text:
    The People, Resp’t, v. Henry J. Warren, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Constitutional law—Hours of labor.
    Section 504, chap. 105 of 1891, does not abridge the privileges of citizens, within the inhibition of § 1, art. 14, nor disfranchise or deprive any member of the state of any of his rights or privileges, within § 1, art. 1 of the Constitution.
    Appeal from a judgment of the court of sesssions, affirming the judgment of conviction.

      F. R. Perkins, for app’lt; D. J. Kenefick, Assist. Dist. Atty., for the People.
   Dwight, P. J.

The offense chai’ged in the complaint before the police magistrate was a violation of § 504 of chapter 105 of the Laws of 1891, entitled “ An act to revise the charter of the city of Buffalo.” The following is the text of the section mentioned :

“ In contracting for any work required to be done by the city, a clause shall be inserted that the contractor submitting proposals shall bind himself in the performance of such work not to discriminate either as to workmen or wages against members of labor organizations, or to accept any more than eight hours as a day’s work, to be performed within nine consecutive hours. Hor shall any man or set of men be employed for more than eight hours in twenty-four consecutive hours except in case of necessity, in which case pay for such labor shall be at the rate of time and one-half for all time in excess of such eight hours."

In October, 1893, the Barber Asphalt Paving Company was engaged, under a contract with the city of Buffalo, in paving Delevan avenue in, that city. The defendant was the superintendent of the company, and, as such, was charged with the hiring of laborers employed on the work, and regulating and prescribing their hours of, labor. On the 9th and several successive days of that month, the defendant employed, the complainant and other laborers on the work mentioned, and caused them to work ten hours of the twenty-four hours of each day. There was no special necessity for extra labor, and no extra wages were paid or promised .therefor. The defendant, having been convicted in the police court of a misdemeanor for violating the prohibition contained in the statute quoted above, appealed from that judgment to the court of sessions, and in his affidavit of appeal he alleged, as the sole ground of error, that the statute in question was—

“Unconstitutional and void, and in violation of and- contrary to article 14, § 1, of the constitution of the United States, which reads as follows : ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ’ also § 1 of article 1 of the constitution of the state of, New York, which reads as follows: ‘No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof unless by the law of the land or the judgment of his peers.’ ”

No other ground of error is argued or suggested on this appeal, and no oilier can properly be considered here. People ex rel. Baker v. Beatty, 39 Hun, 476; People v. McGann, 43 id. 55 ; 6 St. Rep. 541; People v. Jewett, 69 Hun. 550; 53 St. Rep. 305.

The objection specified we regard as wholly without force. The only right, privilege op immunity'- of any citizen of the United States which, it is charged, may be abridged, or of which, it is charged, any member of this state may be deprived by the operation of the statute in question, is what has been called, in language quoted by counsel, “ the sacred right of labor; ” by which we understand to be intended the right of every man to do such lawful work as he finds employment to do, on such terms as he can agree upon with his employer. We do not understand that there is any right of labor which goes beyond that. No man has a right to labor for me unless I employ him; and, in fixing the terms of the employment, my right is as good as his. He can no more compel me to his terms than I can compel him to mine. If rny terms do not suit him, he may seek employment elsewhere; if his terms do not suit me, I may employ another man. Thus the liberty of both is respected, and no right of either is infringed. Of course the terms of employment include the hours of labor. I may hire a man to work for me by day or by night, and for one hour, or twelve, of the1 twenty-four. And so might the city of Buffalo, except that, in respect to one class of work, viz., that done under contract, it chose to have a provision inserted in its organic law to the effect that such work should be done for it by days’ work of eight hours each, and that all its contracts should so, provide. By means of the statute in question, therefore, the terms of employment of laborers, on contract work, for the city of Buffalo, are fixed, on the part of the city, and it remains for the laborer seeking employment to accept or refuse those terms. If lie insists upon working more than eight hours a day, he may seek other employment, either for the whole or for the excess of his time. His liberty of choice is not interfered with, nor his right to labor infringed. As in the illustration previously employed, he has no right to labor for the city of Buffalo except upon the terms offered in his behalf.

We see, on principle, no ground for the contention of the appellant that the statute in question violates any provision of the constitution either of this state or of the United States, and we believe that contention to be equally unsupported by authority. The question involved in the familiar cases cited by counsel for the appellant does not seem to be germane to the discussion in the case before us. Those are the Slaughterhouse Cases, 16 Wall. 97; the Stockton Laundry Case, 26 Fed. 611; the Oleomargarine Case (People v. Marx) 99 N. Y. 386; the Tenement House Tobacco Manufactory Case (In re Jacobs) 98 N. Y. 98, and others of similar purport and effect. The principle upheld and enforced in all these cases is that among the rights, privileges, and immunities mentioned in the two constitutional provisions above quoted, which of right belong to citizens of all free governments, is to be numbered (in the language of Field, J., in the Slaughterhouse Cases) “ the right to pursue a lawful employment in a. lawful manner, without other restraint than such as affects all persons.” We think it very clear from the discussion already had that the principle so amply defended is not impugned by the statutory enactment here in question. In order to be obnoxious to the principle so defined, the statute must do something more than to fix the terms upon which a single municipal corporation may require laborers on its works to be employed. A precisely similar statute was enacted in 1892 by the congress of the United States, in respect to the employment of laborers on the public works of the government or of the District of Columbia. We are not aware that the constitutionality of that act has ever been questioned. Its particular application was disputed by the defendant and denied by the court in the ease of U. S. v. Ollinger, 55 Fed. 959. But the decision was distinctly upon the ground that the defendant was not a contractor with the government within the meaning of the statute. Ho such question is presented in this case.

With neither authority to support it, nor a clear balance of reason in its favor, the contention of the defendant must be disallowed. The judgment appealed from should be affirmed.

Judgment of the court of sessions of Brie county affirmed, and case remitted to that court for further proceedings accordingly.

All concur.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    David Shaw, App’lt, v. Oliver P. Outwater et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

      1. Bills and notes—Indoksement.
    The indorser of a promissory note can have no defense to it on the ground of invalidity for any cause.

      8. Same—Defense.
    The maker lias no defense to a note in the hands of a Iona fide purchaser, where he has, when he gave it, the same knowledge of the general nature of the payee’s business, out of which it arose, as the purchaser had when ho bought it. v.
    Motion for a new trial on a case and exceptions ordered to be heard in the first instance at the general term, after a verdict was directed by the court.

      D. P, Brong, for the motion; Q. G. T. Parker, opposed.
   Dwight, P. J.

The action was against the maker and indorser of a promissory note for $100 given-for “seed grain.” The case is one of a class familiar to the courts, but presents some novel features, which complicate the narrative, if they do not materially • affect the disposition of the case. All the parties to this action, successively, yielded to the seductive inducements of a scheme in all respects similar to that known as the “Bohemian Oat Swindle." The pretended corporation at the bottom of the scheme in this case was introduced by its agents as the “Pennsylvania Seed Company, Limited.” The agents of the scheme sold oats for seed at $15 a bushel, and gave what purported to be k “bond" of the company, by which it agreed to sell for the purchaser, the next year, double the quantity of oats sold to him, at the same price which he paid, less 38Í- per cent, commissions; he to receive his pay in the notes, presumably, of the purchasers of his product. The operation in this case began with the plaintiff. In the fall of 1887, he, in company with another man, bought twenty bushels of the seed oats, and gave their note for $300, which "they paid when it became due. Their product, or a portion of it, was sold the next fall (1888), by the agents of the scheme, to the defendant Grossman, on the same terms;, and the plaintiff received, as his share of the proceeds of the transaction, Grossman’s note for $200. In the fall of 1889, ten bushels of Crossman’s product were sold to the defendant Outwater, and Grossman received therefor Outwater’s note for $100, which is the note in suit-. When Cross-man’s note, held by the plaintiff, was about to become due, he proposed to take it up if the plaintiff would accept another man’s note in part payment; and lie offered the plaintiff his choice of two notes of $100 each, one of which was Outwater’s. The plaintiff consented to accept the latter if Grossman would indorse it, which he did, and delivered it to the plaintiff, and ¡laid the balance of his own note in money, and took it up. Both the defendants seek to defend on the ground of want of consideration for their respective contracts, that those contracts were, procured by fraud, and that they were contrary to public policy. In addition to the facts above briefly recited, the testimony on the part of the defendants tended to show that the agents of the scheme, when the oats were sold to them, respectively, represented the Pennsylvania Seed Company, Limited, to be a duly-incorporated company, and a reliable and responsible institution, and that those representations were false and fraudulent; hut the evidence that such representations were made to the defendant Outwater was contradicted by the agent who was charged with making them.

Upon these proofs the learned judge at the circuit directed a verdict for both of the defendants. We think the defendants were not entitled to such a direction; but, on the contrary, that the plaintiff was entitled to a verdict in his favor against both of them. The proposition that the contracts in question were void, as against public policy, is negatived by the decision of this court in the case of Watson v. Blossom, 18 St Rep. 726; 4 N. Y. Supp. 489. The defense of want of consideration evidently fails as to both of the defendants. Outwater gave .the note for seed oats which he bought with a speculative intent, and Grossman indorsed the note in consideration of the surrender of his own obligation for the same amount. It is clear, we suppose, that Grossman could have no defense to the note on the ground of its invalidity for any cause, since, by his contract of indorsement, lie himself guaranteed its validity, as well as its payment, Erwin v. Downs, 15 N. Y. 576; Revisen v. Graves, 41 N. Y. 475. And the only ground of defense which remained to Outwater, the maker, was that the note was procured from him by fraudulent representations, viz: as to the corporate character and responsibility of the company which gave him the bond upon which lie relied. But the case is devoid of evidence to show that the plaintiff had any knowledge either that such representations were made to Outwater, or that they were false. He had bought his seed oats two years before of the same company, upon similar assurances, which had been entirely fulñlled.There seems to be no ground whatever, in the evidence before us, for the charge, rather freely made in the argument of counsel, that the plaintiff was engaged in promoting the swindle of the “seed-grain business.” On the contrary, he was, as Grossman and Outwater were, a purchaser of seed grain, for which he gave his note as they did, and, so far as appears, in the same reliance upon the representations and covenants of the seed-graincompany. We find no difference whatever in the legal or moral status of the three, in their relations to the scheme. All of them understood the mode of its operation. The defendant Outwater himself testifies that he knew that, in order that he should profit by the transaction, it must be repeated with some other person. He knew that Grossman had gone into the scheme the previous year, and that this year Grossman’s oats were sold to him, and that his note was to go to Grossman. He understood that, whereas he was a purchaser of “seed oats” this year, he was to be a seller next year, and his only query was “where the thing would stoj).” Unfortunately for his hopes, it stopped too soon for their realization. The “company” went out of business the winter after he bought his seed, and nobody came next year to sell-liis product at §15 a bushel. This was the risk that all three ran, and the only disadvantage to Outwater was in the time when he purchased. His defense to this action, on the record before us, fails because he has failed to show that the plaintiff had any knowledge of the particular fraud perpetrated upon him; and, so far as appears, he had the same knowledge of the general nature of the business when he " gave the note as the plaintiff had when he bought it. The plaintiff’s motion for a new trial must be granted.

