text:
    JEREMIAH P. ROBINSON and Others, Respondents, v. THE SPRINGFIELD IRON COMPANY, Appellant.

      Authority of an agent — includes the necessary and usual means of effecting the object for which it was given — lien for wharfage — a part may be held for the wharfage on the whole — statute of frauds — what furnishes a new consideration.

    Upon the trial of this action a verdict was rendered for the plaintiffs for $910 for wharfage upon some COO tons of iron rails, laden upon their wharf for, and which were received by, the defendant. The rails were not placed upon the wharf by the defendant’s direction, nor was the defendant liable for the wharfage. The plaintiffs claimed under a contract made, after all but seventy five tons of the rails had been removed, with an agent of the defendant, by which, upon the plaintiffs consenting to waive their lien upon the seventy-five tons for the wharfage of all the rails and allow the same to be removed, the agent agreed that the defendant would pay the whole sum due; the agent then saying that it was of more importance for them to get the iron through before the canal closed than to dispute the bill.
    It appeared that the agent had been sent to New York for the purpose of hurry ing forward the rails in all possible ways, and had been instructed to see that there were no delays in shipping them as it was important for the defendant to secure them at once.

      Reld, that the authority of the agent was sufficient and that his contract was binding upon the defendant.
    That the plaintiffs’ claim that they were entitled to a lien on the seventy-five tons for the whole wharfage was well founded.
    Thai the agreement was not witlitn the statute of frauds, as the waiver of the plaintiffs’ lien furnished a new and original consideration moving between tlie contracting parties.
    Appeal from a judgment in favor qí tlie plaintiffs, entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon tlie minutes of the justice before whom the action was tried.

      G. Zabriskie, for the appellant.

      Frank D. Sturges, for the respondents.
   Daniels, J.:

The verdict was recovered for the suin of $910 due to the plaintiffs for wharfage upon iron rails laden upon their wharf, and received by the defendant, and for interest upon that amount. The rails discharged from the vessel upon the wharf amounted to about 600 tons, and they were all removed with the exception of about seventy-five tons when the plaintiffs interposed and refused to permit the removal of the residue until their charges for wharf-age were paid. Upon this subject they wrote a letter to the defendant upon the Lth of September, 1880, inclosing a bill for the amount then claimed to have matured, and' on the twentieth or twenty-first of the same month a contract was alleged to have been made upon which the defendant became liable to pay for the wharfage. The rails were not placed upon the wharf under the authority, or subject to any liability, on the part of the defendant, for the wharf-age. And it was not otherwise liable to make such payment at any time, than by the contract relied upon as the foundation of the action. This contract was stated to have been made on behalf of the defendant with the plaintiffs, through its agent ’Walter E. Mack. The evidence to prove it was objected to at the trial, but it was received subject to the defendant’s exception, and, of course, subject to proof of the authority of Mack to bind the defendant for the payment of the wharfage. Mack was informed by one of the plaintiffs that the residue of the iron could not be removed without payment, and he, as a witness upon the trial, stated that Mack replied to him: “ The Springfield Iron Company is good for the amount of this. You don’t want to hold the iron for this bill,” and I said we will have to hold the iron until you pay us; we have a lien on the iron for these charges and we cannot let it go until you pay us.” The witness stated that Mack replied, “ it is of more importance to us to get this iron through, as it is late in the season and the canal is going to close, than it is to dispute over this bill, and we will pay the bill; ” and upon that the witness stated the iron was allowed to be removed. There was some difference in the evidence as to what the conversation was, but that difference had no other effect than to create a question of fact for the jury to determine, and as they found in favor of the plaintiffs, their determination probably was that this evidence truly disclosed the nature and conclusion of the interview, relied upon as a contract on the pajt of the defendant to pay the charges. The president of the defendant, whose deposition was read upon the trial, testified that while the duties of Mack were merely to make sales of the goods of the company, “ he performed such special services in connection with its business as its interest required, and derived his power and authority in all cases from instructions issued by me as president ” or by the secretary. lie then added, by his answer to another interrogatory, that Mack was sent to New York by me on or about the 7th of September, 1880, mainly for the purpose of hurrying forward the old rails which had been bought, as before stated, by said Evans; his instructions were verbal and were given by me, and were to the effect that he should see that there were no delays in shipment, and to that end he was to confer and act with said Evans and the parties who who were to transport the rails from New York westward ; he had no authority except to hurry the rails forward in all possible ways.

The witness further stated that the “ rails were badly needed for use at defendant’s works, as aforesaid, and in order that there might be no delay in their shipment Walter E. Mack was sent to New York to see to it tlia-t they were forwarded promptly, and was instructed to' use his best efforts to that end.” And Mack testified that at the time he came to New York the company was depending upon these lots of rails to keep the mill in motion, to run it to its capacity, in order that contracts which had been taken previously might be fulfilled as agreed.” This evidence was not contradicted, and it probably disclosed with accuracy the authority given to Mack to obtain possession of and forward the rails. That could not be done, as the evidence tended to exhibit the attitude of the plaintiffs, without either payment or an agreement to pay their charges for wharfage. What Mack was authorized to do could be accomplished in no other manner, and accordingly it did include the authority to enter into the contract or agreement upon which the action was brought. For whatever may be necessary to complete an act an agent is authorized to perform, is included within the authority of the agent. Upon this subject, after considering the different ways in which authority may be given to an agent to act for another, it has been stated as the law that “ whether it is conferred in the one way or in the other it is, unless the contrary manifestly appears to be the intent of the party, always construed to include all the necessary and usual means of executing it with effect.” (Story on Agency [4th ed.], sec. 58.) Providing for the payment of the plaintiff’s claim for wharfage ivas not only a necessary, but it was the only means by which the agent could obtain and forward the rails, and within this principle he was authorized to enter into a contract for the payment of the indebtedness. Cases have been cited and relied upon in support of the defense, which are supposed to be in conflict with this principle, but they are not so, for the acts which were disaffirmed in those cases were extraneous acts not included within or necessary for the performance of those to which the authority related. This act was of a different character. It related to the precise thing and the precise authority for which the power was given to the agent, and without its performance or the creation of the obligation, possession of the iron could not have been obtained by him for the defendant. What the nature of the agreement was which Mack made to obtain possession of the iron was disputed upon the trial, but as the facts were affirmed by the witnesses it was a question for the jury whether the agreement relied upon was the agreement of the company to pay, or was the individul agreement of the agent himself. He was present under the authority of the company, acting in its behalf, having no personal interest himself in the transaction, and the language stated to have been made use of by him sufficiently indicated the design to be to keep himself within the limits of his authority in what he said concerning the payment of the plaintiffs’ charges. The jury adopted the view that he had acted solely and wholly as the defendant’s agejit in what he did and said, and that the contract to pay, which the evidence tended to prove, was the contract of the defendant and not of the agent. Upon this subject the conclusion of the jury mnst be accepted as final, settling the rights and obligations of the parties as to this part of the controversy.

The right of the plaintiffs to claim the amount of their charges as a lien upon the remaining seventy-five tons was disputed at the trial. The statute defining the lien and its extent in no way affects this part of the controversy. It merely provides for the existence .of the lien and the limit to the charges which may be made. (Laws 1872, chap. 320, § 2.) And that subjected the lien to the existing rule sanctioned by the courts as a general jirinciple of law. And under that the lien of the plaintiffs for their charges extended to every part of the iron. And they had the legal right to detain the seventy-five tons for the payment of their demand. (Schmidt v. Blood, 9 Wend., 268.) The agreement to pay was not within the statute of frauds for the obligation was created upon the waiver of the plaintiff’s lien. It was a new and original consideration of benefit, moving between the newly contracting parties and obligated the defendant to pay, even though its promise was not in writing. (Mallory v. Gillett, 21 N. Y., 412, 417; Prime v. Koehler, 77 id., 91.)

These are the controlling points in the case, and as the defendant was liable when it was found that Mack had entered into this contract on the defendant’s behalf, the right of the plaintiffs to recover resulted legally from that circumstance. It is not necessary for this reason to examine the exceptions which were taken to the exclusion or admission of evidence, during the progress of the trial, or to the charge or refusals to charge' at its close, for the right of the plaintiffs by the charge was made dependent wholly upon the existence of the agreement alleged to have been made. If that should not be found by the jury, then they were directed to render their verdict for the defendant. But if it was found by them, as it must now be assumed to have been, it necessarily followed at once that the plaintiffs were entitled to recover the amount of their charges.

What the court said concerning the relation of Evans to the transaction was entirely immaterial. The case was wholly disposed of by the contract entered into for the payment of the charges. And as the verdict of the jury cannot be set aside, both the judgment and order should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment and order affirmed.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
       WILLIAM C. HUSSEY, Respondent, v. JOHN J. COGER, Appellant.

      Negligence — when a foreman represents the master — liability of a master to his servant.

    This action was brought to recover damages for personal injuries sustained by the plaintiff, which were alleged to have been occasioned by the negligence of a foreman, for whose acts it was claimed that the defendant was responsible. It appeared that the plaintiff, while working on one of the lower decks of a vessel, was struck by a section of a hatch which was being removed from the main deck under the orders of the foreman, who exercised the powers of employing, discharging and directing the labors of the defendant’s servants. It was claimed by the plaintiff that the foreman was negligent in directing the hatch to be removed by one person, and in failing tc give warning to those working below. Evidence was, however, given by the defendant tending to show that more than one person was directed to take up the hatch; and that two persons, one at each end, attempted to do it ; and that the falling of the hatch was caused by one of those persons allowing it to slip from his hands, thus wrenching it from the hands of the other person.

      Held, that the foreman represented the master, and did not hold towards the plaintiff the relation of a fellow servant, and that the defendant was liable for any neglect on his part to adopt all reasonable means and precautions to provide for the safety of the employees.
    The defendant’s counsel requested the court to charge “that if, after the direction to remove the hatch given by Robert W. Gray (the foreman), the hatch fell by reason of the carelessness or negligence of Rouse or Holbrook, or either of them, the defendant is not liable.”

