text:
    Adolphe Casola, Resp’t, v. Francisco Vasquez, App’lt.
    Sup. Ct., 1 D.,
    March 15, 1895.
    From an order denying a motion to vacate an attachment, defendant appeals.

      Jones & Govin, for app’lt; Louis Marshall, for resp’t.
   Per Curiam.

The copartners, by an agreement, having assumed to form a limited copartnership fixing the liability of each as between themselves, cannot now be heard to say, in an action between themselves, that their rights were not controlled by such agreement. The order appealed from should be affirmed, with §10 costs and disbursements.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Central Park Baptist Church, Resp’t, v. C. Venton Patterson et al., App’lts.
    N. Y. C. P.,
    April 1, 1895.

      Herbert H. Gibbs, for app’lts; J. C. Julius Langbein, for resp’t.
   Bischoff, J.

The motion for reargument is based upon a contention involving examination into the state of the evidence merely, and appellants' counsel acknowledges that the point was not presented to the court on argument of the appeal. Upon this ground the motion might well be denied (Hegman v. Keller, 6 Misc. Rep. 598; Geoghegan v. Steamship Co., 6 id. 127); but, upon the merits of the contention, it is found to be without weight. The claim is that no evidence was given to support the allegation that the petitioner, Frazer, was appointed custodian of the church edifice by the board of trustees of the religious corporation having title to the property. Looking into the evidence, we find that the acknowledgment annexed to the minutes of the meeting at which the petitioner was constituted custodian contains the statement that such minutes were sealed with the corporate-seal of this corporation, under the direction of the board of trustees. We think, however, that the appellants should be permitted to present to the court of appeals the question whether or not the agent appointed by the board of trustees was the agent of the “'person lawfully entitled to the possession” of the premises owned by the corporation, and so authorized to institute the proceeding. Code Civil Proc. § 2285. Whether the act under which this corpora'ion was organized (chapter 329, Laws 1876) is to be construed as giving the board of trustees the right to possession of the property, and an attendant right in their appointee to institute proceedings for forcible entry and detainer (Code Civ. Proc. $ 2285), or whether the section noted would take the case out of the rule laid down in People v. Fulton, 11 N. Y. 94, only so far as to allow the board itself, as agent, to maintain the proceeding, is, we think, a question of some doubt, and of sufficient importance to warrant our granting the leave asked. Motion for reargument denied. Motion for leave to go to court of appeals granted as above. No costs.


author: Per Curiam.

text:
    George W. Church et al., App’lts, v. George W. Montgomery, Resp’t.
    Supr. Ct.,
    March 4, 1895.

      Wilson W. Hoover, for app’lts; Edward F. Brown, for resp’t.
   Per Curiam.

The fundamental question in this case was whether the plaintiffs owned any property rights in certain chattels. The court below, on findings sustained by the evidence, determined that the plaintiffs had no such rights. There is, therefore, no necessity of examining questions of law that might otherwise arise. The testimony of Mr. Vonderluke was immaterial to the issues on which the case was decided. It was objected that he was not an expert as to the matters on which he was examined. His testimony was not that of an expert. He testified as to facts within his knowledge. Judgment affirmed, with costs.


author: Dykman, J.

text:
    Matilda Clark v. City of Newburgh.
    Sup. Ct., 2 D.,
    February 11, 1895.

      C. L. Waring, for app’lt; John M. Gardner, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying the motion of the defendant for a new trial, upon the minutes of the court. The action was for the recovery of damages resulting from an injury sustained by the plaintiff from a collision with a wagon. It appeared upon the trial that the plaintiff was thrown down and injured at a crosswalk in one of the public streets of the city of Newburgh, by a wagon drawn by two horses, which were driven by a person in the employ of the defendant. In respect to the question of the negligence of the driver of the defend mt, and the contributory negligence of the plaintiff, the testimony was such as to make the case a proper one for tüe jury. The motion for a non-suit was therefore properly denied. There was no exception to the charge of the trial judge, and there was no error committed upon the trial. The judgment and order denying the motion for a new trial are affirmed, with costs.


text:
    William F. Clemmons v. Hyman Epstein et al.

    N. Y. C. C.,
    March 19, 1895.
   No opinion. The judgment and order appealed from are affirmed, with costs.


text:
    Frank M. Clute, Resp’t, v. Moses M. Broadwell, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Judgment affirmed, with costs, upon argument.


text:
    Collins v. Burroughs.
    Sup. Ct., 2 D.,
    March 5, 1895.

      Thomas A. Stoddart (George William Hart, of counsel), for app’lt; B. E. Valentine, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion of the defendant for an order of reference appointing a referee to hear and determine the action. It is not a case for a compulsory reference, and the appeal is destitute of merit. The order should be affirmed, with $10 costs and disbursements.


text:
    William J. Comley et al., v. George W. Archer.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Order affirmed, with $10 costs and printing and other dis bursements. Herrick, J., not acting.


text:
    George C. Cook et al., Resp’ts, v. Rudolph J. Kanter, App’lt.
    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements, for reasons, stated by the court below.


text:
    Corbett v. Brooklyn, B. & W. E. R. Co.
    Sup. Ct., 2 D.,
    February 11, 1895.

      Morris & Whitehouse, for app’lt; Maguer & Hughes, for resp’t.
   Dykman, J.

This is an appeal from a judgment dismiss! g the plaintiff’s complaint. The action was brought to recover damages resulting from the death of Thomas Corbett, the plaintiff’s intesta’e. The deceased was killed at the Coney Island station, on the defendant’s road. No one witnessed the occurrence, and there is no proof from which any inference can be drawn respecting the manner in which the deceased met his death, further than that he was killed outside of the train, and between the platform and one of the cars. There is no proof of negligence on the part of the company, and, under such circumstances, there can be no recovery. The judgment should be affirmed, with costs.


text:
    Samuel Corn et al., Resp’ts, v. Isaac Stern et al., App’lts.
    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Order reversed, with $10 costs and disbursements.


text:
    Charlotte E. Courtney, App’lt, v. Charles J. Buchunan et al., Resp’ts.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Ella Cram, Resp’t, v. Springer Lithographing Co., App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion for leave to appeal to court of appeals. Motion denied, with $10 costs.


author: Pratt, J.

text:
    Dadirrian v. Theodorian.
    Sup. Ct., 2 D.,
    February 11, 1895.

      Clark Bell, for app’lt; Betts, Hyde & Betts, for resp’t.
   Pratt, J.

The question presented by this appeal is not free from difficulty; but there are some considerations which strongly favor the plaintiff, who seems to have expended considerable monejr in bringing his article into public notice. Such discretion as the special term may exercise is not willingly interfered with, and the trial upon the merits which either party can speedily bring on, will afford a more satisfactory decision than can be had upon affidavits. Order affirmed, without costs.


text:
    Dawson v. Harrison.
    Sup. Ct., 2 D.,
    February 11, 1895.

      Earnest P. Brook, for app’lt; Backus & Manne, for resp’t.
   Dykman, J.

This is an action to procure a dissolution of a copartnership. The cause was tried before a referee to hear and determine, and the plaintiff has appealed from the judgment entered upon his report. The determination of the case depended upon peculiar facts, and we think substantial justice has been wrought out in this exception. The judgment should be modified so as to allow interest on the loan of $3,000, and upon the usurious payments at six. per cent, with half-yearly rests, and, as so modified, affirmed, without costs.


text:
    Nettie M. Dayton, Resp’t, v. New York, O. & W. Ry. Co., App’lt.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Gervis G. Decora v. Samuel L. Wheeler.
    Sup. Ct., 3 D.,
    February 26, 1895.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    John W. De Peyster v. Metropolitan El. Ry. Co. et al.

    Sup. Ct., 1 D.,
    March 15, 1895.

      S. Babcock, for app’lts; W. G. Peckham., for resp’t.
   Per Curiam.

It is manifest, upon examining the testimony contained in this record, that the awards made upon the trial are largely excessive, and not warranted by the pfoof. We have endeavored to ascertain if there could not be found some basis upon which a reduction of the amount awarded might be made, and the judgment affirmed for that amount. But the evidence is of so unsatisfactory a character that we think the only method by which' a satisfactory conclusion can be arrived at is the granting of a new trial. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.


author: Herrick, J.

text:
    Matter of Dewey’s Estate. Matter of Barber et al.

