he answered he had not figured it up, but would do so at any time. That Green then wanted to know how much he would take, and the witness answered him. Finally, Green said: “The defendant says he don't owe you anything, and shan't pay you anything." The plaintiff further testified that he thereafter told the defendant that he should do nothing more in the cases. On his cross-examination he stated that he might be mistaken in-regard "to the time the conversation took place, but that he thought not; that it was arranged that the stenographer’s minutes should be procured and submitted to the referee, and that it might have occurred before such minutes were delivered. He also gave evidence as to the value of his services.

At the conclusion of the plaintiff’s evidence, the defendant’s counsel asked the court to direct a verdict in favor of the defendant for $10, as an affirmative judgment. This motion was granted, and an exception was taken thereto by the plaintiff. It is evident that the trial court, in reaching this result, must have allowed certain items to the plaintiff, and deducted the amount thereof from so much of defendant’s counterclaim as was admitted. It does not, however, appear that the court allowed anything for the services -rendered by the plaintiff in the three actions above mentioned. In the first, as we have seen, the plaintiff had prosecuted the same through the trial, and had been unsuccessful. .The duty of entertering judgment did not devolve upon him, but upon the successful party. His services as to that case had been fully completed under the original retainer. True, he then entered into an agreement with the defendant to move for a new trial, and, if necessary, prosecute the case on an appeal to the general term, but that was under a separate and distinct arrangement. As to the other actions, his services may not have been fully performed when this ■action was brought. He had, however, tried them, summed them up, and submitted them to the referee for decision. It was then that the conversation took place, already related, in reference to his having some money, and in which the defendant appears to have repudiated the plaintiff’s claim, and refused to pay him anything. The question is thus presented as to whether the plaintiff was justified in abandoning the cases, and insisting upon his payment in full for the services rendered.

An attorney who is retained generally to conduct a legal proceeding doubtless enters into an entire contract to conduct the proceeding to its termination, and he cannot abandon the service of his client without justifiable cause and upon reasonable notice. If his compensation is stipulated, and he, without just cause abandons his client before the proceeding for which he was retained has been conducted to its termination, he forfeits his right to payment for services rendered. If the value of his services has not been agreed upon, bnt he is merely retained in a case upon the implied understanding that he shall have what his services are fairly and reasonably worth, the attorney may properly ask from time to time for advances with which to pay the expenses of the litigation, and to apply upon his services; and, if the client unreasonably refuses to advance money for such purposes in a reasonable amount during the progress of a long litigation, sufficient cause may be furnished to justify the attorney in withdrawing from the service of his client. See Tenney v Berger, 93 N Y 524-529; Sessions v. Palmeter, 58 St. Rep. 289. Applying this rule to the facts under consideration, it appears to us that the trial court could not properly say, as a matter of law, that the plaintiff’s request for money, under the circumstances was unreasonable, and that the jury might have found from the evidence that the language in which the defendant repudiated his claim, and refused to pay him anything, furnished sufficient grounds for him to consider his services as an attorney for the defendant terminated. Upon a retrial it may turn out that the plaintiff’s services were so’ negligently performed as to be without value, but this branch of the defense is not now before us. It is true that the plaintiff subsequently entered judgment in the action in which he was successful, but this appears to have been under an express arrangement between the parties made after this action was brought. The judgment should be reversed, and a new trial granted, with costs to abide the event.

All concur.


text:
    Frank Ball et al., Individually and as Executors, etc., App’lts, v. Charles Dickson et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Will—Construction.
    A devise of a fatin “ together with ail personal property upon said farm,” was held not to include promissory notes, certificates of deposit and bank pass books in a safe in the dwelling house on the farm at the time of the execution of the will, where no reason appears for favoring the devisee to such extent, but, if the notes, etc., are allowed to pass under the residuary clause, it will effect an equal distribution among testator’s next of kin.
    Appeal from a judgment construing a will.

      J. D. Teller, for app’lts; Edmin G. Davis and James Lyon, for resp’ts.
   Lewis, J.

This action was brought by the plaintiffs, individually and as executors, to secure a construction of the will of the testator, the material parts of which are as follows :

“I give, devise, and bequeath to my nephew William I. Ball the farm on which I now reside, containing about one hundred and forty-four acres of land, together with all the personal property upon said farm, including all the personal property in the house and in the other buildings on said premises, subject, however to a bequest of $2,000 to Frank Ball. I give and bequeath to Frank Ball $2,000, to be paid as above set forth. I give and devise to the children of Moses Dickson, deceased, the Oakland real estate, in the town of Brutus, of which I own an undivided three-fourths. The value of said three-fourths interest I place at $3,000 for the purposes hereinafter set forth.' I give, devise, and bequeath all the rest and remainder of my real, personal, and mixed estate, share and share alike, to my brother Charles Dickson, my sister Jennette Ball, the children of my brother Aaron
Dickson, deceased (which shall represent one interest); the children of my brother Moses Dicksen, deceased (wnich shall represent one interest); but out of the interest of the children of Moses Dickson, deceased, shall be deducted the sum of $3,000, the value of the Oakland real estate which shall be so much payment of the share bequeathed to said children. In addition to the sum of $2,000 bequeathed to Frank Ball, I give and bequeath to him the further sum of $3,000, to be deducted from the sum bequeathed to the children of Moses Dickson. For the purpose of carrying out the provisions of this will, my executors are authorized to sell such securities as they deem, best.”

Frank Ball and William I. Ball were appointed executors of the will. The testator was a bachelor, and resided upon 'the farm mentioned, located in Cayuga county. Upon the farm were the ordinary stock and farming implements, the household furniture, and a small amount of products of the farm in the barns. The personal property mentioned upon the farm was of the value of about $1,500. It does not appear from the record what the farm was worth. He owned a thrée-fourths interest in the Oakland property, and in addition thereto bonds and mortgages, of the value of $37,815.51; promissory notes, certificates of deposit, and money in banks, amounting in value to $16,161.42. The testator had, some time prior to the execution of his will, delivered to his attorney a part of the bonds and mortgages, and the balance of them he delivered to him the day prior to the execution of his will. The promissory notes, certificates of deposit, and pass books, representing the money in bank, were at the time of the execution of the will in a safé at the testator’s dwelling house upon the farm. The will was executed on the 16th day of February, 1892, and the testator died on the 14th day of March following. Frank and William I. Ball were nephews of the deceased.

It is the contention of the appellants .that the contents of the safe were, by the first clause of the testator’s will, bequeathed to the .plaintiff William, and that is the principal question presented for our decision. The trial court held that they did not pass under the will to William, but were disposed of by the residuary clause of the will, atid we agree with the construction given to the will by the trial court. The evidence tended to show that William had assisted the deceased to some extent about the farm and was with him during his last sickness. While there is no direct evidence as to the value of the farm, a general description of it is given by the evidence. It seems to be an ordinary country farm. If the testator intended to give to William the contents of his safe, be was giving him about one-third of the entire value of his estate. We naturally look to see the reason for his bestowing upon William so large a part of his property, and nothing appears in the record throwing any light upon that question. Ho reason is apparent why William should have been so highly favored as his contention would imply. The plaintiff Frank Ball was a brother of William. The deceased left a living brother, two sisters, and. the children of two deceased brothers. If the contents of the safe are to be held to be disposed of by the residuary clause of the will, the deceased would seem to have made an equitable and reasonable disposition of his property. If we should give to the words "personal property,” in the first clause of the will, their broadest and most comprehensive signification, they would undoubtedly carry the contents of the safe. Property is divided into two general divisions, real property and personal property. Had the will failed to dispose of the contents of the safe by the residuary clause, there are authorities justifying the giving to such words their broadest meaning, but we are not required to adopt that rule here, for, as stated, if the property in question was not bequeathed to William, it passed to the legatees mentioned in the residuary clause. In construing the clause in question we are to ascertain, if possible, the intention of the testator. William had assisted him to some extent in the management of his farm, and it was quite natural that he should desire to give it to him. To carry on the farm he needed the stock, farming implements, products of the farm, and the household furniture. The testator, we think, had in mind in framing the clause in question that class of property. Had he intended to give to William the contents of the safe, he would, we think, have specifically described them in language ordinarily used in describing that kind of property, and especially as their value composed so large a part of his estate. In speaking of such property, laymen do not ordinarily call it “personal property.” They designate it as “promissory notes,” “certificates of deposit,” and “money in bank.” Had it been the intention of the testator to give the contents of the safe to William, we think he would have given a particular description of the property in language that would not be likely to be misunderstood. He authorized his executors by the will to sell such securities as they should deem best for the purpose of carrying out the provisions of the will. Had he intended that William should own the contents of the safe, he would naturally have designated the securities which the executors were to sell, and excluded the promissory notes in the safe. We are referred to many authorities, both in England and in this country, where questions somewhat similar have been passed upon. The current of the authorities is in harmony with the construction which we give to this clause. In the case of In re Reynolds, 124 N. Y. 388; 36 St. Rep. 332, construction is given to the language of a will somewhat analogous to the case at bar, and is an authority sustaining the conclusion we have reached. Many of the cases to which we are referred by the appellants’ counsel, where a broader meaning was given to similar words, were cases where, if the words were held not to carry the property, the testator would have died intestate as to the property in question, and that is to be avoided, if possible; for the presumption is that testators intend to dispose of all their property by their will, unless the contrary intention plainly appears.

