text:
    THOMAS B. CLARK, an Infant, by WILLIAM E. CLARK, Guardian Ad Litem, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Negligence — liability of a railroad company for injuñes sustained by one improperly ejected from a train rehíle trespassing thereon — the liability of the defendant depends upon the character of the act and not upon the belief of the servant — when the failure of the company to produce emdence, presumably in its possession, may be considered by the jury.

    On October 5, 1884, tlie plaintiff, then of the age of thirteen years, catight on to the forward end of the caboose of a moving freight train on the defendant’s .railroad, from which, after riding a short distance, he fell in such a manner as 'to have his linee so crushed by a wheel of the car as to require his leg to be cut off. The evidence on the part of the plaintiff tended to show that his fall from the car was occasioned by the act of an employee of the defendant in throwing water in his face for the purpose of removing him from the car.

      Held, that the question of the plaintiff’s contributory negligence and that of the defendant’s negligence was properly submitted to the jury, and that a verdict rendered by them in favor of the plaintiff wbuld not be disturbed.
    The defendant’s counsel requested the court to charge that if the jury should find “ that the plaintiff was in the act of unlawfully boarding a caboose when in motion, then the plaintiff was in the act of committing a crime; and if the plaintiff did not receive his injury directly from the persons in the caboose, but from the plaintiff’s want of care in alighting from the caboose, then the plaintiff was guilty of contributory negligence and cannot recover for injury to his limb.”
    The court had charged that in order to justify a recovery the act of the defendant’s servant must have been improper and unnecessarily dangerous, and done for the purpose of removing the plaintiff from the train, and that it must have had the effect of subjecting him to the danger from which the injury resulted.

      Held, that in view of this charge it was not error to refuse to charge as requested.
    That it was not necessary that the injury he received directly from the persons in the caboose, in order to charge the defendant with liability; that it was sufficient if the wrongful act of the employee was the proximate cause of the injury; and that if the effect of the act was, under the circumstances, to deprive the plaintiff of the opportunity of exercising care in alighting from the car and thus to cause the injury, then his failure to use the requisite care to protect himself against the injury could not he deemed contributory negligence as a matter of law.
    The court charged that to justify a recovery by the plaintiff the jurymustfind that the act of the servant in throwing the water into the plaintiff’s face was unreasonable and improper, and that that fact depended upon its character and not upon the belief of the servant, and refused to charge that if they believed that the person throwing the water intended no personal injury to the plaintiff, but believed it to be the least harmful mode of removing him, the defendant was not liable.

      Held, no error.
    No employee on the train in question was called as a witness, and no evidence was produced on the part of the defense. The court charged the jury that in determining whether the water was thrown purposely or accidentally the jury had a right to consider the fact, that the servants of the company were not called nor their absence accounted for.

      Held, no error.
    Appeal by the defendant from a judgment, entered on a verdict rendered at tbe Steuben Circuit, and from an order denying a motion for a new trial, made on tbe minutes of tbe justice before wbom the action was tried.
    Tbe action is brought to recover for tbe personal injury of tbe plaintiff, alleged to have been occasioned by tbe act of tbe defendant. On tbe 5 th day of October, 1884, the plaintiff, then of the age of thirteen years, caught on to tbe forward end of tbe caboose of a moving freight train on the defendant’s railroad, and after riding there a short distance be went or fell from tbe car in such manner that bis knee was crushed by a wheel of the car so as to require tbe amputation of bis leg.
    Tbe evidence, on the part of tbe plaintiff, tended to prove that bis fall from the car and the injury was occasioned by tbe act of an employee of tbe defendant in throwing water into bis face while tbe train was in motion. Tbe plaintiff bad a verdict and judgment. Tbe defendant appealed.

      James II. Stevens, Jr., for tbe appellant.

      Leslie W. Wellington, for tbe respondent.
   Bradley, J. :

Tbe plaintiff unlawfully jumped upon tbe moving-train of tbe defendant and was a trespasser. Tbe defendant owed bim no duty, and bad tbe right to remove bim from tbe car, but in so doing was not justified in subjecting bim to any unnecessary hazard. Tbe evidence permitted tbe conclusion that tbe removal of the plaintiff from tbe platform or steps of tbe caboose was caused by tbe act of an employee of the defendant on tbe car, in suddenly throwing water into bis face, and that it was done to remove bim from tbe car. That being tbe purpose, the act was within tbe scope of tbe authority and employment of tbe servant of the defendant, and the latter is responsible for tbe consequences of bis act if it was performed in an illegal and improper manner, and in such manner as to unnecessarily jeopardize tbe personal safety of tbe plaintiff, and to cause tbe injury complained of. Upon this question, and that tbe plaintiff was free from contributory negligence, tbe evidence wa s sufficient to go to tbe jury. And, therefore, tbe defendant’s exception to tbe denial of tbe motion for a nonsuit was not well taken. (Higgins v. Watervliet Turnpike, etc., Company, 46 N. Y., 23; Rounds v. D., L. and W. R. R. Co., 64 id., 129; Cohen v. Dry Dock, E. B. and B. R. R. Co., 69 id., 170 ; Hoffman v. N. Y. C. and H. R. R. R. Co., 87 id., 25.)

Tbe defendant’s counsel took exception to tbe refusal of tbe court to charge tbe jury, that if they should find “ that the plaintiff was in tbe act of unlawfully boarding a caboose when in motion, then tbe plaintiff was in tbe act of committing a crime, and if the plaintiff did not receive bis injury directly from tbe persons in the caboose, but from the plaintiff’s want of care in alighting from the caboose, then tbe plaintiff was guilty of contributory negligence, and cannot recover for injury to his limb.”

Tbe plaintiff unlawfully boarded tbe train while in motion, and in doing so was guilty of a misdemeanor. (Laws 1878, chap. 261; Laws 1880, chap. 370.) Tbe court bad so charged. If tbe injury was caused by the negligence of tbe plaintiff in getting from tbe car be was not entitled to recover. Tbe right of recovery by him depended upon the fact that the sole cause of the injury was the unreasonable and improper act of the defendant’s servant in the execution of his purpose to remove him from the car. Contributory negligence of the plaintiff in the act of getting from the car, and resulting in the injury, would defeat the liability of the defendant. But if his want of care was occasioned by the unlawful act of the defendant’s servant, and his failure to exercise care involuntary, it may not come within the meaning of the term contributory negligence. If this proposition may be treated as a request to charge to the effect, that if the injury was not caused by the act of the servant of the defendant, but by the want of care of the plaintiff, he was not entitled tó recover, the refusal to so charge was error. But this does not seem to be its import. Although the plaintiff may not have received his injury directly from the servant, the act of the latter may have been the cause of it in such manner as to charge the defendant. In considering the exception every fact consistent with the terms of the request to charge is to be assumed in support of the ruling. The proposition does not exclude the fact that the servant threw the water into the plaintiff’s face for the purpose of removing him from the car, and that it may have caused the injury, although it was received from his want of care in alighting, and then asks the court to charge that such want of care was contributory negligence, and that his recovery was defeated. Negligence is a relative term, and its application to the acts and failure to act of a person depends upon the situation in which he is placed, and the care which the circumstances fairly permit and impose upon him. The failure to exercise care may not, under all circumstances, constitute negligence. The term negligence implies fault in action, or in omission to act, and in failure to observe that degree ol care, precaution and vigilance which the circumstances require; and whether such care is exercised is usually for the jury, and upon which they are to determine the question of negligence orno negligence. If want of care of the plaintiff was necessarily caused by the act of the defendant’s servant, it may not have constituted contributory negligence.

Thus occasioned his want of care may have been involuntary and the necessary effect of the wrongful act of the defendant’s employee. It was not necessary that the injury be received directly from the persons in tbe caboose to charge the defendant with liability. And there was 'no evidence tending to prove that it was so received. It was sufficient that the wrongful act of the servant was the proximate cause of the injury, and if the effect of the act was under the circumstances to deprive the plaintiff of the opportunity of exercising care in alighting from the car and thus causing the injury, liis failure to use the requisite care to protect himself against the injury may not be deemed contributory negligence as matter of law. The ground upon which the action proceeds is that the plaintiff, by the act of the defendant’s servant, was prevented from exercising care in alighting from the train, and hence the injury resulted from such act and was its proximate effect. If the piroposition had contained the request to submit to the jury the question of contributory negligence as the fact upon which they were to find, it might have been treated differently by the court. Whether the want of care was such as to produce it, was dependent upon the situation and circumstances and was a question for the jury. And the question of contributory negligence was one of fact and not of law.

The court, upon this subject, charged the jury that to justify a recovery “the act of the defendant’s servant must have been improper and unnecessarily dangerous, and done for the purpose of removing the plaintiff from the train, and it must have had the effect of subjecting him to the danger from which the injury resulted; not only must it have been an improper act but it' must have had the effect of inflicting the injury of which the plaintiff complaiiife, or he cannot recover.” This instruction so far covered the proposition of the request referred to as to make the finding of the jury, that the improper act of the servant had the effect to produce the injury, a prerequisite to the recovery by the plaintiff, which substantially required the finding of the jury that it must have been the sole cause of the calamity to justify a verdict in his favor. And the request must, therefore, rest on the assumption that the injury was the effect of the unreasonable conduct of the servant in the act of removal of the plaintiff from the car; that although the injury may not have been received directly from the person in the caboose, the improper act of such person may have been the proximate cause of it. This is all that was required in that respect to .support the action. In view of tbe charge as made, we think there was no error or prejudice to the defendant in this refusal to charge as requested. The refusal of the court to charge that if the jury believe that the person throwing the water intended no personal injury to the plaintiff, but believed it to be the mode least harmful, the defendant is not liable, was not error. The court charged the jury that the act of the servant must be found to have been unreasonable and improper, and tliat fact depended upon its character and not upon the belief of the servant. It must be assumed, since the verdict that the water was purposely dashed into the face of the plaintiff^ and the jury were authorized to find and have found that the act had the effect to cause the injury. And they have also found that it was an unreasonable and improper means to be used to remove the plaintiff from the moving train under the circumstances. In that view the belief the employee may have had of the effect and consequences of the act is not very important.

