text:
    Anna M. Smith v. John Atherton.
   Appeal dismissed, with costs on default.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the State Reservation at Niagara.
   Appeal by Sarah G. Porter dismissed, with costs on default.


text:
    The People of the State of New York v. James Olney.
   Appeal dismissed unless case is served within thirty days.


text:
    The People of the State of New York v. Lorenzo Dimick.
   Motion to send case back for correction denied.


text:
    Benjamin F. Tabor v. William N Hoffman.
   Motion for rearmament denied, and motion for leave to appeal to' the Court of Appeals granted.


text:
    Mary F. Davis, as Administratrix, etc., v. The Chautauqua Lake Sunday School Assembly.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Mary Farwell v. Henry N. Griffin.

   Motion to put case upon the calendar and for affirmance of judgment granted on default.


text:
    Jacob Jackle v. James Bargy.
   Motion to dismiss appeal granted on default.


text:
    Byron Alford and another, Respondents, v. Eugene M. Cobb and another, Appellants.
   Motion for an order requiring the attorney to restore costs previously paid, denied, without costs.


text:
    Eliza Singleton, as Administratrix, etc., v. Alonzo Smith.
   Motion for reargument, or for leave to appeal to the Court of Appeals, denied.


text:
    Arthur G. Yates, Respondent, v. William H. Heath, Appellant.
   Motion to strike cause from calendar, and for judgment of affirmance on the ground that printed papers have not been served, granted on default.


author: Braaley, J.;

text:
    The Rochester City and Brighton Railroad Company, Appellant, v. Rosa Stahley, Respondent.
   Motion for reargument denied, without costs. Opinion by

Braaley, J.;

Angle, J., not voting.


text:
    James G. Doty, as Trustee, etc., Plaintiff, v. Joseph Stanton, as Administrator, etc., Defendant.
   Motion to strike cause from calendar, and for judgment of affirmance on the ground that printed papers have not been served, granted on default.


text:
    In the Matter of Everett Spring, an Attorney.
   Ordered that he he removed from the office of attorney and counselor of the Supreme Court and that his name be stricken from the roll as such, and that a copy of this order be served upon him by the district attorney of Erie county.


author: Boardman, J.

text:
    The People of the State of New York, Respondents, v. John E. O'Sullivan, Appellant.
   Judgment and order reversed and new trial granted. Opinion by

Boardman, J.


author: Boardman, J.;

text:
    Melissa Surdam and others, Respondents, v. Daniel Cornell and another, Appellants, Impleaded, etc.
   Judgment reversed and the complaint dismissed, with costs against the in favor of the appellants. Opinion by

Boardman, J.;

Follett, J., not voting.


text:
    Justus A. Cole, Respondent, v. Tunis Van Slyke and others, Appellants, Impleaded, etc.
   Order affirmed, with ten dollars costs;

Hardin, P. J., not voting.


text:
    James S. Kerr, as Assignee, Appellant, v. William Adair, Jr., Respondent.
   Order affirmed, with ten dollars costs and disbursements, upon authority of Babbitt v. Compton (1 N. Y., Civil Pro. R., 169).


author: Hardin, P. J.

text:
    Francis Morris, Appellant, v. Addison P. Jones and others, Respondents.
   Judgment and order reversed and new trial ordered, costs to abide event. Opinion by

Hardin, P. J.


text:
    Elisha G. Gay, Appellant, v. Austin Lathrop, Respondent.
   Order affirmed,‘with costs, upon opinion by Justice Martin at Special Term.


author: Hardin P. J.

text:
    Herman Mosher, Plaintiff, v. George Bennett and others, Defendants.
   New trial ordered, with costs to abide event. Opinion by

Hardin P. J.


text:
    Asenath Hoyt, Respondent, v. Harriet Putnam and others, Appellants, Impleaded, etc.
   Judgment reversed and new trial ordered, with costs of appeal to be paid by the plaintiff to appellants. Opinion by

Boardman, J.


author: Harain, P. J.

text:
    Polly Terwilliger, Appellant, v. Judson Martin and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Harain, P. J.


author: Follett, J.

text:
    John H: Watrous, Respondent, v. John F. Shear, as Commissioner of Highways of the Town of Kirkwood, Appellant.
   Judgment of the County Court of Broome county affirming a justice’s judgment affirmed, with costs. Opinion by

Follett, J.


text:
    The Ithaca Agricultural Works, Appellant, v. Judah Eggleston and another, Respondents.
   Appeal dismissed, without costs to either party. (Followed 25 Hun, 237.)