      Held, that it was error to refuse so to charge.
    Appeal from a judgment in favor of tlie plaintiff, entered on the verdict of a jury, and from an order denying a motion fora new trial made upon the minutes of the justice before whom the action was tried, and from an order denying a motion that the exception be heard in the first instance at the General Term.

      Charles W. Dayton, for the appellant.

      Frank F. Blackwell, for the respondent.

       Decided January 8, 1886.

   Davis, P. J.:

The evidence in this case was extremely conflicting, but the finding of the jury cannot be disturbed on the ground that the verdict was against the weight of evidence. Under the rule as now announced by the Court of Appeals in Pantzar v. The Tilly Foster Iron Mining Company (99 N. Y., 368) Gray, the foreman or superintendent of the defendant, was properly regarded by the court at the trial as holding toward the plaintiff the relation of master rather than that of fellow servant. He represented the defendant “ with power to hire and discharge servants, to direct their labors and obtain and employ suitable means and appliances for the conduct of the business,” and as such superintendent he stood as between himself and the plaintiff in the place of his master, “ and his neglect to adopt all reasonable means and precautions to provide for the safety of the employees constitutes an omission of duty on the part of the master rendering him liable for any injury occurring to the servant therefrom.” (Corcoran v. Holbrook, 59 N. Y., 517.) Upon the evidence it was undoubtedly an improper thing for one person to attempt to take 'up the hatch by the falling of which the defendant was injured; it was therefore improper to order it to be done by one person; and if Gray ordered Holbrook alone to remove the hatch he made the defendant responsible for the injury that happened to the plaintiff by reason of using inadequate power to perform the act.

The testimony, however, tended strongly to show that more than 'one person was directed to take up the hatch, and that two persons, one at each end, attempted to do it, and that the falling of the hatch was caused by one of those persons allowing it to slip from his hand and thus by the fall of that end wrenching the other end out of the hands of Holbrook and causing it so to fall as to inflict the injury of plaintiff.

The jury probably found that the order was given to Holbrook alone, and that his failure to perform through the inability of one person to do the act was the cause of the injury; but there was also evidence on the part of the plaintiff tending to show that no warning was given to persons working under the hatch of the danger to which they were exposed by its removal. This question was also in serious contest by the evidence, for a number of witnesses testified that Gray gave the warning, “stand from under,” in a voice loud enough to be heard by persons exposed to the danger, some of whom heard and heeded the warning and escaped injury. It cannot therefore be said with absolute certainty on what precise ground the jury put their verdict.

The evidence on the part of the defense would have warranted the jury in finding that the injury was caused by carelessness on the part of the person who attempted to raise the hatch after Gray gave the order for its removal, either in their failure to give warning to the persons below or in the improper handling of the hatch after it was raised from its place. If the injury to plaintiff was caused by any negligence of his fellow servants in obeying a proper order of Gray, the defendant would not be liable. Hence it was proper to submit to the jury that theory of the defense ; and if the jury had found for the defendant on the submission of that theory, the court upon the evidence would not have disturbed their verdict.

Amongst other requests to charge the defendant’s counsel requested the court to charge the following: That if after the direction to-remove the hatch given by Robert W. Gray, the hatch fell by reason of the carelessness or negligence of Rouse or Holbrook, or either of them, the defendant is not liable.” The court declined to charge this request and the defendant duly excepted.

The proposition requested is sound in law. It fairly arose in the ease upon the evidence given by defendant and the defendant was entitled to have it presented to the jury. ¥e cannot with absolute certainty see that the jury, with this instruction presented by the court, might not have found for the defendant. We think the refusal to charge this was a fatal error.

There were several other requests to charge, notably that touching the right ro recover exemplary or vindictive damages, which it would have been proper to have granted ; but we think the refusal might not have been so plainly injurious as to demand our inter' ference with the judgment. For the error in refusing to charge the request first above considered, the judgment must be reversed and a new trial granted, with costs to abide the event.

It is not necessary to pass upon the appeals from the several orders, as the direction given upon the other ground necessarily leaves them, if wrong, without injurious effect.

.Judgment reversed and new trial granted, with costs to abide-the event.

Brady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to adide event.


author: Davis, P. J.;

text:
    DUDLEY S. GAUTIER, Plaintiff, v. DOUGLAS MANUFACTURING COMPANY, Defendant.

      ■Practice — modification of a judgment Try the General Term so as to send the case bade to a referee to consider one particular subject — a motion to confirm the report should, be made at Special Term, and not at the General Term.

    Motion for the confirmation of a referee’s report, and for judgment thereon.
    The court at General Term said: “ When this case was here on •the appeal from the judgment this court held that the court below had erred in respect of a single question of the case, to wit, in the -exclusion of evidence concerning the quality of steel furnished by the plaintiff. The court below held that if that were an open ■question, it should go back to the referee for determination, but it ■also held that the defendants were estopped from questioning the ■value of the steel under the circumstances of the case. This court held that it was an open question, and should have been sent back to the referees for trial. The judgment was therefore modified by ■sending that branch of the case to the referee for further determination. (13 Hun, 514, et sequenda.) Under our judgment the -question has been tried by the referees, and a report made and filed by which they find, as matter of fact, that the steel used and furnished was not defective or of bad quality, and was worth the amount claimed ; and that the same was suitable and was used for the manufacture of goods ; and they report, as a conclusion of law, .that the defendants are not entitled to any deduction from the amount of said judgment upon the said defense set forth in their ■answers.
    “ The only question arising upon this motion is, whether the -application for judgment upon the report should be made at this •court or at Special Term. We are of opinion that it should be made at Special Term. The effect of the decision of this court upon the appeal and the modification of the judgment was, we think, precisely the same as though the Special Term had decided as this court did in respect of the right to try the question as to the quality of the steel, and had sent back the report to the referees for their further action upon that question. Upon the motion for confirmation in the Special Term, the defendants will be in condition to present, in such manner as they shall be advised, any question that arose before the referees, or which may properly arise upon their findings of fact and conclusion of law, and the action of the Special Term upon those questions may then be reviewed by this court. There is nothing to show what those questions may be; but as it is quite probable the case may be presented to the court of last resort for final review, we think the only regular mode of procedure is to direct that the motion be made at Special Term which will put the case in a position where the defendants can by appeal bring up any questions that arise upon the hearing of the issue sent back to the referees preparatory to the final appeal.
    “ The motion should be denied, but without costs and without prejudice to any motion for confirmation to be made at Special Term.”

      J. E. Parsons, for the plaintiff.

      Marsh, Wilson Wallis, for the defendant.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

Motion denied, without costs and without prejudice to motion for confirmation and judgment to be made at Special Term.


author: Daniels, J.;

text:
    GEORGE W. WEEKS, as Executor, etc., of JACOB WEEKS, Deceased, Respondent, v. JACOB WEEKS CORNWALL and Others, Appellants.

      Practice —joinder of causes of action — an action relating to different separate trusts created by the same will cannot be joined, where the beneficiaries are different and hare no common interest.

    Appeal from an interlocutory judgment overruling demurrers, intei posed to the plaintiff’s complaint.

      The court at General Term said: “ The plaintiff, as one of the executors of the estate of Jacob Weeks, commenced this action to settle his accounts as executor and to obtain the determination of the court upon certain portions of the will drawn in question by him, and its judgment as to his compensation as executor and trustee of the estate. Ten of the defendants joined in the demurrer to ten different subdivisions of the complaint in form setting forth separate causes of action. These divisions extend from the fifth to the fourteenth alleged causes of action, both inclusive. The other two appealing defendants, by their demurrer, demurred to each division of the complaint, being twenty-one in number. The objections taken by the ten demurring defendants to each of such divisions of the complaint were the same, and they are that neither of the divisions demurred to state facts sufficient to constitute a cause of action against either of these defendants, and that such causes of action are each improperly united with other causes of action in the complaint inasmuch as neither affects the rights of all the parties to the action, or either, or any of the ten defendants demurring, but affects the rights of the persons only mentioned in the respective causes of action. The demurrer of the other two defendants is not unlike that interposed by the ten defendants, except that it includes all the subdivisions of the complaint. ■
    A presumption arises out of the manner in which the different subdivisions of the complaint have been inserted in it, that it was intended that the allegations contained in each subdivision should form a distinct and separate cause of action. For with the exception of the first and eighteenth, each of the divisions of the complaint is introduced with the statement of it as another cause of action. The second division of the complaint commences with the words “for a second cause of action the plaintiff avers, sets forth and alleges as follows,” and each of the others which have been mentioned are preceded in the same manner, but with the appropriate change in the number. This however would not be conclusive against the plaintiff if the complaint could be so construed as still to contain but one cause of action. (Ilillman v. Hillman, 14 Iiow., 456.) For if it contained but one cause of action, and that was as the complaint was designed to be in equity, then all persons in any way interested might very well be made parties to the action, even though their interests might be extremely remote or contingent. For the law favors an action in that form. For the purpose of settling disputed controversies or rights, it permits them to be included in one litigation where they arise out of the same subject matter. This subject was elaborately considered in Brinherhoff v. Brown (6 Johns. Ch., 139), where the authorities were discussed and ciied. And it was there determined where there was a common interest to be maintained in equity, either in favor of the plaintiff or against the defendants, all persons in any manner connected with that interest could regularly be brought before the court for its determination. And the same rule has been generally stated in section 539 of Story’s Equity Pleadings, and also in Garner v. Thorn (56 How., 452). But this rule requires that the interest to be protected or to be assailed in the action shall be a common one, and that the plaintiffs are identified in interest in maintaining the action and obtaining the relief it may be its object to secure. But at the same time it has been .held, and reasonably and properly so, that a court of equity will not generally “ take cognizance of distinct and separate claims of different persons in one suit though standing in the same relative situation.'’ (Berkley v. B-resgrave, 1 East, 220, 226, 227.) There must be a common interest centering i:i the point in issue. ( Ward v. Duke, ete., 2 Anst., 469, 477 ; liayner v. Julian, 2 Dickens, 677.) This rule has been further stated to be that “ a party cannot be brought as a defendant upon a record with a large portion of which, and of the case made by which, he has no connection whatever.” (Story’s Eq. Plead., § 530.) And these authorities and the rule which they support do not seem to promote the maintenance of the plaintiff’s action in the manner in which it has been disclosed and set forth in the complaint.”
    The allegations of the complaint contained in the various counts in the complaint are then examined, after which the opinion proceeds as follows:
    “From this examination of the complaint it is clear that, so far as the different trusts are set forth, the right ar,d obligation of the plaintiff to account for his management in it is separate and legally devisable from all the others ; that the accounting as to each trust must be exclusively between himself and the beneficiary in that trust, or his personal representatives when he may become deceased. And these different canses of action do not affect all the parties to the suit, and cannot under the authority of the law be alleged and set forth in the same complaint. This point has been raised and distinctly presented by each of the demurrers, and as it is required to be sustained, the judgment from which the appeal has been taken should be reversed and a judgment entered sustaining the demurrers, of the appealing defendants, to the complaint with costs, with leave to the plaintiff to amend in twenty days on payment of the costs of the demurrers and of these appeals.”