In view of the fact that it is unlawful for persons to get on to a moving train, the railroad employees may very properly, in the performance of their duty, prevent them so far as practicable from boarding such trains, but the matter of their duty in that respect does not seem to be germane to any question here. The plaintiff did get on to this train without resistance or effort to prevent it. And the occuiTences involved are only those which followed. The exception in that respect is, therefore, not pertinent. That the defendant’s employees on the train had the right to, and it was within the scope of their-authority, to remove the plaintiflffrom the car in a lawful and proper manner was not questioned, but was assumed at the trial, and the right of the plaintiff to recover was,, by the charge, made dependent upon the use of unreasonable and improper means for that purpose. And although the act of getting upon the train while in motion Avas dangerous and knoAvn to the plaintiff to be so, it cannot be said to have been the proximate cause of the injury, and does not furnish imputation of contributory negligence. The refusal of the court to charge as requested in those respects, or- to charge that the plaintiff was guilty of contributory negligence as matter of law, was not error.

No employee on the train in question was called as a witness and no evidence was produced on the part of the defense. The court charged the {jury that in determining whether the water was thrown purposely or accidentally the jury had a right to consider the fac\t that the servants of the company were not called, nor their absence accounted for, and exception was taken. The fact whether the water was purposely thrown upon the plaintiff by the defendant’s employee in the caboose rested in inference, which was justified by the evidence. It may properly have been assumed, until the contrary should appear, that the employees on the car at the time in question were known to the proper agency of the defendant, and might have been produced in its behalf as witnesses; and while it was not the duty of the defendant to call them at the trial, and the omission to produce them, or some one of them, could not go to supply any deficiency of evidence on the part of the plaintiff, it was not error to merely call the attention of the jury to the fact, and permit them to consider it, inasmuch as a vital question of fact in the case was one of inference merely from the evidence, and in respect to which the employee of the defendant had personal knowledge. (The People v. Dyle, 21 N. Y., 578; Gordon v. People, 33 id., 501; Bleecker v. Johnston, 69 id., 309; reversing 51 How., 380 ; Reynolds v. Sweetser, 15 Gray, 78.) In the view taken of this case no error was committed at the trial to the prejudice of the defendant.

The judgment and order should be affirmed.

Smith, P. J., Baeeee and Haight, JJ., concurred.

Judgment and order affirmed.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LUCY ALLEN, Respondent, v. WILLIAM H. ALLEN, Appellant.

      Judgment in an action for divorce rendered in another State — conclusive on the parties in the courts of this State — how far binding upon the children.

    Upon tlie return to a writ of habeas corpus issued upon the application of the relator to compel her former husband, the respondent, to produce their children in court, together with his reasons for their detention, it appeared that on October 10, 1884, the relator began an action against her husband for an absolute divorce in the county of Tazewell State of Illinois, in which county the parties then resided; that the defendant was personally served with process, appeared by an attorney and put in an answer; that at the November term, of the court the husband was adjudged to be in contempt for a failure to comply with an order requiring him to pay alimony and also for taking and removing and keeping the children out of the State in violation of the terms and provisions of that order; that thereafter the case came on for trial, and evidence on the part of the complainant havingbeen received, and evidence offered on behalf of the defendant having been excluded on the ground that he was in contempt, a verdict was rendered in favor of the plaintiff, upon which a judgment was entered dissolving the marriage, finding that the complainant was wholly competent and qualified to have the care, custody and control of the children, and that the defendant was wholly unfit to have such care, custody and control, and adjudging that -he complainant have the care, custody, control and education of all the said children. The defendant having removed the children to this State the relator applied for this writ.
    Held, that as between the husband and wife the question as to th.e fitness and competency of the one, and the unfitness and incompetency of the other, to have the care and control of the children, was conclusively established by the judgment of the court of Illinois and could not be again examined in the courts of this State.

      In the Matter of Frank B. Bort (25 Kansas, 308) not followed.
    That the decision was binding upon the children only f.or the lime being, and that as soon as the circumstances of the custodian changed, or other circumstances arose which would make it for the best interests of the children that there should be a change, it would be the duty of the court in which the decree was originally made, or of any other court having jurisdiction, to make such change.
    That, upon the facts shown to exist in this case, the report of the referee awarding the custody and control of the children to the mother should be affirmed.
    Appeal from an order of tlie Monroe Special Term, awarding the custody of Mary Allen, Thomas Allen and John Allen, infant children of Lucy Allen'and William H. Allen, to their mother Lucy Allen.

      J. A. Stull, for the appellant.

      John M. Davy, for the respondent.
   Haight, J.:

The relator is the mother of the children in question. Upon her petition a writ of habeas corpus was issued commanding William H. Allen, their father, to produce the children in court together with his reasons for their detention. Upon the return made by him a reference was ordered to a referee to take such testimony as' might be material to tbe issues raised, and to report the same, with his opinion thereon, to the court with all convenient speed. This appeal was taken from the order of the Special Term confirming such report. The referee found, as facts, that the relator and defendant were married at Pekin, in the State of Illinois, on or about the 29th day of July. 1874; that they thereafter resided together as husband and wife at that place until August, 1884, at which time they separated; that the relator Mary Allen, aged nine years- on the 20th day of June, 1885; Thomas Allen, aged seven on the 25th day of September, 1884, and John Allen, aged six yeai’S on the 10th day of February, 1885, were the issue of such marriage; that on the 10th day of October, 1884, Lucy Allen began an action against William H. Allen for an absolute divorce in the Supreme' Court of Tazewell county, Illinois, which was the county where the parties resided ; that the defendant was personally served in the action with process, appeared by an attorney and put in an answer ; that on the 11th day of October, 1884, there was issued out of that court in the action, an injunction whereby William H. Allen, his attorneys, solicitors, agents and servants were commanded to absolutely desist and refrain from taking or removing any of his money or property out of the State of Illinois, and from keeping or having the children kept out of the State until the further order of the court in the premises ; that the court also, upon motion duly made, made an order directing the defendant to pay the complainant the sum of $100 alimony pendente lite, on or before the opening of the court on Thursday, the 14th day of November, 1884; that at the November term of said court, upon a motion made requiring the defendant to show cause why he had not complied with the order of the court requiring him to pay the alimony, it was ordered and decreed that the eaid William II. Allen stand and be in contempt of court for non-compliance with the said order ; and it was further ordered that a warrant issue against him, and that he be arrested and brought before the court to show cause why he has neglected to comply with the order, etc.; that on the 25th day of November, 1884, the case came on for trial, and that the .complainant with her counsel were present in person; the defendant appeared by his attorney, but did not appear in person ; that a jury was impanneled and sworn, and the evidence on behalf of the complainant was taken; that the counsel for the defendant requested that he be permitted to cross-examine the witnesses of the complainant, and. that he be permitted to introduce evidence on behalf of the defendant which the court refused to permit, on the ground that the defendant was in contempt for refusing to comply with the order of the court; that at the close of the evidence the case was given to the jury, which retired for deliberation and afterwards returned into court with their verdict in which they found the defendant guilty of the charges made in the complaint, and thereafter a judgment and decree was duly made by the court, reciting that it had heard the oral testimony and arguments of counsel both in relation to the subject of alimony and the custody of the children named in the bill, together with the competency and qualifications of the defendant as. well as the complainant to have the custody, education and control of the children, and finding that all the material facts alleged in the bill are true, as therein set forth; adjudged, that William EL Allen is a person wholly unfit to have the care, control, custody and education of the children, and that the complainant is wholly competent and qualified to have the care, custody, control and education of them, and that the marriage be dissolved and the parties each freed from the obligations thereof, and that the complainant have the care, custody, control and education of all of the said children. That the complainant in her bill of complaint in that action alleged that the defendant is not a proper and suitable person to have the custody of the children, or to keep them in his hands, and that she was. The answer admitted the marriage and births as alleged in the complaint, and alleged that the complainant was not a fit and proper person to have the care and custody of the children, and that he was. The referee further found as facts, that when the relator and defendant separated, the defendant retained the care and custody of the children with the consent of the relator upon the understanding that he would not remove them from Pekin without his giving her notice of his intention so to do, and an opportunity to visit them before their departure; that on the 16th day of September, 1884, the defendant, by the hands of a messenger, sent to the relator a note in the following words: “ I am about to take the children ■east for a visit.” That the note was dispatched about two hours ■before train time, but did not reach the relator until a few minutes before train time; that she immediately went to the house where the children had been staying, but found them gone; that the .children were taken by the defendant to Nochester, N. Y., where they have since been kept by the defendant; that the defendant is a physician, and that he is now substantially without means or income except from such practice as he nas been able to obtain since he came to Nochester in September, 1881; that he resides upon Elizabeth street, in the city of Nochester, with his mother, three maiden sisters and two brothers; that his mother owns the ¡house and lot where they reside, and is about eighty-five years of age; that his sisters are dress-makers, and have substantially no property aside from their earnings ; that his brother Thomas is possessed of some means, but how much does not appear; that since the ■children have been in Nochester they have attended church, Sunday school and public school, and that the influences surrounding the children in Nochester are wholesome. He further found as facts that the relator resides with her father in Pekin, Illinois; that her mother owns the house and lot where they live ; that her father is not possessed of any considerable means; that she has a sister who resides in Chicago, Illinois, who is possessed of property in lier own right, and whose husband has an income of six or seven thousand dollars a year; that they have no children, and are willing to contribute to the support of the relator and her children; that the relator has also two brothers residing in Illinois, one of whom is married, and both of whom, as well as her father and mother, are willing to aid in the support of the children; that there are good schools in Pekin ; the father and mother are members of the Presbyterian church, and have been for many years, and, in tfiie opinion of the referee, if the children are given to their mother .and taken into the family of the grandfather and grandmother at Pekin they will be surrounded by wholesome influences and properly trained and educated. He further reports that in his opinion that it is for the best interests of the children that they should be given to their mother. The referee in his opinion also reaches the conclusion, that so far as the matters professed to have been decided by the judgment in the divorce action, as well as those matters which it was necessary to decide, and so much of the pleadings and evidence as must necessarily have been considered by the court in proceeding to judgment in that action, the defendant is estopped by that judgment from calling them in question here.