author: Merwin, J.,

text:
    Jewett H. Brown and others, Appellants, v. Carl Gschihay, Respondent.
   Order affirmed, with ten dollars costs and disbursements, on opinion of

Merwin, J.,

delivered at Special Term.


author: Learned, P. J.,

text:
    Daniel H. Zimmer, Appellant, v. David Settle and others, Respondents.
   Order affirmed, with costs, on opinion of

Learned, P. J.,

delivered in General Term, Third Department, Maj, 1884.


text:
    Moses Merick and another, Appellants, v. Edward Kirk, Respondent.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    The People of the State of New York, Respondent, v. William B. Johnson, Appellant.
   Conviction and judgment affirmed. Dissenting opinion by

Follett, J.


text:
    David Gray, Respondent, v. David C. Wolcott, Appellant, Impleaded, etc.
   Order of the County Court of Oneida county affirmed, with ten dollars costs and disbursements against David C. Wolcott, Appellant. Opinion by

Boardman, J.


text:
    Mary Wall, as Administratrix, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   Judgment and order reversed and a new trial ordered, with costs to abide event. Opinions by

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


text:
      George B. Scoville, as Receiver, etc., Appellant, v. Bronson A. Shed and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Harley J. Peet, Respondent, v. Eri Kent, Appellant.
   Judgment reversed and a new trial ordered, with costs to abide the event, unless the plaintiff shall stipulate to deduct from the judgment thirty-seven dollars and sixty-five cents as stated in the opinion, in which case the judgment so modified is amrmed, without costs of the appeal to either party. Opinion by

Boardman, J.


text:
    Mary E. Wright, Respondent, v. Isaac Frankel, Appellant.
   Judgment of the County Coart of Onondaga county affirmed, with costs. Opinion by

Follett, J.


text:
    Joseph E. West, as Administrator, etc., Respondent, v. George A. Reynolds and others, Appellants.
   Judgment and order affirmed, with costs, and leave given to defendants to withdraw the demurrer and answer in twenty days, upon payment of costs of demurrer and of this appeal. Opinion by

Hardin, P. J.


text:
    Jacob Kent, Respondent, v. Jacob Crouse, Appellant.
   Interlocutory judgment affirmed, with costs of appeal on opinion of

Merwin, J.,

at Special Term, and leave given to answer iu twenty days, upon payment of costs of the demurrer and of the appeal.


text:
    Alfred Akerley, Respondent, v. Allen Lasher, Appellant, Impleaded, etc.
   Judgment of the County Court of Delaware county affirmed, with costs. Opinion by

Follett, J.


text:
    Harriet S. Beach, v. John C. Knox.
   Motion denied, without costs.


text:
    Charles Renton v. William Austin.
   Judgment affirmed, with costs.


text:
    Lyman M. Sherwood, Executor, etc., Appellant, v. Israel D. Armsby, Respondent.
   Motion denied, without costs.


text:
    Orlando J. Childs and another, Respondent, v. Harris Manufacturing Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of Albert Van Horne, an Habitual Drunkard.
   Order affirmed, with ten dollars costs and disbursements against the appellant.


text:
    Albert Holt and another, Respondents, v. Samuel R. Kopelowich and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Peter Whitaker, Respondent, v. The Press Publishing Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Charles S. Bitter, Respondent, v. The Onondaga County Savings Bank, Appellant.
   Declined to hear, and leave given to either party to have the case and exceptions resettled before Mr. Justice Vann, upon eight, days’ notice.


text:
    Lyman M Sherwood, as Executor, etc., Appellant, v. Israel D. Armsby, Respondent
   Order affirmed, with ten dollars costs and disbursements.


text:
    Patrick Quinlan and the City of Syracuse v. Elnathan Sweet and De Forest D. Candee.
   Motion for preliminary injunction granted, plaintiffs required to give an undertaking in the sum of $1,000.


author: Landon, J.

text:
    John Brotherson, Respondent, v. John Consalus, Executor, etc., Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Landon, J.


text:
    John Brotherson, Respondent, v. John Consalus, Executor, etc., Appellant.
   Judgment modified by striking out $474.29 as of October 20, 1885, and as modified affirmed, without costs. Opinion by

Landon, J.

