author: Landon, J.:

text:
    JOHN B. KUNZ, as Administrator, etc., of GEORGE W. KUNZ, Deceased, Respondent, v. THE CITY OF TROY, Appellant.

      Negligence — when no recovery can he had for an accident to a child, because its own negligence was the proximate ccmse — city of Troy— liability of, for negligence of its policemen.

    The plaintiff’s child, a hoy about five or six years old, was playing with two. other children on the sidewalk, in one of the defendant’s streets. An ordinary bar counter had been placed along the side of a house by the owner thereof, the lower part of which, where it rested on the sidewalk, was on a line parallel to and distant several inches from the wall of the house. It had been standing there for several days, and had been seen by some of the police force on duty in the city. The evidence tended strongly to show that the counter was overthrown by the act of the child in meddling with or playing upon it. In falling it struck the child, who received injuries therefrom which caused the child’s death.

      Held, upon the ground that the act which injured the child was not shown to be the act of the city, and, also, upon the further ground that the omission of duty imputable to the city — that is, its neglect to have the counter removed from the sidewalk — was not so gross, culpable nor voluntary as to attach the whole blame to the city, or excuse the child from intermeddling with the counter, that a verdict in favor of the plaintiff should be reversed.

      It seems, that as the policemen in the city of Troy are appointed by the police commissioners, who, although appointed by the common council, are only removable by tbe Supreme Court, the police department is not the agent of the city, and the latter is not liable for omissions of duty on the part of the policemen. (Per Landon, J.)
    Appeal from a judgment, entered upon the verdict of a jury, rendered upon the trial of this action at the Rensselaer Circuit, held in May, 1884, and from an order denying the defendant’s motion for a new trial.
    The plaintiff’s intestate, a little boy between five and six years of age, on the 23d day of April, 1881, met with an accident on Federal street, in the city of Troy, by the falling of a bar counter upon him, from the effects of which he died within three or four hours afterwards. The plaintiff resided with his family on River street, which runs north and south through the city parallel with the Hudson river, and is intersected by Federal street, which runs directly east and west. He worked for one Kolbe, whose place of business was on Federal street. There is a large brick building on the south-east corner of River and Federal streets, which was occupied by Thomas McLaughlin, who kept a saloon there. The McLaughlin building extends back from River street sixty feet to a private alley, which is ten feet wide. On the sidewalk and against the McLaughlin building there stood erect a sideboard or back-bar, such as is used in saloons for placing bottles and glasses on, and against this sideboard there leaned an ordinary bar counter. The sideboard and counter were owned by McLaughlin. As the counter leaned against the building the bottom of it extended out, about on a level with the south side of the flagstones, and there was an open space of several inches between the bottom of the counter thus extended and the sideboard. During this twenty-third day of April the plaintiS’s boy and two other children, all of about the same age, were playing on this sidewalk and around the counter, when suddenly a noise was heard, the counter fell outwards on to the walk, and the Kunz child was taken from under it bleeding and unconscious.

      William J. Roche, for the appellant.

      Smith, Fursman db Oowen, for the respondent.
   Landon, J.:

The burden was upon the plaintiff to establish the proposition • that his child was killed by the negligence of the defendant, and also to establish the proposition that neither his own, nor the n egligence imputable to the child, contributed to its death. The evidence tends strongly to the conclusion that the counter was overthrown by the act of the child in intermeddling with it or playing upon it, and the plaintiff has given no evidence tending to repel this conclusion. The negligence of the defendant has, therefore, not been shown to be the sole cause of the child’s death. The defendant may have been negligent in allowing the counter to remain upon the sidewalk, and not negligent in the act which caused it to fall upon the child ; in other words, the act of the child and not the negligence of the defendant may have been the proximate cause of its death.

If it was the act of the child, and assuming, as was done on the trial, that the child was non sui juris, then the defendant cannot be made liable in the absence of proof of voluntary or culpable negligence. (Hartfield v. Roper, 21 Wend., 615.) Many cases recognizing tbe rule in Hartfield v. Roper, have sustained recoveries in favor of the infant upon the ground that the negligence of the defendant was so voluntary and positive as to be the real causa •causans. As was said in Ihl v. Forty-second Street Railroad Company (47 N. Y., 323), the conduct of the infant may have an important bearing on the question of the defendant’s negligence, but when the latter is clearly negligent, contributory personal negligence on the part of an infant, obviously not sui juris, cannot be alleged.” (See, also, Mangam v. Brooklyn R. R. Co., 36 N. Y., 155 ; McGarry v. Loomis, 63 id., 104; Thurber v. Harlem, B. M. and F. R. R. Co., 60 id., 326.)

All the negligence charged against the defendant in this case is constructive, imputable because it did not discover and remove this counter which a third person had placed along the side of a building upon the sidewalk. The placing the counter upon the sidewalk was the voluntary negligence of a third person. Not discovering and not removing it, seems under the circumstances to lack that degree of culpability which attaches to the affirmative act of placing-it there. A counter placed upon a sidewalk and leaning back against a building is not so suggestive of danger as a hole or uncov•cred area in the sidewalk of a city, or too high a pile of bricks carelessly heaped up. (McGuire v. Spence, 91 N. Y., 305 ; Rehberg v. Mayor, Id., 137.) The counter would be expected only to be dangerous from the act of an intermeddler; the hole or area is a trap for the unwary; the high, loose pile of bricks a constantly impending danger. Upon the ground then that the act which injured the child was not shown to be the act of the city, and also upon the ground that the omission of duty imputable to the city was under the circumstances neither gross, culpable nor voluntary, to the degree necessary to attach the whole blame to the city and ■excuse the child from intermeddling with the counter, we think this judgment should be reversed.

The plaintiff was permitted to prove, against the objection of the ■defendant, that the policemen of the city daily patrolled the street upon which the counter was placed and that one of the policemen had «observed it before the injury. The court refused to instruct the jury that notice to a policeman of an obstruction in a public street or sidewalk is not notice to the city, and did instruct them that notice-to a policeman was one of the elements which the jury have a right to take into account in determining whether the city had notice. Upon the question of constructive notice to the city it was competent to show when the counter was placed upon the sidewalk; how long it had been there and how conspicuous it was, and a policeman, could give this evidence as well as another. But a jury would naturally infer that the knowledge of the policeman was the knowledge of the city, and the defendant, in order to be protected against so damaging an inference, was entitled to the instruction that notice to the policeman was not notice to the defendant, unless the policeman was the agent or officer of the city. Such i-s not the case in the city of Troy. Under the laws organizing the police department (chap. 328, Laws 1880), as amended by chapter 76, Laws 1881, the common council appoint the police commissioners. These-commissioners are nor amenable to the city, but are removable only by the Supreme Court. The commissioners appoint the policemen, and have the power of removal for cause. It is the duty of the 'policemen to observe and execute the laws of the United States, of the State, the rules and regulations of the board of police commissioners and the ordinances of the city. Following the case of McKay v. City of Buffalo (9 Hun, 401; affirmed, 74 N. Y., 619), we think it must be held that the police department of Troy is a creation under the laws of the State for the purpose of securing public order, and is not the creation of the city and is not its agent. The case of Rehberg v. Mayor (91 N. Y., 137) seems to have been decided with reference to the laws peculiar to New York city.

If the liability of a municipal corporation for negligence arises,, as was said in Weet v. Brookport (16 N. Y., 171), because “ the-surrender by the government to the municipality of a portion of its sovereign power, is a consideration for the implied undertaking on the part of the municipality to perform the duties which its charter imposes,” then the control and exercise by the government of that portion of the power which it confides to the police, would seem to exempt the municipality from liability on account of the omissions of duty upon the part of the policemen.

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

On the first ground, Learned, P. J., and Bookes, J., concurred.

Judgment and order reversed, new trial granted, costs to abide event.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD M. COLE, Respondent, v. FREDERICK HILL, County Treasurer of Greene County, Appellant.

      Publication of the terms of court — the court cannot order it — nor direct payment of the expense thereof.

    The Supreme Court has not power to order the publication, in a newspaper, of the appointment of the terms to be held by that court, or to direct payment of the expense of such publication.
    Appeal from an order of April 18,1885, made by Hon. Theodoric R. Westbrook, ordering that a peremptory mandamus issue against the county treasurer of Greene county, compelling him to pay for certain publications in the Windham Journal, directed by an order made by Hon. A. Melvin Osborn, November 6, 1878, at a Special Term in Greene county, by which it was “ ordered that the terms of the General Term of the Supreme Court, appointed to be held in the Third Judicial Department of this State, and of the Special Terms of said court, and of the Circuit Courts and Courts of Oyer and Terminer, appointed to be held in the Third Judicial District of this State for the years 1878 and 1879, i. e., from November 1, 1878, to November 1, 1879, and thereafter until further order of this court, be published in a newspaper published in Windham, N. Y., weekly during the said time, known as the Windham Journal, and that as often as once in each year the clerk of Greene county give, on due proof of such publication., a certificate to the publisher of said paper, of the amount due to them therefor, which on presentation to the county treasurer of said county of Greene, shall be paid by him out of the moneys raised in said county for court expenses.”
   Landon, J.:

This order should be reversed because its effect is to enlarge the terms of the statute which provides for the publication of the appointments of the terms of courts. (Code of Civil Pro., § 3317.) What publication should be given to these appointments is a prudential or administrative matter, and properly comes within the scope of the legislative power and not within the judicial power. No case is here presented involving the inherent power of the court, when -in session, to incur such expense as may be necessary in certain exigencies to maintain its authority, punish offenders and prevent the miscarriage of justice.

Order reversed, with ten dollars costs and printing disbursements.

Learned, P. J., and Bocees, J., concurred.

Order reversed, with costs and printing disbursements.


text:
    CHARLES M. DE LISLE, as Administrator, etc., of HARRIET S. DE LISLE, Deceased, Respondent, v. HATTIE M. HUNT and Others, Appellants.

      Practice — learn.to file a supplemental complaint— when granted — revivor of action.

    In this action, brought by the plaintiff’s intestate to recover a life estate in land, which she alleged she had been induced, by the defendants’ fraud, to convey to them, no demand for damages for the detention thereof was made in the complaint. After her death her administrator, alleging that the action had been pending for several years, during which time a large amount of rents and profits had accrued, procured an order reviving the action in his name and allowing him to serve a supplemental complaint, in which he sought to recover the damages resulting from such detention.

      Held, that the order was a proper one and should he affirmed.
    Appeal from an order of the Special Term allowing this action, which was commenced in the name of Harriet S. De Lisle, plaintiff, and who has since died, to be revived in the name of this plaintiff, as her administrator, and allowing this plaintiff to serve an amended or supplemental complaint; also an appeal from an order denying a motion to vacate the first order, and to strike out the new matter inserted in the amended or supplemental complaint.