    Sup. Ct., 3 D.,
    February 26, 1895.

      George M. Wright (Lemuel B. Pike, of counsel), for app’lt; Royal Corbin, for resp’ts.
   Herrick, J.

An order has been entered in this matter stating that the decree of the surrogate “ is reversed upon the law and facts.” It is contended that that was proper in view of the twelfth finding of the surrogate in his findings of fact, “ that the balance unpaid is $137.39;” and that it follows, as a necessity from the conclusions of the opinion, that such finding is reversed. In truth, the decision of the surrogate was reversed upon a question of law. If the finding of the surrogate “that the balance unpaid is $137.39 ” is a conclusion of fact, which I very much doubt, that conclusion of fact was reached by him by reason of the same error of law which was discussed in the opinion, and, therefore, while it may be said that the surrogate’s conclusions of fact are-reversed, they are so reversed because of the error of law committed by him. The order entered, therefore, herein, should be modified so as to read: “ Ordered: That the decree of the surrogate of Clinton county be, and the same hereby is, reversed, upon questions of law, and that the costs and disbursements of said appeal be paid by said executors to the appellant from the estate of Silas H. Dewey. And it is further ordered that the said proceedings be, and the same are hereby, remitted to the surrogate of Clinton county for a rehearing herein.”


text:
    John W. Dibble, Pl'ff, v. Jeremiah W. Dimmick, Def’t.
    N. Y. C. P.,
    February 4, 1895.

      Ira G. Darrin, for pl’ff; J. G. Gardiner, for def’t.
   Per Curiam.

The appeal from the order of affirmance at general term, as-entered, having been determined by the court of appeals, this motion for a reargument of the appeal to the general term of this court or for a resettlement of the order of the general term affirming the judgment appealed from should be denied, with $10 costs.


text:
    Matter of Dixon.
    Sup. Ct., 1 D.,
    March 15, 1895.

      John Delahunty, for app’lts; Alfred C. Patti, for resp’t.
   Per Curiam.

Those only could be adjudged guilty of contempt who interfered with the possession of the receiver; and upon the affidavits submitted we think that no case was made out as against Stratton and Brooks. The-money which, in the alternative, was to be paid unless the goods were returned, if paid, should be held by the receiver until the title of the receiver to the property can be determined in an appropriate proceeding; and if it can then be shown that some or all of this property belonged to Bradv, and that under the chattel mortgage it was legally sold to Snider, then Brady would be entitled to receive the amount which by the order is directed to be paid. The order is accordingly reversed as to Stratton and Brooks, and, subject to the suggestion about the manner in which the money should be held, affirmed as to Brady and Meyer, without costs.


text:
    Charles T. Dunwell v. Berkshire Life Ins. Co.
    Sup. Ct., 2 D.,
    February 11, 1895.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    David Durie v. Aura H. Russell.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Motion granted, with $10 costs.


text:
    Exchange Fire Ins. Co., Resp’t, v. John G. Norris, App’lt.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Faneuil Hall Nat. Bank v. John Bussing.
    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Motion to dismiss appeal denied, upon payment of $10 costs.


text:
    Matter of Fitch.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Albert Fletcher v. Myron C. Barber et al.

    Sup. Ct., 3 D.,
    February 26. 1895.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Matthew S. Frazier, Resp’t, v. James Stewart et al., App’lts.
    Sup. Ct., 2 D.,
    February 11, 1895.

      Joseph F. Daly, for app’lts; John F. Brennan, for resp’t.
   Pratt, J.

This is an appeal from a ju Igment entered upon a verdict of a jury for the sum of $1,043.43. The weight of evidence was decidedly with the defendants that the statute of limitations had run against the whole claim except the sum of $84. The only material question upon this point related to two payments made by the defendants within six years previous to the bringing of the suit, and the plaintiff concedes that, if those payments were not made on the general account, then the statute has barred all except the sum of $84. The claim of defendants was that these two payments—one of $22, and the other of $17—were made upon and for two specific items. This wps sworn to positively by the paymaster of the defendants, and the circumstances attending- the payment are not rebutted by any witness for the plaintiff. In fact, I think the evidence of the defendants’ paymaster is corroborated by the books of the plaintiff, as in the books of plaintiff two items are charged for these same amounts on the date just prior to the payments, and right opposite is a c. edit of cash. The payments were for the exact amount of the items. The bookkeeper of plaintiff, who received the payments, admitted that the paymaster said something, but could not remember what: while the paymaster testifies that he said that tlie payments were made upon the two items of credit which were for the precise amount and had recently accrued. Under all the circumstances, we think the judgment should be reduced to the sum of $84, and the judgment rendered for $84. If the plaintiff should stipulate to reduce the judgment to that amount, then he may have judgment for that amount and costs; otherwise, a new trial is granted. All concur.


text:
    Matter of Gaines’ Will.
    Sup. Ct., 2 D.,
    February 11, 1895.
   No opinion. Appeal dismissed, without costs.


text:
    Henry Gimpel, App’lt, v. Peter K. Wilson et al., Resp’ts.
    N. Y. C. P.,
    February 4, 1895.

      Wm. R. Wilder, for app’lt; Blumenstiel & Hirsch, for resp’ts.
   No opinion. Motion for reargument. Motion denied, with $10 costs.


author: Fitzsimons, J.

text:
    Samuel Goldberger, Resp’t, v. Essie M. Gallagher, App’lt.
    N. Y. C. C.,
    February 11, 1895.

      Charles A. Flammer, for app’lt; Hahn & Hyers, for resp’t.
   Fitzsimons, J.

The complaint alleges delivery of the goods in question. The answer, by not denying that material allegation, admitted it. So it was not necessary for the plaintiff to have proven delivery. Defendant’s plea of former action pending was not sustained by any of the testimony submitted. In fact, the testimony of even defendant shows that the action referred to was abandoned and discontinued by express agreement of the parties thereto. A formal order of discontinuance, entered and filed in the court where said action was pending, while advisable, was not necessary. The answer of the defendant certainly admitted an indebtedness of $125, under the agreement mentioned in paragraph 111 of the answer, providing the jury believed that she refused to carry out said agreement unless she received a receipt for the money paid plaintiff under such agreement. They evidently believed that to be so. They could not well do otherwise, because the defendant so testified. Therefore, her answer, as before shown, she having admitted making of the agreement, and her testimony showing that she refused to carry out the terms of said agreement (except to the extent of §25) unless plaintiff gave her a receipt for money paid,—something she was not in law entitled to, as a matter of right,— is in law an admission of her indebtedness to the extent of §125; and therefore the trial justice was riget in directing the jury; to find a verdict for plaintiff for at least that amount. These are the only points raised by the appellant’s counsel, and, as we have pointed out, they are, in our judgmeni, without legal merit. We have examined the appeal record to find out whether or not any error was made, and, finding none, the judgment must be'affirmed with costs.


text:
    Moses F. Goldstein, Resp't, v. Grace E. Strait et al., App’lts.
    Sup. Ct., 3 D.,
    February 26, 1895.
   Mo opinion. Judgment affirmed, with costs.


text:
    Louis Greve v. Aetna Live-Stock Ins. Co.
    Sup. Ct., 1 D.,
    February 15, 1895.
   Mo opinion. Motion granted.


text:
    William A. Harding, App’lt, v. Walter H. Field, Resp’t.
    Sup. Ct., 1 D.,
    February 15, 1895.

      T. D. Kenneson, for app’lt; H. R. Bayne, for resp’t.
   Per Curiam.

We are of opinion that the order in this case should have required an undertaking from the plaintiff in the sum of §250 to meet the costs accruing upon the appeal taken by the plaintiff, and that security for past costs should not have been required. The order should be modified accordingly, and affirmed as modified, without costs to either party.


text:
    Matter of Foster’s Estate.
    Sup. Ct., 2 D.,
    February 11, 1895.

      Olcott, Mestre & Gonzalez (Emmet R. Olcoit, of counsel), for app’lts; Lucius H. Beers, for resp’ts Henry Talmadge & Co.
   Pratt, J.

In the above matter the surrogate from whom the appeal was taken has filed an opinion, which fully states the ground upon which the decree was entered. I recommend an affirmance, without any further opinion, with costs.


text:
    Robert J. Hayden v. Thomas C. Platt et al.

    Sup. Ct., 2 D.,
    February 11, 1895.