The first question which we are called upon to consider upon this appeal pertains to the effect that is to be given to the judgment in the divorce action; for it is undisputed that in that action the court had jurisdiction of the parties; that an issue was raised as to the fitness of the parties to have the care, custody and control of the children, and that the court in that action adjudged that the defendant was not a proper and suitable person to have the custody of the children; that the complainant was a fit arid proper person to have their custody and control, and that it would be for the best interests of the children to be given to their mother. It is contended on the part of the respondent that this judgment is conclusive upon the defendant and that he is now estopped from calling it in question, whilst on the part of the appellant it is contended that the courts of this State are not bound by this judgment, but that it is the duty of the court to now determine the proper person or persons to have the care, custody and control of the children. No-claim is made that there has been any change in the circumstances of the parties, or that there has been any new facts discovered since-the judgment in the divorce action.

Article 4, section 1 of the Constitution of the United States provides that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State." Under this provision of the Constitution we are required to give full faith and credit to the judicial proceedings of trie courts in the State of Illinois, and if the courts of that State had jurisdiction of the parties and of the subject-matter, in the absence of fraud, its judgment is conclusive, as between the parties or their privies, on all questions litigated and decided in that court. As to those questions the judgment constitutes an estoppel. (Dobson v. Pearce, 12 N. Y., 156; Kinnier v. Kinnier, 45 id., 535; Patrick v. Shaffer, 94 id., 423-430; Embury v. Conner, 3 id., 511-5.2; Kerr v. Hays, 35 id., 331.) But it is contended that whilst the parties may be bound by the prior judgment, the infant .children are not, and that it is the duty of tbe court to determine the question anew, independent of the conclusion readied by the Illinois court.

In the case of Thorndyke v. Rice (24 L. Reporter, 19, 20) it was held that a decree of a tribunal as to the custody of a child was never final, but that the same tribunal, or another whore the child was either temporarily or permanently staying, might consider the case upon the facts then existing, and. looking at the. welfare of the child should determine whether any and what change should be made in regard to its custody.

In the case of Woodworth v. Spring (4 Allen, 321) it was held that the appointment in Massachusetts of a guardian over a child whose legal domicile is in another State, who has a guardian appointed under the laws of that State, does not deprive the court of Massachusetts of the power in its discretion to decree the custodian of the child to a foreign guardian.

In the case of Williams v. Williams (13 Ind., 523) it was held that where upon granting a divorce the court, in its judgment, assigns the custody of the child to one of the parties, such disposition of the child will control till the judgment making it is modified by the court upon proper application, and cannot be disregarded in a-subsequent proceeding by habeas corpus to obtain possession of the child.

In the case of Wilkinson v. Deming (80 Ill., 342) it was held that where the divorce had been granted for the fault of the husband, giving the custody of the children absolutely to the mother,, it takes away ipso facto all control of the father over the children until it is restored by the action of the proper court.

In the case of Miner v. Miner (11 Ill., 43) it was held that in case of separation the father has the legal right to the custody and control of his children unless he had forfeited it by misconduct. Next to the right of the father that of the mother must be recognized, but these rights are subject to the control of the Court of Chancery, and when its aid is invoked the best interests of the children should be primarily considered. That the paramount right of the father to the children will not be recognized where a divorce has been granted for his fault or misconduct. That when the aid of the court is once invoked to provide for the guardianship of infants in case of separation of the parents such infants become tbe wards of the court, and it will not permit them to be removed •beyond its jurisdiction.

In the case of Wakefield v. Ives (35 Iowa, 238) it was held that where a decree of divorce of a court of general jurisdiction in any other State is regularly rendered, though on service by publication, giving the custody of a minor child to the applicant, such •decree will be regarded as binding and conclusive upon the parties until reversed, modified or set aside for cause shown to the jurisdiction.

In the case of Kline v. Kline (57 Iowa, 386) it was held that a decree of divorce rendered in another State on service by publication, so far as it attempted to fix the custody of minor children who were then residents of the State of Iowa, is without jurisdiction and void.

In the Matter of the Petition of Frank B. Bort for a Writ of Habeas Corpus (25 Kan., 308), it was held that it was the duty of the court, whenever the possession and custody of a minor child is sought by habeas corpus, to make such order for their care and •custody as the best interests of the children may require, and to that end it may commit them to the custody of other than a parent ■and this notwithstanding the fact that in a decree of divorce they were committed to the care and custody of their father or mother; that such decree may bind the parties inter sese, but does not conclude the court as to the best interests of the children. We have thus briefly called attention to such authorities as we have been •able to find that bear upon the question under consideration.

It will be observed that in the case of Thorndyke v. Rice the •decree of a tribunal as to the custody of a child was never considered final, but that the same tribunal, or any other, might consider the question upon the facts then existing, looking at the welfare of the child. This decision proceeds upon the theory that the circumstances of parties to whom the custody of children may have been awarded may change, rendering it fit and proper that the court ■should change the custody of the children. We do not, however, understand the court in this case to have gone to the extent of holding that it was the duty of the court to go back of the former •decree and try over and determine anew the facts established by that decree.

In the case of Woodworth v. Spring the question pertained to the right of guardians, and its chief bearing upon the question under consideration lies in the fact that a judgment of another State becomes an important element in determining to whom the custody of the children should be awarded.

The cases in Indiana and Illinois, to which we have referred, appear to go to the extent of holding that a judgment once fixing the custody of children becomes binding upon the parties, 'so long .as the judgment remains in force unmodified. And to the same effect is the case of Wakefield v. Ives. In this case it appears that Mary ’Wakefield Ives brought an action for divorce against her husband in the District Court of Hennepin county, Minnesota, where ■she then resided ; that a summons was issued against the defendant and served by publication, the defendant’s residence being unknown. The service of the summons having become complete by publication, a default was entered against the defendant, and the case sent to a referee to take the testimony and report to the court; that upon the testimony so reported the court rendered a decree of divorce to the plaintiff, and awarded her the care and custody of Alice H. Ives, an infant daughter. The defendant having obtained custody of the infant in the State of Iowa, a writ of habeas corpus -was sued out by the mother. It was held that the District Court of Minnesota, by which the decree was pronounced, being a court of general jurisdiction, was, by the statute, expressly clothed with the power to grant the divorce and make the order respecting the care and custody of the child; that she was within the jurisdiction of the court at the time the decree was rendered ; that the decree was regularly obtained and still remains in full force and binding upon the parties to it; that under the Constitution of the United States full faith and credit shall be given to it in the State of Iowa; that it is binding and conclusive upon the parties until it is modified, reversed or set aside, and that the mother was entitled to the custody of the child.

In the case of Kline v. Kline a different result was reached, and that upon the ground that the children did not reside in the State in which the action of divorce was granted, which attempted by its decree to fix the custody of the children. The decision in that case, however, proceeded upon the theory that the children being non-residents of the State the court had no jurisdiction over them and is clearly distinguishable in that regard.

In the Matter of Frank B. Bort the parents were divorced by a decree of the Circuit Court of Sauk county, Wisconsin. The decree awarded the custody of the children to the father. The mother having taken the children to Leavenworth, Kansas, to reside with her parents, the father procured a writ of habeas corpus to be issued' seeking to recover the possession of the children. The petitioner invoked the decree of the court of "Wisconsin and the clause of the Federal Constitution to which we have referred, but the court refused to award him the custody of the children but instead awarded them to a Mrs. Powers, a grandmother of the children. The court, in delivering its opinion, seemed to be of the impression that the Constitution referred to had reference to property rights, and that it had no application for the reason that parents had no property rights in the possession of their children, but it refused to place its decision upon that ground ; on the contrary, for the purpose of the decision, it conceded as between the parents the decision of the "Wisconsin court was final. The court then proceeds to state reasons why it would be for the best interests of the children to be awarded to their grandmother and not to either of the parents.

It will thus be observed that from a careful examination of the authorities, to which we have referred, there is no substantial conflict. We cannot adopt the intimation suggested in the Bort case that the Federal Constitution had reference to property interests only, and that full faith and credit was to be given to the judgment of courts of other States only in cases where the judgment affected property rights. No such limitation appears in the Constitution and we do not believe that any such was intended. If it was, then a decree of divorce dissolving the marriage contract between a husband and wife residing in the State in which the decree was issued, the parties being subject to the jurisdiction of the courts of that State, would be of no binding force or effect in either of the other States of the Union, for the reason that the decree did not pertain to property and consequently would not be entitled to full faith and' credit under the Constitution. To our mind the Constitution covers the question under consideration, and it is our duty to give full faith and credit to the decree of the Illinois court. We do not, however, regard the decree of that court as binding upon the infants, but it is binding upon the parents, the parlies to the action. The infants at the time, being of such tender years as to be unable to choose for themselves as to their custodian, become the wards of the court, and it was the duty of the court to choose for them. The court, in choosing for them, was required to consider the best interests and welfare of the' children. Its decision became binding upon the children only for the time being, and as soon as the circumstances of the custodian changed, or other circumstances arose which would malte it for the best interests of the children that there should be a change, it would be the duty of the court, in which the decree was originally made, or of any other court having jurisdiction, to malte such change. . But as between the parties to the action, the parents of the children, they are bound by tlie matters adjudged and determined in the action, and cannot again retry the questions therein determined.

In the case under consideration, the question is narrowed to a contest between the father and the mother for the possession of the > children. They are of that age that they cannot choose for themselves. ■ The father was a party to the divorce action, duly served with summons, and had an opportunity to defend. Instead he had violated the decree of the court, was adjudged guilty of a contempt, and thereby forfeited his right to defend the action. The decree, nevertheless, is binding upon him, and had the same force and effect as if he had defended. It was adjudged upon the issues raised by the pleadings in the action that he is an unfit and improper person to have the custody and control of the children. That judgment is binding upon him, and full faith and credit must be given to it. He surreptitiously, and without the consent of the mother, removed the children from that State into this State. If the judgment of the Illinois court is not binding upon him, the judgment of this court would not be in any other State of the Union. If, therefore, he should again surreptitiously remove the children to another State, she might again be compelled to litigate the same question in any State to which he saw fit to remove them. Such a rule would be unreasonable and unjust, and we think ought not to prevail.