So ordered, with costs to abide the event.

All concur.


author: Haight, J.

text:
    Town of Mt. Morris, Resp’t, v. John King, Individually and as Trustee, etc., App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1. Pleadings—Complaint—Demurrer.
    A demurrer to a complaint in equity will not be sustained on the ground that the plaintiff’s claim is stale.
    2. Contracts—Construction—Forfeiture .
    Forfeiture is not favored in the law, and the provisions upon which it is based must be strictly construed.
    3. Same.
    Construction of a forfeiture clause in a lease of a railroad.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      M C. Sprague, for app’lts; W A. Sutherland, for resp’t.
   Haight, J.

The demurrer is upon the grounds that there is a defect of parties plaintiff or defendants, and that the complaint does not state facts sufficient to constitute a cause of action. The complaint, among other things, alleges that the Avon, Geneseo & Mt. Monis Railroad Company was and is a railroad corporation duly created by and under the laws of this state for the purpose of constructing and operating a railroad from the town of Avon, in the county of Livingston, to a point in the town of Mt. Morris, in said county; that it had constructed its road, 'and had issued 2,250 shares of its capital stock, of the par value of $100 each; that the town of Mt. Morris had aided in such construction to the extent of $25,000, and had issued its bonds therefor, and had received in return therefor 250 shares of such capital stock; that on the 27th day of December, 1871, the Avon, Geneseo & Mt. Morris Railroad Company leased its railroad, together with all its rights, easements, powers, and privileges in connection therewith, and the appurtenances thereto, to the Erie Railway Company for and during the unexpired term of its charter, and in and by such lease the former company undertook with the latter, as a part consideration therefor, to cause to be transferred to the president of the latter company as trustee, for its use, the 250 shares of stock held by the plaintiff; that in pursuance of that agreement, and simultaneously therewith, the railroad commissioners of the plaintiff, holding such stock for the town, transferred the same to Jay Gould, as trustee for the latter company. It is alleged that this transfer was without consideration; that the New York, Lake Erie & Western Railroad Company has succeeded to the rights of the Erie Railway Company ; and that John King, as its president, now holds such stock in trust for it. The complaint demands judgment that the defendant, John King, individually and as trustee, be adjudged and decreed to execute an assignment of the certificate of stock to the plaintiff, and to surrender up the same, and that an accounting be had of the dividends received thereon, etc. The theory upon which this branch of the complaint is prosecuted is that the railroad commissioners of the town had no power to give away the stock of the railroad company owned by the town and held by them as its trustees, and that their act in so doing was ultra vires; that Jay Gould, in the taking and transfer of the stock from them, and those that have succeeded to his interest, are in law deemed to hold the same as trustees for the town. On behalf of the defendant it is claimed that, the transfer of the stock by the railroad commissioners being ultra vires, an action at law could at once have been maintained, either by the town or a taxpayer thereof, to recover the same back, or for its conversion; but that in neglecting to do so, and waiting until the Erie Railway Company had performed its covenants under the lease, among which was a provision that it should put the road into first-class repair, and operate the same, and resting upon its rights from December, 1871, until June, 1892, upwards of twenty years, a court of equity would not, at this late day, interfere with a contract that has so long been relied upon and executed by the parties; and in support of this contention our attention is called to the authorities bearing upon that subject. It is quite possible that upon the trial of the issues of fact a court of equity, in the exercise of the judgment and discretion vested in it, may sustain the appellant’s contention in this regard. But we are now reviewing the determination of a court of law upon an issue of law in which a purely legal proposition is presented, not involving the judgment and discretion of the court. While the court, upon a trial of the issues of fact, may find that the plaintiff has rested upon its rights for so many years, and that its claim has become so stale that it will refuse relief, still, upon a demurrer in which a question of law only is raised, it must sustain the complaint. It is further alleged in the complaint that the defendant company has neglected to keep the covenants of its lease, and that the plaintiff is now entitled to recover the stock by reason of such neglect. It was also alleged that the Erie & Genesee Valley Railroad connected with the Avon, Geneseo & Mt. Morris roacl; that its road had been leased to Lauren 0. Woodruff, and by him leased to the Erie Railway Company, and that by the terms of that lease the road was to be operated by the latter company, which was also to build a branch connecting it with its main line at Burns; that it failed to fulfill its covenant in that regard, and that in 1891 it also ceased to operate the Avon, Geneseo & Mt. Morris Railroad from the village of Mt. Morris to the town line, a distance of about two miles. The provision under which this claim is sought to be maintained is as follows: “ That the party of the first part (which is the Avon, Geneseo & Mount Morris Railroad Company) further agrees that, in consideration of the premises, and also in consideration of the covenants of the agreement between the party of the second part hereto (which is the Erie Railway Company) and Lauren C. Woodruff, as lessee of the Erie & Genesee Valley Railroad, it will, simultaneously with the execution of this agreement and lease, transfer’, or caused to be transferred and delivered, to the president of the Erie Railway Company, Jay Gould, as trustee, for the said party of the second part, 250 shares, of the par value of twenty-five thousand dollars ($25,000), of the capital stock of the said Avon, Geneseo & Mount Morris Railroad Company, now held by the town of Mount Morris, * * * which stock shall be held by the said trustee for the benefit of the party of the second part so long as the second party shall retain possession of said demised premises, and continue to perform the conditions of this agreement and lease; but in case of the forfeiture of this lease, and the repossession of the said demised premises by the pany of the first part, then, and it is hereby mutually agreed that in that case, the said capital stock of said Avon, Geneseo & Mount Morris Railroad Company held by said trustee shall become forfeited, and shall be retransferred to the original holders thereof.”

It will be observed that while the Woodruff lease of the Erie & Genesee Valley Railroad is referred to as a part of the consideration under which the town transferred the stock to Gould in trust for the Erie Railway Company, no provision is contained in the lease by which the town is given the right to recover back the stock because of a failure to carry out the provisions of the Woodruff lease. As we have seen, the Erie & Genesee Valley Railroad was a connecting line. The operation of it in connection with the Avon, Geneseo & Mt. Morris Railroad, giving the citizens of the town the benefit of communication with towns upon the line of the former as well as that of the latter road, and the extension of the former to a point upon the main line of the Erie Railway, which would afford another outlet to cities and towns in the west, might have operated as an inducement for the officers of the town to make the transfer in question. But the Erie & Genesee Valley Railroad lease to the Erie Railway Company was an independent contract. Tlie town of Mt. Morris was not a party thereto, and no agreeement for forfeiture is based upon a breach of that agreement.

We are thus brought to a consideration of the alleged breach of the Avon, Geneseo & Mt. Morris .lease in not operating the road to the town line beyond the village of Geneseo. The provision is that the stock transferred by the town to the trustee of the Erie Railway Company is to he held by tlie trustee “ so long as the second party shall retain possession of the said demised premises, and continue to perform the conditions of this agreement and lease.” If this provision stood alone, there might he some doubt in reference to its meaning, and an argument might he made in support of the claim that the trustee was not to retain the stock after the lessee ceased to perform tlie conditions of the lease, notwithstanding the first clause provides that the trustee shall retain possession of the stock so long as the lessee retains the possession of the leasehold premises. But this clause has to be read and construed in connection with that which follows, which is: “But in case of the forfeiture of this lease and the repossession of said demised premises by the party of the first part,_ then it is hereby mutually agreed that in that case the said capital stock of said Avon, Geneseo & Mt Morris Railroad Company held by said trustee shall become forfeited, and shall be retransferred to the original holders thereof.”

This is the clause of the-agreement under which a forfeiture is provided for. Forfeiture is not favored in the law, and the provisions upon which it is based must be strictly construed. Thus construing the provisions, there must be not only a forfeiture of the lease, but there must be a repossession of the demised premises by the Avon, Geneseo & Mt. Morris Company in order to entitle the town to recover back the stock. Beading these provisions together, it is quite evident that in preparing the lease the Erie Railway Company did not care to have a claim to recover back the stock made upon any of the trifling breaches of the> contract that might be made in many ways, such as the failure to keep the road or some particular part thereof in as high a state of repair as the officers of the town might think 'it should be, and limited the right to recover the stock to both an actual forfeiture of the lease and the repossession of the road by the lessor. It is therefore not apparent how a recovery could be had upon this theory, under the allegations of the complaint.

If the Avon, Geneseo & Mt. Morris Railroad Company’s lease has been forfeited, and it has taken repossession of the road, it cannot be interested in the determination of any question involved in this litigation, and we do not understand that it would be a necessary party. The interlocutory judgment appealed from should be affirmed, with costs, but with leave to the defendants to withdraw demurrer, and answer over within twenty days upon payment of the costs of the demurrer and of this appeal.

All concur.


text:
    Augustine Wright, App’lt, v. George W. Chase, Resp’t.

      (Supreme Court General Term, Fifth Department,

      Filed April 12, 1894,)

    1. Abatement and bevivok—Discretion.
    A motion to continue an action in county court in the name of the representative, is, in case of laches, addressed to the discretion of such court.
    S. Same.
    The general term has no power to review such discretion of the county court, and determine whether it has been properly exercised.
    Appeal from an order, denying a motion to continue the action in the name of the administratrix of the defendant.
    IF. B. Hooker, for app’lt; A. R. Moore, for resp’t.
   Dwight, P. J.