      Tracy, Boardman & Platt (James R. Soley, of counsel), for app’lts; Wood & Morschauser, for resp’t.
   Pratt, J.

The elaborate opinion filed by the referee so completely covers the facts as to render further discussion unnecessary. We do not see that the plaintiff was guilty of contributory negligence, and the amount of damages is not excessive. Judgment affirmed.


author: Ehrlich, C. J.

text:
    Arnold Heerwagen et al. v. Charles L. Ritzman.
    N. Y. C. C.,
    March 19, 1895.

      Wolf, Kohn & Ullman, for app’lts; Albert I. Sire, for resp’ts.
   Ehrlich, C. J.

The action is for brokerage in procuring a customer for certain premises known as “Mo. 532 Mintli Avenue,” this city. The case involved the question whether the plaintiffs had been employed to make the sale, and whether they were the procuring cause thereof. The court left these questions to the jury, under a clear charge, and they found that the plaintiffs had been employed by the defendant, and that the purchaser had been procured through their instrumentality. The evidence sufficiently sustains the jury’s finding, and the judgment and order appealed from must be affirmed, with costs,


text:
    Moses Heilman, Resp’t, v. Charles A. Hess, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   Mo opinion. Judgment affirmed, with costs, upon argument.


author: Newburger, J.

text:
    Louisa Hoff, Resp’t, v. Jean Commeight, App’lt.
    N. Y. C. C.,
    March 19, 1895.

      Louis Mathot, for app’lt; Kidlich & Finch, for resp’t.
   Newburger, J.

The plaintiff, as administratrix of her mother’s estate, brings this action to recover certain moneys which she charges the defendant wrongfully obtained. It appears that the plaintiff’s mother was sick with paralysis, and on the 14th day of September, 1892, was taken to the French. Hospital for treatment. The defendant was her physician before she went to the hospital, and it appears it was he who suggested her being taken there, where she died on the 22nd day of November of the same year. It further appears that, during the stay of the plaintiff’s intestate at the hospital, the defendant, who was then one of the regular staff of physicians of the hospital, obtained of the decedent a bank book issued by the Manhattan Savings Institution, and thereafter presented to the savings institution three drafts, amounting to the sum of $354, which the bank paid. Plaintiff claims that the drafts-were not the act of plaintiff's intestate, in that during the whole time she was-in the hospital, including the dates of the alleged execution of the drafts, she was mentally incapacitated, and unable to understand the nature and character of the transaction, and incapable of assenting to the execution of the drafts. The case was properly submitted to the jury by the trial justice, and a careful reading of the printed case fails to disclose any error in the admission of testimony that would warrant us in disturbing the verdict of the jury. The judgment appealed from must be affirmed, with costs.


text:
    James Hynes, App’lt, v. David Adler et al. Resp’ts.
    Supr. Ct.,
    March 5, 1895.

      James Murphy, for app’lt; Joseph C. Wolff, for resp’ts.
   Per Curiam.

The finding of the court below that there was no fraud in the transfer from the husband to the wife was sustained by the testimony. They were not contradicted in any respect. It does not seem to be an unusual occurrance, considering their previous dealings. The improbability of the transfer was not great. The intent of the husband would not be imputed to the wife if she had no notice of it, and was herself innocent. There does not seem to be any irregularity in the findings. The appellant has taken no position that has not been examined. Judgment affirmed, with costs. ,


text:
    Matter of Huber’s Estate.
    Sup. Ct., 2 D.,
    March 5, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur,


text:
    Christian Jackle, Resp’t, v. Manhattan Ry. Co., App’lt.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Aaron Jaffe, App’lt, v. Hamburg-American Packet Co., Resp’ts.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Judgment affirmed, with costs by default.


text:
    Hanna Johnson v. Olaf A. Sjostrom.
    Sup. Ct., 2 D.,
    February 11, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    William J. Johnston et al., App’lts, v. Thomas C. Martin, Resp’t.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion for reargument. Motion denied, with $10 costs.


text:
    Anna T. Kelly, Resp’t, v. Manhattan Ry. Co., App’lt.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Lewis C. King, Resp’t, v. John Townshend, App’lt.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Lena Kunzmann, Resp’t, v. New York & R. B. Ry. Co., App’lt.
    B. C. C.,
    March 25, 1895.

      Wm. C. Beecher, for app’lt; Hurd & Grim, for resp’t.
   Per Curiam.

The plaintiff was injured while alighting from a train. Whether or not it was the train of the defendant or of the Long Island Railroad Company was controverted. The appellant insists that the evidence was insufficient to carry this question to the jury, and this alone we are asked to pass upon. The plaintiff’s case in this respect is much stronger than it was on the former appeal, and the force of the affirmative testimony offered by the defendant to show that it was the train of the Long Island Railroad Company was so weakened by contradictions and inconsistencies therein, and by the manifest bias of the witnesses and their doubts on material points, as to justify the jury in discrediting the same. This question was properly submitted to the jury. See our opinion on the former appeal in this case, Kunzmann v. Railroad Co., 8 Misc. Rep. 689. Judgment and order affirmed, with costs.


text:
    Marie M. La Favre, App’lt, v. Clifford A. Hand, Resp’t.
    Sup. Ct., 1 D.,
    February 15, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    Munczi Lajos, Resp’t, v. Eden Musee American Co., App’lt.
    N. Y. C. P.,
    February 4, 1895.
   Ho opinion. Motion for reargument. Motion denied, with $10 costs.


text:
    Matter of Lapham’s Estate.
    Sup. Ct., 3 D.,
    February 26, 1895.
   Ho opinion. Order of the surrogate reversed, and the case remitted to the surrogate, with directions to grant motion, with $10 costs and printing and other disbursements.


text:
    Thomas McCann v. Jacob May.
    Sup. Ct., 2 D.,
    February 11, 1895.
   No opinion. Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs. All concur.


text:
    Alonzo McConihe, Resp’t, v. Charles E. Thompson, App’lt.
    Sup. Ct., 3 D.,
    February 12, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    Peter McDugan, App’lt, v. New York Cent. & H. R. R. Co., Resp’t.
    N. Y. C. P.,
    February 4, 1895.
   Ho opinion. Judgment affirmed upon the opinion of the general term upon the former appeal in this action.


text:
    Thomas J. McKee et al., Resp’ts, v. New York El. R. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    February 15, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    John McNamara, App’lt, v. Mayor, etc., of City of New York, Resp’t.
    Sup. Ct., 1 D.,
    February 15, 1895.
   Ho opinion. Judgment affirmed, with costs.


text:
    James E. March, App’lt, v. John Gleason, Resp’t.
    N. Y. C. P.,
    April 1, 1895.

      William E. Morris, for app’lt; Joseph Steiner, for resp’t.
   Bischoff, J.

It would be difficult to conceive a case more entirely within the province of a district court justice to decide, and more devoid of matter for this court to review, than that now brought, before us. Whether, as testified by defendant, the premises in question were held by him under an agreement for a monthly tenancy pending the execution of a lease, or whether, as plaintiff maintained, a holding over for another yearly term was in truth the situation, was the simple question litigated upon the trial, and determined in favor of the defendant, upon the testimony of the parties balanced in direct confliction. There is no exception in the record, and no question was raised at the trial as to whether the defendant left the premises seasonably at the time when he elected to terminate the tenancy, and gave notice of such election; nor do we think that, upon the evidence, the result could well have been affected, upon that ground, had the point been made. Judgment affirmed, with costs.


author: Ehrlich, Ch. J.

text:
    Jacob Marmorstein, Resp’t, v. Pennsylvania R. Co., App’lt.
    N. Y. C. C.,
    March 19, 1895.

      Robinson, Biddle & Ward, for app’lt; Alfred B. Jaworower, for resp’t.
   Ehrlich, Ch. J.

We hold that, on the evidence adduced, and the finding based upon it, the defendant, as a common carrier, became liable for the delivery of the baggage at the place of final destination, and that delivery at St. Louis, to the connecting carrier, did not relieve it from responsibility. The judgment must be affirmed, with costs.


text:
    Jacob M. Mertens v. John B. Marzluff.
    Sup. Ct., 3 D.,
    February 12, 1894.
   Ho opinion. Order affirmed, with §10 costs and printing and other dis. bursements.


text:
    George W. Miller et al., App’lts, v. William J. Larmer, Resp’t.
    Sup. Ct., 1 D.,
    March 15, 1895.