Order to be settled by Landon, J.


author: Bockes, J.

text:
    George M. Wiswall, as Administrator, etc., Appellant, v. Edward O’Brien and Others, Respondents.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Harriet Van Horne, Administratrix, etc., Appellant, v. Boston, Hoosac Tunnel and Western Railroad Company, Respondent.
   Judgment afiirmed, with costs. Opinion by

Bockes, J.


author: Learned, P. J.

text:
    James G. Patton, Respondent, v. Daniel A. Bullard and Others, Appellants.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Anna Livingston, Respondent, v. Peter Livingston, Appellant.
   Judgment affirmed, with costs. Mem. by

Landon, J.


author: Learned, P„ J.,

text:
    Clara Belle Doughty, Appellant, v. Collins Doughty and others, Respondents.
   Judgment reversed, new trial granted, costs to abide event; referee discharged. Opinion by

Learned, P„ J.,

and by Bockes, J., dissenting.


text:
    American Society for Prevention of Cruelty to Animals v. City of Cohoes.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Henry Tefft and others, Respondents, v. George M. Bissell, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Andrew McClure, Appellant, v. New York Central and Hudson River Railroad Company, Respondent.
   Judgment afiirmed, with costs. Opinion by

Learned, P. J.


text:
    Kezia Brockway, Respondent, v. John W. Tayntor and others, Appellants.
   Judgment modified by directing the payment first to the administrator of the $1.2U0 mortgage and interest, next the costs of the guardian ad litem,; next the plaintiff’s claim, and the balance to the heirs of Woodhull. Opinions by

Learned, P. J.,

and Landon, J.; ordered to be settled by Landon, J.


text:
    Robert L. Day and another, Respondents, v. Ogdensburgh and Lake Champlain Railroad Company and others, Appellants.
   Interlocutory judgment affirmed, with costs, with leave, etc. Mem. by Bockes, J. (Cause certified to Court of Appeals under sub. 4, sec. 190, Code.)


text:
    John Hogan, Respondent, v. James Ryan, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Landon, J.


author: Landon, J.,

text:
    Walter S. Church, Appellant, v. Johan Jost Becker, Respondent.
   Judgment affirmed, with costs. Opinion by

Landon, J.,

dissenting.


text:
    Elizabeth Phillips, Executrix, etc., Respondent, v. The Troy and Boston Railroad Company, Appellant.
   Judgment and order affirmed, • with costs. Opinion by

Learned, P. J.,

and by Landon, J., dissenting.


text:
    George W. Holcomb, Respondent, v. Elizabeth B. Holcomb, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Anna M. Tisdale, Respondent, v. Delaware and Hudson Canal Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.


text:
    Catharine Taylor, Respondent, v. City of Cohoes, Appellant.
   Order reversed, with ten dollars costs and printing disbursements, and motion with costs. , Opinion by

Learned, P. J.


text:
    John E. Van Etten, Appellant, v. Jonathan H. Hasbrouck, Respondent.
   Order reversed, without costs; motion denied, without prejudice, according to opinion. Opinion by

Bockes, J.


author: Bockes. J.

text:
    Albany County Bank, Respondent, v. William B. Scott, Appellant
   Judgment affirmed, with costs Opinion by

Bockes. J.


author: Learned, P. J. ;

text:
    Garret M. Clute, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J. ;

Landon, J., not acting.


text:
    The Phœnix Mills, Respondent, v. James A. Miller, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event.

Opinion by

Bockes, J.


text:
    Elmer J. Albert, Respondent, v. Elnathan Sweet, Jr., and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Jacob Kreischer, Respondent, v. Gottlieb Vetter, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    George L. Wiltsie, Surviving Partner, etc., Respondent, v. The Village of Greenbush, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Matter of Application of Water Commissioners of Amsterdam to Acquire Lands, Respondents, v. Stephen Collins and Another, Appellants.
   Order reversed, with ten dollars costs and printing disbursements, and motion reversed, with ten dollars costs. Opinion by

Learned, P. J.


text:
    John W. French, Respondent, v. Emma J. Kenworthy and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements as to Effie B., and appeal dismissed as to Charles A., with ten dollars costs to be paid by general guardian. Opinion by

Learned, P. J.


text:
    Daniel Vrooman, Respondent, v. Elizabeth Clow, Appellant.
   Judgment modified in accordance with opinion. Opinion by

Learned, P. J.


text:
    William H. Thorn, Overseer, etc., Respondents, v. Charles Hadden, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


text:
    Chester Dusty, Respondent, v. Magdalena B. Lansing, Appellant.
   Order reversed and motion granted on payment of ten dollars costs and ten dollars costs of appeal and printing disbursements. Opinion by

Learned, P. J.