The motion was denied on- the ground of laches. . The action, which was a common-law action on contract, was commenced in September, 1888. The answer pleaded a denial and a counterclaim, and issue was finally joined by the ■ service of •a reply in November, 1888. It was noticed for trial by both parties for the term of the court held in the following February, and was on the calendar of that term, but went over by consent. From that time no step in the action was taken by either party until more than a year after the death of the defendant, which occurred in October, 1890; and in November of the same year his widow was appointed administratrix of his -estate. On the 5th day of November of the next year, 1891, the plaintiff gave notice of a motion to continue the action in the name of the administratrix, but that motion was allowed to go down, and no further step of any kind was taken in the action until May, 1893, when the motion was renewed, and the order made from which this appeal was taken. The opposing affidavit of the ■ administratrix show's ' that, as was to have been expected, .the defendant was the most important witness in his own behalf, both to meet the evidence which might be given to establish the claim on tiie part of the plaintiff, which was for unliquidated damages for the alleged breach of an alleged oral contract between the parties, as well as to establish the counterclaim alleged on his owm part; and in addition to the fact of the death of the defendant, more than two years after the action was commenced, the same affidavit showed that another important witness for the defense had died before the motion for a continuance of the action was renewed, and that if other witnesses were living; by whom any of the facts material to the defense could be established, they had become scattered, and the administratrix was ignorant of their whereabouts. On the other' hand, facts were stated in the moving affidavits which tended in some degree to excuse the apparent laches on the part of the plaintiff in hot bringing the action to trial during the lifetime of the defendant, and in not moving promptly for its continuance after his death. Upon all the facts thus appearing, the motion to continue ,the action was one addressed to the discretion of the county court. That such a discretion existed, notwithstanding the apparently mandatory language of the statute which provides for the continuance of an action in which the cause of action survives the death of a party (Code Civ. Proc. § 757), is not to be questioned, under the authority of such cases as Coit v. Campbell, 82 N. Y. 509; Lyon v. Park, 111 N. Y. 350; 19 St. Rep. 626, and Duffy v. Duffy, 117 N. Y. 647; 27 St. Rep. 703. So that, if the order had been made by a special term of this coufrt, we should have been called upon by this appeal to review the exercise of that discretion, and determine whether it has been properly exercised in the particular case. But such, we believe, is not the duty or privilege of this court in the case'of á discretion exercised by the county court. , So it was held in this court in •the case of Tucker V. Pfau, 70 Hun, 59; 53 St. Rep. 553, and such is the doctrine of the court of appeals in Wavel v. Wiles, 24 N. Y. 635, and Reilley v. D. & H. Canal Co., 102 N. Y. 383, 386; 2 St. Rep. 419. In the latter case the court, in an • opinion by Rapallo, J., says : “ The general rule is well settled that the decisions of one court, resting in discretion, are not reviewable in another, unless such review is specially authorized bylaw.” There is neither general nor special authority for such review in this case, and for that reason, if for no other, the order appealed from must be affirmed.

So ordered, without costs of this appeal to either party.

All concar.


author: Patterson, J.

text:
    Henry Moritz, Pl’ff, v. Joseph Sachs Kaliske et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed October, 1893.)

    Attachment—Enjoining removal.
    An attaching creditor may enjoin the removal of the attached property from the jurisdiction, of the court.
    Motion to continue, pendente lite, an injunction theretofore granted.

      R. Burnham Moffat, for pl’ff; B. Lewison and Peter B. Olney, for def’ts.
   Patterson, J.

In People ex rel. Cauffman v. Van Buren, 136 N. Y. 252; 49 St. Rep. 378, the court of appeals has settled in the affirmative the theretofore much debated and very doubtful question of the right of an attaching creditor to maintain a suit in aid of his attachment, and to enforce the lien thereof, where the debtor has fraudulently disposed of property. It is also held that in such a suit a plaintiff is not a mere creditor at large, but has a lien, and may enjoin the removal of property of the debtor from the jurisdiction of the court when danger of such removal is shown. The averments of the complaint in this action bring it directly within the principle of the decision referred to, and, on an examination of the affidavits submitted on this motion, I think sufficient is disclosed to require the continuance of the injunction pendente lite, and until a full and thorough investigation of the whole case may be had upon the trial. On the plaintiff giving an undertaking in an amount to be fixed on the settlement of the form of the order, the injunction will be continued until the hearing and decision of the cause.


author: Cullen, J.

text:
    United States Trust Company of New York, Pl’ff, v. Louis C. Schliep et al., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed November, 1893.)

    Mortgage—Foreclosure—Judgment—Amendment.
    A foreclosure judgment cannot, after sale thereunder, be amended by Inserting deficiency provision.
    Action by the United States Trust Company of New York, as substituted trustee, against Louis C. Schliep and others, to foreclose a mortgage made by defendant Schliep on premises in Brooklyn. The^ complaint demanded a deficiency judgment against defendant Schliep. Judgment was taken by default after defendant had appeared in the action, but no provision was made therein Sor a, deficiency. • On the sale of the premises under the judgment of foreclosure, there was a deficiency amounting to $435.34.' Plaintiff now moves to amend the judgment by inserting therein á deficiency clause.

      Edward W. Sheldon, for pl’ff.
   Cullen, J.

I do not think this application should be granted after sale.

Motion denied.


author: McAdam, J.

text:
    Isaac Cahn, Pl’ff, v. Mary S. Hewsey, Def’t.

      (New York Superior Court, Special Term,

      Filed May, 1894.)

    1. Fixtures—Canvas paintings or tapestries.
    Canvas paintings or tapestries, annexed to a building in such a manner as to indicate that they are to be of a permanent character, are fixtures and covered by a real estate mortgage.
    2. Same—Injunction—Waste.
    In such case, their removal by the mortgagor will constitute waste; and, if the injury will be serious and the security inadequate after such removal, an action, in favor of the mortgagee, for an injunction to prevent waste will lie.
    Motion by plaintiff to continue temporary injunction granted in an action brought by a mortgagee against the mortgagor to restrain the commission of waste, impairing the value of the mortgage security.

      Nathan, Sondheim & Sondheim, for motion ; Pavery & Zaring, opposed.
   McAdam, J.

On February 28, 1894, plaintiff conveyed to the defendant a lot and private residence, known as No. 1045 Fifth avenue, in the city of New York, for the consideration of $80,000, s.ubject to a first mortgage of $40,000, then a lien on the premises, and the balance of the purchase money was paid by the execution of a consideration money mortgage on said premises of $20,000, and the execution of another mortgage on Brooklyn property for a like amount.

At the time of the said. conveyance and delivery of the mortgage there were contained in the premises five certain ceilings, consisting of hand painted canvas, firmly cemented and affixed to the building. The ceilings were painted by one Mr. Dupounais, who has since died. They were costly and handsome, and enhanced the value of the premises.

The question involved is, whether this painted canvas so affixed forms part of the realty, or whether it is personalty, and not covered by the mortgage. The defendant, regarding the painted canvas as personalty, proposes to detach it from the ceiling, and has advertised it for sale at auction with her household effects.

' ] The defendant calls the painted canvas tapestries. The subjects represented thereon are such as “ Arts and Science,” “Music,” “Spring,” “ Winter,” etc. Defendant claims that they are ornamental annexations, affixed for the purpose of rendering the occupation of the house more convenient or its appearance more pleasing ; that' they are articles of personal comfort or pleasure, occupying the same relation to the ceilings that pictures and panels do to the walls, and rugs and carpets do to the floor.

Plaintiff, on the other hand, insists that the canvas paintings were affixed to the ceilings so as to become part and parcel of the realty, not capable of being removed except by defacing the ceilings and injuring the realty.

At the time of the conveyance by the plaintiff to the defendant, a schedule of the personalty in the house which was passed by the deed was made, and forms part of the contract of sale. In it were specified with great particularity all the articles of personalty which were to go to the defendant, and the canvas paintings or tapestries do not appear therein. It would, therefore, seem that if the canvas paintings or tapestries are personalty, and not part of the realty, they did not pass by the deed to the defendant, and the title thereto is still in the plaintiff, and the defendant has no authority whatever to dispose of them. Regarding them, however, as realty, they pass by the deed and are covered by the mortgage. This circumstance is material, as showing that the parties themselves regarded the canvas paintings or tapestries as realty, and this intention should be respected. If title passed by the deed to the defendant, it is clear that they are embraced in the mortgage which was given back for part of the consideration money. 8 Atn. & Eng. Enc. of Law, 50. For the same rule respecting fixtures prevails between mortgagor and mortgaged as between grantor and grantee. Snedeker v. Warring, 12 N. Y. 170; Laflin v. Griffiths, 35 Barb. 58; Robinson v. Preswick, 3 Ed. Ch. 247.

Considering them, therefore, as embraced in the mortgage, the mortgagee is entitled to maintain the present action for injunction to prevent waste. 3 Waits’ Act, and Def. 699; Thomas on Morts. 52 ; Jones on Morts. sec. 684; Ensign v. Colburn, 11 Paige, 503. And this remedy may be invoked even before the mortgage is due. Salmon v. Clagett, 3 Bland’s Ch. 125.

The inquiry is, whether there is damage done which injures the reversion. This injury may be immediate, though the enjoyment of the reversion is postponed. Agate v. Lowenbein, 57 N. Y. at p. 614.

Such an injunction was granted by Chancellor Kent in Brady v. Waldron, 2 Johns. Ch. 148. There was -no suit pending for a foreclosure. The Chancellor said: “An injunction lies against a mortgagor in possession to stay waste. The court will not suffer him to prejudice the security.”

The same rule was followed by Vice Chancellor Edwards in Robinson v. Preswick, supra, and the authority of these cases lias never been questioned.

In this connection the distinction between an equity suit for an injunction and the strict “action for waste’’ at common law must be observed.

As the removal of the canvas paintings or tapestries would injure the freehold, their removal would constitute waste, and it appearing that the injury would be a serious one, and that the security of the plaintiff maybe inadequate after such removal, injunction will certainly lia

Property valued at $80,000 and mortgaged for 60,000 may be considered heavily incumbered; for no prudent capitalist or institution in the habit of loaning, money would-be apt to lend as much as 60,000 on such property, particularly if it was known that the canvas paintings and tapestries were to be removed, and the ceilings left in the disfigured state which such removal would necessarily cause.

The canvas, paintings or tapestries having been annexed in a manner which indicates that they were to be of, a permanent character, are evidently not movables nor personalty within the meaning of the law; indeed, they answer every one of the tests laid down as a means of distinguishing fixtures from movables. Voorhees v. McGinnis, 48 N. Y. 278; and see 8 Am. and Eng. Encl. of L. 43.