Upon the merits the relator’s claim stands upon the testimony of herself and her sister, who has accompanied her here from Chicago..

As against them there is voluminous evidence tending to show that the appellant is an educated man, of good moral character, and a proper and fit person to have the care, custody and control of the children; that she was not a fit and proper person; that she had neglected them and allowed them to go ragged and dirty; that her father, years ago, used to be a man of wealth and standing, but that fifteen or sixteen years ago he was arrested at the instance of the-government, charged with having defrauded the government in the manufacture of whisky, and had his property confiscated, and that because of that he was no longer regarded as a man of good character. The referee, however, evidently believed the testimony of the relator and her sister, and has found as a fact that she was afit and proper person for the custody of the children; that their surroundings would be-wholesome if given into the custody of their mother and removed to the house af her father. He evidently took into consideration the fact that the appellant was born and brought up in the city of [Rochester; that his mother, two brothers and three sisters still reside there; that he was surrounded by his relatives and friends, and that the relator had been compelled to follow her children from the State of Illinois, where they were born and reared, and where all of her own relatives and friends resided, to the city of [Rochester, among strangers, accompanied only by her sister.

We have carefully read the entire evidence appearing in the appeal book, and we have discovered no reason why we should differ with the referee in the conclusion reached by him as to the facts. We are, therefore, of the opinion that the order should be affirmed, both upon the law and the facts, with costs.

Smite, P. J., and Beadlet, J., concurred; Bakkek, J., not sitting-

So ordered.


text:
    MARY R. BULLOCK, Respondent, v. JOHN M. BEMIS and Others, Appellants.

      Practice — a motion to amend, pleadings, in an action sent to a referee for trial, mag be made at Special Term, its power and that of the referee being concurrent— Code of Civil Procedure, secs. 723, 1018.
    Tbe power conferred by section 1018 of the Code of Civil Procedure upon a referee, to whom an action lias been referred, to allow amendments to the summons or pleadings, although the same as that possessed by the court, is not exclusive thereof, but is concurrent therewith, and it does not prevent the court from exercising the power to grant such amendments, under the provisions of section 723 of the said Code, if the party chooses to apply for it and the referee adjourns the case for that purpose.
    Appeal from an order of the Erie Special Term, permitting the-plaintiff to amend her complaint.

      T. C. White, for the appellants.

      J. J. Inman, for the respondent.
   Haight, J.:

This action was Drougnt to dissolve a coparmersmp on the ground of the fraud and misconduct of one of the partners, and for an accounting. Issue having been joined, it was referred to a referee- and the trial commenced. During an adjournment a motion was-made to the Special Term for leave to amend the complaint, which motion was granted upon terms. It is now contended that the referee alone had power to grant the amendment, and that the-court did not.

Section 1018 of the Code provides, that upon the trial of an issue of fact the referee exercises the same power as the court to allow amendments to the summons or to the pleadings. Under this section the referee doubtless had the same power to grant the amendment that the court had. (Knapp v. Fowler, 26 Hun, 200 The Oregon Steamship Co. v. Otis, 27 id., 452 ; Smith v. Rathbun, 77 N. Y., 122; Reeder v. Sayre, 70 id., 180, 190; Harris v. Tumbridge, 83 id., 92, 97; Price v. Brown, 98 id., 388.) The amendment did not change or bring in a new cause of action. It appeared that in November, 1880, the copartners had an accounting- and settlement and entered into a further agreement continuing the business until the 1st day of January, 1884. That the new agreement so entered into contained the following: “ The books of the firm of John M. Bemis & Co. are hereby accepted by both parties as correct, and as truly showing the assets and the interests of each of the parties in the business and the assets of the firm.” The allegation which the plaintiff sought to incorporate into the amended •complaint was to the effect, that at the time she executed the new contract, she did it under a supposition that the books of the firm exhibited to her at that time were correct; that she has since ascertained that they were not, and that the acceptance of them as correct and truly showing the assets and interests of each party in the business was procured through the false and fraudulent representations of the defendant Bemis.

The only effect of the amendment is to permit the plaintiff to show that the agreement by which she accepted the books of the firmas correct, up to the 26th day of November, 1880, was procured through false and fraudulent representations so that the accounting between the copartners may go back of such alleged settlement. The nature and cause of action is not changed. The amendment merely extends the period for which the accounting may be taken.

Section 728 o.f the Code provides that “ the court may upon the trial, or at any stage of the action, before or after judgment, in furtherance of justice and on such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in other respect, or by inserting an allegation material to the ease, or where the amendment does not change substantially the claim or defense by conforming the pleading or other proceedings to the facts proved.”

It will be observed that this section is exceedingly broad, giving the court power to grant an amendment not only upon the trial but at any stage of the action before or after judgment. It is true that ' section 1018 gives to the referee the same power upon the trial to allow an amendment as the court possesses, but this section does not purport to limit or qualify the power possessed by the court. The power given to the referee is concurrent but not exclusive. Motion may be made before the referee, or if the .party chooses, and the referee adjourns the case, the motion to amend may be made at Special Term. ( Wiley v. Brigham, 16 Hun, 106; S. C., appeal dismissed, 81 N. Y:, 14; Mitchell v. Bunn, 2 T. & C., 486, 487; Hochstetter v. Isaacs, 14 Abb. [N. S.], 235.)

Upon the merits the motion appears to have been properly granted. The plaintiff moved with reasonable dispatch after learning of the alleged fraudulent entries in the copartnership books.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Smith, P. X, and Bradley, J., concurred.

So ordered


text:
    THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Respondent, v. JOHN M. BURKARD and Others, Appellants.

      Practice — right of defendants appearing by different attorneys to separate bills of costs — Code of Oi/oil Procedure, secs. 3228, 3229 — the burden of proving collusion rests upon the plaintiff.

    Where, in actions at law, all of the defendants have succeeded upon the trial, those who have appeared by different attorneys, who are not united in interest, are entitled to costs as of course and as a right, and they have the right to present hills of costs to the clerk and have them taxed by him without first obtaining an order of the court directing that this should be done.
    This right can only be defeated by showing that parties united in interest col-lusively appeared by separate attorneys, in bad faith, for the purpose of enhancing the plaintiff’s costs.
    The burden of proving this rests upon the plaintiff, who may, if more than one bill of costs be taxed, move at Special Term for a retaxation.
    Appeal from an order of tbe Monroe Special Term, denying a motion for a relaxation of costs and awarding the defendants separate bills.

      Sullivan dh Worms, for appellant Burkard.

      Satterlee dh Yeoman, for appellants Eritchie.

      W. P. Goodelle, for the respondent.
   Haight, J.:

This action was brought to recover upon a bond executed by the-defendants as sureties for one Florack. The defendant Burkard appeared and answered by Messrs. Sullivan & Morris as his attorneys, and the defendants George and Catherine Fritchie appeared and answered by Messrs. Satterlee & Yeoman as their attorneys. The defendant Burkard admitted that notice was served and' that demand of payment was made upon him as alleged in the complaint. The defendants George and Catherine Fritchie denied that notice of the demand and refusal, or either of them, was given to them at any time, or that payment was demanded. The defendant Catherine-Fritchie alleged that at the time of executing the instrument she was and ever since has been a married woman, the wife of the-defendant George Fritchie, and that the instrument was in no wise for her benefit or for the benefit of her separate estate. Otherwise the answers were substantially the same. The trial resulted in a nonsuit.in favor of the defendant Catherine Fritchie, and a direction of a verdict in favor of the other defendants, so that all of the-defendants succeeded upon the trial. They subsequently presented to the clerk separate bills of costs and asked to have the same taxed ; the clerk refused to tax either of the bills, upon the ground that he had no power to tax separate bills of costs except upon the express direction of the court. The defendants then moved the Special Term, upon separate notices, for an order granting a new taxation and directing the clerk to tax their several bills of costs. These motions were denied.

This action was to recover a sum of money only, and is consequently brought within the provisions of section 3229 o-f the Code. That section provides: “ The defendant is entitled to costs of course, upon the rendering of final judgment in an action specified in the last section, unless the plaintiff is entitled to costs as therein prescribed. But when in such an action against two or. more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs of course. In that case costs may be awarded in the discretion of the court to any defendant against whom the plaintiff is not entitled to costs, where he did not unite in an answer and was not united in interest with the defendant against whom the plaintiff is entitled to costs.”

It will be observed that the latter clause of the section has reference to actions against two or more defendants where the plaintiff has succeeded as to one or more, but not against all of them. This part of the section consequently has no application to the case under consideration, for in this ease all of the defendants succeeded in the action. The first clause of the section is the same as section •305 of the old Code, which provided as follows: “Costs shall be allowed of course to the defendant in the actions mentioned in the last section, unless the plaintiff is entitled to costs therein.” So that the authorities construing the latter section are still applicable under the first clause of section 3229 of the Code of Civil Procedure. It will further be observed that the distinction between actions founded upon contract to recover a sum of money only aud those founded upon tort, has been done away with, so far as the right to recover costs is concerned.

Burrill, in his Treatise upon Practice (vol. 1, p.'274), says that “in an action against two for a tort, who sever in pleading and act by different attorneys and counsel, if both defendants be acquitted, their attorneys are each entitled to a full bill of costs against the plaintiff, so far as the services were separate and distinct.”

In the case of Ten Broeck v. Paige (6 Hill, 267) the action was for assault and battery; the plaintiff was nonsuited upon the trial; the defendants appeared by different attorneys and pleaded separately ; each defendant taxed a separate bill of costs in the same manner as though he had been a sole defendant, except as to the judgment record, one judgment being perfected for the aggregate of the two bills of costs. The plaintiff moved for a retaxation, and it was held that they had the right to tax separate bills of costs; but inasmuch as there could be but one judgment, there could be but one allowance for the incidental charges of perfecting the judgment.