text:
    Perqua v. Perqua.
   Motion granted on condition. (See order on file.) Opinion by

Bockes, J.


text:
    Simeon Cunliff, Appellant, v. Delaware and Hudson Canal Company, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements Opinion by

Bockes, J.


text:
    Mary T. Biden, Executrix, etc., Respondent, v Edward F. James, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Catharine Draper, Appellant, v. Delaware and Hudson Canal Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Henry C. Smith. Receiver, etc., Respondent, v. Willis H. Bellows and others, Appellants.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    Abram V. Morris v. Francis A. Fales.
   Order resettled and filed..


text:
    The American Society for the Prevention of Cruelty to Animals, Respondent, v. The City of Cohoes, Appellant.
   Motion to go to the Court of Appeals denied.


text:
    Caroline W. Lawrence and others, Respondents. v. The Saratoga Lake Railway Company, Appellants.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Frank A. Cantwell, Appellant, v. Michael L. Burke and Willard Collins, Respondents.
   Judgment reversed^ new trial granted, costs to abide event. Opinion by

Landon, J.


text:
    Mary McGrath, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    J. Townsend Burden, Respondent, v. James A. Burden and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


text:
    Hubbard J. Goodrich, Appellant, v The New York Central and Hudson River Railroad Company, Respondent.
   Motion for new trial denied and judgment ordered for defendant.

Opinion by

Learned, P. J.


text:
    Lizzie Payne and others, Respondents, v. The Mutual Relief Society of Rochester, New York, Appellant.
   Judgment affirmed, with costs. — Opinion by

Bockes, J.


text:
    Mary Duel, Respondent, v. John L. Getman, Appellant.
   J udgment and order affirmed» with costs. Opinion by

Bockes, J.


text:
    John A. Thompson, Respondent, v. Rowland N. Hazard and Stephen F. Moriarty, Appellants.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by

Landon, J.


text:
    John R. Freer, Respondent, v. Henry J. Budington, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Jacob I. Signer, Respondent, v. Alvah S. Newcomb, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event.

Opinion by

Landon, J.


text:
    William H. Dedrick and William H. Burgess, Respondents, v. Richard H. Leonard, Appellant.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by

Learned, P. J.


text:
    Gilbert Cronk, Appellant, v. Charles M. Barlow, Respondent.
   Judgment of County Court affirmed, with costs. Opinion by

Learned, P. J.


text:
    Perqua v. Perqua.
   Former motion opened and motion reheard. Former order vacated and original motion denied and stipulation under former order vacated.


author: Barnard, P. J.

text:
    William Le Count, Appellant, v. Sarah E. Greenley, Respondent.
   Order granting new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Ann C. Clark, Plaintiff, v. Brooklyn Elevated Railroad Company. Defendant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Fidelia R. Manning, Plaintiff, v. John B. Sweeting, Defendant.
   Judgment affirmed upon plaintiff’s appeal. Part of judgment appealed from by defendant affirmed, without costs to either party on either appeal. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. Mary C. Gibson, Respondent, v. The Board of Assessors of the Town of Flushing, Appellant.
   Order reversed, with fifty dollars costs of appeal. Opinion by

Barnard, P. J.


text:
    Maria Thornton and another, Executors, etc., Respondents, v. Isaac Harris and Others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Barnard, P. J.;

text:
    Dyckman Odell, Respondent, v. Isaac Buckhout, as Executor, etc., Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Dykman, J.;

text:
    Sylvester S. Mangam and Others, as Executors, etc., Respondents, v. Richard W. Peck, Appellant.
   Judgment affirmed, with costs Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Matter of Probate of Will of James Morgan.
   Decree of surrogate affirmed, with costs. Opinion by

Barnard, P. J.


text:
    James Sweet, Plaintiff, v. John H. Ross, Defendant.
   Judgment affirmed for non-submission of papers under order.

Pratt, J., not sitting.


author: Pratt, J.

text:
    Catherine T. Malloy, Respondent, v. The Town of Pelham, Appellant.
   Judgment and order denying new trial, affirmed, with costs. Opinion by

Pratt, J.


text:
    Frances W. Pettengill, Plaintiff, v. City of Yonkers, Defendant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Thomas Halpin, Respondent, v. Phœnix Insurance Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    John Schenck, Respondent, v. George Ringler and others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    John J. Barton, Respondent, v. William Govan, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Pratt, J.;

text:
    Mary A. Ross, Appellant, v. John Duffy, Sheriff, etc., Respondent.
   Order reversed, with costs and disbursements, and motion denied. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Julius Marcile, Respondent, v. Auguste Saltzman, as Executor, etc., Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Dykman, J.