In.a carefully-considered English case, D'Enycourt v. Gregory, L. R., 3 Eq. 382, it appeared that a life tenant of premises left a will bequeathing various articles that he had, placed in the house, and the question arose as to whether certain articles were fixtures belonging to the house, or movables passing under the will. One of these things wab a portráit in oil, painted on canvas, which was placed on stretchers which were inserted in the brickwork of the wall of the room, and mouldings were then placed around so as to make a panel picture. There were also tapestries, each on wooden stretchers attached by screws and nails to blocks or plugs of wood inserted in the brick wall, in a similar manner as in the case of the portrait. Painted wood mouldings were then placed around the face of the tapestry, and the nails or screws were stopped in and painted over. It was proved that the tapestries could be very easily removed and the mouldings replaced without material damage to the walls'or paneling of the room. It was also shown that the room had enriched panels in the style of Louis XIY, and that if the panels from which the tapestries were removed were ornamented in the same style, it would make a perfectly complete apartment, so far as the walls were concerned.

Lord Romilly, Master of the Rolls, decided that the tapestries and the portrait were both fixtures belonging to the realty, giving his opinion as follows :

“ The first of these which I think proper to mention is the tapestry which was put up by the testator. It is clear that the testator could not have disposed of paper affixed to the walls, nor, if he had used silk instead of paper for lining the walls, could he, in my opinion, have removed the silk. So, if the testator had covered the walls of the house with paneling, he could not, in my opinion, have removed the paneling and left the walls bare. If he caused them to be painted in fresco he could not have removed the paintings, and I think if he had caused the panels to be painted he could not have removed the painting any more than if he had put in panels already painted and fixed them close to the, wall. In all these cases I think they must be considered to be fixtures, not removable by the tenant for life. Although the mode of fastening was not as complete as if the tapestries were actually affixed to and inseparable from the walls themselves, which, I apprehend, is never done, still I think they must be treated as part -of the wall itself, and by so placing them the testator deprived himself of the power of removing them. In the same class with these tapestries is the portrait of Lady Williams. In all these eases, whether it is the paper, or the satin, or the panels, or the tapestry, they are all part of the wall itself, and they are fixtures not to be removed.”

It follows that the motion to continue the injunction must be .granted.


author: Bischoff, J.

text:
    Bernard Cahn et al., Pl’ffs, v. Hoffman House, Def't.

      (New York Common Pleas, Equity Term,

      Filed November, 1893.)

    Trade mark—Exclusive appropriation.
    Words in ordinary use, or combinations of such words, which are descriptive only of a particular product in the respects mentioned, are incapable of exclusive appropriation for the purposes of a trade-mark.
    Action to enjoin an alleged infringement of a trade-mark.

      Thomas B. Odell, for pl’ffs; John Delahunty, for def’t.
   Bischoff, J.

In Cahn v. Gottschalk, 16 St. Rep. 818; 2 N. Y. Supp. 13, it was held that plaintiff’s use of a label inscribed “ Maryland Club Rye Whisky ” constituted a trade-mark, and that the use by another of a label inscribed “ Maryland Jockey Club Rye Whisky ” was an infringement of the former. From the reported opinion, however, in the case referred to, it appears that the decision was predicated of the fact that the inscription of plaintiff’s label was an arbitrary designation of a particular product sold or manufactured by them. Selchow v. Baker, 93 N. Y. 59. In the case at bar it appears unchallenged that the word “ Club,” when applied to various kinds of wines and liquors, has, by usage in the wine and liquor trade, acquired a special and well-understood meaning, and indicates that the wine or liquor so marked is wine or liquor, as the case may be, of superior grade, or quality. For that reason I am of the opinion that the two cases are distinguishable. Observing the meaning of the word “ Club ” in the wine and liquor trade, it seems clear and indisputable that the inscription of the plaintiffs’ label consists wholly of a combination of words in ordinary use as descriptive adjectives, “ Maryland ” denoting geographical origin of the product, “ Club ” its quality, and “ Rye Whisky ” its kind. It is well-settled law that words in ordinary use, or combinations of such words, which are descriptive only of a particular product in the respects mentioned, are incapable of exclusive appropriation for the purposes of a trade-mark. Caswell v. Davis, 58 N. Y. 223 ; Keasbey v. Chemical Works, 41 St. Rep. 437; 16 N. Y. Supp. 318; Schendel v. Silver, 63 Hun, 330 ; 44 St. Rep. 401; Canal Co. v. Clark, 13 Wall. 311; Manufacturing Co. v. Trainer, 101 U. S. 51; Goodyear's India Rubber Glove Manufacturing Co. v. Goodyear Rubber Co., 128 U. S. 598; 9 Sup. Ct. 166. Nor can this action'be maintained on the ground that defendant’s label is intended or tends to allure the public into a belief that the product or compound bearing it is the one sold or manufactured by plaintiffs. Defendant’s label is inscribed 1‘ Maryland Rye,” and underneath, in smaller but equally conspicuous print, “Club Whisky.” In that respect, however, it resembles plaintiffs’ label only in that it is descriptive of geographical origin, quality, and kind. In design it is so strikingly dissimilar that no one intending to purchase plaintiffs’ product can, by the label merely, .he deceived into a belief that he is receiving according to his intention. There should be judgment for defendant,, witli costs.

Judgment for defendant, with costs.


author: Bisohoff, J.

text:
    John T. Fitzpatrick, Pl’ff, v. John Burchill et al., Def’ts.

      (New York Common Pleas, Equity Term,

      Filed November, 1893.)

    1 Husband and wife—Conveyances.
    A deed by a husband to his wife is valid in equity, unless in violation of the rights of creditors.
    2. Same.
    Where, in such case, a deed was executed before the enactment of chap. 537 of 1887, while the husband was not indebted and without intent to defraud, a subsequent deed by him to her vests the legal title in her as against his creditors, whose claims accrued between tlie delivery of the ñrst and second deed.
    Action to set aside a deed made by husband to wife, as in fraud of creditors.

      James Kearney, for pl’ff; John Hardy, for def’ts.
   Bisohoff, J.

The real property affected by this litigation appears to have been conveyed by the defendant, John Burchill, to his wife, Mary Burchill, by two separate conveyances—the first dated July 2d, 1886, and recorded January 18th, 1887 ; the second, dated July 17th, 1891, and recorded July 20th, 1891. Subsequent to the date and record of the first conveyance, John Burchill became indebted to plaintiff’s assignor, and for this indebtedness judgment was recovered and docketed against the former by the latter after tlie date and record of the second conveyance. Plaintiff assumed the first conveyance to he ineffectual because it was made by the husband to liis wife without the intervention of a third party, and alleged that the second conveyance, which was made after the passage of tho act of the legislature (Laws 1887, c. 587) declaring conveyances thereafter made by a husband direct to his wife, or vice versa, to be valid, was without consideration, and fraudulent, as against him and his assignor.

There is, in my opinion, abundant evidence to sustain the claim of the defendant Mary Burchill that at the time of the conveyance of tlie premises by Gustav Wolfors and Antonie, his wife, to John Burchill; her husband, in April, 1886, she advanced the purchase money from her own means, and that John Burchill’s conveyance to Mary Burchill, in December, 1886, was made in discharge of the former's obligation to reimburse the latter; so that the last mentioned conveyance cannot be said to have been made without consideration. The second conveyance by John Burchill to his wife appears to have been made under an apprehension that the first was void because it'was made prior to the act of the legislature hereinbefore referred to, and would not be cognizable in law-or in equity. Had this apprehension been well grounded, it seems clear that John Burchill’s obligation to repay his wife the sum advanced by her would have continued, and his indebtedness thus would have furnished adequate consideration for the second conveyance. Savage v. O'Neil, 44 N. Y., 298; Jaycox v. Caldwell, 51 N. Y., 395. But, for the purposes of this action, we may assume that no actual or pecuniary consideration passed from Mary Burchill to John Bur-chill at any time; and we may yet reach the conclusion that the latter’s conveyances are, and each of them is, operative and incontestable. It is conceded that tbe indebtedness for which plaintiff’s assignor recovered judgment against defendant John Burchill did not arise until after the latter’s first conveyance to his wife. It was therefore, at the time, competent for John Burchill to make a gift of the promises; and as the case is destitute of all evidence tending to show that, at the time of the first conveyance, the parties thereto contemplated tlie contraction of any debt or debts by John Burchill to plaintiff’s assignor, or others, the gift of the premises would not be opea to attack because of a fraudulent design on the part of the grantor and grantee. Assuming, next, that John Burchill’s first conveyance to Mary Burchill was operative as a gift, then the second conveyance to her did not divest him of anything more than the nominal legal title; and Mary Burchill cannot be truly said to have acquired, by means of the second conveyance, anything of which she was not already the owner, unless it be tbe nominal or legal title thereto. Logically, therefore, plaintiff’s success in this action is dependent upon the invalidity of John Burchill’s first conveyance to his wife. This conveyance, however, plaintiff only assumed to be void, as matter of law. It is not otherwise attacked, and the only conveyance which the complaint in this action seeks to have annulled as fraudulent towards creditors is the second. It is true, ns plaintiff’s counsel observes, that a conveyance from husband to wife, or wife to husband, was, prior to the act of the legislature hereinbefore referred to, void in law, and ineffectual to divest the grantor of the legal title. This was the inevitable result of the legal unity of husband and wife. To render any conveyance valid, there must be a grantor and a grantee. The legal unity of husband and wife destroyed their capacity to contract with each other, and a conveyance between them, therefore, lacked parties,—an essential element in every valid contract. In equity, however, the duality of husband and wife has been recognized from a very early period; and conveyances, from one to the other, without the intervention of a third party, have been held valid anil effectual, in the absence of elements which would have rendered their enforcement unconscionable, and converted them into means of fraud and iniquity.

Berkowitz v. Brown, 3 Misc. Rep. 1; 53 St. Rep. 625, cited by plaintiff's counsel in support of bis proposition that John Burch ill’s first conveyance to his wife was void, will, upon careful examination, prove to be authority directly to the contrary. That case involved the question whether or not a conveyance by the wife directly to her husband was valid ; and the conclusion reached by me was that it was void absolutely in law, but presumptively, only, in equity. The presumption against its validity arose from the confidential relation of husband and wife, and the supposed influence of the husband, as the dominant party, upon the conduct of his wife. But 1 distinctly alluded to it that tins presumption could be overcome by proof that the wife received adequate consideration; that the conveyance inured to her advantage, and that it was not exacted of her by threats, duress, fraud, or other unconscionable means; and that upon such proof the conveyance would be upheld. If the husband is the grantor, and the wife the grantee, and the conveyance imposes no burdens upon her, the presumption referred to does not arise; and in such a case it will be assumed that the conveyance was intended as a provision for the wife’s support, or as a gift prompted by tenderness and natural affection. A wife lias at all times been the object of extreme solicitude of courts of equity respecting the possession and enjoyment of property; and gifts to her from her husband, whether real property or chattels, have ever been sanctioned by those courts whenever the rights of others did not intervene to render those gifts unconscionable. Shepard v. Shepard, 7 Johns. Ch. 56; Winans v. Peebles, 32 N. Y. 423; Hunt v. Johnson, 44 N. Y. 27, 36; Dean v. Met. El. Railroad Co., 119 N. Y. 547; 30 St. Rep. 81; Garlick v. Strong, 3 Paige, 440; Moore v. Page, 111 U. S. 117 ; 4 Sup. Ct. 388 ; Corcoran v. Corcoran, 119. Ind. 138; Turner v. Shaw, 96 Mo. 22; Beach, Mod. Eq. Jur. § 181 et seq. Regarding the first conveyance from the defendant John Burchill to Mary Burcliill, his wife, as having effectually divested him of the equitable and beneficial ownership of the premises, and as having transferred it to her, the subsequent conveyance of a naked legal title to the same property, though it may have been without substantial consideration, can in no sense be deemed fraudulent, as against creditors of the grantor.