That portion of the testimony of the attorney Shertleff, which was received under objection and without prejudice to a motion to strike out, was, we think, incompetent, and was properly Stricken out. It consisted of communications made to him by the testator in the coarse of his professional employment, and it was not made competent by section 836 of the Code of Givil Procedure. The testator having given to the children of Moses Dickson his interest in the Oakland real estate, the value of which for the purposes of the will, he fixed at $3,000, he deducted that sum from the share of the estate given to them by the residuary clause of the will. The judgment appealed from should be affirmed, with costs to the appellants, and to the respondents Fred Dickson and others, and also costs to the respondents Arthur Dickson and others, to be paid by the executors out of the estate.

All concur.


author: Van Brunt, P. J.

text:
    The People, Pl’ff, v. Life Union, Def’t. Thomas Ashweb et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895)
    Insurance—Benefit—Distribution.
    Under the by-laws of defendant, the reserve fund was held distributable exclusively among the holders of certificates in force, and death claimants not entitled to share therein.
    Appeal from an order partially confirming the report of a referee, and from an order refusing to re-commit the referee’s and actuary’s reports to them.

      R. J. Moses, for app’lts; E. L. Mooney, for the People.
   Van Brunt, P. J.

What this action was brought for does not appear from the record herein, as the pleadings are not set forth. It seems, however, that on the 27th of February, 1894, an order of reference was made, to examine the account of a receiver who seems to have been appointed in this action, and to hear the allegations and proofs of such persons as might appear before the referee with reference to the distribution of the fund in the hands of the receiver, known as the Reserve Fund,” and to report to the court what disposition should be made of said reserve fund, in his opinion. Subsequently, the referee reported that, as between the two classes of claimants to the reserve fund, the representatives of deceased certificate holders, and the living members—including in the latter class the representatives of those who have died since the commencement of these proceedings,—the living members, or their representatives, were, in his opinion, entitled to the fund proportionally to the gross amount of assessment paid by them, respectively. It is this conclusion of the referee which it is necessary for us to consider. Upon the coming in of the report, exceptions were duly filed, which were’overruled, so far as this question was concerned, and the report confirmed, and this appeal was taken from so much of said order. A motion was also made to sent the report back to the referee, which was denied, and from that order an appeal was also taken. It is admitted upon the part of the appellant that, if the action of the court upon the appeal first above mentioned should be upheld, there would be no necessity for referring back the report of the referee. The referee based his decision upon the decision of the court of appeals in Re Equitable Reserve Fund Life Ass'n, 131 N. Y. 371; 43 St. Rep. 204. That association was somewhat similar in character to the one at bar, and had a similar reseve fund, and the question involved was as to its disposition. It was there held that the rights of the parties were to be decided with reference to the constitution and bylaws of the association, and the contents of the certificates of membership, all of which, taken together, formed the contract between the company and the certificate holders. The questions presented are substantially the same as those before the court in the case cited, with on,e exception, which will be noticed hereafter. It appears from the report of the referee that the certificate of incorporation of the Life Union was filed on the 11th of June, 1885, in the office of the clerk of the city and county of New York, under the law. then in force (chapter 175, Laws 1883), and the association commenced its business on the co-operative or assessment plan, in this city, shortly thereafter ; the first policy having been issued on the 22d of August, 1885. The charter provided that all moneys collected for the reserve fund should be deposited with a trust company designated by the board of directors, as a trust fund, for the sole benefit of the members of the Life Union. No moneys so deposited should be withdrawn, except upon the order of the president, treasurer, and secretary, for such purposes as should be provided for in the by-laws, and in conformity with the terms and conditions controlling the trust fund. Upon the lltli of June, 1885, the' association adopted the following by-law :

“Article 12. Reserve Fund., Section 1. Fifteen (15) per cent, of all net assessments for mortuary and benefit purposes, with accretions, shall be deposited with such trust company as may be designated by the directors, as a trust fund, for the exclusive use and benefit of the members of the union. Sec. 2. The reserve fund, except that portion represented by paid-up certificates, may be used to pay losses in excess of the American Experience Tables of Mortality. Sec. 3. After five years from the thirty-first day of December, 1885, and each year thereafter, a divident from that portion of the reserve fund created the first year of each series of five years shall be made to all members whose certificates have been in force continuously for that period, which amounts shall be credited to their account, and used in payment of future dues and assessments. Sec. 4. Such amounts as may be required to meet paid-up certificates, as provided in section 5 of article 8, shall not be used for any other purpose. Sec. 5. Any portion of the reserve fund not otherwise required may fie loaned to pay claims under section 2 of article 8, as therein provided.”

Section 5 of article 8 is as follows:

“ Any member of the union whose certificate has been in force for ten or more consecutive years shall have the option of surrendering the same, and receiving therefor a paid-up certificate for such equitable proportion of the reserve fund as may appear to his credit on the books of the union."

The accumulation of the trust fund commenced in 1886, and an agreement was made on the 12th of April of that year between the Life Union and the Knickerbocker Trust Company, by which the latter agreed to hold and invest the funds deposited with it, the material portions of which agreement read as follows:

“ Third. Upon receipt of a certified copy of a vote of the board of directors of said union, authorizing the transfer of any portion of the reserve fund above mentioned to the death-fund account, such transfer shall be made by the trust company. But in every case the resolution of the board of directors authorizing such transfer shall state that such transfer is authorized- by sections 2, 3, 4, and 5 of article 12 of the by - laws of the union.” “ Sixth. In case cf a dissolution of the party •of the first part (the Life Union), the entire reserve fund shall be divided among the then members of the union porportionally to the gross amount of assessments paid by said members, respectively, to the union, in accordance with a statement which shall'be furnished by the party of the first part, and certified to by the board of directors, prior to such dissolution, as correct, or shall be distributed in such other equitable manner as the courts shall direct." •

The certificates of membership which were in general use, and which are to be considered in the disposition of this appeal read as follows:

“ Within ninety days after receipt of satisfactory proof to the union of the death of the above-named member, while this certificate remains in force, upon the following conditions, there shall be payable to-, of state of -, if living at the time of said death, otherwise to the legal representatives of said member, less such amounts as may have been advanced in final sickness, the sum of-thousand dollars, from the mortuary and benefit fund of the union, at the time of said death, or from any moneys that shall be realized to the said fund from the next assessment to be made, as hereinafter set forth, it being understood and agreed that not more than one assessment shall be made for each death loss. (1) It is understood and agreed that whenever a loss occurs in the membership of the union, either by death or permanent disability, and the amount in the mortuary and benefit fund is insufficient to meet the same, an assessment may be made upon all the holders of certificates in force at the time of such loss, according to the age of each member at the time of admission, and the amount of his certificate, as per table endorsed hereon. Eighty-five percent, of the net amount realized from each assessment shall constitute the mortuary and benefit fund of the union, hereinbefore referred to, and shall be used only for the payment of approved losses, as above provided. (2) Fifteen percent, of all assessments, with the accretions thereon, shall constitute a reserve fund, which shall be deposited with a trust company as a trust fund for the exclusive use of the members of the union.” “ (4) At the expiration of five years from the 31st day of December next, and each year thereafter, all that portion of the reserve fund created the first year of the series of five will be divided, pro rata to the amount contributed, amongst those certificates which have been in force five or more years, and placed to their credit, to be used in payment of dues and assessments as they occur.” “ (6) The reserve fund, not represented by dividends declared, or amounts necessary to meet paid-up certificates, may be used to pay losses in excess of the American Experience Table of Mortality.”

The by-laws of 1887, as amended and adopted on June 21, 1887, provide as follows:

“ Article 8. Benefits.. Section 1. Upon the death of a member, the union shall, within three months after due notice and satisfactory proofs of such death, pay to the beneficiary named on. the books of the union, if such beneficiary be living at the time of such member’s death, otherwise to the heirs or legal representatives of such deceased members, the amount to which the same may appear entitled, according to the terms of the certificate of membership, out of the mortuary and benefit fund (hereafter defined) of the union ; or, if the mortuary and benefit fund shall then be insufficient to pay the whole of any súeh claim, then out of the moneys to be realized from the next assessment to be made, as hereinafter described. And no death claim shall become otherwise due or payable except from the reserve fund, as hereinafter provided.”
“Article 11. Mortuary and Benefit Fund. Section! Eighty-five (85) per cent, of all net assessments for mortuary purposes shall be deposited with such bank or trust company as may be designated by the directors, to the credit of the mortuary and benefit fund of the life union, from which claims shall bfe paid.”
“ Article 12. Reserve Fund. Section 1. Fifteen (15) per cent, of all net assessments for mortuary and benefit purposes, with accretions, shall be deposited with such trust company as may be designated by the directors, as a trust fund for the exclusive use and benefit of the members of the union. Sec. 2. The reserve fund, except that portion represented by paid-up certificates, may be used to pay losses in excess of the American Experience Table of Mortality. Sec. 3. After the reserve fund shall have reached the sum of $100,000, the accumulations over that amount shall be’ annually divided among the members of five or more years’ standing, and placed to their credit, to meet future dues and assessments, or shall be applied to pay death claims, as may be determined by a vote of the members at that time.”