In the case of Lane v. Van, Orden and another (63 How., 237) the motion was made at Special Term to he allowed separate bills of costs. WestbROOK, J., in delivering the opinion of the court, said: “ This motion was argued as if the granting of costs to each defendant rested in the discretion of the court; but I do not so understand the Code. Yery clearly, under subdivision 4 of section 3228, if the plaintiff had recovered fifty dollars or more he would have been entitled to costs. The next section, section 3229, in the first sentence declares: ‘ The defendant is entitled to costs, of course, upon the rendering of final judgment in an action specified in the last section, unless the plaintiff is entitled to costs as therein prescribed.' Having made this clear provision for costs, and which is applicable to the present case, because the plaintiff has failed as to both defendants, the section proceeds to state when costs are in the discretion of the court, and that is when the action is brought against two or more defendants, in winch the plaintiff is entitled to costs against one or more, but not against all of them. * * * As the Code reads, both defendants are entitled to costs, and such claim can only be disallowed upon the ground that the appearance by separate attorneys was in bad faith, and for the sole purpose of incurring costs. The burden of proving this rests upon the plaintiff.”

In the case of the Bridgeport Fire and Marine Insurance Company v. Wilson and others (20 How., 511), the action was brought upon an indemnity bond executed by the defendants. The defendants taxed separate bills of costs; the plaintiff then moved at Special Term for a retaxation, which was denied and an appeal was taken to the General Term. The General Term of the Superior Court held that the defendants, appearing by different attorneys in good faith and without collusion, were entitled to tax separate bills of costs; that “in all actions for the recovery of money, section 305 of the Code gives a defendant costs as a matter of right and of course, when the plaintiff, under the provisions of section 304, is not entitled to them. And this is the rule whether the action is founded in tort or on contract.”

In the case of Williams v. Cassady (59 How., 490; S. C., 22 Hun, 180), this question was considered in the Third Department. Bocees, J., in delivering the opinion of the court, says: “ It was for the party alleging collusion to move the court for the relief he desired to obtain ; the case on the record standing against him. The decision of the Special Term in this case, to the effect that before the defendants could have their separate bills taxed by the clerk they must obtain an order from the court permitting it, was erroneous. The decision of the Special Term was put upon this ground only.” In tbe case of Milligan v. Robinson and another (58 How., 380) tbe action was at law and tbe defendants succeeded. They appeared by separate attorneys and the clerk taxed separate bills of costs. A motion was then made at Special Term for a retaxation, and tbe Special Term granted the motion, allowing but one bill of costs; appeal was then taken to tbe General Term of the Fourth Department and tbe order of tbe Special Term was reversed.

In the case of Royce v. Jones et al. (23 Ilun, 452), it was also held in tbe General Term of the Fourth Department, that tbe defendants were entitled to tax separate bills of costs, they having appeared by separate attorneys, and they had the right to so tax them without first procuring from the court an order allowing separate bills. It would thus appear that the practice has existed for many years of taxing separate bills of costs where the defendants, not connected in interest, have appeared in good faith and without collusion by separate attorneys, and that in these cases, with but one exception, the costs have been taxed by the clerk without any order from the court, and in that case the court held that the defendants were entitled to separate bills as a matter of right and of course. Our attention has been called to some decisions that have been made under section 306 of the old Code, which provided that in other actions not embraced in the two former sections, being equity actions, costs may be allowed or not in the discretion of the court; also embracing actions mentioned in the concluding clause of section 8229 of the present Code.

The case of Allis v. Wheeler (56 N. Y., 50) turned upon a construction of section 306 of the old Code, and has no bearing upon the question under consideration.

The case of Hauselt v. Vilmar (76 N. Y., 630) was an equity action and costs were in the discretion of the court.

In the case of Williams v. Blumer (49 How., 12) the decision was made at Special Term aud by the same judge writing the opinion in the case of Royce v. Jones (supra). His decision was based upon a construction given to section 306 of the old Oode.

In .the case of Fischer v. Langbein (31 Hun, 272) the defendants presented separate bills of costs, which were allowed and taxed by the clerk. It was held that the defendants were not entitled to separate bills of costs of the appeal to the General Term for the reason that but one appeal was brought and the case was argued by but one counsel.

Tn the Matter of the New York, West Shore and Buffalo Railway Company to Acquire Lands of Chrystie (28 Hun, 505) was a special proceeding, and costs in such proceedings are in the discretion of the court.

It consequently appears to us 'that in actions at law, where all of the defendants have succeeded -upon the trial, those not united in interest who have appeared by different attorneys have the right to present bills of costs to the clerk and to have them taxed; that they are entitled to costs of course, and as a right. This right can only be defeated by showing that the parties are united in interest or collusively appeared by separate attorneys in bad faith, for the purpose of enhancing the plaintiff’s costs. That the burden of proving this rests upon the plaintiff. In case more than one bill of costs is taxed, he can move at Special Term for a retaxation, and that one bill be struck out. Again, the motion in this ease was broad enough to call upon the Special Term to determine the question as to whether or not the defendants should be allowed separate bills of costs. It would appear from the memorandum of decision made by the Special Term that the court did not consider the question as to whether or not the defendants should be allowed separate bills of costs. We have examined the papers read upon the motion, and find no valid reasons shown why the defendants, appearing by different attorneys should not have separate bills of costs.

W e are consequently of the opionion that the order should be reversed, with ten dollars costs and disbursements.

Smith, P. J., Barkeb and Beadley, JJ., concun-ed.

So ordered.

Note. —The balance of the cases decided at this term of the court will be found in (41 Hun) the next volume.


author: Per Curiam.

text:
    Froilan Miranda and others, Respondents, v. The Greenwich Insurance Company of the City of New York, Appellant.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


author: Daniels. J.

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

Opinion by

Daniels. J.


author: Brady, J.

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

Opinion by

Brady, J.


text:
    Fritze Freudenthal, Appellant, v. Eliza Davis, Respondent.
   Order affirmed.

Opinion by

Brady, J.


author: Daniels, J.

text:
    George W. Reed, Appellant, v. New York, Lake Erie and Western Railway Company, Respondent.
   Order reversed, with costs and disbursements, and proceedings remitted to Special Term for the further consideration and decision of the application.

Opinion by

Daniels, J.


text:
    John I. Tilton, Appellant, v. Susan M. Vail and others, Respondents.
   Order affirmed, with costs to abide event.

Opinion by

Brady, J.


text:
    Olivia De Camp, Respondent, v. John J. Dempsey and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements, upon giving the stipulation mentioned in the opinion.

Opinion by

Daniels, J.


text:
    David Levy and another, Respondents, v. Rudolph Moeller, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    James P. Farrell, Respondent, v. Abraham Krone, Appellant.
   Judgment reversed and new trial ordered, with costs to abide the event.

Opinion by

Brady, J.


text:
    Mary A. Manley, Appellant, v. The Mayor, etc., of the City of New York, Respondent.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    Antony Reisert and another, Appellants, v. William R. Peters, Respondent.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    In the Matter of Henry Lewis Morris.
   Orders affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Thomas L. Conklin v. The Board of Fire Commissioners.

   Certiorari dismissed and proceedings of the commissioners affirmed.

Opinion by

Brady, J.


text:
    Alonzo W. Joline, Respondent, v. Patrick Connelly, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion to punish defendant for contempt, denied.

Opinion

Per Curiam.


text:
    Patrick McGowan, Respondent, v. Henry Zenner, Appellant.
   Order modified as directed in opinion and affirmed as modified, without costs to either party.

Opinion by

Brady, J.


text:
    Thomas S. P. Miller, Appellant, v. Edwin C. Johnson, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    In the Matter of Theodore Heickel.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John W. Jacobus, Respondent, v. Benjamin F. Olmstead, Appellant.
   Judgment affirmed, with costs.


text:
    Abraham R. Van Nest, Appellant, v. The Mayor, etc., of the City of New York, Respondent.
   Judgment affirmed, with costs.

Opinion by

Daniels, J.


text:
    James J. Bevins, Respondent, v. Thomas F. Riley and others, Appellants.
   Order reversed, without costs; order made denying motion for injunction.

Opinion by

Daniels, J.


author: Beach, J.,

text:
    Leopold Peck, Respondent, v. John H. McCarty, Appellant.
   Judgment affirmed on opinion of

Beach, J.,

in court below, with costs.


text:
    Stephen S. Newton and others, Appellants, v. Horace K. Thurber and others, Respondents.
   Judgment reversed^ new trial ordered, costs to abide event.

Opinion by

Brady, J.


text:
    William Blackinton and others, Appellants, v. Adolph Goldsmith, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Felicci Tocci, Respondent, v. James Andrews and others, Appellants.
   Order denying motion to vacate attachment affirmed, with ten dollars costs and disbursements.


text:
    Felicci Tocci, Respondent, v. James M. Andrews, Appellant, Impleaded, etc.
   Order denying motion to make complaint more definite affirmed, without costs.


text:
    Nelson A. Salisbury v. Henry P. Niehbur.
   Order reversed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. The Panama Railroad Company, Appellant, v. Commissioners of Taxes, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements on opinion of Beach, J., in court below.


text:
    Christopher Meyer, Appellant, v. Thomas S. Blair and another, Respondents.
   Judgment affirmed, with costs on opinion of Lawrence, J., in court below.


text:
    S. Townsend Peckham, Appellant, v. Manhattan Life Insurance Company, Respondent.
   Judgment affirmed, with costs.


text:
    Horace B. Claflin and others, Appellants, v. James G. Dubois, Respondent.
   Judgment reversed, new trial ordered, costs to appellant to abide event.

Opinion

Per Curiam.


text:
    Michael Martin, General Guardian, etc., Respondent, v. New York, New Haven and Hartford Railway Company, Appellant.
   Judgment affirmed.


text:
    The Porous Plaster Company of the Village of Sing Sing, Respondent, v. William Edwards, Appellant.
   Judgment affirmed, with costs.


text:
    Timothy Berry, Respondent, v. James B. Berry and others, Appellants.
   Judgment affirmed, with costs.


text:
    George Slicovich, Respondent, v. William Ruger and others, Appellants. Same v. Same.
   Orders affirmed, with ten dollars costs and disbursements in one case.


text:
    Arno Schoff and others, v. Moses G. Rosenberg.
   Motion for reargument denied.


text:
    John L. Laubensdorfer, Appellant, v. James B. Brady, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion

Per Curiam.


author: Davis, P. J.

text:
    Louis Sachs, Respondent, v. Max Blau, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Davis, P. J.


text:
    Henry Iden, Respondent, v. Thomas Osborn, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted with ten dollars costs to abide the event of the suit.