Judgment for defendants, with costs.


author: Bookstaver, J.

text:
    Joseph McGuire, Pl'ff, v. Lyman G. Bloomingdale et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed May, 1894.)

    1. Nuisance—Injunction.
    To warrant a preliminary injunction in nuisance cases, it must clearly appear that the thing sought to he prohibited is a nuisance, and of a character to do the plaintiff irreparable injury, if not at once prevented.

      %. Same.
    Where such injunction will give the same relief which is expected to he obtained by the judgment, it should he granted with great caution and ‘ only when required by imperative necessity.

      3. Same.
    As against ail act not in itself a nuisance, it should not be granted until the question whether it is, or is not, a nuisance, has been determined in a preparatory issue.
    4. Same—Noise.
    Whether noise alone constitutes a nuisance, depends upon circumstances.
    5. SAME.
    To constitute a nuisance, the noise must be unusual, ill-timed or deafening.
    Motion for injunction pendente lite.

      William Hildreth Held, for the motion; Otto Horwitz, opposed,
   Bookstaver, J.

The plaintiff seeks to obtain a preliminary injunction pending this action, which shall restrain and enjoin the defendants from running the engines, machinery and electric light plant in their premises; also, from running the pneumatic blower used for the conveying of cash receptacles in tubes to and from the rooms and counters in defendants’ place of business, and also from loading and unloading goods in front of plaintiff’s premises, and also from allowing their employes to stand in front of plaintiff’s premises.

From the papers it appears that the defendants are dry goods merchants, occupying a large building on the corner Third avenue and Fifty-ninth streets, covering the entire front on Third avenue, and six or eight houses on Sixtieth street, down to the plaintiff’s premises. Id also appears that the machinery, the runningof which the plaintiff seeks to enjoin, is necessary for the proper lighting and heating of their premises. The dynamos complained of are shown by defendant’s affidavits to be noiseless, and do not cause vibration of the buildings in which they are used, and that the pneumatic blower creates but little noise. The defendants also deny that they load or unload their wagons in front of the plaintiff’s premises, or that their employes congregate in front of the same. They show, on the contrary, that all goods are delivered on Fifty-ninth street and not on Sixtieth street.

It cannot be doubted that a court of equity has jurisdiction to' interfere by injunction to prevent the erection or maintenance of a nuisance which will produce a serious or irreparable damage, but in all such cases it must clearly appear that the thing sought to be prohibited is a nuisance, and of a character to do the plaintiff irreparable injury if not at once prevented. If this is not dime the court will not interfere. The Mohawk Bridge Co., v. The Utica & Schenectady R. R. Co., 6 Paige, 555 ; Hudson & D. Canal Co v. N. Y. & Erie R'y Co., 9 Paige, 322.

While the preliminary injunctions which only prevent the defendant from doing an act which would render the final judgment ineffectual are freely granted, those which in effect determine the litigation, and give the same relief which it is expected to obtain by the judgment, should be granted with great caution, and only when required by imperative necessity. Bronk v. Riley, 50 Hun, 489 ; 20 St. Rep. 401; Ives v. Smith, 19 St. Rep. 556 ; 3 N. Y. Supp. 645 ; 12 Abb. N. S. 410 ; Young v. Campbell, 75 N.Y. 521 ; Electric Power Storage Co. v. Whiting, 17 Wk. Dig. 263.

And again, regal'd should be had to the nature and extent of the injury which the plaintiff would suffer if the injunction should be withheld, as well as to the consequences to the defendant of the injunction should it be granted pendente lite. Bruce v. D. & H. Canal Co., 19 Barb. 391.

In the latter case the' court says: It is not every case, even of a clear violation of the plaintiff’s right, that entitles him to an injunction to restrain such violation.” Against an act, which is not in itself necessarily a nuisance, the injunction should not be granted until the question whether it is a nuisance or not has been determined in a preparatory issue. Mapleson v. Del Puente, 13 Abb. N. C. 144.

Under all the facts in this case, I do not think the noise, if any, or the vibration are sufficient to constitute a nuisance. Whether noise alone constitutes a nuisance depends upon circumstances. Trifling or occasional noises, dependent upon the ordinary use of property or in pursuance of an ordinary trade or calling, do not ordinarily constitute a nuisance, although those in the neighborhood are disturbed. The quality of character of the noise may be an important element in determining the question of nuisance or no nuisance. The fact that certain persons annoyed are super-sensitive is not to be taken into account, the average susceptibility being the test. The matter of locality has much to do with whether it is a nuisance or not. In the case under consideration, the plaintiff’s premises are within a few doors of Third avenue, where the elevated railroad and cable railroad are in constant operation, and it is a notoriously busy thoroughfare ; and the same is true of Fifty-ninth and Sixtieth streets, In fact, it was claimed on the argument that the lower portion of the plaintiff’s premises was itself used for business purposes. One would not choose such a place for quiet or peaceful enjoyment. One dwelling in the midst of the crowded commercial centre cannot have or claim the same quiet and freedom from noise or jarring that, he could in a quiet country district. Every one taking up his abode in the city must encounter some of the inconveniences and annoyances incident to such communities. As was said by Lord Westbury in Rippling v. St. Helen's Smelting Co., 116 E. C. L. R. 608 : “ If a man live in a town, of necessity he must submit himself to the consequences of the operation of trade which may be carried on in his immediate neighborhood, which are actually necessary to trade and commerce, also for the enjoyment of property and for the benefits of the inhabitants of the town. If a man lives in a street where there are numerous shops, and a shop is opened next door to him and is carried on in a reasonable and fair way, he has no ground for complaint because to himself there may arise much discomfort from the trade carried on in that shop.”

Hence it is said the production of mere inconvenience resulting from the exercise of trade will not be restrained. Wood on Nuisances, 175, 1175.

In the Case of Huckestine App., 70 Pa. St. 102, it was held that a, court equity will not restrain the exercise of a trade producing a smoke and injurious vapor where there are similar establishments in the same locality, and I think the same is true of noise.

A party may rightfully and lawfully prosecute a lawful business upon premises adjoining his neighbor, without interference from his neighbor, unless the mode of conducting this business lias been, or threatens to he, such as to materially injure the plaintiff's property or to interfere with the comfortable existence of such of their tenants as are reasonable people, able and willing to enjoy life “subject to the inconvenience necessarily resulting from the reasonable use by a neighbor of bis own land.” “ It is essential that noise to constitute a nuisance must be unusual, ill-timed or deafening.”

The noise produced by the machinery of the defendants in the case under consideration is not, I think, unusual. It is such as is ordinarily incidental to the operation of similar machinery used in the conduct of like business in other parts of the city. So it has been recently held in this court that a blacksmith’s forge will not be interfered with because it is not pleasant for the neighbors. Smith v. Ingersoll, Sergeant Rockdrill Co., and cases there cited; opinion by Judge Bischoff at equity term, filed February 2, 1894. And the game was held in Doellner v. Tynan, 38 How. Pr. 182.

On the other hand, it appears from the papers that the defendants would he put to much expense and great inconvenience if they were prohibited from using the pneumatic delivery. It would almost stop trade in the store for a considerable period of time, and it is doubtful whether anything could be devised which would be less annoying to the plaintiff than the system now adopted.

For all these reasons, I think the injunction should be refused at- present, and only granted if, after a full hearing of both sides upon the trial of the merits, it should appear that the noise complained of and the vibration is really caused by the machinery, and is detrimental to the proper use of the plaintiff's premises.


author: Dykman, J.

text:
    Charles W. Banham, Resp’t, v. Mary A. Roberts, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Mechanic’s lien—Payment in advance.
    Payments made in advance of the terms of the contract cannot operate to the prejudice of the lienors.
    Appeal from a judgment in favor of plaintiff and of some of the defendants.

      W. H. 11. Ely, for app’lt; ’ Purdy é Squire, for resp’t Banham; Yale & Davison, for resp’ts Odell.
   Dykman, J.

This is an action for the foreclosure of a mechanic’s lien. It was tried before a referee to hear and determine, and he decided in favor of both the claimants; one of the defendants being a lienor, or holder of a lien. The owner has appealed from the order confirming the referee’s report, and also from the judgment entered thereon. The plaintiff filed two notices of lien upon the property, one of which he assigned to the defendants the Odells, and, upon the other commenced this action. The Odells and Turner, the original contractor, were brought in as defendants after the commencement of the action. It seems the owner had paid a sum equal to the contract price for the building before the notices of liens were filed, but it also appears that the payments under the contract were anticipated ; and, by the provisions of the act under which this action is prosecuted, payments made in advance of the terms of the contract cannot operate to the prejudice of the lienors. Laws 1885, c. 348, § 2 ; Cheney v. Troy H. Association, 65 N. Y. 282; Post v. Campbell, 83 N. Y. 282. If the owner shall be obliged to pay beyond the contract price in this case, such obligation is the result of her indiscretion in making payments in advance of the terms of the contract. It is claimed by the appellant that some of the work is not the subject of alien, under the provisions of the mechanic’s lien law, but we think it all falls within the term “appurtenances.”

Much complaint is made respecting the well, but the evidence discloses no abuse or overcharge. Rock was struck at the depth of 7 feet, and at 18 feet water was reached. After that the well was sunk deeper, to make a reservoir; and, as the powerful explosives employed tore out a space unnecessarily large, it was decided to build it up with brick from bottom to top.. That was done, and rubble masonry filled in back of the brick. There was no overcharge, and the claim under both liens was meritorious.

The record discloses no error, and the judgment and order should be affirmed, with costs.