      C. P. Collier, for the appellants.

      Walter S. Cowles, for the respondent.
   Landon, J.:

Mrs. De Lisle had a life estate in the land which she sought by this action to recover, alleging that by the defendant’s fraud she had been induced to convey it to her. She did not demand damages for its detention. Such damages under the Code (§§ 1496, 1497), now include the rents and profits or value of the use and occupation, the former rule, as laid down in Larned v. Hudson (57 N Y., 151), being changed. The present plaintiff, as administrator, succeeds only to the damages for the detention. It is objected that to allow him to revive the action and file a supplemental complaint, which shall ask recovery for these damages, is to substitute a new action in place of the old one. The action has been pending for some years, and it is alleged, and can readily be believed, that the rents and profits which have accrued during the pendency of the action are large. Mrs. De Lisle, if living, could be permitted to file a supplemental complaint alleging and asking these damages. (Code, § 544.) Such claim would be of an incident to the principal subject-matter. The fact that it did not exist at the time of the commencement of the original action would render a supplemental, instead of an amended complaint, proper.

If Mrs. De Lisle’s estate in the land had expired in her lifetime and pending suit, she would still havb-vbeen permitted to recover damages for the detention up to the time her title expired. (Code, § 1522.) And she would, no doubt, have been permitted, if the damages accrued during the pendency of the action, to set them forth in a supplemental complaint. Now the administrator succeeds to these damages and to recover them has to maintain the issues framed in her action; and it seems just that he should be permitted in succeeding tu this portion of her rights, to succeed also to that portion of her remedies applicable to them, among which is the right to file a supplemental complaint showing the extent and kind of relief which the issues in the old action give him as her representative.

The order allowing the revivor and supplemental complaint should be affirmed. "Whether under it he has stated more than has survived to him, or he has the right to recover, we need not examine, since the trial court will limit his recovery to his right, and therefore the second order should be affirmed.

Both orders affirmed, with costs and disbursements.

Learned, P. J., and Bocees, J., concurred.

Each order affirmed, with ten dollars costs and printing disbursements.


author: LANDON, J.:

text:
    CHARLES E. PATTERSON, Receiver, etc., of the MERCHANTS AND MECHANICS’ BANK OF TROY, Appellant, v. DANIEL ROBINSON, THOMAS A. KNICKERBOCKER, CHESTER GRISWOLD AND JAMES E. PINKHAM, Respondents.

      Trustees of manufacturing corporations —1848, chap. 40, sec. 23 — what “ assent” is required to make a trustee liable thereunder.

    May 1,1875, the defendant Robinson, and one Yail, trustees of a woolen mill incorporated under the general manufacturing act, assumed the management of its business, and became thereafter responsible for its conduct. On that date the whole indebtedness of the mill was $434,214, being $184,214 in excess of its capital stock, which was $250,000; at the time of the commencement of this action the whole indebtedness of the company was $515,770, making an increase during the time of Robinson’s participation in the control of $81,656. On May 1, 1875, the said company was indebted to the bank, of which the plaintiff is the receiver, in the sum of $800,000, and the said indebtedness increased during Robinson’s administration to the sum of $139,000, but the interest accruing upon the amount due on May 1, 1875, was equal to $105,000 of this increase. The interest accruing during Robinson’s administration, upon the entire indebtedness of the mill, existing on May 1,1875, exceeded the amount of the increase of its general indebtedness during that time. Robinson did not assent to the creation of the indebtedness existing on May 1, 1875.
    In an action by .the receiver of the bank to charge Robinson with the personal liability imposed upon him by section 23 of chapter 40 of 1848, for the excess of the indebtedness of the company over the amount of its capital stock :

      Held, that for the indebtedness existing on May 1, 1875, which had been created without Robinson’s assent, and for the indebtedness which was thereafter incurred to procure means to discharge the interest accruing thereon, Robinson was not liable under the act.
    That, for so much of the increase of the indebtedness to the bank as exceeded the interest accruing upon the debt due to the bank on May 1,1875 — that is, for $139,000, less $105,000, or $34,000 — Robinson was personally and individually liable to the plaintiff under the said act.

      Where a trustee does not assent to the creation of an indebtedness exceeding the capital stock of the company, his subsequent failure to dissent, when informed of the fact, is not equivalent to the assent required by the act.
    Two of the defendants were trustees of the company during the time in which it incurred the said indebtedness ; but it was not shown that they ever attended any meetings of the trustees, or were consulted with reference to the management of its business, or participated in its affairs, except to sign its annual reports, and then only upon their faith in the assertions of a co-trustee that they were correct.

      Meld, that no such assent on their part was shown as was required to make them liable under the said act.
    Appeal from a judgment in favor of tbe defendants, entered upon the report of a referee.
    This action is brought and a recovery sought against the defend.ants as trustees of the Scliaghticoke Woolen Mills, under the provisions of section 23, chapter 40, Laws 1848, being the “ act to .authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes.” The section is as follows : “ If the indebtedness of any such company shall at any time exceed the .amount of its capital stock, the trustees of such company assenting thereto shall be personally and individually liable for such excess to the creditors of such company.” The company was organized in 1865 with a capital of $150,000, which was increased the same year to $250,000, and was fully paid in. It commenced the business of manufacturing cassimeres in 1867, and continued until -January, 1879, when it suspended with an indebtedness to the Merchants and Mechanics’ Bank of about $439,000. The plaintiff was appointed receiver of the bank in the October previous. He recovered judgment against the woolen mills in July, 1879, upon account of said indebtedness in the sum of $438,859. From the 16th of June, 1874, until the 18th of June, 1878, the defendants Robinson, Gris-wold and Knickerbocker were three of the five duly elected and acting trustees of the woolen mills. Knickerbocker retired in January, 1878, and on the 18th of June, 1878, the defendant Pinkhain was elected a trustee, and with the others named, except Knickerbocker, continued to act until the suspension of its business. D. Thomas Tail and Wm. H. Hart were the other trustees. Kail and the defendant Robinson were trustees from the organization of the company until this action was commenced. Kail, who has since died, was the president of the mills company. He was also president of the Merchants and Mechanics’ Bank at the same time.
    The referee found that on May 1, 1875, the defendant Robinson,, with Yail, assumed the management of the business of the woolen mills, and thereafter was responsible for its conduct. That the whole indebtedness of the mills at that date was $434,214, being $184,214 in excess of its capital stock; that of this sum $300,000 was due to the bank; that at the time of the commencement of this action the whole indebtedness of the company was $515,770, making an increase of the total indebtedness of the company during the time of Robinson’s control, $S 1,656. The referee held that Robinson had not assented to the indebtedness of the company incurred prior to May 1, 1875, and therefore was not liable for any of it, or of the interest which accrued upon it after he did assume control. He .estimated this interest upon the entire old debt at $111,444, and as this item exceeded the entire increase of debt incurred under Robinson’s control, held that Robinson had not assented to any increase of debt and therefore was not liable. The referee, however, found that the indebtedness of the company to the bank during Robinson’s control increased from $300,000 to $439,000, but that of this increase $105,000 was upon account of interest upon the $300,000 due the bank May 1, 1875; that as Robinson could not prevent this interest accruing, it was not to be reckoned in estimating the amount of increased indebtedness to the bank to which he assented ; deducting this sum, left $34,000 as the only increase of debt to the bank under Robinson’s management; and as to this the referee held that, excluding the interest which Robinson could not prevent, he was not liable, since he did not assent to any aggregate increase of the company’s debt over its capital stock, nor create in the aggregate • any increase; that he was not liable to any single creditor whose debt might have been increased, because in the aggregate he had not assented to any increase. Further facts are stated in the opinion.

      O. Gambell, for the appellant.

      Esek Cowan, for respondents Robinson and Pinkham.

      C. A. Waldron, for respondent Knickerbocker.

      W. O. Holbrook, for respondent Griswold.
   LANDON, J.:

The referee found that the defendants Griswold and Knickerbocker did not assent to any of the indebtedness of the company in excess of its capital stock. If, with knowledge of the situation of the company, they had assented to the policy of which the creation of an excess of debt was a necessary part, it would be difficult to sustain this finding. But it does not appear that they ever attended any meeting of the trustees, or were consulted with reference to the management of the business, or participated in its affairs, except to sign its annual reports, and then only upon their faith in the assertion of an associate trustee that they were correct. In the view which we entertain of the assent necessary to make a trustee personally liable under section 23, chapter 40, Laws 1848, his subsequent failure to dissent is not equivalent to an assent concurring with the creation of the excess of debt. These two trustees-did not know what .was done until after it was done; they said nothing and did nothing in furtherance of its creation. Assuming that the creditor, with whom the debt was contracted, relied upon section 23 for his protection, these trustees did nothing to lead him. to suppose that they were assenting to the contract with him. The-conclusion to be reached from all the facts is one of fact, and the test of that conclusion is whether the mind is convinced that as a matter of fact these trustees did assent. Argument based upon their duty as trustees might support a charge of negligence, but does not disprove the affirmative evidence that in this respect they did no duty. The burden resting upon the creditor to show their assent, we do not think their association or familiarity with the business was of the character to convince the mind that they ever gave the matter any special attention, much less any assent to the debts in question.

These views also lead to the support of the finding of the referee that the defendant Robinson did not assent to the excess of indebtedness'of the company created prior to May 1, 1875. The referee finds that the defendant Robinson assented to all the indebtedness^ of the company created after May 1,1875, and the defendant Pink-ham to all created after June, 1878. "We. concur with the referee in the view that since Robinson and Pinkham did not assent to the oebt created before May 1, 1875, they cannot be held to have assented to so much of its subsequent increase as was caused by the interest accruing thereon.