text:
    William H. Odell, Respondent, v.The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order denying now trial affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Matter of Application of Henry M. Elliott.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    Alexander B. Hudson, Respondent, v. Cornelius J. Kowing, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Pratt, J.:

text:
    The Importers and Traders’ National Bank and others, Respondents, v. Clarence Perine and others, Appellants.
   Order refusing extra allowance affirmed, with costs. Opinion by

Pratt, J.:

Dykman, J., not sitting.


text:
    Matter of Last Will of Abijah S. Feeks.
   Decree of su»rogate reversed, without costs of appeal; proceedings remitted to surrogate. Opinion by

Barnard, P. J.


text:
    Sherwood Sterling, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
   Order referring action affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Sherwood Sterling, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
   Order refusing motion to compel a reply affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Charles H. Meade and another, Plaintiff, v. Walter C. Tuckerman, Defendant.
   Order aflirmed, with ten dollars costs, besides disbursements. Opinion by

Dykman, J.


text:
    Gheirstein Mead, Respondent, v. John Brunnemer and others, Defendants. Harry J. Lea, Purchaser, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Benjamin F. Underhill and another, Respondents, v. Sarah A. Underhill and others, Appellants, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Mosher A. Southerland, Respondent, v. George W. Mead, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    William J. Beard, Appellant, v. Elbert Kipp, Respondent.
   Order affirmed, with costs ana disbursements. Opinion by

Dykman, J.


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

text:
    John White, Appellant, v. James Boyce and another, Respondents.
   Order confirmed, without costs and disbursements. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.

Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., dissenting.


text:
    Joseph W. Palmer, Respondent, v. The Pennsylvania Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard; P. J., not sitting.


text:
    Mary A. Gordon, Plaintiff, v. Herman H. Niemann and others, Defendants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Elizabeth Stillwell, Individually, etc., Respondent, v. August Zinster, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


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

text:
    General Synod of the Reformed Church in America, Plaintiff, v. Eliza L. Lincoln and others, Defendants.
   Order affirmed, with costs and disbursements. Opinions by

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


text:
    Eliza A. Beveridge, Plaintiff, v. The New York Elevated Railroad Company, Defendant.
   Judgment aflirmed on opinion at Special Terra.


author: Justice Dykman.

text:
    The People of the State of New York ex rel. Deverell, Plaintiff, v. Musical Protective Union, Defendant.
   Motion denied. Opinion by

Justice Dykman.


text:
    Charles P. Berdell, Appellant, v. Eliza W. Parkhurst, Respondent.
   Order affirmed,with costs and disbursements. Opinion by

Pratt, J.


text:
    Charles W. Cooke, Plaintiff, v. The Lalance-Grosjean Company,Defendant
   Motion denied.


author: Justices Barnard and Pratt.

text:
    Russel Coe, Respondent, v. Robert C. Davidge, Appellant.
   Order affirmed, with costs and disbursements. Opinions by

Justices Barnard and Pratt.


text:
    Charles P. Berdell, Appellant, v. James W. Hoyt, Respondent.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    Louis Siedenbach, Appellant, v. Julia A. Riley, Administratrix, etc., Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Edward Van Orden and others, Respondents, v. Charles S. Schleier and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Mary Burns, Respondent, v. James Bostwick, Jr., Appellant.
   Judgment and order refusing new trial reversed ana new trial granted, costs to abide event. Opinion by

Pratt, J.;

Barnard,P. J., not sitting.


text:
    Margaret Shiner, Administratrix, etc., Respondent, v. Horace Russell and another, as Receivers, etc., Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Janie Linton Morris, as Administratrix, etc., Respondent, v. Walston H. Brown and others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Alvia Fisher, an Infant by, etc., Respondent, v. William Martin, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Louisa K. Hall, Appellant, v. Harvey Hall, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Eliza A. Munoz, as Administratrix, etc., Respondent, v. George Wilson and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., dissenting.


author: Dykman, J,;

text:
    Cornelius Ivory, Respondent, v. The Town of Deerpark, Appellant.
   Judgment and order denying new trial, affirmed, with costs. Opinion by

Dykman, J,;

Barnard, P. J., not sitting.


text:
    Patrick Myles, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., dissenting.


text:
    Charles Van Fleet, Respondent, v. William S. Ketcham, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Sadie Tilley, Appellant, v. William W. Goodrich, Respondent, Impleaded, etc.
   Judgment affirmed, with costs out of the fund. — Opinion by