All concur.


text:
    Thomas Campion, Resp’t, v. S. Webber Parker, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Appeal—Reversal.
    It is not sufficient to justify a reversal that the appellate court would, have found the facts differently.
    Appeal from a judgment in favor of plaintiff.

      F. W. Leonard {Wilson Brown, Jr., of counsel), for app’lf; John J. Crennan, for resp’t.
   Dykman, J.

This action was originally commenced in a court of a justice of the peace, for work, labor and services performed by the plaintiff for the defendant. The cause was there tried before a jury, and the plaintiff obtained a verdict for $159. Upon appeal to the county court there was a new trial before the jury, and a verdict for $159 again. Now the defendant has appealed from the judgment to this court. All the questions involved are questions of fact, "and two juries have found them substantially alike. If the testimony of- the plaintiff is taken for the true facts, the judgment is supported. The only persons who could furnish the facts were the plaintiff and the defendant, and- the testimony of both went tó the jury. It is not sufficient-to justify a reversal that we would have found the facts differently. The jury is ever the absolute arbiter of the facts in cases like this, and the appellate tribunal is powerless.

The judgment should be affirmed, with costs.


text:
    Maria L. Davis, as Administrator, etc., Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Hegligence — Master and servant.
    Where coal bins are permitted to become unsafe and dangerous by reason of insufficient inspection and reparation, it constitutes carelessness sufficient to impose liability upon the master for an injury resulting to one of bis servants from that cause.
    Appeal from a judgment entered on a verdict In favor of plaintiff.

      Lewis E. Carr, for app’lt; Frank Gomesky, for resp’t.
   Dykman, J.

This is an action for the recovery of damages for causing the death of plaintiff’s intestate, who was her son. The deceased was in the employ of the defendant, as a coal shoveler, at Pierrnont, in Rockland county. The defendant was in possession of a long dock, extending into the Hudson river, which was used for storing coal in very large quantities. There is a railroad track running the entire length of the dock, and there is a series of bins on each side of the track. For the purpose of separating the different grades of coal, the bins are divided by partitions which run crosswise of the dock. In the summer of 1891 one of those bins was filled with stove coal to the top, which was about 12 feet high, and then the coal was piled, on a slant of about 45 degrees, to a height of 35- or 40 feet. The adjoining bin was empty. About that time there was an explosion of dynamite upon the Hudson River Railroad, about opposite the dock, which shook the bins, and. caused the boxes or cribs forming this bin to bulge out. Braces were placed on the north side of the bin at that time. Thereafter, the vacant bin was partly filled with chestnut coal, and so remained until the latter part of November, 1891, when the defendant commenced to remove the coal therefrom. For that porpose a portable railroad track was laid from the bin to the top of a trestle which extended along the south of it. The coal was loaded into a small car. drawn up the track to the top of the trestle, and then dumped into a chute which conveyed it into a vessel lying in the river. On the 27th day of November, 1891, the plaintiff’s intestate and some others were engaged in shoveling coal into one of those cars. They were but a few feet from the partition, when a portion of it suddenly gave way, and fell upon him, and killed him. The jury rendered a verdict of $5,000 in favor of the plaintiff, and from the judgment entered upon that verdict, and from the order denying a motion for a new trial upon the minutes of the court the defendant has appealed.

There is no claim of any contributory negligence on the part of the deceased, and the sole question involved in the appeal is whether the testimony showed such a want of care on»the part of the servants of the company as will sustain the verdict. There was some testimony to show that the bin was not constructed originally by the defendant; but that question is not material, inasmuch as the defendant adopted it, and used it, and was therefore under obligation to use ordinary care and caution, at least, in maintaining it in a safe condition, so far as its servants were concerned. If, therefore, the structure became unsafe and dangerous by reason of insufficient inspection and reparation, that would be carelessness which might impose liability upon the defendant for an injury resulting to one of its servants from that cause, We think the evidence convicts the defendant of negligence in that regard. • The structure was weakened by the concussion caused by the explosion across the river, and that fact was known to the foreman of the defendant who braced the bin where it bulged. Whether more bracing was not required was a question which the jury might well decide against the defendant. The foreman was unable to say that he even examined the structure on the south of the place where he placed the braces. Again, it was a very serious question, for the jury to determine, whether the manner of removal of the coal adopted by the foreman was not erroneous and careless. The great bulk of the coal was removed from one side of the partition, while there was an enormous bank of coal, 85 or 40 feet high, on the other side, pushing against the partition, with no counteracting pressure -from the opposite side. The partition was thus left to sustain, unaided, the very great weight which came against it. It requires no argument to show that such a method of proceeding submitted the shovelers to an unnecessary danger. While the cribs were full, they supported each other, and ordinary care and caution would not justify the destruction of such support, beyond what was actually necessary. The case of Rigdon v. Allegany Lumber Co., 37 St. Rep. 514; 13 N. Y. Supp. 871; affirmed in 131 N. Y. 668; 43 St. Rep. 964, is an authority in favor of the plaintiff in this action. The foregoing views are based upon the rule of law which requires a master to be careful to provide a safe place for his servants while in the discharge of their duties, and authorizes the servants to assume that their masters have performed their duties in that regard. Here we have proof of an occurrence which would not happen in the ordinary course of events, and sufficient to raise a presumption of negligence; and the defendant failed to sustain the burden thus cast upon it, to relieve itself from such presumption. There was an exception to the charge of the judge, which presents no error. The judgment and order 'should be affirmed, with costs.


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    Supreme Court — General Term — First Department.
    Filed March 16, 1894.
    Emil Oelbermann et al., App’lts, v. The New York and Northern Railway Company et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements on opinion of the court below.


author: Per Curiam.

text:
    Maud E. S. Depierris, App’lt, v. Henry B. Slavin et al., Resp’ts.
   Per Curiam.

We think that there are subjects of examination pertinent to the cause of action alleged which do not necessarily tend to establish the commission of any criminal offense upon tlie part of the defendants, and for that reason, there being no other question submitted to us, the order should be affirmed. Davies v. Fish, 35 Hun, 430. The order must be affirmed, with $10 costs and disbursements.


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    Filed April 13, 1894.
    The People, Pl’ff, v. St. Nicholas Bank, Def’t. Nathan T. Beers, Resp’t. Hugh J. Grant, as Receiver, etc., App’lt.
    Appeal from an order directing the receiver to pay to thy petitioner a certain sum.
   Per Curiam.

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Lathrop), 58 St. Rep. 712, the order appealed from, in so far as it directed the receiver to pay over moneys, should he reversed, and m other respects affirmed, with costs.


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    The People, Pl’ff, v. St. Nicholas Bank, Def’t. Julius A. Kohn, Resp’t. Hugh J. Grant, as Receiver, etc., App’lt.
    Appeal from an order directing the receives to pay to the petitioner a certain sum.
   Per Curiam.

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Lathrop), 58 St. Rep. 712, the order appealed from, in so far as it directed the receiver to pay to the petitioner the sum of §9,384,38 and interest, and in so far as it granted leave to renew any application, should •be reversed, with costs, and the motion denied, with costs.


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    The People, Pl’ff, v. St. Nicholas Bank. Def’t. Thomas B. Kerr et al., Resp’ts. Hugh J. Grant, as Receiver, etc., App'lt.
    Appeal from an order directing the receiver to pay to the petitioners á certain sum.
   Per Curiam.

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Lathrop), 58 St. Rep. 712, the order appealed from should be reversed, and the application denied, with costs.


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    The People, Pl’ff, v. St. Nicholas Bank, Def’t. Charles E. Quincy et al., Resp’ts. Hugh J. Grant, as Receiver, etc., App’lt.
    Appeal from an order diiecting the receiver to pay to the petitioners a certain sum.
   Per Curiam.

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Lathrop). 58 St. Rep. 712, the order appealed fróm, should be reversed, and the application denied, with costs.


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    The People, Pl’ff, v. St. Nicholas Bank, Def’t. Edward C. Homans et al., Resp’ts. Hugh J. Grant, Receiver, etc., App’lt.
    Appeal from an order directing the receiver to pay to the petitioners a cer» tain sum.
   Per Curiam.

In accordance with the views expressed in the case of People v. St. Nicholas Bank (In re Lathrop, 58 St. Rep, 712, the order appealed from, should be reversed, and the application denied, with costs.


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    J. Edward Ackley et al., Pl’ffs, v. Reading Trust Company, Def't.
   No opinion. Exceptions overruled, and judgment ordered on verdict, with costs.


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    George Bliss et al., App’lts, a. Charles B. Fosdick et al., Resp’ts.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    In the Matter of Alexander Bremer.
   No opinion. Referee ordered to take proof of the facts, and report with his-opinion thereon,


text:
    J. Osgood Carleton et al., App’lts, v. Lombard Ayres & Co., Resp’t.
   No opinion. Judgment affirmed, with costs on opinion in same case.


text:
    Moses R. Crow, App’lt. v. William E. Coffin, Resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    James W. Darrah, Resp’t, v. James Boys e al., App’lts.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    August Elbert, Resp’t, v. Theodore Haebler et al., App’lts.
   No opinion. Judgment-affirmed, with costs.


text:
    Charles S. Fairchild et al., Resp’ts, v. Margaret B. Edson, App’lt.
   No opinion. Motion for resettlement denied.


text:
    Farmers’ Loan & Trust Co., Resp’t, v. Hoffman House, App’lt.
   No opinion. Reargument ordered.


text:
    Edith M. Faxon, Resp’t, v. John Mason et al., App’lts.
   No opinion. Order modified so as to deny the motion, unless defendant Ball, within five days, file return on appeal, and execute undertaking on appekl, in which case motion granted. The order, as so modified, affirmed, without costs.


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    Max Hartingson, Resp’t, v. Forty-second St. & M. R. Co., App’lt.
   No opinion. Judgment affirmed, with costs.


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    Holly Manufacturing Co., App’lt, v. Clarence H. Venner, Resp’t.
   No opinion. Order modified by requiring defendant, as a condition of granting stay, to give bond for $2,500, and, as modified, affirmed, without costs.


text:
    Zachariah Jaques, Resp’t, v. New York El. Ry. Co., App’lt.
   No opinion. Judgment affirmed, with costs.


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    David I. King et al, Resp’ts, v. Metropolitan El. Ry. Co., App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Edward T. Laidley, App’lt, v. Etta M. Laidley, Resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    James M. Malcolm, Resp’t, v. New York El. Ry. Co. et al., App’lts.
   No opinion, Judgment affirmed, with costs.