On May 1, 1875, the indebtedness of the company exceeded its capital stock in the sum of $184,214. As Robinson had not assented to such excess he was not liable for it. At no time thereafter was the indebtedness of the company less than its capital stock. At that time it was indebted to the Merchants and Mechanics’ Bank in the sum of $300,000, and under the findings in this case no part of that sum was ever thereafter paid. The creation therefore of any new indebtedness after May 1, 1875, would be the creation of an additional excess of indebtedness over its capital stock. The trustees assenting to such excess would be “ personally and individually liable to the creditors of the company,” under section 23, chapter 40, Laws of 1848. What creditors ? Certainly not those to whom such excess was not owing, but to those to whom it was. The learned referee construed the section cited to be of a penal ■character. In a loose and general sense that may be true, ■ as when it is said, he that is surety for a stranger shall smart for it.” Unlike sections J 2, 13 and 15 of the same act, section 23 commands nothing ■ and forbids nothing, and therefore affixes no forfeiture as the penalty for the commission of what is forbidden or for the omission of what is commanded. It does not forbid the company to create further debts when those already created equal in amount the capital stock; rather it permits such excessive creation; but to secure payment to the creditors who become such after the limit of the capital stock is exceeded, it adds the personal and individual liability of the trustees assenting to such excess, to the liability of the company. Let the excess of indebtedness over the amount of the capital stock exist; if the trustees then create further excess of indebtedness, their personal liability seems to attach eo vnstcmbi the debt is created. Otherwise we should have to hold that it was the exclusive debt of the corporation in the first instance, and then, for some subsequent offense of the assenting trustee, he became condemned by the statute to pay it. There is no such subsequent offense expressed in the section. The nature of the case does not admit of it, unless we hold that subsequent assent is the assent contemplated by the section, a view which we do not entertain. The assent and the creation of the excessive debt con-curring, the corporation and the assenting trustee severally bind themselves by the contract creating it. The statute extends the personal liability of the trustee to the creditor. The published annual reports have advised him that the debts of the company have already reached the amount where the personal liability of the trustee must attach if more debts be created, and non constat he would not have trusted the company except for the security the statute extended to him. The assenting trustee is quite willing to add his personal liability to that of the company. To him the affairs of the company promise success if its business can be continued, and he knows it can be upon a condition which he accepts. Section 23 provides one of the means contemplated by section 2, article 8 of the Constitution, which requires that “ dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law.” This construction is in harmony with the views of the courts in other cases. In Wiles v. Suydam (64 N. Y., 173), the complaint united a cause of action under section 10 with a cause of action under section 12. Section 10 provides that the stockholders shall be severally liable to the creditors to an amount equal to the amount of the stock held by them for all debts, until the whole amount of capital stock shall have been paid in and a certificate thereof recorded. Section 12 imposes a penalty. The court held that the two causes of action were improperly united, because the cause of action under section 10 was for a contract liability, the stockholder being primarily liable for the debts contracted by the company, and, therefore, this cause of action was improperly joined with a cause of action for a penalty. So in Corning v. McCullough (1 N. Y., 47), the statute declaring the stockholders personally liable, the contract of the company bound them at the same time it bound it; and the cause of action was held to be upon contract, and not upon a penalty. The statute liability, it was said in Story v. Furman (25 N. Y., 223), is part of the obligation of the contract. If,, then, the assenting trustee becomes bound by the contract whereby the excessive debt is created, he becomes bound to the creditor, and he cannot be discharged without the creditor’s con•sent. The liability incurred under section 10 may be an exception to the rule, for the section expressly says the liability shall exist v/ntil the capital stock be paid in and a certificate thereof recorded. (Veeder v. Mudgett, 95 N. Y., 295.) But no such temporary liability is contemplated by section 23.

The liability incurred by Robinson to the bank would not, therefore, be discharged except by payment to the bank. The decrease-of the aggregate excess of liability caused by paying creditors other than the bank, would not cancel Robinson’s liability to the bank. The referee finds that he assented to the increase of the debt to the-bank in the sum of $34,000. This finding is consistent with and in part a deduction from the finding of the court in a former action between this plaintiff and Robinson and Pinkham, brought to-recover upon account of an alleged fraudulent conspiracy, whereby the funds of the bank were diverted to the woolen company. The-court found in that action that there was no conspiracy, and as leading to that conclusion, “ that any increase of indebtedness of the-"Woolen Mills Company to the bank, between May, 1875, and November, 1878, was caused by the payment by the bank of debts- and interest on debts of said Woolen Mills Company held by others-than said bank, and by paying the interest upon the debt of $300,000 held Jby the bank.” The judgment in the former action was properly received as evidence to prove between the same parties-the facts determined therein. (Marsion v. Swett, 66 N. Y., 211.) It follows that the defendant Robinson is liable in the sum of $34,000. The defendant Pinkham is found to have assented to the-increase of debt to the bank after June, 1878, in the sum of $1,382, parcel of the $34,000 assented to by Robinson.

The judgment appealed from should be affirmed, with costs, as-to the defendants Knickerbocker and Griswold, and reversed as to-the defendants Robinson and Pinkham, and judgment directed against them for $1,382, and separately against Robinson for $32,618, with interest upon each sum from January 6, 1879, with-costs in this court and the court below.

Learned, P. J., and Bocees, J. concurred.

Judgment affirmed, with costs, as to Knickerbocker and Gris-wold ; reversed as to Robinson and Pinkharn, and judgment directed against them for $1,382 and against Robinson for $32,618, with interest on each sum from January 6, 1879, with one bill of costs-in this court and in the court below against Robinson and Pinkham.


author: Learned, P. J.

text:
    JOHN W. WALSH, as Receiver of WILLIAM H. VAN ALLEN, Appellant, v. ELEANOR VAN ALLEN and Others, Executrix, etc., of ADAM VAN ALLEN, Deceased, Respondents.

      •Costs on appeal from a Surrogate's Court — Code of Civil Procedure, sees. 2570, 3240.
    Appeal from an order made by the Surrogate’s Court of Albany county, dismissing a petition and citation requiring the respondents to ■show cause why they should not be compelled to file an inventory.
    The court at General Term said with reference to the costs : “ Section 2560 says ‘ the costs of an appeal, where they are awarded in a Surrogate’s Court, are the same as if they were awarded in the Supreme Court.’ There is no appeal to the Surrogate’s Court; and strictly there is no appeal in the Surrogate’s Court. But there is an appeal from that court to the Supreme Court. (See. 2510.) ■Section 3240 makes costs in special proceedings the same (as to rates) with costs in an action.
    “ Taking these sections together, we think that the costs on an appeal from an order in a special proceeding in the Surrogate’s Court must be as in a similar case in an action in the Supreme Court, viz.,- ten dollars and printing disbursements.”

      N. P. Hinmam, for the appellant.

      Nathaniel O. MoaJtt, for the respondents.
   Memoranda by

Learned, P. J.

Present — Learned, P. J., Bookes and Landon, JJ.

Appeal affirmed, with ten dollars costs and printing disbursements.


text:
    In the Matter, etc., of THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Respondent, v. THEOPHELIA G. TOWNSEND, Appellant, Impleaded with Others.

      Commissioners to appi'aise lands to be taken for a railroad — appeal from their report— insolvency ofraib'oad — demand for payment of the award, necessary — when the report will be set aside because a son of one of the commissioners is taken into the employ of the company befoi'e the hearing.

    Appeal from an order of the Sp ecial Term confirming the report of commissioners appointed to appraise lands to be taken by the New York, West Shore and Buffalo Railway Company and refusing to set aside such report on the motion of the owners.
    The court at General Term said: “ The owners have also noticed a motion at this term, which has been made, preliminarily, to set aside the report and award and order on the ground that the company has failed to deposit the money as required by the order (which was made August 16, 1881), and is insolvent. These facts are not disputed. The rights of the respective parties became vested by the confirmation. {People ex rel. Qas-IAghi Qo.v. City of Syracuse, 78 N. Y., 56.) And they stand substantially like purchaser and vendor of land. The general rule is that, where no time is appointed by the contract, a demand must be made in order to put the other side in default. It does not appear that any demand has been made on the company. Further, the owner of the land has appealed. It is-uncertain therefore, pending that appeal, whether the report of the-commissioners will stand. In this uncertainty it would not be reasonable to set aside the award for the failuré to pay.”
    After holding that no ground for interference on the merits was-shown, the General Term said: “ Another ground urged on this appeal respects the alleged bias and incompetency of the commissioners. The motion for the appointment of commissioners was-made July ninth. On that day Mr. Roosa was not a freeholder. Subsequently a lot of land for the consideration as stated in the deed of $500, was conveyed to him by deed dated July tenth and recorded July eleventh. And on July twelfth he was appointed-commissioner. We think his appointment was valid.

      “Another commissioner was Mr. Amasa Humphrey. A few days after his appointment Maurice W. Humphrey, his son, was. appointed by the railway company telegraph operator at Saugerties, and on September fourteenth of the same year he was appointed station agent and operator at Milton, where the land in question lies. On the question as to appellant’s willingness to have Mr. Humphrey act as commissioner there are conflicting affidavits. On her part, however, it is shown that she did not know until after the report of the commissioners was made that objection could be made upon the ground above mentioned.
    “ There is also conflicting evidence as to a certain conversation between the appellant’s husband and Maurice W. Humphrey. Humphrey, however, admits that after the award was made Townsend (the appellant’s husband) said to him: £ Well, I am beat,’ and Humphrey replied, £ I supposed you would be.’
    “ The learned judge, at Special Term, in his opinion on confirming the award, said that if at any time during the progress of the proceedings before the commissioners an application had been made to substitute another commissioner for Humphrey, the motion would have been granted. Thus it appeared to the learned judge’ as it appears to us, that it was manifestly improper that Mr. Humphrey should be a commissioner to appraise lands at Milton, while his son was station agent of the railway company at that place. No discussion is needed on this point. But the learned judge held that, as the interested parties had proceeded with full knowledge of the fact, and the railway company had expended money in the investigation, it would be unjust to set aside the report. This principle is certainly very sound as a general rule. But it seems to us that /there are peculiar circumstances here. When Mr. Humphrey was appointed his son was not station agent, or in any way in the company’s employ.' Objection therefore could not have been successfully made at that time. After the appointment of the son became known to Mr. Townsend, he says that he supposed the landowmers had to submit to the commissioners appointed, and did not know that a change could be made. That statement is very probable.
    “Now, it was the voluntary act of the company which appointed Maurice W. Humphrey first telegraph operator at Saugerties, and then station agent at Milton. True, the superintendent says that the appointment was made on Humphrey’s merits, and not at the request of any officer of the road, and that he did not know Humphrey’s father was a commissioner. But we cannot think that the ignorance of the superintendent excuses the matter. The fact remains that the railway company, having an important matter in litigation before Mr. Amasa Humphrey, as one of the commissioners, before any testimony was taken, appointed his son station agent at the place where the land lay, and where the commissioners met. We do not say that this appointment had any influence on the decision. We do not question the commissioner’s integrity; but these proceedings must not be open to suspicion. If the railway company has expended money in this investigation which may be lost, they have only themselves to blame. They should have recognized the impropriety of proceeding before Mr. Humphrey after they had taken his son into their employ. They should have applied at once for another commissioner.”

      A. Sohoonmalcer, for the appellant.

      F. L. Westbrook, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. <L, Bocees and Landon, J"J.

Order of confirmation and report set aside, with costs and printing disbursements against the company; commissioners discharged, new commissioners to be appointed by Special Term.


author: LearNed, P. J.

text:
    ABRAM I. OLIVER, Respondent, v. W. HENRY FRELIGH, Appellant.