      Flaman B. Candler and Abner C. Thomas, for the appellants.

      A. II. Stoiber, for the respondent. »
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Judgment reversed, judgment entered sustaining demurrer, with costs and witli leave to plaintiff to amend in twenty days on payment of costs of -demurrer and of appeal.


author: Brady, J.;

text:
    In the Matter of the Application of GARRET W. RYCKMAN to be Discharged from Imprisonment for Nonpayment of Alimony.

      Arrest for a failure to pay alimony — when the debtor will be disehmyed when unable to make the payments — when he will not be allowed to apply his earnings to the support of another woman.

    Appeal from an order discharging the petitioner and respondent from imprisonment. •
    The defendant was arrested by virtue of a warrant of attachment issued against him, founded upon an order declaring him guilty of contempt, in failing to pay alimony, pursuant to a decree of separation entered by consent in an action in which his wife Kate T. Ryckman was plaintiff, and which sum so due amounted to nearly $2,000.
    The defendant made application for his discharge under section 2286 of the Code, upon the ground that he had not the means wherewith to pay the alimony, and substantially alleging abject poverty. His statement in this regard was corroborated to some extent at least by the affidavits of Messrs Rushmore and Hobbs.
    The court at General Term said: “ It appeared that he had been in jail from the twenty-first of April, and the learned justice sitting in the court below, who heard and disposed of the application, said in his opinion and very properly, that if his discharge was to depend upon the payment of the alimony then due he would apparently have to stay in jail for the rest of his life. He further said that the continued imprisonment of the petitioner could be of no possible benefit to any one, and should not be prolonged indefinitely merely for the sake of punishing him. He therefore regarded it as his duty to order his discharge without prejudice however to the right of the plaintiff in the action to institute proceedings for his re-arrest if at any time it could be shown that he was able to pay any of the alimony which he was bound by law to- discharge.

      “ The answer to the application was that he was living- with a person by whom he had illegitimate children, and was spending his-earnings for the support of these persons to the detriment of his wife and in disregard of the obligations imposed by the decree. There is no reason however to believe from the record that he. had any property, and his imprisonment deprived him necessarily of all opportunity to earn anything for the support of himself or others. If by his earnings he was supporting the persons alleged to have been taken care of by him, his imprisonment, as suggested by the-learned justice in the court below, could result in- no- possible- benefit to any person and should not be continued.

      “ The provisions allowing an application for process directing there-arrest of the defendant,, perhaps, under the circumstances was not broad enough. It should have provided for his re-arrest not only if it could be shown that he was able to pay any portion of the alimony,, but likewise-if here-established his relations with the person with whom he was alleged to have been living and was apparently supporting.
    “ His first duty in the appropriation of his surplus earnings must be to pay the alimony under the decree,.and the failure to perform that ceremony, when he has means so to do in whole or in part,, should subject him to the process of the court.”'

      John Henry Hull, for Kate T. Ryckman, appellant..

      C. E. Rushmore, for the respondent.
   Opinion by

Brady, J.;

Davis, P. J., and Daniels, J., concurred*

Order modified as directed in opinion and affirmed as modified,, without costs.


text:
    GLORVINA R. HOFFMAN, Appellant, v. AMANDA M. DE GRAAF, Respondent.

      Additional allowance — when not allowed, in an action to vacate an award.

    Appeal from a judgment in favor of the defendant recovered on a trial at Special Term, and from an order making an additional allowance of costs.
    The object of the action was to vacate and set aside an appraisement or award, because of the misconduct of the umpire selected to determine the question submitted to the appraisers. The defendant was the owner of property subject to a lease which the plaintiff had acquired. The lease was about to expire, and by covenants contained in it the plaintiff was entitled to its renewal for the period of twenty-one years on the payment of a rental of five per cent of the full and fair worth at private sale of the land leased.
    The court at General Term, after holding that the refusal of the court to set aside the award was justified by the evidence and findings, said : “ Upon the determination of the action an additional allowance of costs was made for the sum of two hundred and fifty dollars. For this there was no foundation, for all that was in controversy in the case was whether the award should stand or should be vacated. And as no valuation could be placed upon the award in money there was no criterion by which an allowance could be directed.
    The judgment should be affirmed, with costs, but the order making’the allowance should be reversed with ten dollars costs and also the disbursements.”

      E. L. Fancher, for the appellant.

      Abram Kling and James R. Marvin, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Beady, J., concurred.

Judgment affirmed, with costs. Order making allowance reversed with ten dollars costs and disbursements.


author: Brady, J.

text:
    JOHN BETJEMANN, Respondent, v. MARY E. BROOKS, Appellant.

      Evidence — when a witness cannot testify to what person he mentally gave credit for goods sold.

    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.
    The court at General Term said: “In this controversy the plaintiff sought to make the defendant responsible for groceries sold to different persons, on the assumption that each was her agent duly authorized to carry on the business of a boarding-house keeper by her and on her account on premises which she owned. The evidence by which these agencies were sought to be established consists of a series of facts and circumstances woven together, none of which show any direct communication between the plaintiff and the defendant on the subject. The superstructure rests upon acts of the defendant’s son, William L. Brooks, who was her agent or attorney for the general management of her estate under a written power of attorney, which does not suggest such a business. * * * The chief issue was, to whom the plaintiff charged the goods — upon whose credit they were sold — and this was a legal conclusion to be drawn from all the facts and circumstances disclosed. The plaintiff had admitted, while under examination, that he did not know the defendant personally and'had never seen her, and that he did not know her son William L. Brooks personally, and had not received any orders from him personally for groceries; and therefore, as suggested, the establishment of the defendant’s responsibility depended upon facts and circumstances. After the defendant rested the plaintiff was recalled and asked, under proper objection and exception, the following question : ‘ In delivering the goods which were delivered during the administration of Mrs. Clapp, did you give the credit to Mrs. Clapp personally or to Mrs. Brooks ? ” to which the plaintiff answered, ‘ On paper ? ’ And then followed the question: ‘Not on paper, but in your mind?’ to which the plaintiff responded, ‘ Mrs. Brooks.’ And this question was repeated as to the goods furnished the other alleged agents, and allowed under objection and exception.

      “ This was an error. It has been so declared by two cases in the court of last resort. (.Nichols v. The Kingdom Iron Ore Co. of Lake Champlain¡ 56 N. Y., 618; Merritt, v. Briggs, 57 id., 651.) In the former case the question was whether machinery alleged to have been sold to the defendant was purchased by him or one Colt. The witness who set up the machinery was asked, ‘ For whom did you set up that machinery, as you supposed ? ’ That was objected to and answered, but' was held to be error.
    “ The plaintiff was a witness on his own behalf in that case and was asked whether he asked Colt for the payment of the bill as his debtor. This was objected to as calling for a construction of what was said and not the language, and an answer having been allowed, it was held to be error. In the latter case the defendant gave evidence tending to show that he purchased the cattle alleged to have been bought by him as a broker for one Hall and upon his credit, the plaintiff knowing his agency. He was a witness on his own behalf and asked this question : State on whose credit the cattle were bought ? ’ It was held that the question was incompetent, for it called for the defendant’s conclusion or opinion, but that the objection taken was insufficient to make the exception available.”

      William F. MaoRae, for the appellant.

      Edward P. Wilder, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J.,'concurred in the result.