      A. B. Cruikshank, for app’lts; A. A. Spear, for resp’t.
   Per Curiam.

The appellants, not having served or filed exceptions to the decision of the special term are not in a position to challenge the findings of fact or the conclusions of law. The exceptions taken by the appellants to the reception and exclusion of evidence were not argued at the bar of this court, nor on their brief, and, besides, none of them are tenable. The judgment should be affirmed, with costs.


text:
    Muldoon v. Canavello.
    Sup. Ct., 2 D.,
    February 11, 1895.

      J. C. & H. C. Smith & Koepke, for app’lt; George V. Brower, for resp’t
   Dykman, J.

This action was brought to foreclose a mechanic’s lien. There has been a trial before a justice of this court without a jury, and the plaintiff has obtained a judgment, from which the defendant has appealed. The lien was for labor performed in the excavation of a cellar. The services and their value were undisputed, and the question upon which the decision of the case depended was whether the work was done for the defendant or not. The testimony made it plain that the arrangement made by the defendant with the plaintiff was an original undertaking, and rendered him liable for the work done. The findings of the trial judge are all well supported, and the judgment should be affirmed, with costs.


text:
    Matter of Nassau Electric R. Co.
    Sup. Ct., 3 D.,
    March 5, 1895.

      John J. Allen and James C. Church, for petitioner; John A. Taylor, for property owners in South Fifth and South Eighth streets.
   Dykman, J.

This is a motion to confirm the report of commissioners appointed by the general term of this court to determine whether the railroad of the petitioner should be constructed and operated. The action of the commissioners is to stand in lieu of the consent of he property owners. The Nassau, Electric Railroad Company is a corporation organized for the purpose of constructing and operating a street surface railroad in the city of Brooklyn and the adjoining towns. Having failed to obtain the requisite consents of landowners upon certain streets through which the railroad was projected, an application was made to the general term of the supreme court for the appointment of commissioners, pursuant to the railroad law as amended by chapter 676 of the Law’s of 1893. The commissioners were appointed, and they have performed their duties, and made their report. Aside from some general objections to the location and operation of this railroad along South Fifth and South Eighth street, which this court cannot obviate, because the legislature has conferred the right to so locate the road, the opponents to confirmation base their opposition here upon errors committed by the commissioners in excluding testimony offered upon the hearing before them. We have examined with care all the questions presented by the exceptions of the opponents, and we deem it sufficient to say that they present no errors of law. The report should be confirmed, with costs.


text:
    Stephen H. Niles, Resp’t, v. Henry N. Johnson et al., App’lts.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Matter of Oakley Avenue.
    Sup. Ct., 2 D.,
    March 5, 1895.
   Dykman, J.

It is now provided by statute that no highway shall be laid out through any building without the consent of the owner thereof, unless so ordered by the county court of the county in which the proposed highway is-situated, and not even then until the general term of the supreme court shall confirm the order of the county court. Laws 1890, chap. 568, § 90. This is an application for the confirmation of such an order. The proceeding was instituted to lay out and open a highway in the town of Jamaica, from Liberty avenue to University Place, to be called “ Oakley Avenue;” and, because it passed through buildings, it became necessary to apply to the county court, under the statute to which reference has been made. The necessity of this new road has been certified by the highway commissioners of the town, the county court commissioners, and the county court of Queens county, and this application for the order of the general term is not opposed by the owner of any building through which the highway is proposed to be opened. The motion is opposed by persons who own two parcels of uncultivated and unimproved land through which it is proposed to run the new road. While it is quite doubtful whether persons so situated can be heard in opposition to this application, we have yet thought it ad visible to hear counsel on their behalf, and make an examination of the case. In relation to the opposition of Shat-tack, it is to be said that he has laid out a street upon his land, and sold lots on both sides thereof upon which houses have been erected. While such action does not constitute a dedication of the land for a street, it does preclude him from closing the street without the consent of the persons who own such lots thereon. The objections of the Napiers seems to be destitute of merit also. The order of the county court should therefore be confirmed.


text:
    Nellie O'Brien, Resp’t, v. National Life Ass’n, App’lt.
    Sup. Ct., 3 D,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Jacob J.’ O’Bright, Resp’t, v. Louis Felsenheld et al., App’lts.
    N. Y. C. C.,
    March 19, 1895.

      Benno Loewy. for app’lts; Joseph C. Rosenbaum, for resp’t.
   Newburger, J.

This action is brought for damages for the breach of a contract of employment. The complaint alleges that on or about the 34th day of February, 1893, the plaintiff and defendant entered into an agreement whereby the plaintiff was to give his services to the 1st day of January, 1894, and that he was to receive a salary of $37 a week; that plaintiff entered upon such employment, and discharged all his duties until on or about the 6th day of May, 1893; and that he was at all times ready and willing to perform all the conditions of the said agreement, but said defendants refused to allow him to do so, to his damage. The answer, in addition to a general denial, alleges that the plaintiff was hired by the defendant under a written agreement, in which it was specified and agreed that he might be discharged at the end of one week, and that the plaintiff’ should have no claim upon the defendants except for wages duo him up to the time of his discharge, and that he was fully paid up to that time. Upon the trial, a verdict was rendered in favor of the plaintiff, and from the judgment entered thereon, and from an order denying a motion for a new trial, this appeal is taken. It is contended by the defendants that the hiring of the plaintiff took place in January, and that he, on the first day of February, signed the agreement whereby his engagement was to be by the week, which might be terminated on Saturday. Plaintiff, however, testified that his original hiring was in the silk waist and suit department, of which he had charge, and ííiat on or about the 34th day of February, 1893, the defendants employed him in another department for the rest of the year. The question of the term of employment, therefore, became a question of fact, and was properly submitted to the jury, whose finding is sustained by the evidence. The trial justice, in his charge, properly stated the law governing the case, and we fail to find any exceptions in the case that would warrant us in disturbing the judgment. Judgment and order appealed from affirmed, with costs.


text:
    Eliza Oliphant, Resp’t, v. Metropolitan El. R. Co., App’lt.
    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Margaret O’Rourke v. John Hancock Mut. Ins. Co.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion by defendant (appellant) for reargument and leave to appeal to court of appeals. Motion denied, with $10 costs.


text:
    Orvis, Resp’t, v. Curtiss, App’lt.
    N. Y. C. P.,
    February 4, 1895.

      H. G. Hanes, for app’lt; Taylor & Parker, for resp’t.
   Per Curiam.

This action was brought to recover six months’ interest due on a promissory note made by the defendant to the order of the plaintiff, payable three years after date, with interest thereon, “ to be paid semi-annually, at the rate of five per cent.” The interest sued for in the present action was for the second six months. A suit having been previously brought in the court below by plaintiff against defendant for the recovery of the first six months’ interest on the note, judgment therein was rendered in favor of the plaintiff. The issues in this action are the same as in the former action. It is claimed that the judgment in the first action is res judicata; but we are unable to pass upon the question until the record of the judgment m that action is submitted for our inspect! n. The justice’s return in regard to the same states: “By plaintiff’s counsel: I offer in evidence the record of the former action. By defendant’s counsel: I except to the ruling holding them adjudicata.” This does not clearly indicate whether such record was admitted, but at page 7 of the return we find that “it is stipulated that copies of the former testimony and exhibits may be submitted for originals,” from which we infer that the record of such judgment was read in evidence. The return is barren of either the original record of the judgment or a copy thereof, and it should therefore be amended so as to include either of them, as it is claimed that the first judgment has since been reversed, on the ground that the justice had rendered his decision after the time limited by law for his doing so had expired, and therefore had no jurisdiction to render it. Orvis v. Curtiss, 28 Supp. 728. If such decision was rendered as claimed, then the justice proceeded without jurisdiction, the judgment was unauthorized and void, and plaintiff’s claim that said judgment res judicata is unavailing. Dalton v. Loughlin, 4 Abb. N. C. 187, 192; Sire v. Merrick, 6 Supp. 661. For these reasons a reargument should be ordered, return to be amended meanwhile.


text:
    Catharine O’Shaughnessy, Resp’t, v. Workingman’s Co-operative Ass’n of United Insurance League of New York, App'lt.
    N. Y. C. C.,
    March 19, 1895.