      SMdence — what inadmissible as involving a personal transaction between a party and a deceased person — Code of Civil Procedure, sec. 829.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes.
    This is an action of trespass quare clausum, for cutting trees on land -which each party claims to own. The boundary line of the manor of Rensselaerwick is the north boundaiy of defendant’s wood lot and the south boundary of plaintiff’s wood lot. And the real dispute was as to the exact situation of that line.
    The court at General Term, after considering other objections,' said: “ The plaintiff testified in his own behalf. He testified that after he bought the property he cut timber on the disputed land. He was asked by the court, ‘ Did old Mr. Freligh know that fact ? ’ He answered, ‘ He knew it; he came along there.’ This was ■objected to as calling for a personal transaction between plaintiff .and the deceased, through whom the defendant claimed. No conversation was testified to.
    “We are referred to no case which is analogous to this. All the ■cases cited by the defendant are cases of conversations or communications. The testimony admitted in the present case is simply that plaintiff was cutting timber and that Freligh was present. A remark was made that he was familiar with me (plaintiff) in his conversation and friendly with me as any of my neighbors. Another question was put: ‘ What else was there said at the time old Mr. Freligh was there?’ No objection was made to this. And the answer was: ‘Nothing more was said than common friendly conversation.’
    “ Some of this evidence comes within the prohibition of section 829. The testimony as to the mere presence of the deceased Freligh possibly might be proper. But it could not be permitted that the plaintiff should testify to what the deceased Freligh said. Nor to his silence when silence was to indicate acquiescence. For such testimony is open to the evils, against which that section was intended to guard.- The object of the evidence was to show by what Freligh said, or did not say an acquiescence in the plaintiff’s acts. And so it was treated by the court in the charge to the jury. It seems to us that this comes within the broad construction given to the statute in Holcomb v. Holcomb (95 N. Y., 316). The only aim of the testimony was to show that plaintiff exercised acts of ownership over the disputed land in the presence of the deceased, and that the deceased either by not objecting or by talking in a friendly manner showed that he admitted plaintiff’s rights. If plaintiff had said to the deceased c I claim that this is my land,’ and the deceased had said, ‘ I admit it,’ there would be no doubt that this was a personal communication. The decision in the case cited holds that the statute includes every method by which one can derive impressions or' information from the conduct, condition or language of another. Not to object to acts of ownership done by another is one of the best ways of conveying an impression by conduct.”

      J. H. Glute, for the appellant.

      G. B. Hitt, for the respondent.
   Opinion by

LearNed, P. J.

Present — LearNed, P. J., BooKes and LaNdoN, JJ.

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


author: LeabNed, P. J.

text:
    DANIEL S. JONES, Administrator, etc., of DANIEL JONES, Deceased, v. EMORY E. NEWMAN, Appellant, Impleaded, etc.

      Execution — the death of the plaintiff after it» issue does not suspend its operation — errors in the form, of a constable’s bond,- — when the sureties cannot avail themselves,' of them as a defense — when the justice may adjourn a cause on consent of the attorneys for the parrties.

    Appeal from a judgment of a Ooiinty Court, affirming a judgment of a justice of the peace.
    The action was brought against a constable and the sureties upon nis bond, to recover damages for the neglect and failure of the constable to return an execution.

      The court at General Term said : “ The execution was issued about January ninth. The plaintiff in the original judgment died March tenth. We are referred to no case showing that the death of a plaintiff, while an execution is in the officer’s hands, suspends its operation. Indeed, by the old cases, an execution, tested before, might be issued after a plaintiff’s death. (Lcmsing v. MeKillop, 1 Cow., 35.) At any rate, this execution was duly issued.

      “ This action is based on the failure of the constable to return the execution. (Code, § 3039.) We think that the judgment was sufficiently and properly proved, and the execution was given in evidence and was in due form. The action is against the constable and his bondsmen. The condition of tlie bond is that the constable shall faithfully discharge the duties of constable and shall account for and pay over all moneys received by him as such constable. It was approved by the supervisor and filed with 'the town clerk. The form of the bond is not such as is prescribed in chapter 788, Laws-of 1872. And one point urged by defendant is that therefore the bond is invalid. Courts have made a broad distinction between bonds given by pnblic officers, and bonds taken by such officers in. supposed discharge of their duty. As to the former, courts are liberal; as to the latter strict, in order to prevent oppression. {Gerould v. Wilson, 81 N. Y., 573; Villaye of Warren v. Phillips, 30 Barb., 646.) It was the constable’s duty to ciuse a proper bond with sureties to be executed, approved and filed. He and his sureties were the persons to see that it was in the right form. It would be highly unreasonable that the sureties should now escape liability and thus be permitted to practice a fraud on all who might be injured by the constable’s neglect. The act of the sureties in executing the bond has enabled the constable to act as such. And by his negligent act in that capacity, the plaintiffs have been injured. The cases cited are sufficient authority to-hold the defendants liable on this bond.
    “ The defendant Newman insists that jurisdiction was lost by adjournments. The plaintiff, in person, and all the defendants, by Attorney Alanson C. Cowles, appeared October 23, 1882, and issue was joined by all in writing. By consent of all, adjournment was had to December 21, 1882. On that day plaintiff appeared in per son, and also Alanson C. Cowles, who had previously appeared for all defendants, and bad sworn to his authority, and on defendants’ motion and plaiutiffs consent, adjournment was had to January 22, 1882. In a similar way adjournments were had to April 30, 1883, when Francis GL Walters appeared for defendants and swore to his authority, and adjournment was had to June 12, 1883 ; then an adjournment was had to August 21, 1883, when the case was tried. Now, although Newman did not personally appear, yet there was an appearance for him by one who swore to authority, and the adjournments were by consent. We do not think there was error in this respect.
    “ The judgment should be affirmed, with costs.”

      James B. Ol/ney, for the appellant.

      Sidney Crowell, for the respondent.
   Opinion by

LeabNed, P. J.

Present — LearNed, P. J.; Bocees and LandoN, JJ.

Judgment affirmed, with costs.


text:
    Fifth Department,
    March Term, 1885.

      In the Matter of the Application of The Lackawanna and Pittsburgh Railroad Company to Acquire Lands of C. Fitch Bissell and others.
   So much of the order as allows counsel fees reversed, with ten dollars costs and disbursements.


author: Barber J.

text:
    Eli B. Northrup, Appellant, v. William D Collingwood and another, Respondents.
   Order affirmed, with ten dollars costs and disburements. Mem. by

Barber J.


text:
    Elizabeth C. Day, Respondent, v. The United States Mutual Accident Association of New-York, Appellant.
   Order reversed and motion granted, with ten dollars costs of original motion, to abide the event. No costs of this appeal to either party.


text:
    Ann E. Oakley, Appellant, v. Austin Pierce, Respondent.
   Order appealed from reversed, with ten dollars costs and disbursements and the order of the county judge vacated. Held, that the affidavit on which the order was made did not show that the plaintiff was a non-resident of the State.


text:
    William H. Vanostran, an Infant, by Guardian, v. The New York Central and Hudson River Railroad Company.
   Order affirmed, with ten dollars costs and disbursements.

Smith, P. J., not voting.


text:
    S. Gregory Doran and Elizabeth R. Thompson, Respondents, v. Theodore G. Metzger, Appellant.
   Order denying motion to change place of trial affirmed. No costs.


text:
    Same v. Same.
   Order graining reference reversed. No costs.


text:
    Margaret Cornwall, Respondent, v. John Cornwall, Appellant.
   Order confirming referee’s report affirmed, with ten dollars costs and disbursements. Order refusing stay of proceedings affirmed, with ten dollars costs and disbursements.


text:
    Benjamin F. Van Camp, as Executor, etc., Appellant, v. Sally Kelsey and others, Respondents.
   Judgment affirmed, with costs to respondent, to be paid out of the estate. Held, that by the clear terms of the will, the respondent is entitled to the possession and use, during her natural life, of the property disposed of by the ninth clause of the will; and upou that, ground alone the judgment is affirmed.


author: Haight, J.;

text:
    Griffith Jones, Plaintiff, v. Henry W. Chamberlain and others, Defendants.
   Motion for new trial denied and judgment in favor of the plaintiff ordered on the verdict. Opinion by

Haight, J.;

Smith, P. J., and Barker, J., concur; Bradley, J., not sitting.


text:
    Walter L. Sessions, Respondent, v. Simeon B. Manly, Appellant.
   Judgment affirmed


text:
    Mary Johnson, Appellant, v. William Ult and others, Respondents.
   Appeal dismissed.


text:
    Edward J. Kelsey and others, Respondents, v. James Sargent and others. Appellants.
   Order reversed and motion for retaxation of costs granted, with ten dollars costs and disbursements.


author: Barker, J.

text:
    Horatio Pullan, Appellant, v. William I. Reid and others, Respondents.
   That part of the order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Barker, J.


text:
    Julia F. Kirtz, as Administratrix, Appellant, v. Hezekiah Peck, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Sluman C. Crittenden, Appellant, v. John Bottsford, as Executor, etc, Respondent.
   Orders appealed from affirmed, with ten dollars costs and disbursements.


text:
    Edward J. Kelsey and others, Respondents, v. James Sargent and others, Appellants.
   Order requiring defendant to furnish hill of particulars affirmed, with ten dollars costs and disbursements.


text:
    Henry J. Anderson, as Receiver, etc., of the First National Bank of Albion, Respondent, v. George B. Church and another, Appellants. Henry J. Anderson, as Receiver, etc., of the First National Bank of Albion, Respondent, v. Charles H. Moore, Appellant.
   Order denying motion to consolidate actions affirmed, with ten dollars costs and disbursements.

Haight, J., not sitting.


text:
    Henry Rice and another, Respondents, v. Lena Goodman, Appellant.
   Order appealed from reversed, with ten dollars costs and disbursements, and motion to vacate attachment granted.


text:
    White’s Bank of Buffalo and another, Respondents, v. Matilda Farthing and others, Appellants.
   Order denying motion to bring in and make appellants parties affirmed, with ten dollars costs and disbursements.


text:
    William H. Ensign and others, Respondents, v. John L. McKinney and others, Appellants.
   Motion for new trial granted, with costs to abide the event, on the opinion of Haight, J., in the case of Chamberlain v. Taylor.

Bradley, J., nor sitting.


text:
    Ashbel F. Bard, Respondent, v. John L. McKinney and others, Appellants.
   Motion for new trial granted, with costs to abide the event, on the opinion of Haight, J., in case of Chamberlain v. Taylor.