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    The People ex rel. John E. Roosevelt, Pl'ff, v. Edward Barker et al., Def’ts.
   No opinion. Order affirmed, with costs.


text:
    The People, Resp’t, v. Michael Cody, App’lt.
   No opinion. Conviction. Judgment affirmed.


text:
    Percy Rich et al., Pl’ffs, v. Sargent Granite Company, Def't.
   No opinion.' Order affirmed, with $10 costs and disbursements. •


text:
    Martin L. Dickerson, App’lt, v. Hartford Fire Ins. Co., Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    William P. Sinnock et al., Resp’ts, v. Charles L. Pratt, App’lt.
   No opinion. Order affirmed, witli $10 costs and disbursements.


text:
    Leon Tanenbaum, Resp’t, v. Patrick Gallagher et al., App’lts.
   No opinion. Judgment affirmed, with costs.


text:
    John Weber et al., Resp’ts, v. James Wallace et al., App'lts.
   Ho opinion. Judgment affirmed, with costs.


text:
    General Term — Second Department.
    Filed May 14, 1894.
    John T. Barnard, Temporary Administrator, etc., Resp’t, v. John F. Gantz et al., App’lts.
   Ho opinion. Order affirmed, with costs.


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    Lewis Bernstein, Pl’ff, v. Georgiana Upton et al., as Executors, etc. Def’ts.
   Ho opinion. Judgment affirmed, with costs.


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    Henry De Lanquillette, Pl’ff, v. George W. Pollock et al., Def’ts.
   No opinion. Order affirmed, with costs. All concur.


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    Joana Ditmas v. Hector M. Hitchings et al.

   Ho opinion. Reargument ordered.


author: Pratt, J.

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    Henry Frederick Harris, Resp’t, v. Union Elevated Railroad Company, App’lt.
   Pratt, J.

There are no questions of law that require discussion. The witness James was clearly incompetent to testify as to the change produced in the rental value of Hudson avenue by the construction of the road. The question of fact as to the amount of depreciation of the rental value by the road was determined favorably to defendant. The evidence would have justified a much larger verdict. We find no error, and the judgment is affirmed, with costs.


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    Caspar Iba, Resp’t, v. Thomas McCue, App’lt.
   Dykman, J.

This is an appeal from a judgment in an action for the foreclosure of a mortgage, entered upon the report of a referee. There was no defense to the action, and the appeal is destitute of merit. I advise the affirmance of the judgment without an opinion.


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    Jane Kirkwood, Resp’t, v. Frank Gehring, App’lt.
   Dykman, J.

This is an appeal from a judgment entered upon the decision of a judge after a trial before him without a jury. No case iuis been made, and the record contains no evidence except some exhibits. We can base our examination upon nothing but the findings of the judge, which we must as-, sume are supported and justified by evidence, and upon that assumption they are sufficient to sustain the judgment. The judgment should be affirmed, with costs.


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    Martha C. Kuhne. Resp’t, v. Charles A. Gescheidt et al., App’lts.
   Dykman, J.

This was an action upon a written instrument in. the nature of a mortgage upon real property, containing an express covenant to pay. There was no question to submit to the jury, and the court properly directed a verdict in favor of the plaintiff. The judgment should he affirmed, with costs.


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    George W. Martin et al., Pl’ffs, v. Samuel C. Freed, Def't.
   No opinion. Judgment affirmed, with costs on opinion of Dykman, J., in Pitt v. Freed, 60 St. Rep.-.


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    Mathushek Piano Manuf’g Company, Pl’ff, v. James Pearce, Def't.
   No opinion. Order affirmed, with costs.


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    George A. Mitchell et al., Pl’ffs, v. Samuel Archer, Def't.
   No opinion. Judgment affirmed, with costs.


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    The People, Pl'ff, v. Harriet Losee, Def't.
   No opinion. Judgment affirmed. All concur.


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    The People ex rel. William B. Smith, Pl’ff, v. Henry Hayden, Commissioner, etc., Def't.
   Ho opinion. Order affirmed, with costs. All concur.


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    Elwin S. Piper, Resp’t, v. New York Cent. & H. R. R. Company, App’lt.
   Dykman, J.

This is a motion for a reargument of the appeal to the general term in this action. The basis of the' application is that the quéstion involved was misapprehended by the court, and the point in issue is stated in the points of the defendant upon this motion to be that the plaintiff, in view of the darkness, and of the knowledge which he had that the door was open, was bound to take extra precautions, and that, so far from taking such’ precautions, he went along in the usual way. It cannot be said fairly that the question was overlooked ky the court in deciding the appeal. What we decided was that the questions involved were for the determination of the jury, and upon that subject this language was used in the opinion: “We think that it cannot he said, as a matter of Jaw, that the plaintiff, upon discovering the darkness of the toilet room, should have returned to the body of the car, found the porter, and waited until the room was lighted. The question of contributory negligence, therefore, was for the jury. The defendant’s negligence was also for the jufy." The case doubtless lies close to the border line, and we may be in error, but we have not been negligent. The opinion of the court shows that the case was fully examined, and carefully considered, and we can do no more. The motion for a reargument should be denied, with $10 costs and disbursements.


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    Charles R. Pultz, Resp’t, v. William Starr Miller, App’lt.
   Dykman, J.

This is an appeal from a judgment of the county court of Dutchess county, affirming a judgment rendered in a court of a justice of the peace in favor of the plaintiff against the defendant for $16 75 damages and costs. The action was for the recovery of $14 for work and material furnished by the plaintiff for the defendant in the erection of a building upon his premises. The house was erected or finished for the defendant by Ackert & Brown, and they ordered the work and material from the plaintiff. The work was bestowed upon the building, and the material was used in its erec tion. There was sufficient authority in Ackert & Brown to incur the liability for the defendant, and he had the benefit of the labor and material. There was no defense to the action, and there is no merit in the appeal. The judgment should be affirmed, with costs.


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    Henry A. Squire et al., Pl’ffs, v. Alexander C. McKenzie, Def't.
   Dykman, J.

An order of reference was made to determine the amount due to Herman G-.'Loew for professional services performed in the collection of the judgment in this action, which was assigned to¡ Anna M. Costello,-for whom it was claimed the services-were rendered. The referee took testimony under the order, and found and decided that Loew was entitled to the sunrof $300. for which he had a lien upon the money in the hands of the receiver in this action. The report has been confirmed, and a man named James K. Spratt has appealed from the order of confirmation. The only connection of Spratt with the proceeding is this: Loew entered into a written agreement with Spratt, by which he undertook to collect claims upon information given by Spratt, and take business suggested by him for a certain percentage, and Spratt employed him for Costello to collect this judgment. The claim of Spratt and Costello, therefore, is that Loew performed the services in question under that agreement, and is entitled only to $18.75. The referee found that the services of Loew in the collection of this judgment were .not performed, under the agreement with Spratt, and we cannot say his conclusion is unsupported by evidence. Our conclusion, therefore, is that the order should be affirmed, with $10 costs and disbursements.


text:
    Coe H. Ten Eyck, App’lt, v. Town of Warwick et al., Resp’ts.
   Pratt, J.

This court has in effect decided the principles involved in the merits of this case at the last general term. In another branch of the same action I recommended that this appeal be affirmed, without an opinion. This course is taken in accordance with a request of the appellant, and upon his statement, in order to facilitate an early decision by the court of appeals.- -1 assume from his; letter that no point is to he made upon the rather indefinite expression in thé’complaint that the channel over which the bridge is built is navigable water, and for the iurtliur reason that it appeared beyond dispute in the other case, to which I have referred, that originally it was not navigable, but was made so for small boats by an artificial dam, which raised the water in the lake several feet. Affirmed as above stated.


text:
    David M. Torrey, App’lt, v. Francis A. Waters et al., Resp’ts.
   Dykman, J.

This is an appeal from an order granting a new trial upon the minutes of the court after the rendition of the verdict. The question involved was before this general term on an appeal from an order of the special term vacating an order of arrest. We then decided that the defendants perpetrated no fraud, and that decision justified the order appealed from now. Torrey v. Waters, 69 Hun, 614; 53 St. Rep. 403. The order should be affirmed, with costs.


text:
    William S. Van Cleef v. James J. Brown.
   Ho opinion. Judgment affirmed, with costs


text:
    Amy Williams, Pl’ff, v. George Turfler et al., Def’ts.
   Pratt, J.

We think the trust agreement was properly construed by the judge at special term. Judgment affirmed, with costs.


text:
    Phillip Wolff et al., Resp’ts, v. Paul Kuhne, App’lt.
   Dykman, J.

This is an appeal from a judgment entered upon the report of a referee. The action was brought to recover for labor and material furnished to the defendant by the plaintifE in the erection of a house and stable in Richmond county, and §150 for mone)r lent. The referee found in favor of the plaintiff, and his report is well sustained by the proof. The testimony of the expert witness introduced by the defendant was quite uncertain and unsatisfactory, and the claim tof the plaintiff was meritorious. A careful examination of the testimony leaves no doubt of the justice and legality of the report, and it meets with our entire approval. The exceptions of the defendant disclose no error sufficient to require a reversal of the judgment, and it should be affirmed, with costs.


text:
    General Term—Third Department.
    Filed May 8, 1894.
    Albert W. Boynton, App’lt, v. Keeseville Electric Light & Power Company, Resp’t
   Ho opinion. Judgment affirmed, with costs.


text:
    Ebenezer Holmes v. Gilbert E. Jones, as Treasurer, etc.
   Ho opinion. Judgment affirmed with costs.


text:
    Sidney Mitchell, Jr., Resp't, v. Benton Turner, App’lt.
   Judgment affirmed, with costs. Memorandum by Herrick, J. (Hot for publication.)


text:
    The People ex rel. Obrando P. Dexter, App’lt, v. Elijah A. Palmer et al., as Assessors, etc., Resp’ts.
   Ho opinion. Order reversed, case.to be returned to special term to be heard upon the merits, upon the appellant’s paying §50, and printing and other disbursements of this appeal.


text:
    Samuel L. Roulston, App’lt, v. Arthur Roulston, as Executor, etc., Resp’t.
   Per Curiam.

Order affirmed on the opinion of the court below.


text:
    James Spears, Resp’t, v. Eben Willis, App’lt.
   Per Curiam.

We think the judgment should be affirmed. The opinion, written when this case was first before us, Spears v. Willis, 69 Hun, 408; 53 St. Rep. 733, the facts not having been materially changed on the last trial, renders the writing of another unnecessary.


text:
    In the Matter of the Probate of the Will of Samuel Western, Deceased.
   Ho opinion. Judgment affirmed, with costs.


author: Herrick, J.

text:
    Oliver B. Whitney, App’lt, v. Lawrence E. Wardell, Resp’t.
   Herrick, J.