After the adoption of these by-laws, the certificates of membership were amended, and in 1892 the by-laws were further amended. In view of the decision in the case above referred to, of In re Equitable Reserve Fund Life Ass’n, it does not seem necessary to discuss the rights which were conferred by these by-laws, except so far as they may differ from those in the case cited. In the Equitable Reserve Fund Life Association action, a section of one of the articles of the constitution permitted the board of trustees, in their discretion, to use the securities in which the moneys forming the reserve fund had been invested for the purpose of making any deposits required or allowed by law or usage of this or other states, or to meet any want or necessity of the association that might thereafter arise by reason of unforeseen contingencies, and the court held that this section, although somewhat obscure, evidently referred to a want or necessity which might arise by reason of unforeseen contingencies, and while the company is alive, and in the hands of its board of trustees, because the question of the application of the securities was to be decided by such board. Now, the provisions which are contained in the by-laws, etc., of the corporation, now under consideration, is that the reserve fund may be used to pay losses in excess of the American Experience Tables of Mortality, evidently reposing the discretion as to whether the fund shall be thus used or not in the corporation. Where suck discretion is reposed in the corporation, it must be exercised by its board of directors, and was evidently intended only to apply, as in the case cited, to a living corporation ; the action to be taken while the corporation was in the exercise of its powers and duties, and not by a dead corporation. Taking the provisions of the constitution, the by-laws and the certificates of membership, together, it seems to be apparent that this reserve fund was created primarily for the benefit of the members of the association. The provisions of article 12 of the constitution, which provided for the institution of this fund, show that it was to be for the exclusive use and benefit of the members of the association, and that the reserve fund, except that portion represented by paid-up certificates, “ might be used to pay losses in excess of the American Experience Table of Mortality.” Now, it seems to us, if the reasoning of the court of appeals in the case cited is correct, it is entirely applicable to the case at bar, and death claimants have no interest in this fund. Although this view of the object of the reserve fund was contrary to that which was held by this general term when the case of In re Equitable Reserve e Fund Life Ass'n was before us, not being able to see any practicable distinction between the two cases, we are compelled to follow the adjudication of the court of last resort. The orders appealed from should be affirmed, with costs.

All concur.


author: Follett, J.

text:
    Matilda E. Goodwin, Individually and as Sole Surviving Executor, etc., Resp’t, v. Emily M. Coddington, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    W ill—Construction .
    A devise for life, with remainder over to devisee’s children, was held to-be revoked by a codicil giving such share to other persons for life, with remainder to the same persons as were entitled under the will.
    Appeal from an interlocutory judgment, rendered in favor of plaintiff.
    March 11, 1869, Matilda E. Coddington executed her last will and testament, which, among other provisions, contains the following : “First. * * * I give, devise, and bequeath to my children, Jefferson, Gilbert S., Clifford, Matilda E., and Louisa, each an undivided fifth part of all my interest in the building and lot known as ‘No. 17 (seventeen) Wall st.,’ in the city of New York. being an undivided three-fourths thereof, for the term of his or her natural life, and, after his or her death, I give the same to his or her children, the issue of any deceased child, if any, to take its parent’s share. Should either of my sons die leaving no issue him surviving, I give, devise, and bequeath his one-fifth of said premises to such of his above-mentioned brothers and sisters, if any, as may be then living, and the issue of any deceased brother or sister above mentioned, if any, such issue to take the share its parent would have taken if living. If either of my said daughters should die without leaving issue her surviving, I give her one-fifth of said premises to my granddaughter Mary Matilda Moore for her life, and after her death to her issue, if any. If none, to such of my said sons and daughters, if any, as may be then living, and the issue, if any, of any deceased son or daughter above mentioned, such issue to take its parent’s share. * * * I hereby order
    and direct my said executors and .executrix, the survivors or survivor of them, to hold the proceeds of said premises number (17) seventeen Wall street in five separate portions, and to hold each of said .portions until the termination of any life interest hereby created therein for the benefit of the party interested therein.’’ The will contains a residuary clause devising and bequeathing the remainder of her estate. July 16, 1876, Jefferson Ooddington, mentioned in the above-quoted, provision, died intestate, leaving Andrew 0. Ooddington, son, and Emily M. Ooddington, daughter, only heirs and next of kin. August 7, 1876, Matilda E. Ooddington executed a third codicil to her said last will and testament, which, among other provisions, contains the following: “ Second. That the one-fifth part of my interest in the premises No. 17 Wall street, which in and by said will I devise to my said son Jefferson, his issue, etc., shall be divided into four equal parts, one of which I give and bequeath to each of my now surviving children for and during the natural life of such child, and after his or her death to the same person or persons who under and by virtue of said will shall be entitled to the remainder of the one-fifth therein devised for life to such child.” February 14, 1882, Matilda E. Ooddington died leaving said last will and testament and codicil unrevoked, which were duly admitted to probate March 6, 1882, as a last will, testament, and codicil of real and personal property. Letters testamentary thereon were issued to Clifford Ooddington, Louisa Ooddington, and Matilda E. Goodwin (nee Ooddington), three of the four persons nominated in the will as executors thereof. The fourth nominee, Gilbert S. Ooddington, did not receive letters. February 28, 1892, Clifford Ooddington died leaving a last will and testament, which was admitted to probate April 12, 1892. He left four children, who are defendants in this action. March 5, 1892, Louisa Ooddington died leaving a last will and testament, which was admitted to probate March 25, 1892. She died unmarried and without issue. April 11, 1892, this action was begun by the sole surviving executor of Matilda E. Ooddington for an accounting, and for a determination of the rights of the parties under the clauses in the will and codicil above quoted. By the prayer for judgment the court is asked to determine the rights and interests of the parties to this action, and of all persons now having or who may have any estate or interest under the last will and testament of Matilda E. Ooddington. When judgment was entered herein, two of the testator's children mentioned in the clause of the will and in the second clause of the third codicil were living, to wit, Matilda E. Goodwin, who had two children, and Gilbert S. Ooddington, who had no descendants. There were also living four grandchildren, the children of Clifford Ooddington, deceased; and two granchildren, the children of Jefferson Ooddington, deceased; and Mary M. Moore. Emily M. Ooddington alone answered, and she asked the court to decide (1) that under the clause of the will and codicil quoted she and her brother had a vested remainder in fee in one-fifth of No. 17 Wall street; (2) that, in case of the death of any of the sons or daughters of the testatrix without issue, Emily M. Ooddington and her brother would take the share that their mother would have taken if living. These requests were refused, and exceptions taken. The court held that Emily M. Ooddington and Andrew 0. Ooddington were not then entitled by reason of the deaths of said Louisa Ooddington and Clifford Ooddington, to any present share or interest in possession in No. 17 Wall street, and “that the rights and interests in remainder of said Andrew 0. Ooddington and Emily M. Ooddington are as stated in said will and codicil.” To this decision the defendants excepted..

      William V. Rowe, for pl’ff; James Otis Hoyt, for def’t, Emily M. Coddington and attorney in person.
   Follett, J.