      William B. Donihee, for app’lt; William E. Morris, for resp’t.
   Newburger, J.

This is an appeal from a judgment entered upon a verdict directed by the trial justice. At the close of the case, it was consented by counsel for the respective parties that the court pass upon the questions of law and fact, whereupon the trial justice directed a verdict for the plaintiff, to which defendant’s counsel excepted, The defendant made no request to be allowed to go to the jury upon the questions of fact. The only inquiry, therefore, is whether the evidence be sufficient to sustain the verdict. We think the direction of the court is sustained by the evidence. Furthermore, the case contains no certificate that it contains all the evidence given on the trial. We find no errors of law, and therefore the judgment must be affirmed, with costs.


text:
    Owl Cigar Co., Resp’t, v. Thomas Lidgerwood, App’lt.
    N. Y. C. P.,
    February 4, 1895.

      S. A. Emanuel, for app’lt; J. Bradley Tanner, for resp’t.
   No opinion. Appeal dismissed.


text:
    Tyndall Palmer v. Chicago Herald Co.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Order affirmed, with §10 costs and disbursements, on opinion in Palmer v. Chicago Evening Post Co., 32 Supp. 992.


text:
    Frank Pardridge, Resp’t, v. Julia Beillot, App’lt.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    People v. De Barler et al.

    N. Y. C. P.,
    February 4, 1805.
   No opinion. Motion to vacate judgment entered on a forfeited recognizance. Granted,


text:
    People v. Garvey.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Judgment reversed. New trial ordered.


text:
    People v. Life Union.
    Sup. Ct., 1 D.,
    February 15, 1895.

      R. J. Moses, for app’lt; E. L. Mooney, for resp’t.
   Per Curiam.

The appeal as to the defendant Law has been withdrawn. Notice of this application does not seem to have been given to any other of the parties to be proceeded against. In addition to this, there does not seem to be any reason why this court should direct the receiver as requested. The receiver is supposed to attend to his duties; and if he is derelict therein, he is responsible to the parties who have been injured. The order should be affirmed, with $10 costs and printing disbursements.


text:
    People v. Moore et al.

    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion to vacate judgment entered on a forfeited recognizance. Motion denied, with leave to renew.


text:
    People ex rel. New York & E. Telegraph & Telephone Co. v. Plympton et al.

    Sup. Ct., 2 D.,
    February 11, 1895.

      Archibald L, Sessions, for app’lt; E. H. Benn, for resp’t.
   Dykman, J.

This is an appeal from an order which awarded to the relators a peremptory writ of mandamus, requiring the board of commissioners of electrical subways of the city of Brooklyn to approve a plan, and grant a permit to the New York & Eastern Telegraph & Telegraph Company to erect and suspend telegraph and telephone wires from and along the Kings County Elevated Railway, and to place electrical conductors in subways to be constructed along certain streets in the city. Our examination satisfies us that the proper disposition was made of the case by the special term, and the reasons therefor are satisfactory. The order should be affirmed, with $10 costs and disbursements.


text:
    The People, Resp’t, v. William F. Rathbone, App’lt.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Order and judgment affirmed, but without costs, and with leave to the defendant to withdraw said demurrer and answer within twenty days.


text:
    People v. Rosenfeld.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion to vacate judgment entered on a forfeited recognizance. Application denied.


text:
    People, Pl’ff, v. Roth et al., Def’ts.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion to vacate judgment entered on a forfeited recognizance. Granted.


text:
    George W. Pike, App’lt, v. Willis T. Housinger, Resp’t.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Leo Pranger et al. v. John R. Kuhn.
    Sup. Ct., 3 D.,
    March 5, 1895.
   No oninion. Order affirmed, with $10 costs and disbursments. All concur.


text:
    Anna Rickert, Resp’t, v. George Scott, App’lt.
    N. Y. C. P.,
    February 4, 1895.

      Robert Lyon, for app’lt; Robert Goeller, for resp’t.
   No opinion. Settled.


text:
    William Roe, Resp’t, v. Thomas E. Crimmins, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No odinion. Motion for reargument or for leave to appeal to court of appeals granted.


text:
    James H. Ryan et al., Resp’ts, v. Francesco Pistond, App’lt.
    Sup. Ct., 2 D.,
    February 11, 1895.
   No opinion. Reargument ordered.


text:
    Ryan et al. v. Pistone.
    Sup. Ct. 2 D.,
    February 11, 1895.

      Maurice Meyer (Clarence D. Jones, of counsel), for app’lt; Ralph Hickox, for resp’t.
   Pratt, J.

The trial judge correctly laid down the law, and the verdict of the jury is sustained by the evidence. Judgment affirmed.


text:
    Chares Saul. Resp’t, v. Jacob Meyersohn, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Judgment affirmed, with costs, upon argument.


text:
    Sheffields Farms Co. , Resp’t, v. William H. Burr, App’lt.
    N. Y. C. C.,
    March 19, 1895.

      Herman Joseph for app’lt; William T. Carlisle, for resp’t.
   Ehrlich, Ch. J.

The appeal book shows that the defendant, William H. Burr, confessed judgment, January 9, 1895, to Euphemia C. Burr, for $2,000, and costs, and that, in supplementary proceedings founded thereon, James I. Delany, Esq., was appointed receiver of the defendant’s property, January 14, 1895. The plaintiff, a prior judgment creditor, instituted supplementary proceedings against the defendant, December 8, 1894; and the confession of judgment by the plaintiff to Euphemia C. Burr was evidently intended by the parties thereto to supersede any application that might be made in the plaintiff’s action looking towards the appointment of a receiver, and to secure an appointment agreeable to the defendant. It does not appear that any notice of the application to appoint Delany as receiver was ever served on the plaintiff, and, its proceeding being pending at the time, this omission is a defect. For this reason, ana those assigned by the court below, the order appealed from must be affirmed, with costs.


text:
    Jacob Shrady et al., Resp’ts, v. Metropolitan El. R. Co., App’lt.
    N. Y. C. P.,
    February 4, 1895
   No opinion. Appeal settled.


text:
    Solomon Simm, Resp’t, v. Jacob Van Clief, App’lt.
    N. Y. C. C.,
    March 19, 1895.

      Headley M. Greene, for app’lt; Johnston & Johnston, for resp’t.
   Newburger, J.

This is an appeal from, a judgment entered upon the verdict of a jury rendered in favor of the plajntiff, and from the order denying the motion for a new trial. The action was brought for goods sold and delivered. The defendant denies the sale to him, but alleges that the goods were sold to his wife, and, therefore, the only question raised at the trial was to whom was the credit given. The case was properly submitted to the jury, and no exception taken to the charge of the trial justice. There are no exceptians that would warrant us in disturbing the verdict of the jury. Judgment and order appealed from'affirmed, with costs.


text:
    Anthony Solarz, Resp’t, v. Manhattan Ry. Co., App’lt.
    Supr. Ct.,
    January 21, 1895.

      Davies, Short & Townsend (Edward C. Thomas, of counsel), for app’lt; John L. Brower, for resp’t.
   Per Curiam.

The judgment and order are affirmed, with costs, on the opinion filed by McAdam, J., the learned trial judge upon the denial of the motion for a new trial.


text:
    Soldiers’ Orphan’s Home of St. Louis v. Russell Sage et al.

    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Judgment affirmed, with ten dollars costs and disbursements.


text:
    Soldier’s Orphan’s Home of St. Louis v. Russell Sage et al.

    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Order vacating order for examination affirmed, with $10 costs and disbursements, with leave to renew upon proper affidavits upon payment of the motion costs below, and of $10 costs and disbursements of this appeal.


text:
    Susie M. Sturges et al., Resp’ts, v. A. Beekman Cox et al., App’lts.
    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Order affirmed, with $10 costs.


text:
    Charles H. Swift v. Margaret A. Swift.
    Sup. Ct., 3 D.,
    February 26, 1895.
   No opinion. Motion to resettle order granted. Order resettled as proposed.


text:
    William H. Thomas, App’lt, v. William B. Gage, Resp’t.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Town of Ft. Covington v. U. S. & R. R. Co. et al.