Dykman, J.


text:
    Sarah McGlynn, Respondent, v. The Brooklyn Crosstown Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Samuel T. Ludlow, Plaintiff, v. George W. Mead, Defendant.
   Order aflirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    William Brosstedt, Plaintiff, v. Henry Breslin, Defendant.
   Order aflirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    In the Matter of Assignment of John Raber for Benefit of Creditors.
   Motion denied, with ten dollars costs. Opinion by

Barnard, P. J.


text:
    Isaac Knee, Jr., Plaintiff, v. Ellen Kuykendall and others, Defendants.
   Order reversed and purchaser released; purchase money to be returned; Appellant to have disbursements on appeal only. — Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Robert L. Carpenter, Appellant, v. Orville O. Jones and others, Respondents.
   Judgment aflirmed with costs. Opinion by

Pratt, J.;

Barnard. J. P., not sitting.


text:
    The People of the State of New York ex rel. Nicholas Cooper, Appellant, v. The Registrar of Arrears of the City of Brooklyn, Respondent.
   Order denying motion for peremptory mandamus reversed and motion granted that an alternative writ issue, costs to abide event. Opinion by

Barnard, P. J.


author: Barnard. P. J.

text:
    In the matter of the application of John A. Wells, Executor, etc.
   Order of Surrogate reversed, with costs to appellant out of the estate, and proceedings remitted. Opinion by


text:
    The People of the State of New York ex rel. James F. Gillen, Respondent, v. Henry Wolfort, Supervisor etc., Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Ella M. Ten Broeck, Respondent, v. The Traveler’s Insurance Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Adolph Gubner, as Administrator, etc., Plaintiff, v. James Vick and another, as Executor, etc., Defendants.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykrnan, J.

text:
    Bridget Collins, Administratrix, etc.. Respondent, v. The New York and New Haven and Hartford Railroad Company, Appellants.
   J udgment and order denying new trial affirmed, with costs. Opinion by

Dykrnan, J.


text:
    James Jourdan, as Receiver, etc., Respondent, v. The Long Island Railroad Company, Appelant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Samuel D. Hoyt, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Julia Foy, an Infant, etc., Respondent, v. William Buchanan and another, Appellants.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.


text:
    Henry T. Pratt, Appellant, v. Moses Wertheimer and others, Respondents.
   J udgment and order denying new trial affirmed, with costs. Opinion by

Dykrnan, J.


text:
    James McCormick, Plaintiff, v. John P. Crawford, defendant.
   Exceptions overruled and judgment for defendant upon the nonsuit ordered at circuit. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    George M Mittnacht, Appellant, v. Joseph Wolf, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykrnan, J.


text:
    Emma L. Wendling, Respondent, v. Hannah Bainbridge and others, Appellants.
   Judgment and order denying new trial reversed ana new trial granted, costs to abide event. Opinion by

Pratt, J.


text:
    Louis H. Dickerson, Plaintiff, v. La Devalson Gordon, Defendant.
   Motion denied, with ten dollars costs. Opinion by

Dykrnan, J.


text:
    Thomas Doyle, Appellant, v. The Rector, etc., of Trinity Church, Respondent.
   Reargument ordered.


text:
    Susan W. Bryan, Appellant, v. Abram Viele and Cornelia, his wife, Respondents.
   Order sustaining demurrer affirmed, with costs as to amended complaint, and appeal dismissed from order permitting an amendment to original complamt. Opinions by

Justices Barnard and Pratt.


text:
    Maria L. Hood, as Executrix, etc., Respondent, v. John N. Hayward, Appellant, Impleaded, etc.
   Motion to dismiss appeal from part of order giving leave to amend summons granted, with ten dollars costs. Opinion by

Pratt, J.;

Dykrnan, J., not sitting.


author: Dykman^J.

text:
    George Cox, Respondent, v. William A. Baeder and another, Respondents.
   —Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman^J.


text:
    David S. McLaughlin, Respondent, v. Thomas S. Lester, Appellant.
   Judgment affirmed, 'with costs. Opinions by

Justices Barnard and Pratt.


author: Pratt, <L

text:
    Thomas J. Bannon, Appellant, v. Ellen Cleary, Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, <L


text:
    The General Synod of the Reformed Church of America, Plaintiff, v. Eliza L. Lincoln, Defendant.
   Orders affirmed, with costs and dis-

bursements.