By the clause in the will. above quoted the testatrix devised to every one of her five children an estate for life in one-fifth part of No. 17 Wall street, and, after the death of any one leaving children, to his or her children. In case one of the three sons should die without issue, his one-fifth went in fee to his surviving brothers and sisters,' and to the issue of any deceased brother or sister, such issue to take the parent’s share. In case a daughter died without leaving issufe, her fifth of said premises went to the testator’s granddaughter Mary M. Moore for life, and after her death to her issue, if any; but, if she left no issue, to the testator’s sons and daughters then living, and to the issue of any deceased son or daughter, the issue to take the parent’s share. After the death of her son Jefferson, leaving two children, Emily M. and Andrew 0. Ooddington, the testatrix executed a third codicil, containing the provision above quoted. The questen presented is, what change did the testatrix intend to make in the disposition which she made by her will of No. 17 Wall street ? She reaffirms her division of the property into fifths, and directs that the fifth devised in her will to Jefferson shall be divided into four equal parts, one of which parts she devised for life to each of her four children then surviving, Gilbert S., Clifford, Matilda E., and Louisa, “ and after his or her death to the same person or persons who, under and by virtue of said will, shall be entitled to the remainder of the one-fifth therein devised for life to such child.” Upon the death of Louisa Ooddington without issue, the remainder of the fifth, “ therein [in the will] devised for life to such child [Louisa],” went, not to any son of the testatrix, or to the children or issue of any deceased son of the testatrix, but to Mary M, Moore for life, and remainder to her issue, if any. The remainder of the one-fourth of the fifth devised in the will to Jefferson for life, but by the codicil devised to Louisa for life, gees under the codicil to the “ same person dr persons to whom the remainder of the original fifth devised to her for life goes under the will, i. e. to Mary M. Moore for life, and remainder to her issue. Upon the death of Clifford Coddington, leaving four children, the remainder of the fifth devised to him for life went, not to the children of Jefferson, but to his own children in fee; and the remainder of the fourth of the fifth originally devised to Jefferson, but by the codicil to Clifford, goes to the “same persons,” his children. The term “such child” is twice used in the clause of the codicil under consideration, and on the first occasion it refers beyond question to one of the four children of the testator then living, and we think it was last used in the same sense; and the term “ same person or persons” idcluds the issue of the four children who take a life estate under the will, as modified by the 'codicil, but does not include the children of her deceased son, Jefferson. What interest Emily M. and Andrew C. Coddington may acquire, if any, by the death of Matilda E. Goodwin, Gilbert S. Coddington, and Mary M. Moore, or of any one of them, can be determined only after those events. It may be that alt of them will leave children, and it may be that neither Emily M. nor Andrew 0. Coddington will survive any one of those events. The motion for a new trial should be denied, with costs to the plaintiff and to the. guardian ad litem, payable out of the estate. All concur.


author: Cullen, J.

text:
    James L. Lowry, as Executor, etc., App’lt, v. Edward J. Woolsey, impleaded, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed January 10, 1895.)
    1. —Mechanic’s Lien—Trespasser.
    Work done under a contract with a trespasser, does not give a right to a lien.

      2. —Same.
    The failure of the owner to eject the contractor as an intruder does not subject him to liability as for a consent, when he forbids a continuance of tile work.
    Appeal from a judgment, dismissing the complaint on the merits. The following is the opinion of Thomas A. Allison, Esq., to whom the cause was referred to hear and determine:
    In the opinion rendered upon the motion for a nonsuit, made at the close of plaintiff’s case, a statement was made, so far as material, of the terms of the contract between the defendant Woolsev, the owner, and Henderson, the prospective tenant and purchaser, with whom plaintiff’s testator, Gibbons, contracted to do the work for which a mechanic’s lien is sought to be foreclosed in this action; and then the opinion said: “But this does not say that if Henderson shall not receive a lease on May 1, 1888, -or shall not. pay the rent thereunder, his rights under the contract of March 20, 1888, shall ipso facto cease, nor, which is more to the point, does it say that he may go on after May 1, 1888, with the improvements only provided, or upon condition that he receives the lease and pays the rent. There is very material difference between a mere covenant and a condition precedent A breach of a covenant and a breach of a condition precedent are very different in their consequences. In an action upon contract, the only performance which a plaintiff need prove is that of such conditions precedent to the right which he seeks to enforce as are contained therein. Any defaults by him in other respects which are material to the rights of the parties are to be proven by the defendant. There being no conditions ■ precedent in this case to the right which plaintiff seeks to enforce other than such as he has proven, —to wit, that the labor and materials for which he claims a lien were done and furnished under a contract with Henderson for and used in an improvement on the lands in question, with the consent of Woolsey, the owner of such lands, and that the formal statutory requirements as to filing and foreclosing such lien have been complied with,—plaintiff has made out a prima facie case, and the motion to nonsuit must be denied.” Upon such decision having been made, defendant Woolsey entered upon the proof of his defense, and, both sides having rested, the action is now submitted for final decision and judgment. The question thus presented is very different from that upon the motion to nonsuit. On that motion the question was one of the burden of proof, and whether a prima fade case was made out. How the question is whether the burden then adjudged to be on the defendant has been sustained, and a defense established.
    The defendant’s position is that Henderson, upon demand duly made upon him, failed and refused to execute the lease provided for in the contract, and also to pay the rent therein provided for, and that thereupon he, the defendant Woolsey, the owner, by reason of such breach of the contract by Henderson, became entitled to and did rescind the contract, and refused to permit Henderson to retain possession of the lands, or proceed with the improvements under the contract, and duly notified Gibbons, plaintiff’s testator, and forbid him proceeding with the work he had contracted with Henderson to do. Woolsey testifies that on or about May 1, 1888, on which day the contract provided that the lease should be made and delivered by him to Henderson, he presented a lease to Henderson, and demanded the payment of the rent, and Henderson said, “ I have no money. I cannot sign itthat he (Woolsey) then said “I won’t accept any lease, and I debar yon from going on my property.” He also testifies that, at the same time, lie told Henderson that the latter had broken his contract, and had not fulfilled his lease, and that it was canceled, and that he notified Henderson to get off the property, and that he had no ■claim on it of any kind, and that subsequently, at various times he in substance repeated these declarations to Henderson, and told him he was a trespasser, and that he had been theretofore forbidden by Woolsey tó do any more work on the lands. He also testified that he never received any rent whatever from Henderson. And Woolsey and his witnesses testify that they repeatedly notified Gibbons, or his foreman and workmen, that they must cease working on these lands, and that they were trespassers thereon. The contract between Henderson and the plaintiff’s testator, Gibbons, for the doing of the work for which a lien is claimed herein, is dated May 14, 1888, and therefore is subsequent to the breach of the contract by Henderson by refusing to execute the lease, and failing and refusing to pay the rent on May 1, 1888, and also subsequent to the rescission of the contract on that day by Woolrey, on the ground of such breach. Woolsey had the right to soseseir\d under such circumstances." It was at his option whether to tescind or to enforce the contract, to treat Henderson thereafter as a rrespasser or a tenant. Had he chosen to enfore the contract or to treat Henderson as a tenant under the agreement of March 20,1888, then plaintiff’s lien would have been valid, the actual execution of the lease not having been made by that contract a condition precedent to the right to make the improvements. In the contract of March 20, 1888, by which it is claimed by plaintiff that Woolsey consented to the doing of the work in question,and thereby made his lands subject to a mechanic’s lien therefor, it'was provided that said lease should be executed and delivered by Woolsey on May 1,1888, and that the rent should be $6,000, to be paid in equal quarterly payments in advance. It was also covenanted therein by Henderson that he would “pay the rent for the said lands and premises at the times and in the manner and amounts set forth,” as aforesaid. And the eleventh clause of the contract provided “that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, or in the lease to be made, then it shall be lawful for the said party of the first part to re-enter the said premises, and the same to have again, repossess, and„enjoy.” Woolsey was in possession of these lands all the time from the making of the contract of March onward, and Henderson had the right of entry, and entered, up to May 1, 1888, to the extent necessary to make the improvements as provided in the contract. When, therefore, on May 1, 1888, and thereafter, he forbade Henderson and his contractor, Gibbons, to continue with the improvements, and canceled the contract, and notified them that they were trespassers, he thereby made the re-entry provided for by the contract, and terminated the rights under the contract of entry and possession by Henderson and those claiming under him. The fact that, by the contract between Woolsey and Henderson, the former consented that the latter might make certain improvements on the farmer’s land, and that, therefore, any person doing work or furnishing materials towards such improvements might acquire a mechanic’s lien on such land, did not make such contract irrevocable. It might be rescinded by consent, or either party might rescind it by reason of a sufficient breach by the other. When so rescinded, the consent by Woolsey therein involved terminated with the termination of the contract, and any work done°or materials furnished thereafter towards the improvement of the land would be done and furnished without the consent of the owner so far as such consent was solely dependent on such contract. Had Henderson owned the land and made the contract for this work with Gibbons, the testator of plaintiff, he could have rescinded his contract, and Gibbons could not thereafter have continued the work, and filed a valid lien therefor against the land, nor even held Henderson personally liable therefor. In such "event, all Gibbons could have done would 'have been to recover damages for the rescission, if wrongful. So, if Woolsey, as owner, had contracted with Gibbons, a like situation and rights and remedies would have existed; and in either case, if the rescission was rightful, neither could a lien have been acquired nor damages been recovered by Gibbons.
    In the case at bar Gibbons’ rights as against Woolsey arose from the contract between Woolsey and Henderson, and were dependent thereon. When the rights of Henderson under that contract with Woolsey was rightfully terminated, then the subordinate rights of Gibbons, dependent thereon, also ended. Henderson could not confer on Gibbons any right to enter upon and work upon Woolsey’s land, which should survive the rights of Henderson as to that land under his contract with Woolsey. There is no question here arising from any consent or acquiescence by Wool-' sey to the performance by Gibbons of any work on this land after Woolsey had rescinded his contract with Henderson. The evidence established that Gibbons’ contract was not made until May 14, 1888; and that the rescission of the Woolsey-Henderson contract was on or about May 1, 1888; and that as soon as Woolsey knew of any work being done, and frequently thereafter, he forbade its continuance by personal orders given to Gibbons and his foreman and workmen and subcontractor on the premises. Henderson was not an agent of Woolsey. He had a contract with Woolsey, whereby he became a prospective tenant and purchaser, with a right of possession and to improve the land in the meantime, but such contract did not constitute the relation of principal and agent between them. Had it done so, yet nolien would have been acquired for work done by Gibbons after Woolsey had forbidden him to continue it, nor could Woolsey be held personally liable for any work so done. The letter of December 2d, to Mulhall, does not establish a waiver by Woolsey of his prior rescission of his contract with Henderson, nor of his notice thereof to Gibbons. The defendant Woolsey is entitled to judgment dismissing the complaint upon the merits, with costs, but plaintiff is entitled to judgment against defendant Henderson personally for ten thousand dollars and interest and costs.