    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Townsend, Resp’t v. Auld, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion by plaintiff (respondent) for reargument. Motion denied, with $10 costs.


text:
    Mercy A. Townsend, App’lt, v. Daniel Kent, Resp’t.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Jungment affirmed, with $10 cost and disbursements.


text:
    Cortland S. Van Rensselaer, App’lt, v. Lorenzo Goodwin et al., Rasp’ts.
    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Wallace, Resp’t, v. Dinniny, App’lt.
    N. Y. C. P.,
    April 1, 1895.
    Motion by defendant (appellant) in the alternative, for reargument of the appeal, or for leave to appeal to the court of appeals from the judgment of affirmance.
   Bischoff, J.

Nothing is found in the points upon which this motion is founded which could alter the conclusion as origina-.iy reached upon the questions presented by the appeal; Wallace v. Dinniny, 32 N. Y. Supp. 159; and no point of law is now raised which was not considered in -reaching that conclusion, or which could have involved a contrary result if urged at that time. Hence a reargument is not to be ordered. Mount v. Mitchell, 32 N. Y. 702. That there was no evidence in the case from which the jury could have found a surrender of the lease originally executed by the parties is clear to us, and there is no novel question of law involved which would authorize our granting the leave asked to appeal to the court of last resort. Nor does the determination of this action affect interests other than those of the parties before the court. Consistently, therefore, with the rules which are to guide the court in disposing of applications of this character, Spofford v. Rowan, 14 Daly, 236; Butterfield v. Radde, 38 Supr. Ct. 44; Fulton v. Insurance Co., 2 Misc. Rep. 55; White v. Balta, 7 id. 663, this motion must be denied. Motion denied, with §10 costs.


text:
    Earl G. Watrous, Resp’t, v. Walter A. Wood Mowing & Reaping Mach. Co., App’lt.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Jacob Werlein, App’lt, v. Tower Manufacturing & Novelty Co., Resp’t.
    N. Y. C. P.,
    April 1, 1895.

      Daniel S. Decker, for app’lt; Charles H. Williams, for resp’t.
   Bischoff, J.

Upon the eviden- e in this case, we find no justification for a-reversal of the judgment rendered in favor of the defendant. There was some conflict of testimony, but upon the main points of the litigation the record discloses a preponderance of evidence in favor of the prevailing party. It appears that the work for which this action is brought was performed at the request of one Peter Mead in making repairs upon certain trucks controlled by him under an executory agreement of sale with David A. Tower, defendant’s treasurer, and that all work of the same character previously performed upon these trucks had been paid for by Mead himself, except in one instance, when defendant’s collector, Clark, made a payment of forty dollars in satisfaction of a bill rendered to Mead. When making this payment, Clark stated to> plaintiff that, if he wished to do work for Mead, he had better render bills to the company thereafter in each instance as future work should be performed, and that Mr. Tower would see that Mead paid them. The evidence directly shows that no bills were rendered thereafter to the company for the work in suit, but that plaintiff continued to make repairs at the instance of Mead, and only after the latter’s death was a bill for the whole work presented. The record fails to disclose any authority in Clark, express or implied, to bind the defendant company to an agreement to pay for this work; but, assuming that it had thus guaranteed the payment of the bills, still the condition to the liability had not been fulfilled by the plaintiff, and a recovery could not be based upon the agreement. Miller v. Stewart, 9 Wheat. 680; Grant v. Smith, 46 N. Y. 97; 9 Am. & Eng. Enc. Law, p. 83. Moreover, the evidence clearly supports the conclusion that plaintiff continued to give credit to Mead, and did not rely upon the agreement here claimed to have been made, which conclusion is the more strongly supported by his failure to render the bills as the work was done. Judgment affirmed, with costs.


text:
    Western Nat. Bank of City of New York, Resp’t, v. William N. Flanagan, App’lt.
    N. Y. C. C.,
    February 11, 1895.

      Wise & Flanagan, for app’lt; Charles F. MacLean, for resp’t.
   Newburger, J.

This is an appeal from a judgment entered on a verdict, rendered by direction of the court in favor of the plaintiff. The defense is that the note was accommodation paper, and was diverted, and that the plaintiff at the time of making the same had notice of these facts. The record clearly shows that the bank took the note in the regular course of business, and there was no evidence of any diversion, and therefore the trial justice properly denied defendant’s motion for a direction of a verdict in his favor. The judgment appealed from must be affirmed, with costs.


text:
    Maria L. Winterson v. Hector M. Hitchings et al.

    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion for reargument denied, with §10 costs.


text:
    Herman A. Wolf et al. v. Robert Parke.
    N. Y. C. C.,
    March 19, 1895.

      J. Offenbach, for app’lt; Fromme Brothers, for resp’ts.
   Ehrlich, Ch. J.

The proofs show that the excise license which the receiver desired the defendant to transfer was not owned by him. but by the Henry Elias Brewing Company, which corporation paid the fee to obtain it, and ei.v braced it in a mortgage held by it. The application below, therefore, was properly denied, and the order appealed from must be affirmed, with costs.


text:
    Frank N. Wright, Resp’t, v. Bradley N. Lobdell, App’lt.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    August Wuensch, Resp’t, v. Albert Pulitzer, App’lt.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Henry L. York, Resp’t, v. Ӕtna Livestock Ins Co., App’lt.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


author: Follett, J.

text:
    In the Matter of Peter J. Garvey.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Election—Voters—Residence.
    A student at a seminary of learning cannot gain a residence for the pur»' pose of voting, though he has no other domicile.
    Appeal from an order, granting an application to strike names from the list or register of voters.
    Appeal from an order of the special term striking the names of the appellants from the registry of voters of the second election district in the thirteenth assembly district of the city of New York. Henry Meiser is twenty-seven years of age and was born at Wappinger’s Falls, N. Y., where he resided with his parents until he reached the age of fourteen, when he left home and attended a school in New Hampshire and a college in Massachusetts. His father died in 1881; his mother now resides in Philadelphia, Pa. In 1887, When twenty years of agej he went south as an engineer, and in 1888, when twenty-one years of age, he returned to this state, residing at Buffalo, where he lived upon the income of his property and the results of his labor until October, 1889, when' he came to this city and became the secretary of the Microphone Carbon Battery Company at No.112 Liberty street and ^established his residence at No. 28 West Twelfth street—a boarding house. September 15, 1890, he removed to No. 64 Clinton place, where he took an apartment for himself and sister, and resided there until September, 1891. He registered and voted in November, 1890, as a resident of No. 64 Clinton place, and his name is in the city directory for that year. From September, 1891, to March, 1892, he was • temporarily at Milford, Conn., as purchasing agent for the National Electrical Manufacturing Company, but did not become a resident of that state. From March, 1892, to November, 1892, he resided at No. 55 West Thirty-first street—a boarding house—and was employed as a clerk for a firm doing business at the corner of Tenth avenue and Thirty-seventh street. In 1892 he voted as a resident of No. 55 West Thirty-first street and was placed on the list of persons qualified to perform jury duty and summoned to perform such duty From November, 1892, to May, 1893, he resided at No. 52 West Twenty-first street—a boarding house. The summer of 1893 he spent on Long Island. In September, 1893, he began the study of theology at the General Theological Seminary of the Protestant Episcopal church at No. 175 Ninth avenue in the city.of New York and which is in the second election district of the thirteenth assembly district of said city. He took up his residence at one of the buildings belonging to said institution which is known as No. 6 Chelsea square and, also, as No. 175 Ninth avenue. In the year 1893 he voted as a resident of this place. He supports himself and pays all his own expenses, and since 1889, the year after he became twenty-one, he has continually resided in this city," having no home elsewhere. He swears that he intends permanently to reside in this state. , George Gunnell, Jr., became twenty-one years of age in 1889; his father’s home is in Pennsylvania. In 1891 he settled at the town of Sodus Centre, N. Y.y where he was engaged as a lay reader until September, 1891. In 1891 and 1892 he was a student at Harvard University, Mass., retaining his residence at Sodus Centre. In September, 1892, he became a student of the General Theological Seminary and has rooms in that institution. He is also engaged in business in this city as a bookseller with a partner under the firm name of Gunnell & Collins. He is also a lay reader in the Church of the Heavenly Rest. He receives no support from his parents, but supports himself. In 1893 he registered as a resident'of No. 175 Ninth avenue and voted at the general election. He testified that he had been a citizen and resident of this state continuously since 1889 and a resident of the second election district in the thirteenth assembly district continuously for the past two years and that he ' intends to make this city his fixed and permanent home. John Neilson Barry was born in the state of Virginia, where hi.s parents now reside, and which state he left in 1892 and came to New York with the intent to make that city his permanent place of residence. He became a student at said seminary and took up his abode there. At the time this application was made he was a lay reader in a church at White Plains. He receives no support from his family, but supports himself by his own exertions. He states in his affidavit that his intention is to make New* York city his permanent home, and that his residence therein is not conditioned upon or limited to the seminary course which he is pursuing. On November 19,1892, hé declared in a letter addressed to the Right Reverend Henry 0. Potter-, bishop of New York, that his legal residence was in this city. On the same date he wrote the registrar of Warrington, Va., that he had changed his residence to this city and directed him to strike his" name from the list of regis-' tered voters of Fauquier county, Va. Since that date he has had no home other than the one established in this city. Thomas Henry Yardly is twenty-five years of age, and was born at Middle-town, Conn. His father died in 1882, and his mother is a resident of Rhode Island, with whom he has not resided since 1888-; from that year until 1892 he was a college student in Connecticut and in Massachusetts. In the autumn of 1892 he became a student at said seminary, abiding at No. 175 Ninth avenue, since which time he has continued to be a student thereat, and is also employed as a teacher. He supports himself by his own labor and by the income from his property. He does not live with his mother or return to her residence during vacation, and does not consider Ehode Island as his home. He swears that he never intends to reside in that state but intends permanently to reside in this state.
   Follett, J.