Judgment reversed, new trial ordered, costs to abide event.


author: Brady, J.,

text:
    Mary Murray, as Administratrix, Appellant, v. Arthur G. Fox and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Brady, J.,

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


text:
    John T. Williams and another, Appellants, v. George M. Whedon, as Survivor, etc., Respondent.
   Judgment affirmed, with costs.


author: Smith, P. J.;

text:
    Margaret Boyle, Respondent, v. Sabra Lawton, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.;

Haight, J., not sitting.


author: Barker, J.;

text:
    Lydia J. McGarrity, Respondent, v. Arthur W. McGarrity, Appelllant.
   Order affirmed, without costs. Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    F. Minerva Shepard, Administratrix, etc., Respondent, v. Gardner D. Mercer, Appellant
   Judgment affirmed. Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    Maria Shaw, as Administratrix, etc., Respondent, v. Lydia McMillen, Appellant.
   Judgineut and order reversed, and new trial granted, with costs to abide the event. Opinion by

Brady, J.;

Haight, J., not sitting.


text:
    In the Matter of the Judicial Settlement of the accounts of Mary Balzer, Administratrix, etc.
   Decree affirmed, without costs. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    William J. Lormore and another, Plaintiff, v. Esek Page, Defendant.
   Motion for new trial denied, and judgment ordered for the plaintiff on the verdict. Opinion by

Barker, J.;

Bradley, J., not sitting.


author: Haight. J.

text:
    Jonathan I. Lindsley and others, Respondents, v. Roxey A. Shipp, as Executrix, etc., Appellant.
   Judgment reversed, and a new trial granted before another referee, costs to abide event, unless tbe plaintiff stipulates within twenty days to reduce the damages to the sum of $1591.83 with interest thereon from January 17. 18S3, in which case the judgment, as so reduced, is affirmed, without costs of this appeal to either party. Opinion by

Haight. J.


text:
    The People of the State of New York, Respondent, v. William Cook, Appellant.
   Declined to be considered for tbe reason that no judgment appears in the record.


author: Smith, P. J.

text:
    Anna Moffatt, Respondent, v. William Moffatt, Appellant.
   Each order appealed from reversed, with ten dollars costs and disbursements to the appellant in one case only. Opinion by

Smith, P. J.


author: Bradley, J.

text:
    Ozias H. Gibbs, Respondent, v. Simeon B. Manley, Appellant.
   Judgment affirmed, with costs. Opinion by

Bradley, J.


text:
    Alonzo Bradner and another as executors, etc., Plaintiffs, v. Lauren C. Woodruff and others, Defendants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


text:
    Helen Moore and others, Plaintiffs, v. Allison Oviatt and another, Defendants.
   Motion for a new trial denied, with costs on the opinion of the referee.


author: Haight, J.

text:
    James F. Childs, Appellant, v. George C. Gordon, Respondent, Impleaded, etc.
   Judgment affirmed Opinion by

Haight, J.


author: Barker. J.

text:
    Thomas C. Parkhurst, Respondent, v. Lena Mitchell, Appellant.
   Judgment of the County Court affirmed, only one argument fee in this court allowed. Opinion by

Barker. J.


text:
    The First National Bank of Batavia, Respondent, v. Horatio N. Ege and another, Appellants
   Judgment affirmed. Opinion by

Bradley, J.


text:
    Valentine Cropsey, Appellant, v. Philetus R. Perry, Respondent.
   Judgment affirmed. Opinion by

Haight, J.


text:
    Thomas Moore, Respondent, v. John Gifford, Appellant.
   Judgment affirmed. Opinion by

Bradley, J.


text:
    Elsie Schoonover, Respondent, v. Oscar Beach, Appellant.
   Judgment and order affirmed.— Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    Erastus N. Lee, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant
   Judgment affirmed on the opinion of the county judge.


text:
    James W. Mead and another, Respondents v. J. H. Gordon and another, Appellants.
   Judgment and order reversed and a new trial ordered, costs to abide event. Opinion by

Smith, P. J.;

Haight, J., not sitting.


author: Barker, J.

text:
    Daniel Lane, Respondent, v. The New York Lake Erie and Western Railroad Company, Appellant.
   Judgment affirmed. Opinion by

Barker, J.


text:
    John C. Johnston, Appellant, v. Clarence T. McManus, Respondent.
   Judgment affirmed. Opinion by

Haight, J.


text:
    William Holdridge, Appellant, v. Eurydice L. Hicks and others, Respondents.
   Judgment affirmed, except as to tne Judson bond and mortgage, and in respect to them reversed, and a new trial granted, neither party to have costa of this appeal as against another. Opinion by

Smith, P. J.


author: Haight, J.;

text:
    First National Bank of Penn Yan, Respondent, v. George Bruen, Appellant.
   Judgment affirmed. Opinion by

Haight, J.;

dissenting opinion by Barker, J.


text:
    James Lennon, Respondent, v. Amasa Miles, Appellant
   Judgment and order reversed, ana new trial ordered in the Ontario County Court, with costs to abide the event, unless the plaintiff stipulates within twenty days to deduct from the judgment the sum of five dollars with interest thereon from the first day of December. 1879, to the date of th eentry of judgment, in which case the judgment as so modified and the order are affirmed, with costs to the respondent.


text:
    John H. Wilson, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Barker, J.


text:
    Anson C. Kennicutt, Appellant, v. Joshua Parmalee, Respondent.
   Order granting new trial affirmed, with costs to abide the event on the opinion of Lewis, J.


text:
    William H. Harris, Plaintiff, v. Henry S. Mackie, Defendant.
   Motion for new trial denied and judgment ordered for the defendant on the nonspit.

Bradley, J., not sitting.


text:
    Lina Mullen, an infant by guardian Respondent, v. Asbury Christian, Appellant, Impleaded, etc.
   Judgment and order affirmed.


text:
    Franklin Simmons and others, Respondents, v. Albertus Larrowe, Appellant.
   Judgment affirmed on the opinion of the referee.


text:
    Thomas Collins, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by

Haight, J.


author: Smith, P. J

text:
    Edwin Williams, Respondent v. James McAllister, Appellant.
   Judgment and order appealed from reversed, and demurrer sustained with costs, with leave to the plaintiff to amend complaint within twenty days on payment of the costs of this appeal and of the demurrer. Opinion by

Smith, P. J


text:
    Dennis Sullivan, as administrator, etc., Respondent, v. The Buffalo Grape Sugar Company, Appellant.
   Judgment and order affirmed. Dissenting opinion by

Barker, J.


author: Haight, J. ;

text:
    The Citizens’ National Bank of Hornellsville, Respondent, v. Isaac Allison, Appellant.
   Order modified as indicated in the opinion, and as modified affirmed, with ten dollars costs and disbursements. Opinion by

Haight, J. ;

Bradley, J., taking no part.


text:
    Sylvia M. Newman, as administratrix, etc., Respondent, v. Henry L. Newman, as administrator, etc., and another, Appellants.
   Order reversed and motion denied without costs. Opinion by

Smith, P. J.


text:
    Marcia Webb, Respondent, v. James Wilson and others, Appellants.
   Judgment and order affirmed. Opinion by

Haight, J.


text:
    Henry K. Stevens, appellant, v. Marcus L Comstock and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Bradley, J.


text:
    James C. Austin, Respondent, v Henry K. Stevens, appellant.
   Judgment reversed and complaint dismissed, without costs of the action, or of this appeal to either party. Opinion by

Barker, J.


text:
    De Witt Hallenbeck, Respondent, v. Charles F. Kindred, Appellant.
   Judgment affirmed. Opinion by

Haight, J.


author: Smith, P. J..

text:
    Shelly G. Crump, Appellant, v. Peter Pitkin and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Smith, P. J..

Haight, J., not sitting.


text:
    Francis E. Cole, Appellant, v. J. M. Cole, Respondent.
   Judgment affirmed, with costs, on the opinion of Rumsey, J., at Special Term.


text:
    Eugene E. Warfield, Respondent, v. John D. Trickey, Appellant.
   Judgment reversed, and a new trial ordered, with' costs to abide the event. Opinion by

Haight, J.


text:
    Alan H. G. Hardwicke and others, Respondents, v. The Board of Education of Union Free School District No. 8, of the Towns of Hanover and Sheridan, Appellant.
   Judgment and order affirmed Opinion by

Smith, P. J.


text:
    Eliza E. Carter, Appellant, v. Sylvester Wilcox, Respondent.
   Judgment reversed, and new trial ordered, with costs of this appeal to abide the final award of costs. Opinion by

Bradley, J.


text:
    John Langford and another, Respondents, v. Orsell Cook, Appellant, Impleaded, etc.
   Judgment affirmed. Opinion by

Haight, J.

Barker, J., taking no part.


text:
    Sidney B. Roby, Respondent, v. The American Central Insurance Company of St. Louis, Appellant.
   Judgment reversed, and new trial ordered, with costs to abide the event. Opinion by

Bradley, J.


author: Barker, J.,

text:
    Ignatz Thalheimer, Appellant, v. Ferdinand Hayes and another, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Barker, J.,

Haight, J., not sitting.


text:
    Merchants’ Bank of Rochester and others, Respondents, v. Yette Thalheimer, Appellant, Impleaded, etc.
   Judgment affirmed, with costs, with leave to the defendant to withdraw demurrer and answer over within twenty days on payment of the costs of the demurrer and of this appeal. Opinion by

Haight, J.


text:
    Frank D. Wright, Respondent, v. William D. Andrews and another, Appellants.
   Judgment affirmed. Opinion by

Haight, J.


text:
    John Lowry, Respondent, v. John O. Spencer and another, Appellants.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Ignatz Thalheimer v. Bernard Hayes.
   Motion to have record sent back to the Special Term for correction denied, without costs. (Code, section 844, 1 Revised Statutes of Indiana, 1852, chapter 105, section 5.)


text:
    Richard H. Lee v. Eugene A. Hanner.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Hiram C. Pettibone, Appellant, v. William E. Drakeford, Respondent.
   Memorandum of decision and order amended by adding after the first words “costs ” the words “to abide the event.”


text:
    J. C. Austin v. Henry K. Stevens.
   Motion for leave to appeal to the Court of Appeals denied, without costs.


text:
    Louis M. Brock and others, v. Benjamin Knower.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    George W. Wildrick, v. Martin O’Donnell.
   Motion for reargument denied, without costs.