      Alex. Thain, for app’lt; Weeks W. Culver, for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of the defendant Woolsey entered upon the report of a referee. The action was brought to enforce a mechanic’s lien. The defendant Woolsey was the owner of certain lands in Long Island City. On March 20, 1888, he entered into an agreement with the defendant Henderson by which, on May 1st following, a lease was to be executed by the parties for the demise of the land to Henderson for the period of 17 months, at a specified rental, payable quarterly in advance, which lease should contain certain specified provisions for the purchase and sale of the property, at the option of either party. The agreement further provided that Henderson might enter upon the premises forthwith, and also contained a covenant on his part to expend before February, 1889, the sum of $25,000, in improving and preparing the lands for a race course. It was further provided that, in case of default in the payment of the rent or in any of the covenants of the agreement or the lease to be made thereunder, Woolsey might re-enter the land and hold the same as before. Henderson entered under this agreement. On May 1st he failed to pay the rent due in advance, and refused to execute the lease, and neither rent has been paid nor lease executed since. On May 18th the plaintiff’s testator made a contract with Henderson for the erection of race-track structures. For work done by him he filed a mechanic’s lien, the subject of this action. As to the questions of law involved on this appeal there is but little that can be added to the very clear opinion delivered by the referee. That, if the original agreement had remained in force, the plaintiff would have acquired a valid lien on the interest of the defendant Woolsey in the lands, is unquestionable, for the improvements were not only made with his consent, but in express compliance with the terms of the agreement. Schmalz v. Mead, 125 N. Y. 188; 34 St. Rep. 779 ; Otis v. Dodd, 90 N. Y. 341. The case cited by the counsel for the defendants, Cornell v. Barney, 94 N. Y. 394, arose under the old statute as to the city of New York, and has no application to the present laws. But it is equally clear that on Henderson’s default, and his refusal to execute the lease or pay the rent, Woolsey had the right to rescind the agreement, and from that time Henderson, if in possession of the land, would be but a trespasser. Graves v. White, 87 N. Y. 463. The referee has found, not only that the contract was rescinded by Woolsey, but that Woolsey notified the plaintiff’s testator that Henderson had lost his right in the land. The evidence, we think, justified these findings. While the original plaintiff is dead, and cannot contradict the statement of the witnesses as to the notice given him, Woolsey testified to notice given to Lowry, the foreman of the workmen. It is significant that Lowry is not produced to contradict this evidence, nor is his absence accounted for. The only criticism on the rescission that can be made is that Woolsey did not forcibly oust Henderson or prevent the entry of the plaintiff’s workmen. This, we think, he is not compelled to do. The case in that respect is like that of Cowen v. Paddock, 137 N. Y. 188 ; 50 St. Rep. 386, where it was held that, the failure of the owner to eject the contractor as an intruder did not subject her to liability as for a consent, it being shown that she had forbidden a continuance of the work At the time, therefore, that plaintiff’s testator made his contract with Henderson and performed the work, Henderson was a trespasser without title, and his contract could not bind Woolsey, the owner. Spruck v. McRoberts, 139 N. Y. 193; 54 St. Rep. 461. The judgment appealed from should be affirmed, with costs. All concur.


text:
    Court of Appeals.
    Etta L. Alexander, App’lt, v. Rochester C. & B. R. Co., Resp’t.
    November 27, 1894.

      P. Chamberlain, Jr., for app’lt; Theodore Bacon, for resp’t.
   No opinion. Judgment affirmed, with costs. Aff’g 53 St. Rep. 937.


text:
    Susan B. Anthony et al., Resp’ts, v. American Glucose Co., App’lts.
    November 2, 1894.

      John G. Milburn, for app’lt; John Van Voorhis, for resp’ts,
   No opinion. Reargument ordered.


text:
    Isaac H. Bailey, Pl’ff, v. Daniel D. Chamberlain et al., Def’ts.
    December 21, 1894.

      George W. Cotterill, for pl’ff; Dennis McMahon, and Frederick Geller, for def’ts.
   No opinion. Judgment affirmed, with costs. Aff’g 51 St. Rep. 295.


text:
    Baldwin's Bank of Penn Yan, Resp’t, v. W. T. Morris, App’lt.
    November 27, 1894.

      John Gillette, for app’lt; M. A. Leary, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion of general term. Aff’g 42 St. Rep. 585.


text:
    Ada Brooks, Resp’t, v. Kings County E. R. Co., App’lt.
    December 11, 1894.

      Hugo Hirsh, for app’lt; Charles J. Patterson, for resp’t.
   No opinion. Judgment affirmed, with costs. Aff’g 53 St. Rep. 452.


text:
    Chester W. Chapin, Resp’t, v. Niagara Racing Fair Grounds Ass’n et al., App’lts.
    December 11, 1894.

      Alfred A. Gardner and Frank A. Dudley, for app’lts; John G. Milburn, for resp’t.
   No opinion. Appeal dismissed with costs.


text:
    Charles J. Close App’lt, v. Charles P. Brady, Resp’t.
    December 18, 1894.

      Simon Fleischmann, for app’lt; Moses Shire, for resp’t.
   No opinion. Judgment affirmed on opinion of Titus, J., below. Aff’g 54 St. Rep. 330.


text:
    Ellen M. Cowhill, as Administratrix, etc., App’lt, v. Perceval Roberts, Resp’t.
    December 18, 1894.

      Hector M. Hitchings, for app’lt; George W. Wingate, for resp’t
   No opinion. Judgment affirmed, with costs. Aff’g 54 St. Rep. 219.


text:
    Department of Parks in Twelfth Ward in City of New York, Matter of.
    November 27, 1894.

      James A. Deering, for app’lt; David J. Dean, for resp't.
   No opinion. Order affirmed, with costs.


text:
    East River Bridge Co., Matter of.
    December 18, 1894.
   No opinion. Remittitur amended so as to read that the appeal is dismissed, with costs to each respondent, or set of respondents, in whose behalf an appearance was made and a brief filed in this court. Appeal dismissed. See 57 St. Rep. 732.


text:
    Cornelius W. H. Elting, Resp’t, v. Charles W. Dayton, App’lt.
    December 11, 1894.

      Charles E. Patterson, for app’lt; John J. Linson, for resp’t.
   No opinion. Order affirmed, with costs. Aff’g 62 St. liep. 866.


text:
    Charles Erickson, Resp’t, v. Twenty-third St. Ry. Co., App’lt.
    December 21, 1894.

      Edmund R. Robinson, for app’lt; J. Edward Swanstrom, for resp’t.
   No opinion. Judgment affirmed, with costs. Aif’g 53 St. Rep, 934.


text:
    Frederick G. Ernst, Resp’t, v. Brown Hoisting, etc., Co., App’lt.
    November 27, 1894.

      Adolph Rebadow, for app’lt; George W. Cothran, for resp’t.
   No opinion. Judgment affirmed, with costs. Aff’g 54 St. Rep. 260.


text:
    Charles S. Fairchild et al., as Executors, etc., Pl’ffs, v. Margaret B. Edson, Individually and as Executrix, etc., App’lt. New York Association for Improving Condition of Poor, etc., Resp’t.
    December 11, 1894.

      William V. Rowe, for app’lt; J. Mayhew Wainwright, for resp’t.
   No opinion. Order affirmed, with costs. Aif’g 59 St. Rep. 163.


text:
    John Farley et al., Resp’ts, v. City of Amsterdam, App’lt.
    November 27, 1894.

      Edward J. Maxwell, for app’lt; Z. S. Westbrook, for resp’ts.
   No opinion. Judgment affirmed, with costs, on Folmsbee v. City of Amsterdam, 142 N. Y 128; 58 St. Rep. 626. Atf'g 53 St. Rep. 936.


text:
    Fraser et al., Resp’ts, v. Granite State Provident Ass’n, App’lt.
    December 18, 1894.
   No opinion. Motion to open default granted upon payment of $10 costs.


text:
    Valentine Fromm, Resp’t. v. Daniel Ide, App'lt.
    November 27, 1894.

      John D. Lynn, for app’lt; Ivan Powers, for resp’t.
   No opinion. Judgment affirmed, with costs. Aif’g 52 St. Rep. 287.


text:
    Howe, Resp’t, v. Bell et al., App’lts.
    December 4, 1894.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Edward Jeans et al., App’lts, v Samuel Bolton et al., Resp’ts.
    November 27, 1894.