(dissenting): The solution of the question involved in this litigation depends on the construction of the first and third sections of article 2 of the Constitution of this state, as they stood prior to the Constitution adopted at the general election in 1894. “Section 1. Every male citizen of the age of twenty-one years who shall have been a citizen for ten days and an inhabitant of this state one year next preceding an election and for the last four months a resident of the county and for the last thirty days a resident of the election district in which he may offer liis vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere.” By the Constitution of 1894, ninety days was substituted for ten days in the second line, otherwise the section was not changed. “Section 3. For the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States nor while engaged in the navigation of the waters of this state,' or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison.” By the constitution adopted in 1894, the last two lines of this section were amended so as to read as follows, the italicised words being added: “Hor while kept at any almshouse or other asylum or institution wholly or partly supported at public expense or by charity, nor while confined in any public prison.” Section 3, so far as it is applicable to the case at bar, provides : “Section 3. For the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence * * * while a student of any seminary of learning.” This section relates to persons having a residence at some other place than that in which the seminary is situated at the time they become students therein, but it has no application to persons who were residents of the city or town where the seminary is situated before or at the time they became students thereof. Henry Meiser is not within the section. He became a resident of this city in October, 1889, and was continuously employed therein as secretary, clerk an'd agent until 1893, when he became a student at this seminary. For four years before he became a student he was a resident of this city and of no other place. Whether his last residence, Ho. 52 West Twenty-first street, is in the same election district as Ho. 175 Hinth avenue does not affirmatively appear. But if they are in different election districts it does not affect the question. It was not intended by this section to provide that in case a person who was, and for a long time had been a resident of one election district should become a student in a seminary in the same town or city, that a change of place of abode to another election district should deprive him. of a right to vote. Such a narrow and technical construction is repugnant to common sense. The mere fact that a person is a student in, and lives at, a seminary, does not disqualify him from being or becoming an elector, provided he is a resident of the election district, independently of his connection with the institution"as a student. Whether he lives at the seminary or at a private house in the same election district is immaterial. The effect of the section is (1) that a person having a residence shall not lose it by reason of absence therefrom while a student in a seminary of learning situated in some other state or county ; (2) that a person shall not gain a residence in the place where a seminary of learning is situated by reason of his presence thereat as a student. Does it deny to a person having a residence at some place other than the one where the institution is situated, the right to change his residence while a student thereat and to acquire a voting residence at the place where the seminary is situated ? The Constitution does not say that a person who had another residence when he became a student may not acquire a new one at the place where the seminary is situated while he is a student therein. It simply provides that he shall not be deemed to have gained a residence at the place where the seminary is situated by reason of being a student. In case other reasons, facts and circumstances exist by which he becomes a legal resident of the place where the seminary is situated, he becomes entitled to vote at that place. The 3d section first became a law of this state in 1842. (§ 21, aft. 4, chap. 130, Laws 1842.) Section 21, slightly changed, was carried into the Constitution of 1846, and was left unchanged by the amendments proposed by the convention of 1868, and ratified by the people in 1869. In the convention of 1868 it was proposed to omit the words “ nor while a, student of any seminary of learning.” On a motion made to continue the provision a debate arose (Vol. 1, Proc. & Debates, 568, 569) in which it was said in part: “ Mr. Andrews—I am in favor of the restoration of this clause, and I do not think the suggestion of the gentleman from Westchester (Mr. Greeley) is well founded, because, in the case which he last supposes, if a student had no other residence than where he is attending college, and if the intention was with him to remain in that place although he might be a student there, he would have a right notwithstanding the insertion of this clause to vote there. Mr. Merrill—Does the gentleman understand that by the provision of the present Constitution, a man may gain a residence by being a student in college ? Mr. Andrews—Oh, unquestionably. It simply determines that while a young man is at school, the fact o‘f his being at school shall not affect the question of his residence. That, as I understand it, is the entire scope of the section. Now, striking out this section is not objectionable on the ground taken as I understand it, in the minority report, because if struck out then it would not allow students temporarily away from home at school to vote in the place where they might happen to be ; but I agree with the gentleman from Albany (Mr. Harris) that this has furnished heretofore the rule in such cases, and it had better not be abandoned, although 1 do not suppose it protects any substantial right whether it is in or out.” The position taken by Delegate Andrews, now the chief judge of the court of appeals, was not controverted by any member of the convention. The construction of the provision contended for by the learned counsel for the respondent would deny the elective franchise to a person of full age, having a family and property, who should, while a student at a seminary, remove with his family and all of his property to the place where the seminary was situated with the intention of abandoning his former residence and permanently making his home" in the place where the seminary was situated. The position taken by Chief Judge Andrews is supported by the reported decisions in this and other states. In Matter of Ward, 48 St. Rep. 613, it was held that persons in attendance as students at the St. Lawrence University in the town of Canton could acquire, under this section, while students, a legal residence at that place and become entitled to vote thereat. Silvey v. Lindsay, 107 N. Y. 55 ; 11 St. Rep. 185, does not support the contention of the respondent. In 1880 Silvey was a resident of New York city, and in that year was admitted to the Soldiers’ Home at Bath, where he remained until February 9, 1886, when he offered to vote at a town meeting held there on that day. He was challenged and sworn and testified: “I answer that I reside in the town of Bath, for the reason that I was admitted an inmate of the New York Soldiers’ and Sailors’ Home in this town by the authorities thereof in the year 1880, and have remained such inmate from that time to the present, with the intention at all times of making my residence in said institution, so long as I shall be permitted to remain such inmate. At the time of my admission to said institution I was an honorably discharged soldier of the United States and a resident and voter of the city of New York. I, therefore, answer that I am a resident of the town of Bath. In becoming an inmate of such institution, I intended to change my residence from the city of New York to the fifth election district of said town of Bath.” Silvey went to Bath for the sole purpose of becoming an inmate of the Soldiers’ Home, and he remained there for that purpose and intended to remain only so long as he was permitted to remain therein. It was admitted that there was no other reason for his presence in Bath except for the purpose of being an inmate in that asylum. It was said : “ He could not gain a residence by being an inmate, which means nothing more than his presence in the home; and excluding that, there is nothing in the case to show that a residence in Bath had been acquired. * * * The provision (Art. 2, § 3) disqualifies no one ; confers no right upon any one. It simply eliminates from those circumstances the fact of presence in the institution named or included within its terms. It settles the law as to the effect of such presence, and as to which there had before been a difference of opinion, and declares that it does not constitute a test of a right to vote and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere.” This is not only not an authority for the respondent but directly supports the contention of appellants and is in harmony with the cases in other states hereinafter cited. A person of full age and not under legal restraint has under the laws of this state the absolute legal right to change his residence or domicile when and to what place he will. The mere fact that a man of full age is a student, is in the service of the United States, is engaged in navigating the waters of the United States, or of this state, or of the high seas, does not prevent him from acquiring a new domicile while so engaged, and in either case if he does change he becomes entitled to vote at his new domicile. Suppose a resident of Queens county should be appointed United States district attorney for the eastern district of New York and enter on the discharge of his duties, could he not remove to Kings county and there establish his domicile while in the seervice of the United States and thus become a voter in that county ? Must a man engaged in navigating the waters of this state, its canals, lakes or rivers, abandon his business and remain idle—and, if so, how long •—or engage in another business in order to effect a change of domicile so as to become entitled to vote ? Can not a resident of New York city engaged in navigating the waters of the United States or the high seas, while so engaged, remove to Brooklyn and establish his domicile there and become a legal voter without ceasing to be a navigator? To ask these questions is to answer them. It will be observed that persons employed in the service of the United States, persons engaged in navigating the waters of this state or of the United States, or the high seas, and seminary students, stand on the same footing under the section of the Constitution. The statements contained in the affidavits of the appellants are not controverted and they disclose every essential fact necessary to exist to acquire and establish a legal domicile in the election district wherein they were registered. Not any one of them had a home, abiding place or residence other than that established in the city of New York, and every one of them had done everything a person could do to abandon his former residence. Had any one of them died intestate, leaving an estate, it would have passed under the laws of this state and would have been administered in the surrogate’s court of the county of New York. A will executed by any one of them according to the laws of this state would have disposed of his personalty wherever situated, and his estate, whether passing by will or by the statute, would have been subject to the succession taxes imposed by the statutes of this state on the estates of decedents. Every one of them is liable to taxation on his property in the city of New York and liable to military duty under the'laws of this state, unless within some statutory exception. Meiser has been domiciled and employed in this state since 1880 and had voted here. Gunnell has been a resident of this state and of this city since 1891 and is actually engaged in business in this city under the firm name of Gunnell & Collins and is employed as a lay reader in a church in this city. Barry in 1892 declared in two writings that he had abandoned his former domicile and had become a resident of this city. Yardley became a resident of this city in 1892, is a student and also a teacher here. Every one of the appellants supports himself from his own labor and from the income of his property and derives no income, support or aid from his parents or from any person residing at his former domicile. In ¡short, all of the obligations of citizens of this state rest on the appellants, and no warrant can be found in the constitution or laws of this state for denying them all of the privileges of citizenship. Section 4 of article 2 of the Constitution of California is an exact copy of the third section of article 2 of the Constitution of this state. In The People ex rel. Orman v. Riley, 15 Cal. 48, the right of forty-five soldiers of the United States army to vote in the county of Del Norte arose. In the district court it was held that they were not legal voters, but on an appeal to the supreme court the judgment was reversed. The court was then composed of Stephen J. Field, C. J., and Joseph G. Baldwin and W. "W". Cope, A. J. J. In discussing the question the court said: “The mere fact that the men voting were-soldiers of the United States army did not disqualify them from voting. But they were not entitled to vote unless citizens of this state and of the county for the required period before the election; and a mere residence or sojourn in the county in this capacity does not make them citizens or prove them to be such. The rule, as fixed by the constitution, is that the fact of such sojourn or residence as soldiers neither creates nor destroys citizenship, leaving the political status of a soldier where it was before.” In The People ex rel. Budd v. Holden, 28 Cal. 124, the right of three persons who removed to Mendocino county while in the service of the United States, to void in that county, arose, and it was held they were so entitled ; among other things, the court said: “Nor did it (being in the service of the United States) preclude them from acquiring a residence in Mendocino, if disposed to do so. That it was their intention to acquire a domicile in Mendocino county sufficiently appears from the evidence. Such being the case, there is nothing in the constitutional provision in question (which is merely declaratory of the common law) which stands in the way of their doing so.” In Devlin v. Anderson, 38 Cal. 92, the right of a soldier in the United States army to vote arose. It was held that the mere presence as a soldier of the United States in a county, and nothing more, did not establish, a residence, and that he had no right to vote. The previous cases were referred to and approved. It seems to us that these authorities correctly construe the constitutional provision. The mere fact that a person, previously a non-resident, comes into a town as a soldier or as a student, does not make him a legal resident of that place; neither does it prohibit him from acquiring a residence at that place while a student or soldier. The Constitution of Maine provides: “Nor shall the residence of a student at any seminary of learning entitle him to the right of suffrage in the town or plantation where such seminary is established.” (Art. 2, § 1, Const. 1820.) In Sanders v. Getchell, 76 Maine, 158, the question of the right of a person who left Foxboro and went to Waterville to become a student in Colby University, arose in an action brought by the student against the selectmen for refusing to register him and permit him to vote. A judgment was ordered for the plaintiff. In discussing the question it was said; “Another question is to be considered and that is, under what circumstances does a student- at a seminary of learning acquire a voting residence in the place where such seminary is situated. The constitutional interdiction is in these terms: ‘The residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town where such seminary is situated. ’ It is clear enough that residing in a place merely as a student does not confer the franchise. Still, a student may obtain a voting residence, if other conditions exist sufficient to create it. Bodily presence in a place, coupled with an intention to make such place a home, will establish a domicile or. residence. But the intention to remain only so long as a student, or only because a student, is not sufficient. The intention must be not to make the place a home temporarily, not a mere student’s home, a home while a student, but to make an actual, real, permanent home there; such a real and permanent home there as he might . have elsewhere. The intention must not be conditioned upon or limited to the duration of the academical course. To constitute a permanent residence the intention must be to remain for an indefinite period, regardless of the length of time the student expects to remain at the college. He gets no residence because a student, but being a student does not prevent his getting a residence otherwise. The presumption is against a student’s right to vote, if he come to college from out of town. Calling it his residence does not make it so. He may have no right to so regard it Believing the place to be his home is not enough. There may be no foundation for the belief. Swearing that it is his home must not be regarded as sufficient, if the facts are averse to it., Deception or misconstruction should not be encouraged. The constitutional provision should be respected.”