I think the judgment should be affirmed. There is nothing in the case to show that Whitney advanced any money, gave credit, or ac-copied the note upon which the action is brought, in reliance upon the statement that Wardell was a member of the firm of W. J. Caywood & Co., or was in any way misled by any “ holding out” by Wardell that lie was a member of such firm. Lawrence v. Brown, 5 N. Y. 394; Poillon v. Secor, 61 id. 456; Pringle v. Leverich, 48 N. Y. Super. Ct. 90; Du Bois v. Lamson, 18 Wkly. Dig. 490; Vibbard v. Roderick, 51 Barb. 616; Irvin v. Conklin, 36 id. 64. Judgment should be affirmed, with costs. All concur.


text:
    Filed May 26, 1894.
    The People, Resp't, v. William Bracken, App'lt
   Ho opinion. Judgment of conviction reversed.


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    Margaret A. Swift, App’lt, v. Charles H. Swift, Resp’t.
   Ho opinion. Judgment and conviction upon which it is founded’, so far as it awards costs, reversed, and set aside, with §10 costs of appeal and printing disbursements.


text:
    General Term — Fourth Department.
    Filed May 18, 1894.
    Mary F. Baxter, Resp’t, v. New York State Mut. Ben. Ass’n, App’lt, (three cases).
   Ho opinions. Orders reversed, witli §10 costs and disbursements in each case, and motion granted in each case, with §10 costs in one case only.


text:
    Anna Bergen, as Administratrix, etc., Resp’t, v. New York Cent. & H. R. R. Company, App’lt.
   Ho opinion. Judgment and order affirmed, with costs.


text:
    In the Matter of Binghamton General Electric Company.
   Ho opinion. Order modified by striking out that part which modifies the restraining clause in the order of March 1, 1894, without costs to either party.


text:
    City of Syracuse, Resp’t, v. Lakeside Paper Company, App'lt.
   Ho opinion. Motion granted, with §10 costs.


text:
    Ellen Costello, as Administratrix, etc., App’lt, v. New York, O. & W. Ry. Company, Resp’t.
   Ho opinion. Judgment affirmed, with costs.


text:
    Willfred Eames et al., App’lts, v. Judson P. Morgan et al., Resp’ts.
   Judgment affirmed, with costs. Memorandum by Yann, J.


text:
    First Nat. Bank of Syracuse, Resp’t, v. Dwight Wilcox, App'lt.
   Ho opinion. Order reversed, with §10 costs and disbursements, and motion denied, with §10 costs.


text:
    Abner P. Gray, App’lt, v. Jerome R. Platt. Resp’t.
   Ho opinion. Judgment of the county court affirmed, with costs.


text:
    In the Matter of the Estate of William E. Allen, Deceased. VanBuren Gross, App’lt, v. Totman, Resp’t.
   Ho opinion. Order affirmed, with §10 costs and disbursements.


text:
    George L. Hood, Resp’t, v. Rollin L. Weaver, App’lt.
   Ho opinion. Order affirmed, with costs.


text:
    John F. Hughes, Resp’t, v. Michael F. Kelley, App’lt.
   Ho opinion. Judgment and order reversed on exceptions, and a new trial ordered, with costs to abide the event. Held, there was an error in admitting evidence of the entries by the plaintiff in his books of account.


text:
    Edward C. Inderland, Resp’t, v. William S. Gray, App’lt.
   Ho opinion. Interlocutory judgment affirmed, with costs, with leave to answer within 30 days upon payment of the costs of the demurrer and the appeal.


text:
    Mary Kain, Resp’t, v. City of Syracuse, App'lt.
   Ho opinion. Judgment and order affirmed, with costa.


text:
    Moses Latimore, Resp’t, v. Moses Lederman et al., App’lts.
   No opinion. Judgment and order reversed on the facts, and a new trial granted, without costs of the appeal to either party, upon the_ payment of costs of former trial within 20 days. If such costs are not so paid, judgment and order affirmed, with costs of the appeal to the respondent.


text:
    Janette J. Lee, as Executrix, etc., Resp’t, v. Thomas Petrie et al., App’lts.
   No opinion. Judgment affirmed, with costs.


text:
    Hugh Mc Guckin, App'lt, v. Ellis Chorley, Resp’t.
   No opinion. Judgment of the county court affirmed, with costs.


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    Ezra Marion, Resp’t, v. Town of Newfield, App’lt.
   No opinion. Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. Held, that the opinion of the witness as to the “safe life of a wooden bridge” was improperly received. See Harley v. Buff. Car Manufacturing Co., 142 N. Y. 31; 58 St. Rep. 437, and cases cited.


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    Tracy H. Morse et al., App’lts, v. Charles J. Freoit, Resp’t.
   No opinion. Judgment of the county court reversed, with costs, and the judgment of the justice’s court affirmed, with costs.


text:
    The People, Resp’t, v. Milton W. Doxtater, App’lt.
   No opinion. Motion for leave to appeal to tile court of appeals granted on the ground that a question of law is involved which ought to he reviewed by that court.


text:
    People ex rel. William J. Supple, App’lt, v. Common Council of City of Utica, Resp’t.
   No opinion. Order affirmed, without costs to either party.


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    The People ex rel. Frederick L. Taylor, Pl’ff, v. Gerrit A. Forbes, Justice, etc., Def’t.
   Per Curiam.

Without determing whether, by certiorari, the proceedings are properly before this court, we have looked into the merits involved in the determination made at the Tompkins oyer and terminer, adjudging Taylor in contempt, and find no occasion to disturb the conclusion reached by that court. We therefore dismiss the writ of certiorari.


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    The People ex rel. John Hall, App’lt, v. Ira McDonald et al., Assessors, etc., Resp’ts.
   No opinion. Order affirmed, with costs.


text:
    Charles A. Pollock, App’lt, v. New York Cent. & H. R. R. Company, Resp’t.
   No opinion. Judgment and order affirmed, with costs.


text:
    Gordon H. Pumpella, App’lt, v. Board of Trustees of the Village of Owego, Resp’t.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Adelbert D. Sergent, Resp’t, v. Liverpool & London & Globe Ins. Company, App’lt.
   Per Curiam.

We are of the opinion that the evidence was insufficient to show that Shieve had authority from the defendant to adjust the plaintiff’s loss; that there was no such adjustment of his loss as authorized the court in holding that, if the plaintiff was entitled to recover, he was entitled to the amount stated in the list or account made by Shieve; and that the court erred in excluding the evidence offered by the defendant as to the value of the property destroyed. Without discussing the other questions presen» ed on this appeal, we think the judgment must be reversed for the error already pointed out This conclusion renders it unnecessary to examine the question as to the validity or propriety of the order granting the plaintiff an e .t.ra allowance. Judgment and order reversed, and a new trial granted, with costs to abide the event.


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    Anna C. Shumway, App'lt, v. Fred Beley, Resp’t.
   No opinion. Judgment of the county court reversed, with costs, and the judgment of the justice’s court affirmed, with costs.


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    Andrew J. Taylor, Resp’t, v. Reuben H. Geer, App’lt.
   No opinion. Judgment and order reversed, and a new trial ordered, with costs to abide the event. Held, (1) the court erred in admitting evidence of the plaintiff of a conversation with defendant's testatrix, which he testifies occurred when no one else was present, see Martin v. Hillen, 142 N. Y.-; 58 St. Rep. 617; (2) that the request to charge as to presumption of ownership of the money from the possession of tile orders should have been granted.


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    Alvah N. Updike, Resp’t, v. Elmira Bldg. Company et al., App’lts.
   No opinion. Order affirmed, with §10 costs and disbursements.


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    Jane E. Wheeler, Resp’t, v. Watertown St. Ry. Company, App’lt.
   No opinion. Judgment and order affirmed, with costs.


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    Mary M. White, as Administratrix, etc., Resp’t, v. New York, Lake Erie & Western Railroad Company, App’lt.
   No opinion. Judgment and order affirmed with costs.


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    Otis E. Wood et al., as Trustees, etc., Resp’ts, v. Alonzo B. Cornell, App’lt.
   No opinion. Interlocutory judgment affirmed, with costs.


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    Otis E. Wood et al., as Trustees, etc., Resp’ts, v. Franklin C. Cornell, App’lt.
   No opinion. Interlocutory judgment affirmed, with costs, and leave granted to defendant to answer upon payment of, the costs of the demurrer and of the appeal within 30 days.


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    Mary D. Youngs, as Administratrix, etc., App’lt, v. New York, Ontario & Western Railroad Company, Resp’t.
   No opinion. Judgment and order affirmed, with costs.


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    General Term—Fifth Department.
    Filed January 18, 1894.
    Jackson W. Bowdick v. Paige et al.

   No opinion. Motion to dismiss appeal on the ground of nonservice of printed papers granted on default.


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    William T. Bradley, Resp’t, v. New York Cent. & Hudson River Railroad Company, App’lt.
   No opinion. Judgment and order appealed from affirmed.


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    Horace C. Brewster, Pl’ff, v. Chauncey C. Starkweather et al., Def’ts.
   No opinion. Defendants motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


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    A. F. Allen Brown, as Permanent Trustee, etc., Resp’t, v. Chautauqua County Nat. Bank et al., App’lts.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements.


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    In the Matter of the Application of Jane Le Breton Brugh, an Alleged Lunatic.
   No opinion. The order o’f the special term modified by striking out the words “ except as to the allowance of commission to said committee, and it is ordered that no commission be a-lowed said committee, and that her application therefor be and is hereby denied,” and as so modified affirmed, without costs of this appeal to either party.


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    In the Matter of the Probate of the Will of Solander Carver, Deceased.
   No opinion. Decree of the surrogate’s court of Cattaraugus county appealed from affirmed, without costs of this appeal to either party, on the opinion of the surrogate;


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    Leroy Cady, Resp’t, v. Rochester Ry. Company, App’lt.
   No opinion. Judgment and order appealed from affirmed, and leave granted to appeal to the court of appeals on the ground that a question of law is involved which ought to be reviewed by that court.


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    Martin D. Chace, Resp’t, v. Warsaw Water Works Company, App’lt.
   Ho opinion. Motion to strike case from calendar and for affirmance denied.


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    Harris Cook v. Herbert Bentley.
   Ho opinion. Motion to dismiss appeal upon the ground of non-service of printed papers granted, unless the appellant cause the papers to be served within 60 days, and pay the respondent §10 costs of the motion.