Bradley, J., not sitting.


text:
    The Throop Grain Cleaner Company and another, Plaintiffs, v. H. Cordenio Smith, Defendant.
   Motion for new trial granted, with costs tc abide the event. Opinion by

Barker, J.,

dissenting opinion by Bradley, J.; Haight, J., not voting.


author: Learned, P. J.

text:
    Julia E. Weeks and others, Respondents, v. Elsie S. Newkirk and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


author: Bockes, J.;

text:
    Elias Mitchell, Respondent, v. The New York, Lake Erie and Western Railroad, Appellant. Adam Metsger, Respondent, v. The Same, Appellant.
   -Judgments affirmed, wlth'costs. Opinion by

Bockes, J.;

Landon, J., not acting.


author: Landon, J.

text:
    Rufus R. Davis, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.


author: Bockes. J.

text:
    David D. Acker and others, Appellants, v. Charles E. Leland and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Bockes. J.


text:
    Jefferson Gardner, Respondent, v. Chauncey T. Bowen, Appellant.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by

Learned, P. J.


author: Bockes, J.

text:
    Helen J. Wright, Respondent, v. Walter S. Church, Appellant.
   Judg went affirmed, with costs. Opinion by

Bockes, J.


text:
    William S. Swift, Appellant, v New York, West Shore and Buffalo Railway Company, Respondent.
   Judgment of County Court affirmed, with costs. Opinion by

Learned, P. J.


text:
    Rufus Rose and another, Respondents, v. Cornelius Murphy, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


author: Tappan, J.

text:
    Edgar T. Brackett, Administrator, etc., Respondent, v. Chester Griswold, Appellant, Impleaded, etc. Eli W. Blake v. The Same.
   Judgment affirmed, with costs, on opinion of

Tappan, J.


text:
    George Barkley, Respondent, v. The Rensselaer and Saratoga Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Amos Hemstreet, Respondent, v. Rachel H. Nobles, Appellant.
   — Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Catharine Van Alstyne, Respondent, v. William Van Alstyne, Appellant.
   — Judgment reversed, new trial granted, costs to abide the event. Opinion by

Landon, J.


text:
    Edgar T. Brackett, Administrator, etc., Respondent, v. Chester Griswold, Appellant, Impleaded, etc.
   Order reviving affirmed, with ten dollars costs and printing disbursements, on opinion of

Bockes, J.;

Bockes, J., not acting.


text:
    Mariam Campbell, Respondent, v. Denis Hubbard and another, Administrators, Appellants.
   — Order corrected.


text:
    Albert F. Mitchell, Respondent, v. George L. Weed, Appellant, Impleaded, etc.
   — Motion to go to Court of Appeals denied, with ton dollars costs.


text:
    Samuel Taylor, Appellant, v. John Mitchell and others, Respondents.
   Motion for reargument denied, with ten dollars costs.


text:
    William K. Brown, Appellant, v. Albert Vanderwerker, Respondent.
   — Motion to go to Court of Appeals denied.


text:
    Mary Mitchell, Respondent, v. The Home Savings Bank, Appellant.
   — Motion to go to Court of Appeals denied.


text:
    Dempster v. Collins.
   Motion to dismiss appeal denied. Memorandum by

Learned, P. J.


text:
    Dana L. Tracy, Appellant, v. William H. Baker, Respondent.
   Motion to go to Court of Appeals denied.


text:
    The People of the State of New York ex rel. Daniel Evans, Respondent, v. Alfred C. Chapin, as Comptroller of the State of New York, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


text:
    Henry C. Adams, Appellant, v. Oliver M. Arkenburgh, Testamentary Guardian, Respondent.
   Order modified as p iv order filed,

without costs Landon, J., not acting.


text:
    Richard Burke, Administrator, etc., Appellant, v. Silas H. Witherbee and others, Respondents.
   Judgment affirmed, with costs.


text:
    Catharine Ludwig, Respondent, v. Lawrence Glaessell, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event.


text:
    The People of the State of New York ex rel. John F. Bridgeman, Respondent, v. Benjamin H. Hall, Appellant.
   — Judgment affirmed, with costs.— Opinion by

Learned, P. J.


text:
    Lewis C. Lendrum, Appellant, v. Ralph Wolford, Commissioner, etc., Respondent.
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.


text:
    John Myer, Respondent, v. Jerome Plass, Appellant.
   — Judgment and order affirmed, with costs.


author: Learned P. J.;

text:
    Francis A. Brown, Respondent, v. Edward J. Pickett, Appellant.
   Judgment affirmed, with costs. Memorandum by

Learned P. J.;

Landon, J., not acting.


text:
    William H Elliott, Appellant, v. Francis Ano and others, Respondents.
   — Judgment affirmed, with costs.


text:
    William T. Crook, Respondent, v. Robert Robinson, Appellant.
   — Judgment affirmed, with costs.


text:
    Mary C. Jenkins, as Administratrix, etc., Respondent, v. The City of Hudson, Appellant.
   Order denying motion to set aside verdict affirmed, with ten dollars costs and printing disbursements.


text:
    I. Townsend Burden, Respondent, v. The Burden Iron Company and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Landon, J.


text:
    Charles P. De Graff and others, Respondents, v. Patrick H. Cummins, Appellant.
   — Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Landon, J.


text:
    Isaac A. Travis, Executor, etc., Appellant, v. Lydia C. Youmans, Respondent.
   Judgment of Special Term affirmed, with costs.


text:
    Alexander C. Morrison v. Anna C. Horricks.
   Motion granted. Order to be settled by

Bockes, J.


text:
    George P. Ide and others, Appellants, v. John Galt Smith and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.

text:
    Eugene A. Hoffman, Appellant, v. Algernon S. Sullivan, Respondent.
   — Order reversed, without costs, ana order entered as directed in opinion. Opinion by

Daniels, J.


text:
    In the Matter of Herman Duden.
   — Order affirmed, without costs. Opinion by

Daniels, J.


text:
    Charles A. Fish and others, Respondents, v. Tracy Robinson, Appellant.
   — Order reversed, with ten dollars costs and disbursements, referee’s report confirmed and motion denied.


text:
    In the Matter of Alexander G. Mercer.
   — Decree affirmed, with costs.


text:
    The People of the State of New York ex rel. William Gilbert, Appellant, v. Henry B. Laidlaw, County Treasurer, etc., Respondent.
   Judgment reversed, new trial granted, with costs to appellant to abide event.


text:
    Louis Klueber, Respondent, v. Lina Gross, Appellant.
   — Order reversed, with ten dollars costs to abide event, and motion to change place of trial from New York to Orange county granted.


text:
    Walter C. Glines, Respondent, v. Vincent J. Scott, Defendant (Emily S. Williams, Jr. attaching creditor, Appellant).
   Order affirmed, with ten dollars costs and disbursements.


text:
    Watson Sanford, Appellant, v. The Bowery National Bank and others, Respondents.
   Judgment reversed, new trial ordered, costs to abide event.


text:
    Ann Maria Deen, Respondent, v. William Milne, Executor, etc., Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Hat Sweat Manufacturing Company, Respondent, v. William H. Reinoehl and another, Appellants.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York, Respondents, v. William E. Briggs and another, AppeLants.
   —Order affirmed, with ten dollars costs and disbursements.


author: Per Curiam.

text:
    Helen Schell, Appellant, v. William Cockroft, Respondent.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion.

Per Curiam.


text:
    Charles Jansen, Appellant, v. Otto Stietz, New York Glass Letter Company, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.


text:
    The United States Life Insurance Company, Appellant, v. Mary A. Adams, Respondent.
   Judgment affirmed, with costs.


text:
    Bridget Cooper, as Administratrix, etc., Respondent, v. Central Stock Yard and Transit Company, Apppellant.
   —Judgment affirmed.


text:
    Augustus H. Adams, Respondent, v. William P. Mitchell, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Eva Buermann, as Executrix, etc., Appellant, v. Charles Buermann and another, Respondents.
   Order reversed, unless within ten days after service of a copy thereof the guardian file an affidavit in compliance with Rule 49 of the courts, and pay ten dollars costs of this appeal.


text:
    Arno H. Schoff and others, Respondents, v. Moses G. Rosenberg and another, Appellants. S. Parkman Dexter and others, Respondents, v. The Same, Appellants.
   — Orders affirmed, with ten dollars costs in one case, and the disbursements in both. Opinion by

Daniels, J.


text:
    The Phœnix Packing and Rubber Company, Respondent, v. William M. Schwenker, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the City Gas Company.
   —Order affirmed, with ten dollars costs and disbursements.


text:
    Henry Morrison, Plaintiff, v. Richard R. Watson, Defendant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Peter W. Gallaudet and another, Respondents, v. Andrew Williams, Appellant.
   — Judgment and order reversed, with costs.


text:
    In the Matter of Francis S Turner.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    John S. Schultze, Respondent, v. The Mayor, etc., of the city of New York, Appellant.
   Judgment affirmed.


text:
    John S. Hawley and another, Respondents, v. Alexander M. Powell, Appellant.
   — Order reversed, without costs, motion denied. Opinion

Per Curiam.


text:
    Frederick L. Holmquist and others, Respondents, v. Charles Griessman and another, Appellants.
   Order reversed, and order of arrest vacated, without costs.


text:
    John H. Hildreth, Respondent, v. Josephine Carpenter, Appellant.
   Order reversed and motion denied, with ten dollars costs and. disbursements. Opinion

Per Curiam.


text:
    William A. Miles and others, Respondents, v. James W. Sackett, Appellant.
   — J udgment reversed, new trial ordered, costs to abide event. Opinion

Per Curiam.


text:
    Sarah A. Mason, Administratrix, etc., Appellant, v. Adelaide E. Mason and others, Respondents.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Joseph Schestauber, Administrator, etc., Appellant, v. Manhattan Railway Company, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.


text:
    Michael Connor, Administrator, etc., Respondent, v. Hanora Kent and another, Appellants.
   Order affirmed, without costa.


text:
    In the Matter of Adelaide L. Otis.
   Order reversed, with ten dollars costs and disbursements.


author: Brady, J.

text:
    The Putnam County Chemical Works, Respondent, v Frederick Jochen, Appellant.
   Order modified as directed in opinion, and affirmed as modified. Opinion by

Brady, J.