Opinion by

Davis, P. J.


text:
    James L. Angle and another, as Executors, etc., Appellants, v. Jerome B. Manning, Respondent.
   Judgment affirmed, with costs.

Haight, J., not voting.


author: Smith, P. J.

text:
    William C. Hoag, Appellant, v. Mary Kehoe, Respondent.
   Ordered, that if plaintiff will stipulate in writing within twenty days that, for all the purposes of the supplementary proceedings, the judgment shall he regarded as a judgment for ¡£201.40 only, as if it had been entered originally for that sum, the order appealed from is reversed, without costs of this appeal to either party, otherwise affirmed, with ten dollars costs and disbursements to respondent.

Opinion by

Smith, P. J.


author: Haight, J.

text:
    Nathan Hill, Appellant, v. Charles Edie, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Haight, J.


author: Bradley, J.

text:
    James Fullington and another, as Administrators, etc., Respondents, v. Alonzo C. Maklem, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Bradley, J.


text:
    Julia F. Kirtz, as Administratrix, etc., Respondent, v. Hezekiah Peck, Appellant.
   Order affirmed, with ten dollars costs and disbursements, the defendant to have ten days from the entry and service of the order of affirmance to avail himself of the leave given by the Special Term order.


text:
    The John T. Noyo Manufacturing Company, Appellant, v. Charles Whitmore, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Haight, J.


text:
    Joseph Meigs, Respondent, v. The City of Buffalo, Appellant.
   Judgment and order reversed and a new trial ordered in the Erie Comity Court, with costs to abide the event.

Opinion by

Smith, P. J.


author: Bradley, J.;

text:
    Oliver H. P. Champlin and another, Appellants, v. Charles Stoddard, Respondent, Impleaded, etc.
   Order modified by adding the direction that in case of recovery by respondent he shall recover of the plaintiff no costs subsequent to the original answer, and prior to the service of the supplemental answer provided for hy the; order, and as so modified affirmed, without* costa of this appeal to either party.

Opinion by

Bradley, J.;

Haight, J., not sitting.


author: Smith, P. J.;

text:
    George W. Mentz, Respondent, v. John Laycock and another, Appellants.
   Judgment and order affirmed.

Opinion by

Smith, P. J.;

Haight, J., not sitting.


author: Barker, J.

text:
    William H. Mandeville, Respondent and Appellant, v. Charles M. Marvin, Appellant and Respondent.
   Judgment reversea and a new trial ordered before another referee; costs on defendant’s appeal to abide the event; no costs allowed on plaintiff’s appeal.

Opinion by

Barker, J.


text:
    Harlo Hakes, Appellant, v. Sarah Ann Roberts, Executrix, etc., Respondent.
   Judgment and order reversed and a new trial ordered, with costs to abide the event.

Opinion by

Haight, J.


text:
    Henry P. Stone, as Executor, etc., Appellant, v. Thomas B. Kenney, Respondent.
   Judgment affirmed.

Opinion by

Bradley, J.;

Haight, J., not sitting.


text:
    Clemma A. Winters, Respondent, v. Jacob B. Smith and another, Appellants.
   Order affirmed, with costs of the appeal to be paid by the appellant out of the estate.

Opinion by

Smith, P. J.


text:
    The People of the State of New York v. Charles Herman.
   Appeal dismissed.


text:
    George Draper, Respondent, v. The Rochester and Pittsburg Railroad Company, Appellant.
   Judgment affirmed.

Opinion by

Haight, J.


text:
    In the Matter of the Petition of Sally Kelsey, to have a decree opened and modified.
   Decree I of the surrogate affirmed, with costs.

Opinion by

Bradley, J.


text:
    William Steven and another, Appellants, v. James H. Hughes, Respondent.
   Judgment affirmed, with but one argument fee in this court to be taxed.

Opinion by

Smith, P. J.


author: Barker, J.;

text:
    Daniel Mack, Respondent, v. Robert Mills and others, Appellants.
   Judgment affirmed.

Opinion by

Barker, J.;

Haight, J., not voting.


text:
    John P. Magovern, Appellant, v. Evolin B. Robertson and others, Respondents.
   Judgment affirmed.


text:
    Joseph A. Ward and another, Appellants, v. S. Clark Lewis, Respondent.
   Judgment reversed and a now trial ordered before another referee, with costs to abide the event.

Opinion by

Barker, J.


text:
    Frederick Haake, Respondent, v. Frank T. Reynolds, Appellant.
   Judgment affirmed, with costs.

Opinion by

Haight, J.


text:
    Jefferson Taylor, Appellant, v. William Tousley, Respondent.
   Judgment reversed and new trial ordered before another referee, with costs to abide the event.

Opinion by

Smith, P. J.


text:
    Andrew J. Dann, Respondent, v. Augustus L. Smith, Appellant.
   Judgment affirmed.

Opinion by

Barker, J.;

Bradley J., not sitting.


text:
    James J. Flood, as Administrator, etc., Plaintiff, v. The Buffalo, New York and Philadelphia Railroad Company, Defendant.
   Motion for a new trial denied, and judgment ordered for defendant upon the nonsuit.

Opinion by

Haight, J.


author: Haight, J.;

text:
    In the Matter of the Probate of the Last Will and Testament of Margaret McPherson, Deceased.
   Decree of surrogate reversed and the question of the testamentary capacity of the decedent to be determined by a trial by a jury, at the Genesee Circuit; costs of this appeal to abide the final award of costs.

Opinion by

Haight, J.;

Barker, J., not sitting.


text:
    Mary S. Fish, Respondent, v. Fannie Fish and others, Appellants.
   Judgment reversed and a new trial ordered, with costs to abide event.

Opinion by

Smith, P. J.


text:
    Bryon Alford and others, Plaintiffs, v. Eugene Cobb, Defendant.
   Motion for a new trial denied, and judgment ordered for the defendant upon the nonsuit.

Opinion by

Haight, J.


text:
    Mary Appel, as Administratrix, etc., Plaintiff, v. The Buffalo, New York and Philadelphia Railroad Company, Defendant.
   Motion for a new trial denied and judgment ordered for the plaintiff on the verdict.

Opinion by

Bradley, J.

Barker, J., dissents; Haight, J., notvoting.


text:
    The First National Bank of Huntington, Indiana, Plaintiff, v. Christian F. Pfeifer, Defendant.
   Motion for a new trial denied, and judgment ordered for the plaintiff on the verdict.

Opinion by

Barker, J.


text:
    Mary E. Mahar, by Guardian, etc., Respondent, v. The Village of Hornellsville, Appellant.
   Judgment affirmed.

Opinion by

Smith, P. J.


text:
    Henry J. Anderson, as Receiver, etc., Respondent, v. Gates Sherwood and another, Appellants.
   Judgment affirmed

Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    Andrew Holling and another, Respondents, v. Lathrop S. Sprague, Appellant, Impleaded, etc.
   Judgment and order affirmed.

Opinion by

Bradley, J.


text:
    Francis Deiling, Respondent, v. Mott Russell, Appellant.
   Judgment affirmed.


text:
    Sylvester Cady, Respondent, v. Hiram W. Bradshaw, Appellant, Impleaded, etc.
   Judgment affirmed.

Opinion by

Haight, J.


text:
    Ida E. Parks, Respondent, v. Charles H. Ellsworth and another, Appellants.
   Order reversed, without costs, with leave to the plaintiff to renew the motion.

Opinion by

Barker, J.


text:
    Sarah P. Bull, Respondent, v. The City of Rochester, Appellant.
   Judgment affirmed, with costs.

Opinion by

Haight, J.


text:
    John Albright, Respondent, v. Ellen Davis and another, Appellants.
   Judgment affirmed.

Opinion by

Bradley, J.


text:
    Obediah Petett, Respondent, v. The City of Buffalo, Appellant.
   Judgment and order affirmed.

Opinion by

Barker, J.


text:
    Thomas Moore, Appellant, v. Henry A. Taylor and others, Respondents.
   Order affirmed, with disbursements.


text:
    Mary E. A. O’Rourke, an Infant by Guardian, Appellant, v. Joshua Granger, as Executor, etc., Respondent.
   Judgment affirmed, with costs to be paid by the guardian.

Opinion by

Smith, P. J.


text:
    Wilbur F. Hubbard, Respondent, v. Elias Richmond, Appellant.
   Judgment and order affirmed.


text:
    Laura E. Wallace, Plaintiff, v. George Magee and others, Defendants.
   Motion for new trial granted, with costs to abide event.

Opinion by

Haight, J.;

Smith, P. J., not voting.


text:
    Laurelia Morris, as Administratix, Respondent, v. The Lake Shore and Michigan Southern Railway Company, Appellant.
   Judgment and order reversed, ana new trial ordered, costs to abide event.

Opinion by

Bradley, J.;

Barker, J., not sitting.


text:
    State Bank of Randolph, Appellant, v. William Hartson, Respondent.
   Judgment affirmed, with costs.

Haight, J., not sitting.


author: Barker. J.;

text:
    John D. Griswold, Respondent, v. Helen M. Griswold, Appellant.
   Judgment affirmed.

Opinion by

Barker. J.;

Smith, P. J , not sitting.


author: Bradley J.;

text:
    Isabella K. Arnold and another, Respondents, v. George A. Green, Appellant.
   Judgment modified as indicated in the opinion of Bradley, J., and as so modified affirmed, with costs to the plaintiff.

Opinion by

Bradley J.;

Smith, P. J., not sitting.


text:
    George Chapman, Respondent, v. The City of Rochester, Appellant.
   Judgment affirmed, with costs.

Opinion by

Smith, P. J.


text:
    Albert G. Graham, Appellant, v. Archibald M. Graham and another, Executors, etc., Respondents.
   Judgment affirmed.