      John H. Hull, for app’lts ; William B. Ellison, for resp’ts.
   No opinion. Judgment affirmed, with costs. Aff’g 53 St. Rep. 661.


text:
    Emma Keller et al., Resp’ts, v Henry Feldman, App’lt.
    November 27, 1894.

      John H. Hull, for app’lt; George F. Langbein, for resp’ts.
   No opinion. Judgment affirmed on opinion below. Aif’g 53 St. Rep. 909.


text:
    James E. Ketcham et al., App’lts, v. Elizabeth A. Herrington, Resp’t.
    November 27, 1894.

      Augustus Herrington, for app’lts ; H. F. Remington, for resp’t.
   No opinion. Judgment affirmed, and judgment absolute ordered for defendant on stipulation, with costs. Aff’g 46 St. Rep. 964.


text:
    Charles H. La Friend, Resp’t, v. N. Y. C. & H. R. R. R. Co. App’lt.
    November 27, 1894.

      James F. Gluck, for app’lt; John Laughlin, for resp’t.
   No opinon. Judgment affirmed, with costs. Aff’g 46 St. Rep. 686.


text:
    Edward T. Laidley, App’lt v. Etta M. Laidley, Resp’t.
    November 27, 1894.

      William S. Bennet, for app’lt; W. J. Groo, for resp’t.
   No opinion. Appeal dismissed, with costs.


text:
    Charles Leopold, Resp’t, v. D. & H. C. Co. App’lt.
    November 27, 1894.

      Lewis E. Carr, for app’lt; J. W. Houghton, for resp’t.
   No opinion. Judgment affirmed, with costs. Aff’g 56 St. Rep. 889.


text:
    Augustus Levy, as Assignee, etc, Resp’t, v. N. Y. C. & H. R. R. R. Co., App’lt.
    December 18, 1894.

      George Zabriskie, for app’lt; George W. Wingate, for resp’t.
   No opinion. Judgment affirmed, with costs. Aff’g 53 St. Rep. 579.


text:
    Matter of Jonas Litt, Resp’t, v. Z. Taylor Emery, Commissioner, App’lt.
    November 27, 1894.

      Alex. H. Van Cott, for app’lt; Joseph G. Gay for resp’t.
   No opinion. Order affirmed, with costs, on opinion below. All concur. AfE’g 63 St. Rep. 409.


text:
    Lough et al., App’lts, v. Outerbridge et al., Resp’ts.
    December 4, 1894.
   No opinion. Motion for reargument granted.


text:
    Michael McGoldrick, App’lt, v. Samuel Metcalf, Resp’t.
    November 27, 1894.

      Edmund R. Terry, for app’lt; Thomas S. Moore, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. AfE’g 44 St. Rep. 476.


text:
    Mathushek Piano Manuf’g Co., Resp’t, v. James Pearce, App’lt.
    November 27, 1894.

      J. H Whitelegge and S. W. Rosendale, for app’lt; Wm. A. Abbott, for resp’t.
   No opinion. Appeal dismissed, with costs. All concur.


text:
    Julia Mullins, Resp’t, v. Metropolitan Life Ins. Co., App’lt.
    November 27, 1894.

      Wm. L. Learned, for app’lt ; Wm. Riley, for resp’t.
   No opinion. Order affirmed, with costs. All concur, except Andrews, C. J., and Gray, J., not voting. AfE’g 60 St. Rep. 340.


text:
    Mutual Life Ins. Co. of New York, Resp’t, v. Darius C. Newell et al., App’lts.
    November 27, 1894.

      Ralph E. Prime, for app’lts ; James A. Briggs, for resp’t.
   No opinion Order affirmed, with costs. All concur, except Peckham, J., not sitting. AfE’g 60 St, Rep. 341.


text:
    New York, L. E. & W. R. Co., App’lt, v. City of Dunkirk, Resp’t.
    December 4, 1894.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Nolan, App’lt, v. Harlem Bridge. M. & F. R. Co., Resp’t.
    December 18, 1894.

      A. G. Vanderpoel, for app'lti Abel Crook, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 939.


text:
    Mary H. Oakley, App’lt, v. George W. Oakley et al., Resp’ts.
    November 27, 1894.

      Reuben H. Underhill, for app’lt; Hector M. Hitchings, for resp’ts.
   No opinion. Judgment affirmed with costs. All concur. Aff’g 53 St. Rep. 336.


text:
    O’Brien, Resp’t, v. Fitzgerald, App’lt.
    December 4, 1894.
   No opinion. Remittitur amended by adding, “ With leave to the plaintiffs to amend their complaint upon payment of costs of the demurrer, and within 30 days after notice of entry of judgment.” See 39 N. Y. Supp. 975.


text:
    Miles M. O’Brien et al., Resp’ts, v. Lawrence J. Fitzgerald, App’lt.
    December 18, 1894.

      Louis Marshall, for resp’ts.
   No opinion. Ordered to make the same order in this case as was made in the other case argued with this case.


text:
    Margaret Palmer, Resp’t, v. John A. Pirson, App’lt.
    December 21, 1894.

      Arthur W. Hickman, for app’lt; Wallace Thayer, for resp’t.
   No opinion. Judgment affirmed, with costs'. All concur. Aff’g 54 St. Rep. 157. .


text:
    People, Resp’t, v. Eugene A. Marvin, App’lt.
    December 11, 1894.

      Wm. F. Howe, for app’lt; John D. Lindsay, for the People.
   No opinion. Judgment affirmed on opinion below. Aff’g 61 St. Rep. 46. All concur.


text:
    People, App’lt, v. Meakim et al., Resp’ts.
    December 11, 1894.

      John D. Lindsay, for the People ; A. J. Dittenhoefer, Charles Donohue and David Gerber, for resp’ts.
   No opinion. Judgment affirmed on opinion of Ingraham, J,, below. 21 N. Y. Supp. 1103. All concur.


text:
    People ex rel. William Kelly, App’lt, v. James J. Martin et al., Commissioners, Resp’ts.
    November 27, 1894.

      Jos. I. Ghreen, for app’lt; David J. Dean., for resp’ts.
   No opinion. Order affirmed, with costs, All concur. AfE’g 52 St. Rep. 939.


text:
    People ex rel. William J. Supple, App’lt. v. Common Council of City of Utica et al., Resp'ts.
    December 11, 1894.

      Charles H. Searle, for app’lt; James Coupe, for resp’ts.
   No opinion, Order affirmed, with costs. All concur. Aff’g 59 St. Rep. 887.


text:
    Henry L. Pfeffer, Resp’t, v. Buffalo Ry. Co. App’lt,
    November 27, 1894.

      C. S. Crosser, for app’lt; Geo. W. Cothran, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Afi’g 54 St. Rep. 342.


text:
    Edgar S. Pierson, App’lt, v. Norman L. Munro, Resp’t.
    December 21, 1894.

      Edward W. S. Johnston, for app’lt; Joseph G. Gay, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 53 St. Rep. 401,


text:
    Rugg, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.
    November 27, 1894.

      James F. Gluck, for app’lt; R. J. Swift, for resp’t.
   No opinion. Judgment affirmed with costs. All concur, except Finch, J,, not sitting.


text:
    Nelson H. Salisbury, Resp’t, v. Dore Lyon et al., App’lts (two cases).
    December 11, 1894.

      James Stikeman, for app’lts; Wilfred N. O’Neill, for resp’t.
   No opinion. Appeal dismised, with costs. All concur.


text:
    Selser Bros. Co., App’lt, v. Potter Produce Co., Resp’t.
    December 11, 1894.

      Elon S. Hobbs, for app’lt; John Brooks Leavitt, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 62 St. Rep. 408.


text:
    Slevin, App’lt, v. Wallace et al., Resp’ts.
    November 27, 1894.

      Charles E. Rushmore, for app’lt; S. P. Nash, for resp’ts.
   No opinion. Judgment affirmed, on opinion below, with costs. All concur,


text:
    Frederick J. Stubing, Resp’t, v. Metropolitan Life Ins. Co., App’lt.
    November 27, 1894.

      Wm. L. Learned, for app’lt; David Swits, for resp’t.
   No opinion. Order affirmed, with costs. All concur, except Andrews, Ch. J., and Gray, J., not voting. Aff’g 62 St. Rep. 868.


text:
    William W. Taylor, App’lt, v. Franklin B. Bernard et al., Resp’ts.
    December 21, 1894.

      Albert Bach, for app’lt; I. Newton Williams, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 54 St. Rep. 306.


text:
      In re Third Avenue Bridge.
    November 27, 1894.

      Adolph C. Hottenroth, for app’it; David J. Dean, for resp’t.
   No opinion. Order affirmed, with costs. All concur.


text:
    Thomas Peasall Thorne et al., Resp’ts, v. Thomas Henry French, App’lt.
    November 27, 1894.