text:
    Alfred Nelson v. Sutherland Tenney.
   Motion to dismiss appeal denied, without costs.


text:
    Perrin H. Sumner, Appellant, v. Hannah Alexander, Respondent.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    Margaretha Finnern v. Julius Hinz and another.
   — Motion for reargument denied, with ten dollars costs, to abide the event.


text:
    Reece M. Oberteuffer, Respondent, v. Ludwig Bloch, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Eugene A. Hoffman, Appellant, v. Algernon S. Sullivan, Respondent.
   Order reversed and 'order entered as directed in opinion, without costs. Opinion by

Daniels, J.


author: Per Cunam.

text:
    John Cox, Appellant, v. The Mayor, etc., of the City of New York, Respondent.
   — Judgment affirmed as to plaintiff’s claim and reversed as to defendants recovery on the counter-claim, without costs of appeal to either party. Opinion

Per Cunam.


text:
    Henry A Taylor, Respondent, v. Harvey L. Ellis, Appellant.
   Order modified, as directed in opinion, and affirmed as modified, without costs to either party. Opinion

Per Curiam.


text:
    Anna B. Cavarly, Respondent, v. Sarah A. Jarvis, Appellant.
   — Judgment affirmed.


text:
    In the Matter of Charles Denison, etc.
   Reargument ordered.


text:
    In the Matter of Charles Denison, etc.
   — Application of receiver granted.


text:
    The City of Oswego v. Martin D. Collins.
   Motion for leave to.appeal to the Court of Appeals denied.


text:
    Eunice Curtiss v. John J. Barrus.
   — Motion denied.


text:
    William H. Sommerville, Appellant, v. William Nipper, Trustee, Respondent.
   — Motion for reargument denied. Motion for leave to aopeal to the Court of Appeals denied.


text:
    The Standard Wagon Company v. Persis McCully and others.
   — The case not having been settled, ordered filed and annexed to the judgment-roll by the referee, it is stricken from the calendar, without costs.


text:
    E. D. Clapp Wagon Company, Respondent, v. Wesley McCully, Appellant.
   — Motion denied, without costs.


text:
    Luther K. Sheldon, as Administrator, Appellant, v. Barney Van Alstine, Respondent.
   — Motion to dismiss appeal granted.


text:
    Daniel Cady, Respondent, v. Luther K. Sheldon, as Administrator, Appellant.
   — Motion to dismiss appeal granted.


text:
    Ross v. Wigg.
   — Motion denied, without costs and without prejudice.


text:
    Hall v. Smith.
   — Motion to dismiss appeal granted.


text:
    Hall v. Smith.
   — Motion granted, with ten dollars costs in one case.


text:
    Mary E. Burke, as Survivor, v. William Jolley.
   Motion to strike from the calendar granted, with ten dollars costs.


text:
    The McGowan Pump Company v. Joseph M. Low.
   — Motion denied, without costs.


text:
    George W. Parshall, Respondent, v. George Clarke, Appellant.
   — Motion to dismiss appeal granted, with ten dollars costs.


text:
    Delos L. Birge, Respondent, v. George Clarke, Appellant. Same v. Same.
   — Motion to dismiss each case, Nos. 13 and 14 on calendar, granted, with ten dollars costs in each case.


text:
    In the Matter of the Application to disbar John D. Griffith.
   — Order returnable at this term to show cause, continued until the next term of this court.


text:
    Huldah M. Crouse, Respondent, v. George Clarke, Appellant
   — Motion to dismiss appeal granted, with ten dollars costó of motion.


text:
    Alfred Etheridge, Respondent, v. William Eisinger, Appellant.
   —Motion to dismiss appeal granted.


text:
    John Kane, Respondent, v. George Clarke, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Esther K. Porter, Appellant, v. H. Miner Weaver, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Delos L. Birge, Respondent, v. George Clarke, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Same v. Same.
   — Order affirmed, with ten dolíais costs and disbursements.


author: Per Curiam

text:
    The People of the State of New York ex rel. Oscar J. Brown, Appellant, v. The Board of Supervisors of Onondaga county, Respondent.
   — Judgment and. order affirmed, without costs.

Per Curiam

memorandum filed

with the clerk of Onondaga county.


text:
    William A. Sweet, Respondent, v. Edmund Merry, as Survivor, etc., Appellant.
   —Judgment and order affirmed, with costs.


text:
    Eben R. Waite and others, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Judgment and order affirmed, with costs.


text:
    Dennis Burns, Respondent, v. Henry Winchell, Appellant.
   —Judgment and order reversed, ana

new trial ordered in the Onondaga County Court, with costs to abide the event. Followed Wright v. Bank of Metropolis. — Manuscript opinion of Hardin, P. J., January Term, 1885.


text:
    Christine L. Palmer, Appellant, v. Eliza J. Jones and others, Respondents.
   — Judgment modified by striking therefrom the words” on the merits of said action,” and as modified affirmed, without costs of the appeal to either party.


text:
    Mary F. Murphy, Appellant, v. Eliza J. Jones and others, Respondents.
   — Judgment modified by striking therefrom the words ‘‘on the merits in said action,” and as modified affirmed, without costs of the appeal to either party.


text:
    The People of the State of New York, Respondent, v. Michael Callahan and others, Appellants.
   —Judgment affirmed, with costs.


text:
    Mary Ann Blashfield, as Administratrix, Respondent, v. H. Wilson Blashfield, Appellant.
   Judgment and order affirmed, with costs.


text:
    Oliver Porter, Appellant, v. Harlow O. Northwick, Respondent.
   — Judgment of the County Court of Cortland county affirmed, with costs.


text:
    Henry R. Kenyon, Respondent, v. John K. Follett, Appellant.
   — Judgment and order affirmed, with costs.


text:
    Eugene K. Woolever, Respondent, v. The Utica, Ithaca and Elmira Railroad Company, Appellant.
   — Judgment and order affirmed, with costs.


text:
    Theodore J. Scharfenburg, Appellant, v. Edwin F. Smith, Respondent.
   —Judgment affirmed, with costs.


text:
    Chauncey B. Hodges, Respondent, v. Adolphe Raux, Appellant.
   — Judgment and order of the County Court of Oneida county affirmed, with costs.


author: Follett, J.

text:
    George D. Lord and others, Respondents, v. Spencer D. Richardson and others, Appellants.
   — Order modified so as to permit the defendants to make the new motion upon fresh proof to vacate the attachment, and as modified affirmed, with ten dollars costs and disbursements. Opinion by

Follett, J.


text:
    Eben D. Jordan and others, Respondents, v. Spencer D. Richardson and others, Appellants.
   — Order vacating the attachment reversed, with ten dollars costs and disbursements, and motion to vacate attachment denied, -with ten dollars costs. Opinion by

Follett, J.


author: Kennedy, J.

text:
    Harriet M. Wilson and another, Plaintiffs, v. Lora Cummings and others, Defendants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Kennedy, J.


author: Hardin, P. J.;

text:
    John F. Walter, Respondent, v. The Haberle Brewing Company, Appellant.
   —Judgment affirmed, with costs. Opinion by

Hardin, P. J.;

Kennedy, J., not sitting.


text:
    In the Matter of the Application of the Stamford Water Company, Respondents, to acquire certain property of Herbert Stanley and another, Appellants.
   —Order appointing commissioners affirmed, without costs. Opinion by

Kennedy, J.


author: Follett, J.;

text:
    Wilbur S. Peck and others, Respondents, v. Isaac P. Powers, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Follett, J.;

Kennedy, J., not sitting.


author: Hardin, P. J., and Kennedy, J.

text:
    Robert E. Phillips, Appellant, v. Thankful Calkins and another, Respondents.
   — Judgment affirmed, with costs. Opinion by

Hardin, P. J., and Kennedy, J.


author: Hardin, P. J.

text:
    Cyrus C. Wilcox, Appellant, v. Thankful Calkins and another, Respondents.
   — Judgment affirmed, with costs. Memorandum by

Hardin, P. J.


author: Follett, J. ;

text:
    Homer C. Markham, Respondent, v. Alfred Dodge, Appellant.
   Judgment of the County Court of Lewis county affirmed, with costs. Opinion by

Follett, J. ;

Hardin, P. J., not voting.


author: Kennedy, J.; Hardin, P. J.

text:
    Thomas Lacy, Respondent, v. Sophronia A. Getman, Appellant.
   Judgment reversed and new trial ordered, with costs to abide event.— Opinion by

Kennedy, J.;

memorandum by

Hardin, P. J.


text:
    In the Matter of the Probate of the Alleged Will of Jonathan Yates.
   The decree of the surrogate of Jefferson county affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Mary L. Haberstro, Appellant, v. William B. Williams, Respondent, Impleaded, etc.
   Order affirmed, with costs to abide the event. Opinion by

Follett, J.


author: Hardin P. J.

text:
    Eames Vacuum Brake Company, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Hardin P. J.


author: Follett, J., and Kennedy, J.;

text:
    Mary Finley, Respondent, v. Ann Finley, Apellant.
   — Judgment reversed, with costs and judgment ordered for the defendant, dismissing the complaint. Opinions by

Follett, J., and Kennedy, J.;

dissenting opinion by Hardin, P. J.,


text:
    Robert H. Doxtater, as Treasurer, Respondent, v. Christopher Suits, Jr., Appellant.
   — Order and taxatiou of costs modified as stated in the opinion of Kennedy, J., and as modified affirmed, with ten dollars costs and disbursements to the appellant against respondent. Order to be settled before Kennedy, J. Opinion by

Kennedy, J.


text:
    John E. Knapp, Respondent, v. E. Frank Smith, Appellant.
   Judgment reversed, and new trial ordered before another referee, with costs to abide the event. Opinion by

Follett, J.


text:
    The Syracuse Savings Bank, Repondent, v. Dennis Hess and others, Appellants.
   Judgment modified, by striking therefrom $34.66, and as modified affirmed, without costs to either party. Opinion by

Follett, J.


text:
    Sweet Manufacturing Company, Appellant, v. Thaddeus Fairbanks and others, Respondents.
   Judgment and order reversed, with costs, and judgment ordered overruling defendants demurrer, with costs, and leave given to answer upon payment of costs of the appeal and of the demurrer within twenty days. Opinion by

Hardin P. J.


text:
    Fred Gaylord, by Guardian, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Follett, J.


text:
    Jessie A. Redfield, Appellant, v. Charles T. Redfield and others, Executors, Respondents.
   Reargument ordered.