Opinion by

Smith, P. J.


text:
    Cornelia Joslyn, Appellant, v. Ezra H. Graves, Respondent.
   Judgment affirmed, without costs on the opinion of the referee.


text:
    Edward J. Kelsey and others, Respondents, v. James Sargeant and others, Appellants.
   Order granting additional allowance affirmed, without costs.


text:
    Caroline Sweeney, Respondent, v. John Chadwick, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.

Smith, P. J., not sitting.


text:
    The Pfaudler Barm Extracting and Bunging Apparatus Company, Respondent, v. Casper Pfaudler and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Barker, J.;

Smith, P. J., not sitting.


text:
    Moses P. Roberts, Respondent, v. William Ellwood, Appellant.
   Judgment reversed and new trial ordered, costs to abide event.

Opinion by

Bradley, J.


text:
    Nancy Baker, Respondent, v. James Rutherford and others, Appellants.
   So much of the order as is appealed from affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the Lackawanna and Pittsburg Railroad Company to Acquire Lands of William Lampson, Appellant.
   Order affirmed.


text:
    Hiland S. Hall, Appellant, v. Alexander W. Putnam, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Haight, J.


text:
    George W. Carter, Appellant, v. Joseph W. Wallace, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The Hamilton Coal Company, Appellant, v. Edward C. Warner and others, Respondents.
   Judgment affirmed.

Opinion by

Haight, J.


text:
    Ashbel F. Bard, Appellant, v. John L. McKinney and others, Respondents
   Judgment affirmed.


text:
    John E. Morey, Jr., Respondent, v. The Morning Journal Association, Appellant.
   Order affirmed, with teu dollars costs and disbursements.


text:
    Lyman E. Warren v. George A. Bennet and others.
   Judgment affirmed.

Barker J, not sitting.


text:
    Union Trust Company of New York, Appellant, v. The Rochester and Pittsburg Railroad Company, Respondent.
   Order reversed and motion to amend judgment granted.


text:
    Erastus N. Lee, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Motion for reargumeAt, or for leave to appeal to the Court of Appeals, denied.


text:
    John T. Williams v. George M. Wheaton. Same v. Same.
   Motions for leave to appeal to Court of Appeals in each case granted upon, condition that the appellant cause appeal to be perfected and the return filed with the clerk of the Court of Appeals on or before May 10, 1S86, and upon the further condition that if the defendant requires it, within ten days from the date hereof, the plaintiff will join with the defendant in a stipulation that an appeal shall be taken in one of the actions only, and that the other action shall abide the event of such appeal, otherwise motions denied.


text:
    Wilson v. Doran.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    George Thayer v. Edwin W. Gilbert and others.
   Motion for reargument denied; motion lo modify memorandum of decision by striking out award of costs granted.


text:
    James F. Childs v. George C. Gordon.
   Motion for reargument denied.


text:
    First National Bank of Penn Yan v. George Bruen.
   Motion for reargument, or for leave to appeal to the Court of Appeals, denied.


text:
    Samuel McBlaine, as Assignee, etc., v. Charles M. Speelman.
   Motion to open default and to restore case to the calendar denied.


author: Corlett, J.

text:
    William H. Abell, Respondent, v. Naomi Clark and others, Appellants.
   Judgment affirmed.

Opinion by

Corlett, J.


text:
    Daniel M. Anthony, Appellant, v. Lebbeus R. Crippen, Respondent.
   Judgment modified, as indicated in the opinion or Haight, J., and as so modified affirmed, without costs of this appeal to either party. The judgment to be settled by Haight, J., unless agreed upon between the parties.


text:
    George H. Ahrens and another, Respondents, v. Alonzo F. Kent and others, Appellants.
   Judgment affirmed.

Opinion by

Bradley, J.


text:
    Stephen Main, Appellant, v. John Spink, Respondent.
   Judgment affirmed, with costs.

Opinion by

Corlett, J.


author: Corlett, J.;

text:
    The People of the State of New York, Respondent, v. Charles E. Beard, Appellant.
   Judg ment and order affirmed.

Opinion by

Corlett, J.;

Bradley, J., not voting.


text:
    John W. Alexander and another, Appellants, v. Henry W. Chamberlain, Respondent, Impleaded, etc.
   Judgment affirmed.

Opinion by

Bradley, J.


text:
    Solomon Longyor, Respondent, v. The United States Life Insurance Company, Appellant.
   Judgment affirmed on the opinion of the-referee and of the court in the case of King v. Same, Defendant.


author: Lewis, J.;

text:
    John J. Landers, Appellant, v. The Frank Street Methodist Episcopal Church of Rochester, Respondent.
   — Judgment affirmed.

Opinion by

Lewis, J.;

Barker, J., not sitting.


text:
    Thankful Tanner, Appellant, v. John Rummel, Respondent.
   Judgment reversed and a new trial ordered, costs to abide event.

Opinion by

Bradley, J.;

Haight, J., not sitting.


text:
    Mary I. Beckwith, Respondent, v. Dwight M. Beckwith, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barker, J.;

Haight, J., not sitting.


author: Lewis, J ;

text:
    Horace F. Bush, Respondent, v. William H. H. Clague and others, Appellants.
   Judgment affirmed. Opinion by

Lewis, J ;

Haight, J., not sitting.


text:
    Edward Murphy, Appellant, v. Chilion M. Farrar and another, Respondents.
   Judgment affirmed.

Opinion by

Bradley, J.;

Haight, J., not sitting.


text:
    Hudson T. Baker, as Administrator, etc., Respondent, v. The Rochester City and Brighton Railroad Company, Appellant.
   Order granting new trial reversed.

Opinion by

Lewis, J.;

Haight, J., not sitting.


author: Follett, J.

text:
    James Hand, Respondent, v. Robert E. Dorcester, Appellant; Same v. Same.
   The order of November 7,1885, is affirmed, with ten dollars costs and disbursements.

Opinion by

Follett, J.


author: Boardman, J.

text:
    The People of the State of New York ex rel. Cornelia E. Rosa, v. John C. Streeter and others.
   Proceedings and adjudication of the assessors and the proceedings of the chamberlain and of the constable are in all respects regular and legal. The assessment made and tax levied are in all respects legal and the same are affirmed, with fifty dollars costs and disbursements in favor of the defendant against relator. (See Code of Civ. Pro., § 2143.)

Opinion by

Boardman, J.


author: Hardin, P. J.

text:
    Alice Wilcox, Appellant, v. Charles W. Wilson, Respondent.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Solomon Unger, Appellant, v. Frederick C. Behmes and another, Respondents.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Boardman, J.


text:
    Daniel Sheehan, Respondent, v Thomas Butler, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Follett, J.


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

text:
    Charles Guion, Appellant, v. Michael Magra, Respondent.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.;

Mem. by Follett, J.;

dissenting opinion by

Hardin, P. J.


author: Boardman, J.;

text:
    Willard J. Frisbie and another, Respondents, v. Harlan P. Wheeler, Appellant.
   Order denying motion for a new trial affirmed, with costs.

Opinion by

Boardman, J.;

Follett, J., dissents.


author: Hardin, P. J.;

text:
    Herian F. Inglehart and others, Appellants, v. The Thousand Island Hotel Company, Respondent.
   Judgment reversed and a new trial ordered before another referee, with costs to abide the event.

Opinion by

Hardin, P. J.;

Mem. by Follett, J.


text:
    Kate E. Sherry, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.;

Hardin, P. J., not voting.


text:
    Delora M. Hunter and another, Administrators, etc., Respondents, v. The Cooperstown and Susquehanna Valley Railroad Company, Appellant.
   Judgment and order reversed, and new trial ordered, with costs to abide the event.

Opinion by

Follett, J.


text:
    In the Matter of the Personal Estate of Elizabeth R. West, Deceased.
   Second appeal. Decree affirmed, with costs of respondent payable out of the estate.

Opinion by

Hardin, P. J.;

Mem. by Boardman, J.


text:
    Calvin B. Green, Appellant, v. Nelson Harris, Respondent.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Orrin C. Hinman, Respondent, v. Charles A. Stillwell, Appellant.
   Order reversed, with costs and judgment ordered in the County Court of Onondaga county for the defendant on the verdict.

Opinion by

Follett, J.


text:
    Riley Read, Appellant, v. William H. Nichols and others, Respondents.
   Judgment and order affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    William A. Tyler, Respondent, v. Timothy Guy, Appellant.
   Judgment affirmed, with costs.

Opinion by

Follett, J.


author: Hardin. P. J.

text:
    Charles H. De Kay, Respondent, v. Frederick Barker and others, Appellants.
   Judgment of County Court of Chemung county affirming the judgment of the Justices’ Court affirmed, with costs.

Opinion by

Hardin. P. J.


text:
    Henry Beidelman, by Guardian, Respondent, v. Timothy Liddy, Appellant.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Margaret Lynn, Administratrix, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment and • order reversed and new trial ordered, withoosts to abide event.

Opinion by

Follett, J.


text:
    Seth O. Sabin, Appellant, v. Alfred Seeley, Respondent.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Nicholas Murray, Respondent, v. Theodore L. Minzer, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Boardman, J.


text:
    Patrick H. Agan, Respondent, v. George W. Hey and another, Appellants.
   Judgment and order of the Onondaga County Court reversed, and a new trial ordered in that court, with costs of appeal to abide the event.

Opinion by

Follett, J.


text:
    Leander Davis, Appellant, v. Levi G. Hasbronck and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Charles C. P. Clark, Respondent, v. Nelson Robinson and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Rosa Tobin, Respondent, v. Benjamin Bodfish, Appellant.
   Judgment of County Court or Onondaga county affirming a justice’s judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Evelyn M. S. Nutting, Appellant, v. Eugene A. Pettingill and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Chauncey P. Cornish, Appellant, v. Robert M. Baker, Respondent.
   Judgment of the County Court of Onondaga county affirming a justice’s judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    John W. Burt, Respondent, v. E. D. Fulford, Appellant.
   Judgment of the County Court of Chemung county affirming a justice’s judgment affirmed, with costs.

Opinion by

Boardman, J.


author: Follett, J.:

text:
    Orrin Oviatt, Respondent, v. Henry Wallace, Appellant.
   Judgment of the County Court of Jefferson county affirming a justice’s judgment affirmed, with costs.