text:
    — Powers, Petitioner, v. James Jourdan, Receiver, etc.
   Order reversed, with costs and disbursements, and motion denied, without costs. Opinion by

Dykrnan, J.


text:
    William Biggs, Respondent, v. Martin Schultz and others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykrnan, J.


author: Justices Pratt and Barnard.

text:
    Patrick Murphy, Jr., by Guardian, etc., Respondent, v. William H. Mairs, Appellant.
   Judgment affirmed, with costs; exceptions overruled. Opinions by

Justices Pratt and Barnard.


text:
    Kate Feeney, Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykrnan, J.


text:
    Amos Bryan, Plaintiff, v. George Wilson and others, Defendants.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Dykrnan, J.


author: Barnard, P. J.

text:
    Frank Bowman, Respondent, v. Charles G. Johnston, Appellant.
   —Judgment modified in accordance with opinion; order to be settled by Justice Barnard. Opinion by

Barnard, P. J.


text:
    William Nelson, Appellant, v. Edward Gridley, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    John McClain, Respondent, v. The Brooklyn City Railroad Company, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Peter Riley, Respondent, v. The Phœnix Insurance Company, Appellant.
   —Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Dykrnan, J.;

text:
    Julia Frear, Appellant, v. Franklin Sweet and others, Respondents.
   Judgment affirmed, with costs. — Opinion by

Dykrnan, J.;

Barnard, P. J., not sitting.


text:
    Ezra White, Respondent, v. Minerva E. Gaines, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Thomas M. King and others, Plaintiffs. v. Reon Barnes and others, Defendants.
   Judgment modified in accordance with opinion. Order to be settled by Justice Pratt. Opinion by

Pratt, J.


text:
    Mary Meegan, Respondent, v. William Hardenbrook, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


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

Barnard, P. J.


text:
    George Shaper, Respondent, v. The Brooklyn and Long Island Cable Railway Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykrnan, J.


author: Pratt. J.

text:
    Abraham Sanger, Jr., and another, Appellants, v. Leander Waterbury and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Pratt. J.


text:
    Charles H. Hunter, Respondent, v. The New York, Ontario and Western Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykrnan, J.


text:
    Yonkers Gas-Light Company, Respondent, v. Allen Taylor, Appellant, Impleaded, etc.
   Order sustaining demurrer to defendant’s answer, and judgment thereon reversed and judgment given for defendant, with costs. Opinion by

Pratt, J.;

Dykrnan, J., not sitting.


author: Barnard, P. J.;

text:
    Charles T. Redfield, Respondent, v. Charles W. Stitt, as Executor, etc., Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykrnan, J., dissenting.


text:
    John F. Clark, Appellant, v. Mary A. Clark, Respondent.
   Order allowing alimony and order refusing to modify the same affirmed, with costs and disbursements. Opinions by

Justices Barnard and Pratt.


text:
    Bank of Indianapolis, Plaintiff, v. Alftman Bly, Receiver, etc., Defendant.
   Motion denied, with ten dollars costs. Opinion by

Dykrnan, J.


text:
    Frank W. Halsted, Plaintiff, v. Isaac W. Sherrill, Defendant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykrnan, J., dissenting.


author: Dykman. J.

text:
    The People of the State of New York, Appelant, v. James A. Thorn, Respondent.
   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. Appellant, v. Ralph R. Pearsall, Respondent.
   Judgment and order denying new trial, affirmed, with costs. Ooinion by

Dykman, J.


text:
    The People of the State of New York, Appellant, v. John G. Clark, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    The People of the State of New York, Appellant, v. James Titus, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


author: Per Curiam.

text:
    Matter of Alma Nichols.
   Order reversed and petition remanded. Opinion

Per Curiam.


text:
    John F. Klumpp and another, Respondents, v Guy H. Gardner, and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.

text:
    Matter of Susan A. Place, deceased.
   Order affirmed, without costs. Opinion by

Daniels, J.


text:
    William H. Catlin and another, Respondents, v. The Adirondack Company, Appellant.
   Order affirmed, without costs. — Opinion

Per Curiam.