Bradley, J., not sitting.


text:
    Henry French v. William H. St. John.
   Motion for reargument, or for leave to appeal to the Court of Appeals, denied.


text:
    Florence McPherson v. Patrick Rollin and others.
   Memorandum of decision modified by adding thereto, after the words “ with costs,,r the words “ of the appeal to the plaintiff, and also to the defendant Ida McPherson, to be paid by the appellant.”


text:
    Frederick D. Potter, Appellant, v. Sylvanus J. Green, Respondent.
   Motion to dismiss appeal denied.


text:
    Hiram C. Pettibone v. William E. Drakeford.
   Motion for roargutnent granted.


text:
    George W. Carter v. Joseph W. Wallace.
   Motion denied, without costs, with leave to move in County Court for an order vacating order of reference, and for jury trial.

Bradley, J., not sitting.


text:
    Joseph S. Penoyer, Appellant, v. Edson Phillips, Respondent.
   Motion to dismiss appeal denied, and the undertaking filed permitted to stand on the payment of ten dollars costs.


text:
    Thomas C. Parkhurst v. Lena Mitchell.
   Motion for reargument granted


text:
    In the Matter of the Probate of an Instrument Propounded as the Last Will of Henry Pulver, Deceased.
   Motion to dismiss appeal granted, with ten dollars costs.


text:
    Perry J. Tobin, Respondent, v. James H. Fisher, Appellant.
   Motion for reargument and to amend 'the record denied. No costa of motion.


text:
    Charles B. Nichols, Respondent, v. Nelson Martin and others, Appellants.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Reuben R. Pierce v. William P. Fowler.
   Motion for reargument denied.


text:
    Reuben H. Farnham, Supervisor, etc., v. Charles B. Benedict.
   Motion denied, without prejudice to the right of the moving parties to renew the motion for substitution at the Special Term, upon the same or additional papers.

Bradley. JM not voting.


text:
    Robert Simpson v. George D. Swikehard.
   Motion to correct memoranda of decision of last term denied.


text:
    In the Matter of the Petition of the German Bank, a Creditor of George Farthing, Deceased.
   Order declaring surrogate of Erie county disqualified, etc., granted.


text:
    John Olmstead v. Mary L. Keys.
   Order reversed, with ten dollars costs and disbursements, and motion granted. Opinion by

Haight, J.;

Lewis, J , concurs; Bradley J., not voting ; Barker, J., not sitting.


text:
    John Olmstead v. Mary L. Keys.
   Order appealed from reversed, so far as it denies plaintiff’s motion to compel Lemuel W. Bignall to pay ihe costs allowed on the affirmance of the judgment in the General Term, and as to such costs the motion is granted. And so much of the order appealed from as refused the motion to compel Bignall to pay the sixty dqjlars aud fifty cents allowed in supplementary proceedings affirmed, without costs of this appeal to either party, on the opinion of ílaight, J., in the former case.


text:
    George B Kent and others, Appellants, v. Michael Kolb and others, Respondents.
   Re-argument ordered.


author: Bradley, J.

text:
    Charles S. Briggs, Appellant, v. Albert C. Hobbie, Respondent.
   Judgment reversed and new trial ordered, costs to abide the event. Opinion by

Bradley, J.


text:
    William H. Ensign and others, Respondents, v. Mills W. Barse and others, Appellants.
   Order appointing receiver reversed, with ten 1 dollars costs and disbursements.


text:
    William H. Ensign and others, Respondents, v. John L. McKinney and others, Appellants.
   Order appointing receiver reversed, with teu dollars costs and disbursements.


text:
    Ashbel F. Bard, Respondent, v. John L. McKinney and others, Appellants.
   Order appointing receiver reversed, with ten dollars costs and disbursements.


author: Bradley, J.;

text:
    Claudius Shattuck and another, by guardian, Plaintiffs, v. George Bascom, Defendant.
   Motion for new trial denied and judgment ordered for the plaintiff on the verdict. Opinion by

Bradley, J.;

Barker, J., concurs; Haight, J,, not sitting.


text:
    Martha J. Parsons, as Executrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judg'ment and order reversed aud a new trial ordered, with costs to abid the event. Opinion by

Haight, J.;

Bradley, J., concurs; Barker, J., concurs in result.


text:
    In the Matter of the Probate of an Instrument Propounded as the Last Will, etc., of Charlotte D. Hewitt, deceased.
   Decree reversed and the issues ordered to be tried before a jury at the Cayuga circuit, with costs of this appeal to abide the final award of costs in the proceeding. Opinion by

Haight, J.;

Barker aud Bradley, JJ„ concur.


text:
    Emma A. Fish, Respondent, v. Martin F. Lindsley, Sheriff, etc., Appellant.
   Motion for new trial granted, with costs to abide the event. Opinion by

Barker, J.


author: Haight, J.

text:
    Elizabeth M. Filkins, Respondent, v. Thomas Cruice, Appellant.
   Judgment reversed and a ik»w trial ordered before another referee. Opinion by

Haight, J.


author: 7 Haight, J.

text:
    Horace McGuire. as Receiver, etc., Respondent, v. William H. Cobb and another, Appellants.
   Judgment affirmed, with costs. Opinion by

7 Haight, J.


author: Daniels, J.

text:
    Henry C. Cram and others, Respondents, v. The City of Buffalo, Appellant.
   Judgment affirmed, with costs, on the opinion of

Daniels, J.


text:
    William H. Williamson, Respondent, v. Henry S. Overhiser, Appellant.
   Judgment of tho County Court affirmed. Opinion by

Barker, J.


author: Bradley, J.;.

text:
    Fredericka Baker, Respondent, v. George Johns and another, Appellants.
   Judgment and order affirmed. Opinion by

Bradley, J.;.

Barker, J., not sitting.


author: Barker, J,

text:
    Thomas Rutherford, Appellant, v. The Village of Holley, Respondent.
   Judgment reversed and a new trial ordered before another referee, with tho costs to abide the final award of costs. Opinion by

Barker, J,


author: Haight, J.; Barker, J.

text:
    Peter Fossett, by Guardian, Plaintiff. v. The Society for the Protection of Destitute Roman Catholic Children, Defendant.
   Motion for new trial granted, with costs to abide tlm event. Opinion by

Haight, J.;

dissenting opinion by

Barker, J.


text:
    Jonas Clark, Respondent, v. Martin Andrus, Appellant, Impleaded, etc.
   Judgment and order affirmed. Opinion by

Bradley, J.;

Haight, J., not sitting.


text:
    The Village of Lyons, Respondent, v. Manly Hanchett, Appellant.
   Judgment affirmed, with costs. Opinion by

Barker, J.


text:
    John F. Hirsch, Respondent, v. The City of Buffalo, Appellant.
   Judgment affirmed Opinion by

Haight, J.;

Barker, J., not sitting.


text:
    Elizabeth Cornue, Appellant, v. Robert H. Webb and others, Respondents.
   Judgment reversed and a new trial ordered, with costs of this appeal to abide the final award of costs. Opinion by

Bradley, J.


text:
    John Brown and others, Respondents, v. Joseph Cone, Appellant.
   — Judgment and order reversed and a new trial ordered, with costs to abide the event. Opinion by

Barker, J.


author: Haight J.

text:
    Evelyn W. Wadsworth, as General Guardian, etc., Appellant, v. James W. Wadsworth and another, Respondents
   —Judgment reversed and a new trial ordered before another referee, with costs to abide the event. Opinion by

Haight J.


text:
    William Burke, Plaintiff, v. Augustus Spinning, Defendant.
   Motion for new trial granted, with costs to abide the eveut. Opinion by

Barker, J.


text:
    Jacob Steffan, Respondent, v. The City of Buffalo, Appellant.
   Judgment reversed and a new trial granted, with costs to abide the event. Opinion by

Bradley, J.


text:
    Alice Lafflin, Respondent, v. The Buffalo and South-Western Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by

Barker, J.


text:
    Moses P. Hall and another, Respondents, v. Abram R. Miller, Appellant.
   Judgment of the County Court reversed and that of the justice affirmed, with costs. Opinion by

Barker, J.


text:
    Thomas J. Chamberlain and others, Executors, etc, Appellants, v. Haskell L. Taylor and others, Respondents.
   Judgment affirmed on the opinion of Haight, J , in former case. [See ante, p. 24. — Rep ]

Bradley, J., not sitting.


text:
    William H. Ensign v. Mills W. Barse and others.
   Motion for new trial granted, with costs to abide the event, on the opinion of Haight, J., in the case of Chamberlain v. Taylor.

Bradley, J., not sitting.


text:
    Emily M. Goodrich, Respondent, v. George W. Goodrich and William J. Goodrich, Appellants.
   Judgment modified as indicated in the opinion, and as modified affirmed, with costs to the respondent. Judgment to be settled by Bradley, J. Opinion by

Bradley, J.;

Haight, J., not sitting.


author: Barker, J.;

text:
    David W. Burt, Respondent, v. George W. Goodrich, Appellant, Impleaded, etc.
   Judgment affirmed, with costs to respondent against the appellant. Opinion by

Barker, J.;

Haight, J., not sitting.


author: Corlett, J.;

text:
    The People of the State of New York, Respondent, v. Edward F. Clark, Appellant.
   Judgment and conviction reversed and a new trial ordered, and for that purpose the proceedings are remitted to the Court of Sessions of Monroe county. Opinion by

Corlett, J.;

Barker, J., dissenting.


text:
    John E. Middaugh, Respondent, v. David Breen, Appellant.
   Order affirmed. Opinion by

Bradley, J.


text:
    The People of the State of New York, Respondent, v. Charles Taylor, Appellant.
   Judgment and conviction affirmed, and the proceedings remitted to the Court of Sessions of Steuben county. Opinion by

Haight, J.


text:
    The People of the State of New York, Respondent, v. William Bassford, Appellant.
   Judgmeut and conviction affirmed, and proceedings remitted to the Court of Sessions of Erie county. Opinion by

Bradley, J.


text:
    Woodward S. Wixom, Respondent, v. George D. Uhl and another, Appellants
   Judgment reversed and new trial granted, with costs to abide the final award of costs Opinion by

Corlett, J.;

Haight, J., not voting.


text:
    J. Addison Howland, Respondent, v. Mary D. S. Dewey, Appellant, Impleaded, etc.
   Judgment modified in accordance with the opinion. Opinion by

Barker, J.;

Haight, J., not voting.


text:
    Edward Conley and another, Appellants, v. The Niagara Falls Hydraulic Power and Manufacturing Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Bradley, J.;

Haight, J., not voting.


author: Corlett, J.

text:
    Charles P. Moody, Appellant, v. Frederick Geerharts, Respondent.
   Judgment affirmed. Opinion by

Corlett, J.


text:
    Daniel Hoover, Respondent, v. John Kleis, Appellant
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Bradley, J.;

Corlett, J. not sitting.


text:
    John Burns, Respondent, v. S. Duncan Karns and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Barker, J.