The 4th section of acticle 2 of the Constitution of Oregon provides : “ For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, or of this state ; nor while engaged in the navigation of the waters of this state or of the United States, or on the high seas; nor while a student of any seminary of learning ; "nor while kept at any almshouse or other asylum at public expense ; nor while confined in any public prison.” In Wood v. Fitzgerald, 3 Oreg. 568, and Darragh v. Bird, id. 229, the right of two persons to vote who were in the service of the United States arose. One while a deputy assessor and collector of internal revenue removed from Portland to Wasco county; the other came into the county while a private in the United States army, and when his term of service expired he was immediately employed by the United States govermrient to take charge of an abandoned military post. It is sufficient to say without quoting from the judgments that it was held that they might acquire a legal residence under the section of the Constitution while in the service of the United States, and that both were legal voters. The 3d section of the 5th article of the Constitution of Kansas provides : “ For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States.” * * * In Hunt v. Richards,. 4 Kans. 549, a person came into the state while serving as an officer in the army of the United States, and it was held that, for the purpose of voting, he could acquire a residence in that state while so serving. It has-been twice held in Massachusetts that a person while a student at a college may acquire a legal residence in the town wherein the college is situated, and becomes a legal voter therein. Putnam v. Johnson, 10 Mass. 488; opinion of justices, 5 Met. 587. In Pedigo v. Grimes, 113 Ind. 148, it was held: “ It can, we conceive, make no difference that the person is a student if he has in good faith elected to make the place where the college is located his' residence, since there is no imaginable reason why a person may not be both a student at a college and a resident of the place where the college is situated. If he is at the place merely as a student then he is not a resident; but if he has selected that place as his abode, he acquires a residence which entitles him to vote, if he, possesses the other qualifications.” In Fry's Election case, 1 Penn. St. 302, it was held that certain students were not legal voters, it being “ admitted that the said voters are students at Muhlenberg College, an institution of learning located in said ward; that they are citizens of the state of Pennsylvania; that they claimed that their residence was in said college, where they have lived from one to three years; that they came to Allentown from other counties for no other purpose than to receive a collegiate education, but intended to leave after graduating ; that they were assessed and paid taxes before said election.” (See, also, McCrary on Elections, section 41 ; Paine on Elections, section 69 etseq., and the contested congressional cases therein referred to.) It was hot intended that students and persons in the service of the United States should be unable to acquire another residence, but it was intended that the mere fact of being a student, or the mere fact of being in the service of the United States at a particular place for the required time to gain a residence, should not of itself effect a change of residence for the purpose of voting. The order appealed from should be reversed, with costs.