Churchill, J., not sitting.


author: Churchill, J.

text:
    Patrick McGinniss, Respondent, v. Michael Murphy, Appellant.
   — Judgment and order of the Onondaga County Court affirmed, with costs. Opinion by

Churchill, J.


text:
    Jane Tucker and others, Respondents, v. Joshua Mather, Appellant, Impleaded, etc.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Follett, J.


text:
    In the Matter of the Petition of E. H. & D. M. Cavin, Respondents, v. J. B. Gleason, as General Assignee, etc., Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Phillip Follice, Appellant, v. Nicholas Reed, Respondent.
   — Judgment reversed and new trial ordered, with costs to abide event. Opinion by

Hardin, P. J.;

Churchill, J., not sitting.


text:
    Eltis M. Jennings, Respondent, v. Roxanna Jennings, Appellant.
   — Judgment and order reversed and new trial ordered, costs to abide the event. Opinion by

Follett, J.


text:
    Mercy A. Platt, Respondent, v. Evan R. Thomas, Appellant.
   — Judgment of Oneida County Court affirmed, with costs. Opinion by

Hardin, P. J.


text:
    James G. Bennett, Appellant, v. Edward W. Remington, Respondent.
   — Judgment affirmed, with costs. Opinion by

Follett, J.


text:
    Chester Comstock, Respondent, v. Brayton E Handy, Appellant.
   — Judgment and order reversed and new trial ordered in Onondaga County Court, with costs to abide the eveut. Opinion by

Follett, J.


author: Barnard, P. J.

text:
    Joseph Robinson, Appellant, v. Honora Moran, Respondent.
   — Motion to dismiss appeal denied, without costs. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Matter of the Judicial Settlement of Augusta Krunan, Administratrix, etc.
   —Decree of surrogate reversed. Opinion by

Dykman, J.


author: Pratt, J.;

text:
    Dykman Odell, Respondent, v. Isaac Buckhout, Executor, etc., Appellant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Mary Bauer, Administratrix, etc., Respondent, v. New York, Woodhaven, etc., Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Mary Smith, Respondent, v. The President and Trustees of the Village of Sing Sing, Appellant.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Randall G. Cowenhoven, Plaintiff, v. George W. Ball, Defendant.
   — Judgment for defendant upon verdict ordered at circuit, with costs. Opinion by

Dykman, J.


text:
    George W. Field, Respondent, v. William R. Soper, Appellant.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman. J.

text:
    Justine Perlstrom, Appellant, v. Edward Van Ness, Respondent.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman. J.


text:
    William F. Wilson, Plaintiff, v. Charles White, Defendant.
   — Judgment for plaintiff upon submitted case. Opinion by

Barnard, P. J.


author: Dykman, J.;

text:
    Julia L. Costello, Respondent, v. Ann M. Costello, Appellant.
   Judgment overruling demurrer to plaintiff’s complaint affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., dissenting.


text:
    The People of the State of New York ex rel. Mary R. Brust, Respondent, v. John R. Brown, Appellant.
   — Order and proceedings subsequent under it affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Dykmau, J.;

text:
    Joseph Cousin, as Executor, etc., Plaintiff, v. Wellington B. Searls, Defendant.
   Motion to dismiss appeal denied; parts of order appealed from.reversed, with costs and. disbursements, and motion deuied, with ten dollars costs. Opinion by

Dykmau, J.;

Barnard, P. J., dissenting.


author: Pratt, J.

text:
    The People of the State of New York ex rel. Shultz v. Michael Delehanty.
   — The proof taken sustains the charges made. Opinion by

Pratt, J.


text:
    Samuel Kugelman, Respondent, v. Abraham D. Rhodes, Appellant.
   — Order affirmed, with costs and disbursements. Opiniou by

Barnard, P. J.


text:
    Viola T. Adams, Appellant, v. James O. Cole, Sheriff, etc., Respondent.
   — Order vacating reference reversed, with costs and disbursements. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    The People of the State of New York, Respondent, v. Edward Lavin, Appellant.
   —Judgment reversed. Opinion by

Dykman, J.;

Barnard, P. J., dissenting.


text:
    Lloyd Aspinwall, Appellant, v. Archibald Dreyfuss, Respondent.
   — Order refusing to strike out trial fee reversed, with costs and disbursements. Opinion by

Pratt, J.


author: Pratt. J.

text:
    Matter of Judicial Settlement of David Hawley as Guardian.
   — Order of surrogate affirmed» witn costs. Opinion by

Pratt. J.


text:
    Hannah Alexander, Administratrix, etc., Respondent, v. Emma A. Sumner, Appellant.
   judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Matter of Probate of Will of Aletta Decker.
   Decree of surrogate affirmed, with costs against appellant personally. Opinion by

Barnard, P. J.


text:
    John Hayes, Appellant, v. Mary J. Frisby, Respondent.
   — Order vacating attachment order affirmed, with costs and disbursements. Opinion by

Pratt, J.


author: Dykman, j.

text:
    George W. Conselyea and another, Executors, etc., Respondents, v. Francis Swift, Appellant
   — judgmentaffirmed, with costs. Opinion by

Dykman, j.


text:
    Louis M. Halsey, Administrator, etc., Appellant, v. Walter McIntosh, Executor, etc., Respondent.
   —Judgment reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.


text:
    Charles W. Mitchell, Respondent, v. Peter H. Hultz, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    William A. Owen, Respondent, v. Anthony Kling, Appellant.
   — Judgment affirmed, with costa. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John Homeyer, Respondent, v. The Nassau Ferry Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J , not sitting.


text:
    Manuel Cadenas, Respondent, v. Gustave Leve and another, Appellants.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Susan Raynor, Administratrix, etc., Respondent, v. Samuel S. Carman, Appellant.
   — Judgment reversed and new trial granted, costs to abide event; reference vacated. Opinion by

Dykman, J.


text:
    Kathleen Hickey, by Guardian, Respondent, v. John P. Taaffe, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    John H. Gallagher, Respondent, v. Stephen J. McMahon, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Charles G. Dahlgren, Appellant, v. Jeremiah Devlin, Respondent.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Trustees of Westminister Church v. The City of Brooklyn.
   Order refusing to vacate assessments affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


author: Pratt J.;

text:
    Albert H. Browe, Respondent, v. Continental Telegraph Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt J.;

Barnard, P. J., not sitting.


text:
    Erastus Brooks, Respondent, v. Thomas Winsor, Appellant.
   —judgment affirmed, with costs. Opinion by

Dykman, J.


author: Pratt,- J.

text:
    William C. Dornin and others, Respondents, v. James H. Ripley, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt,- J.


author: Barnard, P. J.;

text:
    Jesse Button, Respondent, v. William D. Chapin, Appellant.
   —Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Francis J. Moissen, Appellant, v. Adolphe Kloster and others, Respondents.
   — Judgmeut affirmed, with costs. Opinion by

Pratt, J.


text:
    Matter of Application of Staten Island Railroad Company, to acquire lands of Bodine and another.
   — Order affirmed, with costs' and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John White, Appellant, v. James Boice and others, Respondents.
   — Judgment reversed and new trial granted and injunction restored, costs to abide event. Opinion by

Pratt, J.


text:
    John F. Coffin, Respondent, v. Felix Hickey, Appellant.
   —Judgment of County Court affirmed, with costs ana judgment ordered, that Collin be putin possession. Opinion by

Barnard, P. J.


text:
    John W. Dickerson, Respondent, v. Mary E. Rogers, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., dissenting.


text:
    Mary A. Gilbert, Administratrix, etc., Respondent, v. The Hartford and Connecticut Western Railroad Company, Appellant
   Judgment and order denying new trial affirmed, witlr costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Edward L. Barrett, Appellant, v. William H. Gedney, Respondent.
   — Judgment and orders affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Hiland R. Rose v. James Henry.
   — Motion denied. Opinion by

Dykman, J.


text:
    Caroline Lion, Respondent, v. Otto Muller, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Nathan Johnson, Respondent, v. William R. Soper and others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    The G. F. Warner Company, Appellant, v. Eugene M. Whipple, Respondent.
   — Order affirmed, with costs. Opinion by

Dykman, J.


text:
    The Long Island Railroad Company v. James Shanahan, as Superintendent.
   Motion denied, with ten dollars costs. Opinion by

Barnard, P. J.


text:
    The People of the State of New York, Respondent, v. Eugene Head, Appellant.
   Conviction affirmed: Opinion by

Dykman, J.;

Pratt, J., dissenting.


text:
    John E. Jersey, Administrator, etc., Respondent, v. John A. Johnson, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    James A. Russell, Respondent, v. Henry F. Taintor, Appellant.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    George Aldridge and another, Appellants, v. John F. Clawson, Respondent.
   — Reargument ordered.


text:
    Mina Adler, Respondent, v. Alexander Goldsmith, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion Dy

Dykman, J.;

Barnard, P. J., not sitting.


text:
    William J. Cody, Respondent, v. Charles W. Alcott, Appellant.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Pratt, J.


text:
    Helena Carlson, Respondent, v. The Oceanic Steam Navigation Company (Limited), Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Matter of Andrew Hood.
   Decree affirmed, with costs. Opinion by

Dykman, J.