Opinion by

Follett, J.:

Mem. by Hardin, P. J.


text:
    Harriet Higbie, Respondent, v. John H. Yost, Individually and as Executor, Appellant.
   Judgment affirmed, with costs, and leave given to defendant to answer upon payment of costs of demurrer and costs of this appeal within twenty days.

Opinion by

Hardin, P. J.


text:
    George W. Love, Respondent, v. The Seneca Lake Steam Navigation Company (Limited), Appellant.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Henry Laraby, Appellant, v. William M. Pellett, Respondent, Impleaded, etc.
   Order affirmed, with costs.

Opinion by

Follett, J.


text:
    George H. Paine, Appellant, v. The Trustees and Inhabitants of the Village of Delhi, Respondents
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    David H. Surdam, Respondent, v. John Hudson, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Boardman, J.


text:
    Charles H. Pott, Respondent, v. Elias A. Wilkinson and others, Appellants.
   Judgment and order reversed and a new trial ordered, with costs to abide the event.

Opinion by

Follett, J.


text:
    Hobart A. Bedell, Respondent, v. August Von Hage, Appellant.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


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

text:
    In the Matter of the General Assignment of Peter H. Mitchell, etc., to George A. Shutts, Alfred C. Tennant, Receiver, Appellant.
   The order entered July 2,1885, affirmed, with costs to the respondent, to be paid by appellant out of any funds in his hands as receiver (96 N. Y., 37), and the order entered October 7, 1885, affirmed, without costs.

Opinion by

Hardin, P. J. ;

dissenting opinion by

Follett, J.


author: Boardman, J.,

text:
    Augustus W. Kingsbury and another, as Assignees in Bankruptcy, etc., Appellants, v. William W. Thomas and another, Respondents.
   Judgment and order affirmed, with costs.

Opinion by

Boardman, J.,

and Hardin, P. J.; Follett, J., not voting.


text:
    William P. Butler and another v. Byron Pond, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    George C. Carter, Respondent, v. Emily P. Beckwith, Administratrix, etc., Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Simon Mather, as Executor, Respondent, and another, v. Gilbert E. Parsons, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Henry A. Deimel and another v. William R. Oluey.
   Order affirmed, with ten dollars costs and disbursements, on opinion of Merwin, J., at Special Term.


text:
    Sophia Boeram v. Jennie E. Fletcher, Impleaded.
   Order affirmed, with costs and isbursements.


text:
    Kate L. Tyler v. William A. Tyler.
   Order affirmed, with ten dollars costs and disbursements.


text:
    George M. Grant and others, Respondents, v. George Clarke, Appellant.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Rice Lewis v. Caroline H. Merriam.
   Judgment affirmed, with costs.


text:
    Ithaca Fire Department v. Henry B. Beecher and others.
   Order affirmed, with ten dollars costs and disbursements ;

Boardman, J., not sitting.


text:
    Erastus H. Benn, Respondent, v. Lewis M. Smith and Francis G. Hall, Appellants.
   Judgment affirmed, with costs.


text:
    Erastus H. Benn, Appellant, v. Lewis M. Smith, Respondent.
   Judgment affirmed, with costs.


text:
    Jerome B. Moore and others v. Charles Demong and others.
   Order reversed, with ten dollars costs and disbursements to abide event.


text:
    Melville B. Cummings v. James Bulkley and another.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People ex rel. Thompson Kingsford v. The Board of Supervisors of Oswego county.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People ex rel. Richard J. Oliphant v. The Board of Supervisors of Oswego county.
   Order affirmed, with ten dollars costs and disbursements.


author: Per Curiam

text:
    Robert E. Philips, Appellant, v. Perry Calkins and Thankful Calkins, Respondents.
   Motion for leave to appeal to the Court of Appeals denied

Per Curiam

opinion filed with the clerk of Oneida.


text:
    Cyrus C. Wilcox v. Perry Calkins and another.
   Motion denied.

Per Curiam

memorandum filed with the clerk of Oneida.


text:
    Cornelius Bort and another, Respondents, v. Adam J. Snell, Appellant.
   Motion forreargument and for leave to appeal to Court of Appeals denied, with ten dollars costs.


text:
    Mary Finley, Respondent, v. Ann Finley, Appellant
   Motion for leave to appeal to Court of Appeals denied.


text:
    Wilbur S. Peck and others v. Isaac P. Powers.
   Motion denied.


author: Churchill, J.; Follett, J.

text:
    The Mutual Life Insurance Company v. Thomas H. Anthony and another, Appellants, The National Bank Loan Company, Respondents.
   Order of Special Term reversed, with ten dollars costs and disbursements to be paid by respondents, and a new hearing ordered before another referee to be appointed by the Special Term.

Opinion by

Churchill, J.;

^dissenting opinion by

Follett, J.


text:
    Horace Bush and another, Administrators, Respondents, v. Henry L. Roberts, Appellant.
   Judgment affirmed, with costs in opinions of Williams, J., delivered at Special Term.


author: Churchill, J.

text:
    Same v. Same.
   Order vacating attachment reversed, with ten dollars costs and disbursements.

Opinion by

Churchill, J.


author: Churchill. J.

text:
    John Bowen, Appellant, v. The City of Rome, Respondent.
   Judgment affirmed, with ten dollars costs.

Opinion by

Churchill. J.


text:
    Adrian Hill, Respondent, v. The Rome, Water-town and Ogdensburg Railroad Company, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Churchill, J.


author: Churchill, J.;

text:
    Isaac Johnson, Respondent, v. Montello H. Gibson, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Churchill, J.;

Follett, J., not sitting.


text:
    The Syracuse Water Company, Appellant, v. The City of Syracuse, Respondent. Same v. The City of Syracuse and The Central City Water-Works Company, Respondents.
   Judgment in each case affirmed, with costs.

Opinion by

Follett, J.


text:
    Frank Landers v. The Watertown Fire Insurance Company.
   Reargument ordered in the Fifth Judicial Department.

Memorandum filed with the clerk of Oneida county.

Hardin, P. J., not sitting.


author: Boardman, J., Hardin, P. J.

text:
    Michael McCarthy, Respondent v. James O’Hara, Appellant.
   Judgment affirmed, with costs.

Opinions by

Boardman, J.,

and Follett, J.;

dissenting opinion by

Hardin, P. J.


text:
    Norman C. Newell and another, Respondents, v. The City of Utica, Appellant.
   Judgment reversed and a new trial ordered, with costs to abide the event.

Opinion by

Follett, J.

Mem. by Hardin, P. J.


text:
    Matter of Final Accounting of Joseph B. Spencer, Trustee, etc.
   Order alarmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John Callister v. Joseph Schlegel.
   Order affirmed, on petition of appellant to submit apers according to stipulation, with costs and isbursemenis.


text:
    James A. Russell v. Henry F. Taintor.
   Motion denied.


author: Barnard, P. J.

text:
    The People of the State of New York, Respondents, v. Joseph Groblenski, Appellant.
   Conviction reversed and new trial granted.

Opinion by

Barnard, P. J.


text:
    Matter of Application of Edward B. Long to Sell Land of Charles Olmstead.
   Order of surrogate affirmed, with costs.

Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Joseph Dinsmore, Respondent, v. Bertha Jacoby, Appellant, and W. W. Rope and others, Respondents.
   Judgment affirmed, with costs to plaintiff, respondent, and not ..o the defendants, respondents.

Opinion by

Dykman, J.


author: Barnard, P. J.;

text:
    Harry Speesman, Respondent, v. Ellen E. Peck and another, Appellants.
   Judgment; order denying judgment for defendant, and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


author: Dykman, J.;

text:
    James E. Cooper, Respondent, v. Mary T. Young, Appellant.
   Judgment reversed and new Trial granted, costs to abide event.

Opinion by

Dykman, J.;

Barnard, P. J.. not sitting.


text:
    Harry Quell, Plaintiff, v. Amalie Hermann, Special Guardian, Defendant.
   Judgment l'or plaintiff, upon submitted case, that the title is not good.

Opinion by

Barnard, P. J.


author: Pratt, J,;

text:
    John W. Harper v. William H. Williams and others.
   Motion denied.

Opinion by

Pratt, J,;

Barnard, P. J., dissenting.


author: Pratt, J.

text:
    The People of the State of New York, Respondent, v. Henry O’Grady, Appellant.
   Conviction and judgment affirmed.

Opinion by

Pratt, J.


author: Barnard, J.

text:
    The People of the State of New York, Respondent, v. James Meegan, Appellant.
   Conviction and judgment affirmed.

Opinion by

Barnard, J.


text:
    Anson B. Moore, Executor, etc., Appellant, v. Robert O. Byrne and others, Respondents.
   Judgment and order sustaining demurrer of defendant Stillwell to the complaint affirmed, with costs.

Opinion by

Dykman, J.


author: Pratt, J.;

text:
    William T. Walton and others, Respondents, v. The Agricultural Insurance Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Matter of Probate of Will of Jacob Mondorf.
   Decree of surrogate admitting will to probate affirmed, with costs against appellant personally.

Opinion by

Barnard, P. J.


text:
    Emily L. Easton, Respondent, v. Edward Boote, Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event.

Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    Andrew F. Kindberg, Respondent, v. Alvah Mudgett, Appellant.
   Judgment and order deny mg new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    The Merchants’ Insurance Company of Newark, Appellant, v. Frank Dalton, Respondent.
   Order setting aside verdict and granting new trial affirmed, with costs.

Opinion by

Dykman, J.


text:
    In the Matter of the Settlement of Valentine Snedeker, Executor.
   Decree of surrogaté modified by striking out the part which directs payment in part out of general estate, affirmed m other respects, without costs to either party on this appeal.

Opinion by

Barnard, P. J.


text:
    Charles Gorse, Appellant, v. Thomas Fielding and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    Ignatius C. Donnelly, Respondent, v. William Deering, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


author: Barnaid, P. J.

text:
    Ignatius C. Donnelly, Respondent, v. William Deering, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnaid, P. J.


text:
    Samuel D. Rice, Appellant, v. Samuel Kip, Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Marcus Sharp, Respondent, v. Josephine Starr and others, Appellants.
   Judgment reversed and new trial granted, costs to abide event.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.