text:
    James E. Galligher, Respondent, v. S. Duncan Karns and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barker, J.


text:
    David F. Day, Respondent, v. James C. Strong, Appellant, Impleaded, etc.
   Judgment affirmed, with costs, on the opinion in this case, reported 29 Hun, 505.


text:
    Nancy T. Daniels, Respondent, v. Frank M. Derrick, Appellant.
   — Judgment and order affirmed. Opinion by

Corlett, J.;

Haight, J., not sitting.


text:
    Daniel Murphy, Jr., Appellant, v. Patrick Doyle, Respondent.
   Judgment affirmed. Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    Theodore D. Yorks and others, Respondents, v. J. Franklin Peck and another, Appellants, Impleaded, etc.
   Jndgment affirmed, with costs. Opinion by

Corlett, J.;

Haight, J., not sitting.


text:
    Eliza L. Caskey, Respondent, v. William Shean, Appellant.
   — Judgment and order affirmed. Opinion by

Bradley, J.;

Barker J., not sitting.


text:
    Ashley, Winne, Appellant v. Moses Breckon, Respondent.
   — Judgment affirmed, with costs. Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    Fourth Department,
    April Term, 1885.
    In the Matter of the Application of the Board of Water Commissioners of the Village of Clinton for the Appointment of Commissioners.
   — Chapter — of the Laws of 1885, passed since the argument, having cured the informalities involved in the appeal, it is ■ordered that the order of the Special Term he reversed, without costs of the appeal; and application may he made to the Special Term for the appointment of commissioners, upon payment to respondent of the costs and disbursements stated in the order appealed from. The act referred to renders it unnecessary to pass upon the merits of the appeal.


author: Follett, J.

text:
    Almenia L. Butler, Respondent, v. The Village of Cortland, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Opinion by

Follett, J.


author: Boardman, J.;

text:
    Le Dette A. Bostwick, Plaintiff, v. Emily P. Beach, Executrix, etc., and Individually, Defendant.
   Motion for new trial denied, with costs, against Emily P. Beach, personally. Opinion by

Boardman, J.;

Hardin, P. J., not sitting.


author: Follett. J.

text:
    Lewis M. Smith, Plaintiff, v. Henry J. Daggett and another, Defendants.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Follett. J.


author: Hardin, P. J.

text:
    Isaac R. Pharris, Respondent, v. R. Nelson Gere, Appellant.
   Judgment and order reversed, and a new trial ordered, with costs to abide the event. Opinion by

Hardin, P. J.


author: Boardman, J.

text:
    Edward P. Alexander, Respondent, v. Henry R. Osborn, Appellant.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Opinion by

Boardman, J.


text:
    Samuel Brown and another, Appellants, v. Hugh Owens, Respondent.
   Judgment of the County Court of Herkipaer county and the decision of the Special Term reversed, and the judgment of the Justice’s Court affirmed, with costs. Opinion by

Boardman, J.


text:
    The People of the State of New York, Respondents, v. Henry F. Thomsen, Appellant.
   Judgment and conviction reversed and a new trial ordered in the Court of Sessions of Onondaga county. Opinion by

Hardin, P. J.


text:
    William McElhinney and another, Appellants, v. Jonn P. M. Peck and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Elisha M. Shurtliff, Respondent, v. The Utica and Black River Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opiuion by

Boardman, J.


author: Folíete, J.

text:
    John D. Ingersoll and another, Executors, etc, Plaintiffs, v. Mary Hunt and others, defendants.
   The first, third and fourth questions answered in the negative, and the second questiou in the affirmative, without costs to either party j and judgment ordered accordingly. Opinion by

Folíete, J.


text:
    James A. Sheridan, Appellant, v. Henry Farnham, Respondent.
   Judgment of the County Court of Onondaga county reversed, and judgment of the Justices’ Court affirmed, with costs. Opinion by

Hardin, P. J.


text:
    George E. Eastman, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    Patrick Collins, Respondent, v. Jane A Jones, Appellant.
   Judgment of the County Court of Onondaga county and that of the Justices’ Court reversed, with costs. Opinion by

Follett, J.


text:
    Mary Ann Jones, Respondent, v. The Utica and Black River Railroad Company, Appellant
   Judgment and order reversed, and anew trial ordered, with costs to abide the event. Opinion by

Hardin, P. J.


text:
    The Village of Little Falls Appellant, v. Charles Cinney, Respondent.
   Judgment of the County Court of Herkimer county affirmed, with costs Opinion by

Boardman, J.


author: Hardm, P. J. and Boardman, J.;

text:
    Frances C. Blackman, Appellant, v. Dwight M. Cavin, Executor, etc., Respondent.
   Judgment and order affirmed, with costs. Opinion by

Hardm, P. J. and Boardman, J.;

Follett, J., not sitting.


text:
    Thomas Cornell, Respondent, v. William J. Clark, Sheriff, Appellant.
   Motion for a new trial denied, and judgment ordered for plaintiff on the verdict, with costs. Opinion hy

Boardman, J.;

Follett, J., not sitting.


text:
    George Crispin, Respondent, v. Benjamin T. Babbitt, Appellant.
   Judgment, and order affirmed, with costs. Opinion by

Follett. J.


text:
    William Wilsey, Appellant, v. John Yourden, Respondent
   Judgment and order reversed, and a new trial ordered, with costs to abide the event. Opinion by

Follett, J.


text:
    Rhoda Clark, Respondent, v. The Glens Falls Insurance Company, Appellant.
   Order affirmed with costs, on the opinion of Martin, J.. at Special Term.


author: B'ollctt, J.

text:
    In the Matter of the General Assignment of Samuel Kopelowich and others.
   Order affirmed with ten dollars costs and disbursements. Opinion by

B'ollctt, J.


text:
    J. Daniel Ackerman and others, Appellants, v. Isaac P. Powers, Respondent
   Judgment affirmed, with costs. — Opinion by

Follett, J.


text:
    Daniel Crehange, Appellant, v. Isaac P. Powers, Respondent.
   Judgment affirmed, with costs. Opinion by

Follett, J.


text:
    John Q. Harbottle and others, Appellants, v. John Farrell and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Follett, J.


author: Hardin. P. J.

text:
    Clara F. Vischer, Respondent, v. Stanley Bagg, Appellant.
   Judgment affirmed, with costs. Opinion by

Hardin. P. J.


author: Board-man, J.

text:
    Joab L. Clift, as Survivor, etc, Respondent, v. George Barrow. Appellant.
   Judgment and order affirmed, with costs. Opinion by

Board-man, J.


text:
    Francis G. Hall, Respondent, v. The Tioga National Bank of Owego, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.


author: Boardman. J.

text:
    Alvin F. Wells, Respondent, v. Abigail E. Sargent, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman. J.


author: Follett, J

text:
    Jane E. Olive, as Administratrix, etc., Appellant, v. The Whitney Marble Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Follett, J


text:
    The Jefferson County National Bank, Respondent, v. John C. Streeter, Appellant.
   Judgment affirmed, with costs. Opinion by

Board-man, J.


text:
    The Jefferson County National Bank, Respondent, v. Henry C. Normander, Appellant.
   Judgment affirmed, with costs. See opinion of Boardman, J., in Bank v. Streeter.


text:
    Asa Ellwood and others, Appellants and Respondents, v. Albert Northrup, Respondent and Appellant.
   Judgment affirmed, with costs Opinion by

Follett, J.


author: Ilardin, P. J.

text:
    Abram Goodenow, Respondent, v. Norman Billings, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Ilardin, P. J.


text:
    Orlin Holcomb, Respondent, v. The Town of Wilna and others, Appellants.
   Order of ihe Special Term reversed, with ten dollars coats and disbursements, and motion to dissolve the injunction granted, with ten dollars costs. Opinion by

Boardman, J.


text:
    Christiana Fitzsimmons, Respondent, v. The City of Rome, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Follett, J.


author: Hardin P J.

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

Hardin P J.


text:
    Horace Shoemaker, Respondent, v. Charles Lounsbury and another, Appellants
   Judgment of the County Court of Tioga county affirmed,with costs. Opinion hy

Boardman, J.


text:
    Horace Shoemaker, Respondent, v. Charles Lounsbury and another, Appellants.
   Judgment affirmed with costs. Opinion by

Follett, J.


author: Hardin, P. J ;

text:
    Martha Albert, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment and order affirmed, with cosls. Opinion by

Hardin, P. J ;

Follett, J.. not sitting.


text:
    Solomon Baldwin, Respondent, v. Rhoda J. Lason, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    T. Jay Griffiths and others, Respondents, v. Julia A Phelps, Appellant.
   Judgment affirmed, with costs. Opinion by

Follett, J.


text:
    Thomas J. Lewis, Respondent, v. The Delaware and Hudson Canal Company, Appellant.
   Judgment and order affirmed, with costs, on opinion of Martin,.J., delivered at Special Term.


text:
    Francis Greensdale, Respondent, v. James Smith and others, Appellants.
   Judgment affirmed, with costs. Opiniou by

Boardman, J.


text:
    Charles A. Burt. Respondent, v. Oneida Community, Limited, and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Follett, J.


text:
    William H. Brown, Respondent, v. Dennis Rice, Appellant.
   Judgment of the County Court of Onondaga county and of the Justice’s Court affirmed with costs. Opinion by

Hardin, P. J.


author: Boaraman, J.

text:
    Jacob Miller, Appellant, v. The Phœnix Mutual Life Insurance Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Boaraman, J.