      David Gerber, for app’lt; Charles Steele, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur, except Earl, J., dissenting. Aff’g 54 St. Rep. 137.


text:
    Charles De Kay Townsend, App’lt, v. Emma M. Work, Resp’t.
    December 11, 1894.

      Mortimer S. Brown, for app’lt; Charles Fox, for resp’t.
   . No opinion. Appeal dismissed, with costs. All concur.


text:
    Almira Trumpbour v. John Trumpbour et al.

    December 21, 1894.

      R. E. Robinson, for app’lts; Horace R. Peck, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur, except Earl and Gray, JJ., dissenting. Aff’g 53 St. Rep. 607.


text:
    Augustus Van Keuren et al., Resp’ts, v. William Starr Miller, App’lt.
    November 27, 1894.

      Esselstyn & McCarty, for app’lt; A. Lee Wager, for resp’ts.
   No opinion. Judgment affirmed, with eosts, and 5 per cent, damages, under § 3251 of the Code. All concur. Aff’g 60 St. Rep. 202.


text:
    Laura Vassar, App’lt, v. Knickerbocker Ice Co., Resp’t.
    November 27, 1894.

      Joseph Fettretch, for app’lt; Albert Stickney, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 42 St. Rep. 224.


text:
    Willson, Resp’t. v. Manhattan Ry. Co., App’lt.
    November 27, 1894.

      Joseph H. Adams, for app’lt; Eugene F. Daly, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur.


text:
    Minna Winterfield, App’lt, v. Second Ave. R. R. Co., Resp’t.
    November 27, 1894.

      Benno Loewy, for app’lt; Payson Merrill, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Andrews, Ch. J., and Peckham and O’Brien, JJ., dissenting. Aff’g 49 St. Rep. 435.


author: Pryor, J.

text:
    Supreme Court, etc.
    Henry C. Adams, Resp’t, v. New Jersey Steamship Co., App’lt.
    N. Y. C. P., General Term,
    December 3, 1894.

      W. P. Prentice, for the motion; Gibson & Davis, opposed.
   Pryor, J.

In the well-considered opinion at general term, the judgment was upheld not only by argument, but by authority conclusive on the court. The point involved, diversely decided in other states, does not appear to have been adjudicated by our own tribunal of last resort; and, as it is obviously of great importance to a very large interest, we think it should be passed upon by the court of appeals.. The defendant, therefore, is allowed to prosecute the appeal further, but upon one point only, namely, the liability of the defendant under the circumstances in evidence. The order will be so drawn. Motion granted, without costs.


text:
    Albany Exch. Sav. Bank v. Alexander A. Patterson et al.

    Sup. Ct., General Term, 3 D.,
    December 4, 1894.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Jesse W. Amey, Resp’t, v. Knights of Sobriety, Fidelity & Integrity, App’lt.
    Sup. Ct., General Term, 4 D.,
    September, 1894.
   No opinion. Judgment and order affirmed, with costs.


text:
    Richard L. Austin, Resp’t, v. Fonda Lake Paper Co. et al., App’lts.
    Sup. Ct., General Term, 4 D.,
    July, 1894.
   No opinion. -Order affirmed.


text:
    Thomas A. Avery v. John Duffy, Sheriff.
    Sup. Ct., General Term, 2 D.,
    December 10, 1894.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Emma F. M. Ayres v. D., L. & W. R. Co.
    Sup. Ct., General Term, 4 D.,
    September, 1894.
   No opinion. Motion denied.


text:
    Horatio N. Bain, App’lt, v. Charles B. Cauldwell, Resp't.
    Sup. Ct., General Term, 1 D.,
    January 18, 1895.
   Ho opinion. Order affirmed, with $10 costs and disbursements.


author: Per Curiam.

text:
    Matthew Baird, as Assignee, etc., Resp't, v. John Spence, App’lt.
    N. Y. C. P., General Term,
    November 14, 1894.

      John Mulholland (James Kearney, of counsel), for app’lt; J. Woolsey Shepard, for resp’t.
   Per Curiam.

The case was tried by the court without a jury, and there are no exceptions to findings of fact or law; there is therefore nothing for us to review. This cause was tried and decided before the legislature dispensed with findings in such cases. Appeal dismissed.


text:
    In Matter of Baxter’s Estate. Bates, App’lt, v. Bailey, Resp’t.
    Sup. Ct., General Term, 4 D.,
    September, 1894.
   No opinion. Decree of the surrogate’s court, so far as appealed from, affirmed, without costs to either party to the appeal.


text:
    Mary E. Beckwith, as Administratrix, etc., App’lt, v. N. Y., O. & W. R. Co., Resp’t.
    Sup. Ct., General Term, 4 D.,
    September, 1894.
   No opinion. Judgment and order reversed, and a new trial ordered, with costs to abide the event. Held, that whether the intestate wnS free from contributory negligence, and whether defendant was guilty of negligence, were questions of fact, which should have been submitted to the jury.


text:
    Mary E. Becraft, as Administratrix, etc., Resp’t, v. N. Y. C. & H. R. R. R. Co., App’lt.
    Sup. Ct., General Term, 4 D.,
    July, 1894.
   No opinion. Judgment and order affirmed, with costs.


text:
    Emma Blanchard, App’lt, v. Amos G. Tompkins, Resp’t.
    Sup. Ct., General Term, 5 D.,
    December 27, 1894.
   No opinion. Judgment of the county court of Chautauqua county appealed from affirmed


text:
    Ira C. Blasier, App’lt, v. N. Y. C. & H. R. R. R. Co., Resp’t.
    Sup. Ct., General Term, 4 D.,
    July, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Henry W. Box et al., Resp’ts, v. John H. Costello, App’lt.
    Buff. Supr. Ct., General Term,
    July, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Martha Braman, Resp’t, v. William E. Stevens et al., as Executors, etc., App’lts.
    Sup. Ct., General Term, 5 D.,
    December 27, 1894.
   No opinion. Motion for reargument denied.


text:
    In the Matter of Bronx Bank. In the Matter of Baldwin.
    Sup. Ct., General Term, 1 D.,
    December 14, 1894.
   No opinion. Referee’s report confirmed.


author: Dykman, J.

text:
    In the Matter of Brooklyn El. R. Co.
    Sup. Ct., General Term, 2 D.,
    December 10, 1894.

      Hoadly, Lauterbach & Johnson (Henry L. Scheuerman, of counsel), for app’lt; J. Culbert Palmer and Rufus M. Williams, for resp’t.
   Dykman, J.

It does not appear in this case that any erroneous principle was adopted by the commissioners in making their award, or that any allowance was made for noise. It is not usual tor an appellate court to interfere with awards of commissioners upon the question of damages merely, and we find no reason for such interference in this case. The order should be affirmed, with $10 costs and disbursements.


text:
    In the Matter of Brooklyn El. R. Co.
    Sup. Ct., General Term. 2 D.,
    December 10, 1894.

      Iloadly, Lauterbaeh & Johnson, (Henry L. Scheuerman, of counsel), for app’lt; J. Culbert Palmer and Rufus M. Williams, for resp’t.
   Dykman, J.

It does not appear in this case that any erroneous principle of law was adopted by the commissioners in making their award, or that any allowance was made for noise. It is not usual for an appellate court to interfere with awards of commissioners upon the question of damages merely, and we find no reason for such interference in this case. The order should be affirmed, with $10 costs and disbursements.


text:
    Mamie Brown, Resp’t, v. Royal E. Dean et al., App’lts.
    Sup. Ct., General Term, 2 D.,
    December 10, 1894.

      George H. Pettit, for app’lts; Herbert T. Ketcham, for resp’t.
   Cullen, J.—I recommend affirmance without opinion on the authority of Rutherford v. Town of Madrid, 77 Hun, 545.


text:
    Patrick V. Byrnes, Resp’t. v. Juliette S. Lewis, App'lt.
    Sup. Ct., General Term, 5 D.,
    December 27, 1894.
   No opinion. Order modified by striking out all except the third provision thereof," and, as so modified, affirmed, without costs of this appeal to either party.


text:
    Patrick V. Byrnes, Resp’t, v. M. Fannie Lewis, App’lt.
    Sup. Ct., General Term, 5 D.,
    December 27, 1894.
   No opinion Order reversed, and motion denied, with $10 costs and disbursements.


text:
    Patrick V. Byrnes, Resp’t, v. Nellie Lewis, App’lt.
    Sup. Ct., General Term, 5 D.,
    December 27, 1891.
   No opinion. Order modified by striking out the second provision thereof, and, as so modified, affirmed, without costs of this appeal to either party.


text:
    Elizabeth F. Cagger et al., Resp’ts, v. Rhoda Shultes et al., App’lts.
    Sup. Ct., General Term, 3 D.,
    December 4, 1894.
   No opinion. Order modified, and, as modified, affirmed, without costs to either party.


text:
    Canadian Agricultural Coal & Colonization Co., Limited, Resp’t, v. Joseph L. Spofford, App’lt.
    Sup. Ct., General Term, 1 D.,
    December 14, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Helen D. Canant, Resp’t, v. Hattie B. Packer, App’lt.
    Buff. Supr. Ct., General Term,
    July, 1894.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    Louise Carlson, App’lt, v. Maria L. Winterson, Resp’t.
    N. Y. C. P., General Term,
    December 3, 1894.
   Motions for reargument of appeal from order of the city court directing restitution.