text:
    Phillip Dieffenbach, Respondent, v. Jacob Roch, Appellant,
   — Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Edward Donnelly, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Alma L. Brooks, Appellant, v. Emma Ackerly and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Louis Hunt, Appellant, v. James D. Avery, Respondent.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Leon T. Walter, Respondent, v. Dominique Durand, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Sadie Tilbie v. W. W. Goodrich.
   Motion to dismiss appeal denied^ without costs.


text:
    William H. Butler, Appellant, v. Hannah Alexander, Administratrix, etc., Respondent.
   Judgment reversed, and new trial granted, costs to abide event. Opinion by

Dykman, J.;

.Pratt, J., not sitting.


text:
    Mary Ann Jackson v. Sarah P. Badger.
   — Motion to correct minutes of General Term granted. Opinion by

Barnard, P. J.


text:
    Elizabeth B. Mead v. Charles T. Young.
   —Order affirmed, with costs and disbursements.


text:
    John Fallon v. Rosanna Lawlor.
   — Motion granted, without costs, upon condition that the appellant may discontinue his appeal in the Court of Appeals, without costs, if he so elects.


text:
    Leonard D. Tice, Respondent, v. Frank Dromgoole and others, Appellants.
   — Order refusing to postpone trial affirmed, with ten dollars costs and disbursements. Order opening default on conditions modified; order to be settled by Pratt, J. Opinion by

Pratt, J.


text:
    Hester J. Todd and another, Administrators, etc., Respondents, v. Isaac Nelson, Appellant, Impleaded, etc.
   — Judgment reversed, and new triffi granted, costs to abide event. Opinion by

Pratt, J.;

Bartlett, J., dissenting.


author: Davis, P. J.

text:
    Samuel Lewis, Appellant and Respondent, v. George M. Miller, Respondent and Appellant, Impleaded, etc.
   — Judgment affirmed on plaintiff’s appeal, but reversed on defendant’s appeal, and complaint dismissed, with costs of action and of appeal. Opinion by

Davis, P. J.


author: Brady, J.

text:
    In the Matter of George W. Bull.
   Order affirmed, with costs to be paid out of the fund. Opinion by

Brady, J.


author: Daniels, J,

text:
    New Jersey Steamboat Company, Appellant, v. The Mayor, etc., of the City of New York, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Daniels, J,


text:
    Catharina Zapp, Respondent, v. Charles J. Miller, Appellant.
   — Judgment modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Davis, P. J.


text:
    Warren Beman v. Louis L. Todd.
   — Resubmission of the case on the appeal ordered for further consideration. Opinion by

Davis, P. J.


author: Davis, P. J., Brady and Daniels, JJ.

text:
    John P. Kennedy, Appellant, v. Robert T. Hoy and others, Respondents.
   —Judgment affirmed, with costs. Opinions by

Davis, P. J., Brady and Daniels, JJ.


text:
    The Corn Exchange Bank (of Chicago), Appellant, v. Alphonzo W. Blye, Receiver, etc., Respondent.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    William E. Iselin and others, Respondents, v. Moses Henlein and others, Appellants. George F. Vietor and others, Respondents, v. Same, Appellants. Emil Oelberman and others, Respondents, v. Same, Appellants.
   —Judgments reversed, new trial ordered in each case, costs to abide event. Opinion by

Davis, P. J.


text:
    In the Matter of Tamar Walker, Appellant, v. Freling H. Smith, as Administrator, etc., Respondent.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


author: Davis, P. J., and Daniels, J.

text:
    Sarah A. Mason v. Adelaide E. Mason.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J., and Daniels, J.


author: Daniels, J.

text:
    William O. Cook, Respondent, v. Theodore M. Leonard and another, Appellants.
   — Judgment reversed, new trial ordered before another referee. Opinion by

Daniels, J.


author: Daniels, J., and Davis, P. J.

text:
    Isabella T. Myers, Appellant, v. The Bank of Portsmouth, Respondent.
   — Judgment and order affirmed, with costs. Opinions by

Daniels, J., and Davis, P. J.


author: Brady, J.,

text:
    William P. Sherman and another, Appellants, v. Franz Baeder and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Brady, J.,

and by Davis, P. J., dissenting.


text:
    Benjamin Richardson, Respondent, v. Albert Hirsch and others, Defendants, Patrick Whelan, Appellant.
   — Judgment affirmed, with costs. Opinion by

Brady, J.


author: Daniels, J., and Davis, P. J.,

text:
    William C. Conner and another, Executors, etc., Appellants, v. Martin J. Keese and others, Respondents.
   — Judgment affirmed. Opinions by

Daniels, J., and Davis, P. J.,

and by Brady, J., dissenting.


text:
    Joseph Skibinsby, Respondent, v. The Coney Island and Brooklyn Railroad Company, Appellant.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Joseph Simon v. Marcus Fleischauer.
   — Judgment affirmed. Opinion by

Davis, P. J.


text:
    Levi L. Brown and others, Respondents, v. Lewis May, Appellant, Impleaded, etc.
   — Order reversed, order entered as directed in opinion, costs and disbursements to abide event. Opinion by

Daniels, J.


text:
    Saffold Berney and another, Appellants, v. Anthony J. Drexel, Respondent.
   — Order modified as directed in opinion and as modified affirmed, without costs to either party. Opinion by

Daniels, J.


text:
    Charles A. Zoebisch, Respondent, v. Elizabeth J. Von Minden and another, Appellants.
   — Judgment reversed, new trial ordered, costs to appellant, to abide event. Opinion by

Daniels, J.


text:
    The Bowery National Bank of New York, Respondent, v. Katharine Kehoe and another, Appellants.
   —Judgment affirmed, with costs. Opinion hy

Davis, P. J.


text:
    Jane A. Murray and others, Respondents and Appellants, v. Gardner B. Charlick and others, Respondents and Appellants.
   — Judgment .modified as directed in opinion and affirmed as .modified, with costs of the several parties to be paid out of the fund. Opinion by

Davis, P. J.


text:
    Theodore P. Gilman, Appellant, v. Joseph Byrnes, Respondent.
   — Order modified as directed in opinion, without costs to either party. Opinion by

Davis, P. J.


text:
    Same v. Same.
   —Order vacated without costs, but with leave to institute such proceedings as .the Receiver may be advised after refusal or neglect to pay the sum directed by the modified order. Opinion by

Davis, P. J.


text:
    John C. Stanton, Respondent, v. John Swann and others, Appellants.
   —Order reversed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Babetta Lehman, Appellant, v. District No. 1, Independent Order of B’nai B’rith, Respondent.
   — Judgment affirmed. Opinion hy

Daniels, J.


text:
    Mary Jane Ward, as Executrix, Plaintiff, v. DeWitt C. Ward and others, Defendants.
   — Judgment affirmed, with costs of all parties out of the fund. Opinion by

Brady, J.


text:
    William H. Leinkauf, Respondent, v. Emil Calman and another, Appellants.
   — Judgment affirmed, with costs. Opinion by

Davis, P. J.


text:
    The People of the State of New York, Respondents, v. Albin Fulda, Appellant.
   — Judgment reversed, new trial granted. Opinion by

Davis, P. J.


text:
    The People of the State of New York, Respondent, v. Benjamin J. Hill, Appellant.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Mary M. Boyle, Plaintiff, v. Josiah W. Boyle and others, Defendants.
   Order affirmed, without costs Opinion hy

Davis, P. J.


text:
    In the Matter of George W. Bull.
   Order affirmed, with costs to be paid out of the fund. Opinion by

Brady, J.


text:
    Levi S. Brown and others, Respondents, v. Lewis May and others, Appellants.
   Order modified as directed in opinion and affirmed as modified, with ten dollars costs and disbursements to abide the event. Opinion by

Daniels, J.


text:
    In the Matter of Gerry Walker, Appellant, v. Freling H. Smith, Respondent.
   — Judgment affirmed, without costs. Opinion by

Brady, J.


text:
    Franklin P. Dudgeon, Plaintiff, v. Thomas H. Smith and others, Defendants.
   — Order modified as directed in opinion and affirmed as modified, without costs of appeal. Opinion by

Daniels, J.


text:
    Alfred N. Beadleston, Appellant, v. Mary E. Beadleston, Respondent.
   Appeal dismissed, without costs to either party. Opinion by

Davis, P. J.


text:
    Leonard Lewisohn, Plaintiff, v. Alfred Apple and another, Defendants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    M. M. Haantjes, Respondent, v. James H. Mapleson, Appellant.
   — Judgment and order reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Elizabeth Keppler and others, Plaintiffs, v. Rosa Merkel and others, Defendants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Darius M. Bliss, Appellant, v. Hamilton Wallis and others, Respondents.
   — Judgment affirmed. Opinion by

Davis, P. J.


author: Per Curiam

text:
    In the Matter of James P. Kernochan.
   — Decree affirmed. Opinion

Per Curiam


text:
    Henry C. Higginson, Appellant, v. Alice T. Brown, Respondent.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    John S. Stubbs and another, Respondents, v. Charles L. Guilleaume, Appellant, Impleaded, etc.
   Order appointing receiver affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    John S. Stubbs and another, Respondents, v. J. Walter Thompson, Appellant, Impleaded, etc.
   — Appeal dismissed, without oosts. Opinion hy

Daniels, J.


text:
    John S. Stubbs and another, Respondents, v. Charles L. Guilleaume, Appellant, Impleaded, etc.
   Order denying motion for separate trials affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    John S. Stubbs and another, Appellants, v. Edward C. Ripley and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinión by

Daniels, J.


author: Brady and Daniels, JJ.,

text:
    Albertus P. H. Hotz and another, Plaintiffs, v. Thomas O. Hague, Defendant.
   — Judgment ordered for plaintiffs. Opinions by

Brady and Daniels, JJ.,

and by Davis, P. J., dissenting.