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

text:
    Charles W. Osborne, Respondent, v. Nicholas D. Randall, Appellant.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Opinion by

Hardin, P. J., and Follett, J.


text:
    William Miller, Respondent, v. Volney J. Hoke and others, Appellants.
   Judgment of tho County Court of Tioga county affirmed, with costs. Opinion by

Boardman, J.


text:
    Henry C. Spaulding, Respondent, v. The Equitable Assurance Society of the United States, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Joseph Corl and another, Respondents, v. Harry Corl, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Boardman, J.;

Follett, J., not sitting.


text:
    Charles S. Biddlecom, Appellant, v. Loren F. Shed and others, Respondents.
   Judgment affirmed, with costs, on opinion of Merwin, J., delivered at Special Term.


text:
    Alice M. Barnes, Respondent, v. Harrison Gilmore, Appellant.
   Judgment sustaining the demurrer to the thira and fourth counts of the answer reversed, with costs, and demurrer overruled with costs, with leave to the plaintiff to reply on payment of costs of the demurrer and of this appeal. Opinion by

Boardman, J.


author: Follett, J.

text:
    Paulica W. Kellogg, Appellant, v. D. Kellogg Leitch, Respondent.
   Judgment affirmed,with costs. Opinion by

Follett, J.


text:
    Joseph B. Van Wie, Appellant, v. James J. Murphy, Respondent.
   Judgment affirmed, with costs. Opiniou by

Boardman, J.


text:
    Grove F. Strong, Appellant, v. William G. Broad, Respondent.
   Judgment, of the County Court of Onondaga county affirmed, with costs. Opinion by

Follett, J.


author: Boardman, J.;

text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railway Company, Appellant, to acquire title to lands of William A. Judson and others, Respondents.
   Order of confirmation and the report of the commissioners reversed, and the proceedings remitted to new commissioners to be appointed at Special Term, with costs to abide the final decision. Opinion by

Boardman, J.;

Follett, J., not sitting.


text:
    The People of the State of New York Respondent, v. William V. Haven and another, Appellants.
   Appeal dismissed. Opinion by

Hardin, P. J.


text:
    Susan M. Chesbro, Respondent, v. J. Warren Tilden, Appellant.
   Judgment affirmed, with coats. Opinion by

Hardin, P. J.


text:
    John G. Robinson, Appellant, v. Peter B. Mernaugh, and others, Respondents.
   Judgment and order of the County Court of Herkimer county affirmed, with costs. Opinion by

Boardman, J.


text:
    James G Ross v. Samuel P. Wigg. Same v. Same. J. Willard Johnson v. Samuel P. Wigg. Alexander R. Cristie v. Samuel P. Wigg.
   So much of the order appealed from as amends the judgment roll and execution in the first action above entitled, and as provides that “such amendment may take effect as of July 24, 1884, and as provides that the judgment and execution should be amended accordingly,” is reversed, without prejudice to a motion by either party at Special Term, upon due notice to the receiver and all parties interested in the proceedings and sale had July 23, 1884. So much of the order as allows an amendment of the judgment roll and execu- • tion in the action first above entitled, and as provides that such amendment shall take effect July 14, 1884, is reversed. No costs are allowed to either party on this appeal. Opinion by

Hardin, P. J.


text:
    Marietta A. Morse, Respondent, v. William Ingraham, Appellant.
   Judgment of the County Court of Oswego county affirmed, with costs. Opinion by

Boardman, J.


text:
    Josephine Cornell, Administratrix, Respondent, v. Frances R. Cornell, Appellant.
   Judgment reversed and new trial ordered, with costs to abide the event, unless plaintiff stipulates to strike from the verdict and judgment 3102 for one yoke of oxen, in which case the judgment, as so modified, is affirmed, without costs of this appeal to either party. Opinion by

Hardin, P. J.


text:
    Daniel W. Way and others, Respondents, v. Thomas T. Kavanaugh and others Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    J. Daniel Ackerman v. Marcus Brounstein.
   Motion for leave to appeal to the Court of Appeals granted, on the ground that the case involves a question of law that ought to be reviewed by that court.


text:
    Elias Walter and another v. William C. Gould.
   Motion for reargument denied.


text:
    Joseph Falker v. The New York, West Shore and Buffalo Railway Company.
   Motion denied, with ten dollars costs.

Follett, J., not sitting.


text:
    Andrew De Wolf, Respondent, v. John Waterson, Sole Trustee, etc., Appellant.
   Motion for reargument denied.


text:
    Wealthy Dexter, Appellant, v. Daniel C. Case, Respondent.
   Motion for reargument denied.


text:
    Same v. Same.
   Motion for reargument denied.


text:
    Roxana C. Larkins, Respondent, v. Paul C. Maxon, as Administrator, etc., Appellant.
   Motion denied. Followed Miller v. Miller (32 Hun, 481).


text:
    Julius Johnson, as Executor, etc., Respondent, v. Harrison Wells, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.

Follett, J., not sitting.


text:
    Syracuse Water Company, Respondent, v. The City of Syracuse, Appellant.
   Motion to strike the case from the calendar granted.


text:
    Stephen R. Ryan, as Assignee, etc., v. J. Nelson Webb and another.
   Motion granted and leave given to execute and serve au undertaking within ten days, upon payment of ten dollars costs of opposing the motion.


author: Vann, J.

text:
    The Emma Vacuum Brake Company, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Motion denied, with ten dollars costs. Mem. by

Vann, J.


text:
    Mary Griffith v. Andrew G. Cady.
   Motion granted, with ten dollars costs.


text:
    Thomas C. Poole, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   Motion for reargument denied, with ten dollars costs.


text:
    John F. McCoy, Appellant, v. The Utica and Black River Railroad Company, Respondent.
   Motion aenied, with ten dollars costs.


text:
    Chauncey M. Soule, Appellant, v. Cornelius Mogg, Respondent.
   Motion for leave to appeal to the Court of Appeals denied. Motion for reargument denied.


text:
    Rose Ann Spohre, Respondent, v. The Syracuse and Liverpool Plank Road Company.
   Motion denied.


text:
    Stephen R. Ryan, Appellant, v. Erastus R. Burnham, Respondent.
   Motion denied.


text:
    The Singer Manufacturing Company, Appellant, v. Susan A. Strong, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Naaman W. Porter, Appellant, v. Lewis P. Baker and others, Respondents
   Orde"affirmed, with ten dollars costs and disbursements.


text:
    John Van Evera, Appellant, v. Lewis P. Baker and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Joseph Lacy, Respondent, v. Alfred Wilkinson and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Vann, J., not sitting.


text:
    Ella A. Wheeler, Respondent, v. Alfred Wilkinson and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


author: Kennedy, J.

text:
    Joseph Knolt, Appellant, v. Adelaide Townsend, Respondent.
   Judgment of the County Court of the county of Oneida affirmed, with, costs. Opinion by

Kennedy, J.


author: Barnard, P. J.

text:
    Second Department,
    May Term, 1885.
    Gerche Koch, Respondent, v. Otto Meyer, Appellant.
   Order denying motion to vacate . order of arrest affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Gerche Koch, as Guardian, Respondent, v. Otto Meyer, Appellant.
   Order affirmed, with costs. Opinion by

Barnard, P. J.


text:
    John Segelkin, by Guardian, Respondent, v. Otto Meyer, Appellant.
   Order affirmed* with costs. Opinion by

Barnard, P. J.


author: Pratt, J.;

text:
    James A. Russell, Respondent, v. Henry F. Taintor, Appellant.
   Judgment affirmed, with costs; papers not submitted according to order. Order reducing referee’s fees reversed and fees allowed by clerk affirmed, with costs of the appeal. Order allowing stenographer’s fees affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting upon the appeals from the orders.


text:
    Francis A. Waring, Appellant, v. Oscar Waring, Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J\, not sitting.


author: Dykman, J.

text:
    Andrew Zulch, Respondent, v. Elizabeth Zulch, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Elsie Lambert, Respondent, v. Archibald Hoyt and another, Appellants.
   Judgmentof County Court reversed and. that of justice affirmed. Opinion by

Barnard, P. J.


author: Barnard, P. J., and Pratt, J.

text:
    Eliza Craft, Appellant, v. James A. Seacod, Respondent.
   «Judgment reversed, with costs. Opinions by

Barnard, P. J., and Pratt, J.


text:
    Thomas Nelson, Respondent, v. James L. Armstrong and others, Appellants.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.;

Barnard, P. «T., dissenting.


text:
    Anna W. Brown v. The Long Island Railroad Company.
   Reargument ordered.


author: Barnard, P. J.:

text:
    D. F. Gorham, Respondent, v. Sanford H. Weeks, Jr., and another, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.:

Dykman, J , not sitting.


author: Pratt, J.

text:
    Matter of Order confirming Orders of County Judge opening Buel’s Lane.
   Order affirmed. Opinion by

Pratt, J.


author: Barnard, P. J.;

text:
    Matter of Henrietta Wiley.
   Order modified by allowing petitioner seventy-five dollars, without costs of appeal. Opinion by

Barnard, P. J.;

Dykman. J., not sitting.


text:
    Walter Harrison, Respondent, v. The New Foundland Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    James W. Billings, Plaintiff, v. Charles Marsh, as Executor, etc., Defendant. Irene Bird, Plaintiff, v. Charles Marsh, as Executor, etc., Defendant. Charles H. Dutcher, Plaintiff, v. Charles Marsh, as Executor, etc., Defendant.
   J udgment for plaintiffs on the agreed case. Opinion by

Barnard, P. J.


text:
    Samuel L. Mulford, Appellant, v. Thomas Foley, Respondent.
   Judgment and order denying fw trial reversed and new trial granted, sts to anide event. Opinion by

Barnard, P. J.


text:
    Matter of Henrietta Wiley.
   Order affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Matter of Estate of George Nanny, Deceased.
   Portions of decree appealed from modified in accordance with opinion. Order to be settled . by Dykman, J. Opinion by

Dykman, J.


author: Barnard. P. J.

text:
    Daniel G. Dorrance, Jr., Respondent, v. Robert J. Dean and others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard. P. J.


text:
    Mary M. Bampton, Respondent, v. The Brooklyn Cross-Town Railroad, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Peter C. Moore and others, Appellants, v. The Brooklyn City Railroad Company, Respondent
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J , not sitting.


text:
    The People of the State of New York, Respondent, v. James E. Kelley, Appellant, and twenty-six others.
   Convictions affirmed. Opinion by

Barnard, P. J.


text:
    George B. Ellery, Appellant, v. Cyrus W. Baldwin, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    The People of the State of New York, Respondent, v. Martin Tyrrell, Appellant.
   Judgment reversed. Opinion by

Dykman, J.


text:
    Cornelius Van Sickle v. Mexican Telegraph Company.
   Order sustaining demurrer affirmed, with costs. Opinion by

Pratt, J.


author: Dykmau, J.

text:
    The People of the State of New York ex rel. Wade Buckley, Appellant, v. The President, etc., of Port Jervis, Respondent.
   Order affirmed, with costs and disbursements. Opinion by

Dykmau, J.


author: Pratt, J,

text:
    The People of the State of New York ex rel. Martin Owens, Appellant, v. John N. Partridge, as Police Commissioner, etc., Respondent.
   Order of commissioner affirmed, with costs. Opinion by

Pratt, J,


text:
    Julia Turner, Respondent, v. The City of Newburgh, Appellant.
   Judgment and order denying new trial reversed, and new trial granted, cosis to abide event. Opinion by

Barnard, P. J.


author: Dykman and Pratt, JJ.

text:
    Catherine A. Ryer, Respondent, v. John Eylers, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinions by

Dykman and Pratt, JJ.


text:
    The People of the State of New York, Respondent, v. George W. Lake, Appellant.
   Judgment reversed and new trial granted. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


author: Prate, J.;

text:
    John Robison, Respondent, v. Otto Huber, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Prate, J.;

Dykmau, J., not sitting.