No opinion. Motion granted, without costs.


text:
    Charles J. Close, Resp’t, v. Dayton A. Minard, App’lt.
    Buff. Supr. Ct., General Term,
    July, 1894.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    In the Matter of Clover, as Assignee, etc., Zimmerman, App’lt, v. Miller, Resp’t.
    Sup. Ct., General Term, 4 D.,
    September, 1894.
   No opinion. So much of the decree as is appealed from affirmed, without costs to either party. Merwin, J., not voting. Held, that no exception is presented by the appeal book which would justify a reversal.


text:
    Isaac K. Cohn v. Frederick H. Kellogg et al.

    Sup. Ct., General Term, 1 D.,
    December 14, 1894.
   No opinion. No notice of motion or order to show cause has been submitted.


text:
    Newman Cowen et al. v. Samuel Rinaldo et al.

    Sup. Ct., General Term, 1 D.,
    January 18, 1895.
   No opinion. Motion for extra allowance granted as follows: To Goldfogle & Cohn, attorneys for defendant Samuel Rinaldo, $250: to Strong & Cadwalader. attorneys for defendants Hyman Rinaldo and others, $875; to Wilson & ,‘Wallis, attorneys for defendant David Rinaldo, $875.


text:
    C. & C. Electric Co., App’lt, v. William F Wendt et al., Resp’ts.
    Sup. Ct., General Term, 1 D ,
    January 18, 1895.
   No opinion Order affirmed, with $10 costs and disbursements.


text:
    John D. W Darling, Resp’t, v. William Waterson, App’lt
    Sup. Ct., General Term, 4 D .
    September, 1894.
   No opinion. Order reversed, with $10 costs and disbursements. Motion denied, with $10 costs


text:
    Olney Dean, Resp’t. v City of Niagara Falls, App’lt.
    Sup Ct, General Term, 5 D.,
    December 27, 1894.
   No opinion Judgment appealed from affirmed.


text:
    Robert J. Dean et al., Resp’ts, v. August M. Collignon, App’lt.
    Sup. Ct., General Term, 1 D.,
    January 18, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    In the Matter of De Forest
    Sup. Ct. General Term, 1 D.,
    January 18, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Henry Clay Ditmas et al. v. Hector M. Hutchings et al.

    Sup. Ct. General Term, 2 D.,
    December 10, 1894.
   No opinion: Judgment affirmed, with costs.


text:
    Mary A. Dowd, App’lt, v. Dudley B. Smith, Resp’t.
    Sup. Ct. General Term, 4 D.,
    September, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Ellis H. Roberts & Co. v. Patrick F. Bulger, Resp’t. Vietor et al., App’lt.
    Sup. Ct. General Term, 4 D.,
    July, 1894.
   No opinion. Order so far as appealed from reversed as to the appellants, with $10 costs and disbursements, without prejudice to an application by the assignee for an allowance for expenses incurred.


text:
    Anton Exhorn, Resp’t, v. Paulina Exhorn, App’lt.
    Sup. Ct. General Term. 1 D..
    January 18, 1895.
   No opinion. Order affirmed, with $10 cos is and disbursements.


text:
    First Nat. Bank of Salem, App’lt, v. Joseph Davis, Resp’t.
    Sup. Ct. General Term, 5 D.,
    December 27, 1894.
   No opinion. Judgment appealed from affirmed.


text:
    Warren D. Fisher, Resp’t, v. Village of Cambridge, App’lt.
    Sup. Ct. General Term, 3 D.,
    December 4, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Elizin V. Foote, Resp’t, v. Metropolitan El. Ry. Co., App’lt
    Sup. Ct. General Term, 1 D.,
    December 14, 1894.
   No opinion. Judgment affirmed with costs.


text:
    Patrick Fox v. Benjamin F. Hardenburgh.
    Sup. Ct. General Term, 3 D.,
    December 4, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Jacob W. Frank, App’lt, v. Stephen H. Olin, Resp’t.
    Sup. Ct. General Term, 1 D.,
    December 14, 1894.
   No opinion. Judgment affirmed, with costs, on opinion on former appeal in 15 St. Rep. 161.


text:
    Max Gabriel et al., Resp’ts, v. Schillinger Fire Proof Cement & Asphalt Co., App’lt.
    Sup. Ct. General Term, 1 D.,
    December 14, 1894.
   No opinion. Order reversed, with $10 costs and disbursements.


text:
    Alvin A. Gage et al., Resp’ts, v. Julius Lippman et al., App’lts
    N. Y. C. P. General Term,
    December 3, 1894.
   Per Curiam.

The motion to dismiss the appeal should be denied. The appellants served the printed cases on appeal several years ago, and the respondents could have brought the case on for hearing at any time. The appellants urge that the respondents have violated their stipulation to mark the printed case settled, as containing all the evidence. This allegation is not denied. The cause had better be brought on at the next term, and disposed of in the ordinary way.


text:
    Wilson H. Gardenier, App’lt, v. Amos Allport et al., Resp’ts.
    Sup. Ct. General Term, 4 D.,
    September, 1894.
   No opinion. Decision and interlocutory judgment affirmed, with costs.


text:
    Wilson H. Gardenier, App’lt, v. Charles N. Bulger, Resp’t.
    Sup. Ct. General Term, 4 D.,
    September, 1894.
   No opinion. Decision and interlocutory judgment affirmed, with costs.


text:
    Ida M. Gates v. New York Recorder Co.
    Sup. Ct. General Term, 2 D.,
    December 10, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Elvira B. Gates et al., Resp’ts, v. Samuel E. Welch et al., App’lts.
    Sup. Ct. General Term, 4 D.,
    September, 1894.
   No opinion. Interlocutory judgment affirmed, with costs, and leave granted to appellants to withdraw their demurrers and answer upon payment of the costs of the demurrers, and one bill of costs on appeal.


text:
    Edwin Gomez v. Horatio Gomez.
    Sup. Ct. General Term, 1 D.,
    December 14, 1894.
   No opinion. Motion denied.


text:
    James E. Green, Resp’t, v. William E. Smith et al., App’lts.
    Sup. G: General Term, 4 D.,
    September, 1894.
   _ No opinion. Interlocutory'judgment affirmed, with costs, with leave to defendants to answer upon payment of the costs of the demurrer and of this appeal.


text:
    John F. Hafner, Resp’t, v. Emma L. Hafner, App’lt.
    Sup. Ct. General Term, 5 D.,
    December 27, 1894.
   No opinion. Judgment appealed from affirmed.


text:
    Mary Haight, Resp’t, v. John H. Townsend, as Administrator, etc., App’lt.
    Sup Ct. General Term, 4D.,
    September, 1894.
   No opinion. Judgment reversed, and a new trial ordered, with costs to abide the event, unless the plaintiff shall stipulate to reduce the judgment as to damages to the sum of $393, and interest thereon from November, 23, 1892, in which event the judgment, as so modified, is affirmed, without costs of the appeal no either party.


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    James W. Hamblett, App’lt, v. Rudolph Liede, Resp’t,
    N. Y. C. P. General Term,
    January 7, 1895.
    Appeal from first district court.

      H. D. & E. C. McBurney, for app’lt; Fred. D. Mayforth, for resp’t.
   Per Curiam.

There is a direct conflict between the testimony of the plaintiff’s manager and the testimony of the defendant as to whether any agreement to lease was definitely concluded between them. Two visits made by the defendant'upon the real estate agents, Birdsall & Co., appear, at first sight, like admissions that the defendant regarded himself as a tenant of the premises in question. Upon his first visit he requested these agents, who, as the plaintiff’s-manager had told him, were the ones usually employed by the plaintiff, to find a tenant for a part of the loft; but the defendant explains this by saying that he wanted to find whether a part of the loft could be let before he engaged to take it all, as it was more than he needed. When he called the second time he directed Birdsall & Co. to “ change the entry, and make it the entire loft for Mr. Hamblett.” But this direction, by its own terms, disclaims any liability on his part, and cannot be regarded as evidence that he considered himself as being bound by a lease of the entire floor, and that he was in search of some one to take his place as tenant. Judgment affirmed, with costs.


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    Charles Hargin, App’lt, v. Delos Haring, Resp’t.
    Sup. Ct. General Term, 4 D.,
    September, 1894.
   No opinion. Order reversed, with costs to the appellant to abide the event* and motion for a new trial granted.


text:
    James P. Hart, Resp’t, v. Montrose B. Buck, App’lt.
    Sup. Ct. General Term, 4 D.,
    September, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.