author: Dykman. J.;

text:
    New York Rubber Company, Appellant, v. John Rothery and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Dykman. J.;

Barnard, P. J.. not sitting.


text:
    Jeremiah Hanglon, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


author: Dykman, J

text:
    The People of the State of New York, Respondents, v. Patrick Kiernan, Appellant.
   Conviction and judgment affirmed. • Opinion by

Dykman, J


author: Pratt, «I.

text:
    Matter of Probate of Last Will of Edwin B. Hunt, deceased.
   Decree of surrogate affirmed, with costs. Opinion by

Pratt, «I.


text:
    Arnold Davidson, Respondent, v. John F. Betz and another, Appellants.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Jacob H. Conklin and another, as Trustees, etc., Respondents, v. Garrett Z. Snider, as Executor, etc, Appellant.
   Judgment reversed and new trial granted at Special Term, costs to abide event. Opinion by

Dykman,J.;

Barnard, P. J., dissenting.


author: itykman, J.

text:
    Lucius F. Reed, Respondent, v. A. G. Darwin, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

itykman, J.


text:
    Edward M. Ross, Respondent, v. John H. Ross, Appellant.
   Judgment affirmed, with costs Opinion by

Pratt, J.


text:
    Edward J. Wessells, Appellant, v. Erastus Ross and others, Respondents
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.;

text:
    Thomas Cahill, Respondent, v. Henry Hilton and William Libby, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., dissenting.


author: Barnard, P. J.

text:
    The People of the State of New York ex rel. Crafts v. The City of Brooklyn. The People of the State of New York ex rel. Joy v. The Same. The People of the State of New York ex rel. Roberts v. The Same.
   Motions denied, with ten dollars costs of each motion. Opiniou by

Barnard, P. J.


author: Barnard, P. J., and Dykman, J.

text:
    Edward W Connor v. Fanny Hohorst and others.
   Order affirmed, with costs and disbursements. Opinions by

Barnard, P. J., and Dykman, J.


text:
    Byron De Wolf and others, Respondents, v. The Metropolitan Trust Company and others, Appellants.
   Judgment overruling demurrer to plaintiff's complaint affirmed, with costs on opinion of ¡Special Term.

Cullen, J., dissenting.


author: Cullen, J; ;

text:
    The Equitable Life Assurance Society of the United States. Appellant, v. John H. C. Doscher and Charles Von Glahn, Respondents, Impleaded, etc.
   Judgment reversed and new trial granted. Opinion by

Cullen, J; ;

Barnard, P. J., concurred; Dykman, J., dissenting.


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

text:
    First Department,
    May Term, 1885.
    Decisions Handed Down May 8, 1885.
    Ann Mallach, Respondent, v. Edward A. Ridley and others, Appellants.
   Judgment and order reversed, new trial ordered, costs to abide event Opinions by

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


author: Davis, P. J.

text:
    Ann Mallach, Respondent, v. Edward A. Ridley, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


author: Brady, J.

text:
    Samuel L. Miller, Respondent, v. Richard Woodhead, Appellant.
   Judgment affirmed. Opinion by

Brady, J.


author: Davis, P. J.;

text:
    The People of the State of New York ex rel. Leon Von Heck v. New York Catholic Protectory
   Order reversed and order entered delivering custody of child to the relator. Opinion by

Davis, P. J.;

Brady, J., dissenting.


author: Daniels, J.

text:
    Gibbons L. Kelty, Appellant, v. Zachariah E. Simmons, Respondent.
   Judgment modified as directed in opinion and affirmed as modified, without costs to either party. Opinion by

Daniels, J.


text:
    Lewis Le Coulteux de Caumont, Appellant, v. Mary J. Morgan and others, Respondents.
   Order affirmed. Opinion by

Brady, J.


text:
    Drayton Hillyer, Appellant, v. United States Trust Company, Respondent.
   Judgment affirmed. Opinion by

Davis, P. J.


author: Daniels, J.;

text:
    Daniel Sanford, Respondent, v. Joseph Crocheron, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.;

Brady, J., dissenting.


text:
    Cornelius Hayes, Appellant, v. The Second Avenue Railway Company. Respondent.
   Order affirmed, with costs. Opinion by

Davis, P. J.


text:
    John H. Paulison, Receiver, etc., Appellant, v. Laura B. Field, Executrix, etc., Respondent.
   Order affirmed, with costs. Opinion by

Brady, J.


author: Davis, 1\ J.

text:
    Eugenia Roche, Appellant, v. James M. Marvin, Respondent.
   Judgment affirmed. Opinion by

Davis, 1\ J.


author: Davis, p. J.

text:
    Johanna Nolan, Respondent, v. The New York, Lake Erie and Western Railway Company, Appellant.
   Verdict set aside, new trial ordered, costs to abide event. Opinion by

Davis, p. J.


text:
    Farmers’ Loan and Trust Company and others, Appellants, v. The Southern Telegraph Company, Respondent.
   Order reversed, with costs. Opinion by

Brady, J.


text:
    In the Matter of Elbridge T. Gerry.
   Judgment affirmed. Opinion by

Brady, J.


text:
    John A. C. Gray, Respondent, v. John A. Bartholomew, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


author: Daniels, J.,

text:
    John Swenarton, Respondent, v. Walker H. Shupe, Appellant.
   Order affirmed. Opinion by

Daniels, J.,

and Davis, P. J., and by Brady, J., dissenting.


text:
    Charles H. Russell, Respondent, v. William E. Rider, Appellant.
   Order affirmed, with ten dollars costs and disbursements to abide event. Opinion by

Davis, P. J.


text:
    Edward D. Sniffin, Respondent, v. Charles R. Parker, Appellant.
   Order reversed, and motion granted, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Charles S. Hine and another, Appellants, v. Peter Bowe, Respondent.
   Judgment and order reversed, and new trial ordered, with costs to abide event. Opinion by

Daniels, J.


text:
    Jean B. M. Duche, Respondent, v. Buffalo Grape Sugar Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    In the Matter of Ella D. Goodrich.
   Decree modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Davis, P. J.

(See ante, page 299.)


text:
    Henry Weil, Respondent, v. Allen McDonald. Appellant
   Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Davis, P. J.


text:
    William C. N. Swift, Respondent v. Pacific Mail Steamship Company and others, Appellants.
   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    Arie Pinedo, Appellant, v. Germania Smelting, and Refining Works, Respondent.
   Judgment affirmed, and motion for new triai denied. Opinion by

Davis, P. J.


text:
    Caroline G. Gade, Appellant, v. Frederick W. Gade, Respondent.
   Judgment and order reversed, and referee’s report vacated, and case remitted to Special Term. Appellant’s costs of appeal to abide event. Opinion by

Davis, P. J.


text:
    Charles W. Durant, Appellant, v. William P. Abendroth, Respondent. Henry Fulmer, Appellant, v. William P. Abendroth, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Solomon Marx, Respondent, v. Bernard Spaulding, Appellant.
   Order affirmed, with tea dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Henry S. Billings and another, Respondents, v. Charles C. Houghton and others, Appellants.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Davis, P. J.


text:
    David S. Paige, Respondent, v. Edmund Waring and another, Executors, etc., Appellants.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Thomas J. Pope and another, Appellants, v. The Copeley Iron Company, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Netherland Trading Society, Respondent, v. Cornelius H. Delamater and another, Appellants.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Emily Tucker, Respondent, v. Charles A. Dean, Appellant
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Peter Moller, Jr., and others, Respondents, v. Joseph W. Duryee and others, Appellants.
   Order affirmed, without costs. Opinion by

Daniels, J.


text:
    Same v. Same
   Judgment affirmed. Opinion, by

Daniels, J.


text:
    Andrew McLean, Appellant, v. James W. Prentice, Respondent.
   Motion for reargument granted. Mem. by

Brady, J.


text:
    Attorney General v. Continental Life Insurance Company.
   Motion for reargument granted.


text:
    Harriet B. Berdell v. Robert H. Berdell.
   Motion for restitution denied, without costs. Opinion by

Daniels, J.


author: Daniels and Brady, JJ.,

text:
    In the Matter of the Broadway Surface Railroad Company.
   Report of commissioners confirmed. Opinions by

Daniels and Brady, JJ.,

and by Davis, P. J., dissenting.


text:
    Lydia J. Roberts, Respondent, v. Stuyvesant Safe Deposit Company of the City of New York. Appellant.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Brady, J.


text:
    In the Matter of the Houston Street, West Street and Pavonia Ferry Railway Company.
   Report confirmed.


text:
    In the Matter of the New York City Railroad Company.
   Reports confirmed.


author: Brady. J.

text:
    Humphrey E. Woodhouse, Respondent. v. Jacob M. Duncan and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Brady. J.


author: Per Curiam.

text:
    Alfred S. Rosenbaum, Respondent, v. Union Pacific Railroad Company, Appellant. Henry C. Rosenbaum Respondent, v. The Same, Appellant.
   Orders affirmed, with costs. Opinion

Per Curiam.


text:
    Decisions Handed Down May 29, 1885.
    George H Quinn, Administrator, etc., Appellant, v. Hazen L. Hoyt, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion

Per Curiam.


text:
    William Allan, Assignee, etc., Appellant, v. Richard H. Forestal, Respondent.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    In the Matter of the Estate of Burgess Cluff
   Order of Surrogate’s Courtaffirmed on opinion of surrogate, without costs


text:
    Charles S. Archer, Respondent, v. The New York, New Haven and Hartford Railway Company Appellant.
   Judgment affirmed.


text:
    Louis Windmuller and others. Respondents, v. Thomas J. Pope and others, Appellants.
   Judgment affirmed.


text:
    The Merchants’ National Bank of the City of New York, v. James F. Sheehan and others.
   Older modified by reducing the fine to ninety-four dollars and thirty-five cents, and as so modified affirmed, without costs to either party, ou the ground that while the order remained in force the appellant was obliged to obey its directions.


text:
    Joseph Hart, Respondent, v. Emil H. Kosmak, Appellant.
   Judgment affirmed.


text:
    John Kearney, Respondent, v. The Mayor, etc., of the City of New York, Appellant.
   Judgment reversed, new trial ordered, costs t.o appellant to abide event-, on the ground that c unpeusation for printing is contr died by section —, chapter 811 of the Laws of 1869.


text:
    James Hanam and others, Respondents, v. Peter Pia and others, Appellants.
   Order affirmed, with ten dollar.* costs and disbursements.


text:
    George Silva and others, Respondents, v. Philip Lust, Appellant.
   Orderaffirmed, with ten d-ilhuv costs and disbursements. Opinion by

Daniels, J.


text:
    Robert F. Shaen and another, Appellants, v. Miles H Nash and another. Respondents
   Order affirmed, with ten dollars costs and disbursements.