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


text:
    Thomas D. Reilly, Appellant, v. The Press Publishing Association, Respondent.
   Order affirmed, without costs.


text:
    Anna Borkel, Appellant, v. Samnel S. Mulford, Respondent.
   Order modified by requiring the defendant to stipulate that the deposition of witnesses, residing in New York and Pennsylvania, may be taken on ten days’notice before James J. Nealis, referee, and to be read on the trial to the same effect as though the witnesses were personally present, and as modified affirmed, without costs.


text:
    James Cassidy and another, Plaintiffs, v. Henry Gottgetrue, Assignee, etc., Defendant.
   Order modified by directing that the judgment and report of the referee be opened so far as to allow the respondents to appear, upon notice to the appellants and to the several other parties to the judgment, before the said referee, and give any testimony tending to increase the claim which the referee has allowed in their favor, and to diminish or affect the debt allowed to the plaintiff and any other creditors in the actions, and on the coming in of the report of the referee to raise any question as to the costs and allowances appearing in the judgment, and as to the amounts awarded to any of tne parties. The costs of such new hearing and proceeding before the referee and of the Judgment and of this appeal to abide the event. *


text:
    Michael Snow, Respondent, v. The Russell Coe Fertilizer Company and another, Appellants.
   Order modified by striking out the second subdivision of the order restraining Robert C. Davidge from representing himself to he the successor of the defendant and without prejudice to an application, on proper papers and security, for an injunction, and as modified affirmed, without costs.


text:
    Paul Krotel, Receiver, etc., Respondent, v. Henry F. Williams and another, Appellants.
   Judgment affirmed, with costs.


text:
    James O’Shea, Respondent, v. David L. Eisner, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Central Trust Company of New York v. New York City and Northern Railway Company.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Margaretha Finnern and others, Executors, etc., Respondents, v. Julius Hinz and others, Appellants.
   Judgment reversed, new trial orered, costs to abide event. Opinion

Per Curiam.


text:
    James Naser and another, Respondents, v. The First National Bank of the City of New York, Appellant.
   Judgment affirmed. Opinion

Per Curiam.


author: Davis, P. J.

text:
    Peter Suan, Respondent, v. George Caffe and another, Appellants.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    William Neidlinger, Appellant, v. John E. McIntire, Respondent, Impleaded, etc.
   Judgment affirmed.


text:
    The People of the State of New York ex rel. Edward G. Ames v. Joseph Koch and others, Respondents.
   Dismissal of relator reversed, with costs.


text:
    Josephine M. McBride, Respondent, v. Robert P. McBride, Appellant.
   Orders affirmed, with with ten dollars costs and disbursements.


text:
    William F. Redlich, Respondent, v. Hermann N. Smith, Appellant. Isaac S. Enyard and another, Respondents, v. Same, Apppellant.
   Orders affirmed? with ten dollars costs in one case and the disbursements in both.


text:
    Edward Wood, Appellant, v. Karoline Kroll and others, Respondents.
   Order reversed, without costs. Opinion

Per Curiam.


text:
    The Congregation “Hand in Hand,” Appellant, v. Eva Muller and another, Respondents.
   Order affirmed, without costs.


text:
    Gotthold Haug, Respondent, v. Christopher Reissner, Appellant
   Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    J. Lippit Snow and another, Appellants v. Eli Gibbon and another, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Caroline L. Merchant, Appellant, v. Joseph Eickhorn and another, Respondents.
   —Judgment affirmed.


text:
    James C. Seymour, Appellant, v. The Castner Carbon Company and others, Respondents.
   Judgment affirmed on opinion of the court below.


text:
    Leonard Lewisohn, Respondent, v. Bertram Niederwiesen, Appellant.
   Motion denied.


text:
    Edward M. Knox, v. Commercial Agency and others.
   Motion denied, without costs. Mem.

Per Curiam.


text:
    The People of the State of New York ex rel. H. D. Nicoll, v. Infant Asylum.
   Motion granted unless duly certified copies of the case be served within ten days, and ten dollars costs of motion be paid. Opinion

Per Curiam.


text:
    Ruth A. Post, Respondent, v. Mary J. Stockwell, Appellant.
   Motion denied without prejudice to its renewel in case the papers on appeal are not served within thirty days after service of a copj of this order.


text:
    In the matter of Robert Willets.
   Decree affirmed on opinion of surrogate.


author: Daniels. J.

text:
    Robinson Consolidated Mining Company, v. William H. Craig and another.
   Motion denied without costs. Opinion by

Daniels. J.


text:
    Theodore F. Reed, Appellant, v. Isaac W. Edsall, Respondent.
   Order affirmed, with ten dollars and disbursements.


text:
    Levi M. Bates and others, Respondents, v. Hiram Jones and another, Appellants.
   Order affirmed, with ten dollars and disbursements.


text:
    Kate Hogan, Administratrix, etc., Appellant, v. David Henderson Respondent.
   Motion den.ed, with costs. Opinion by

Daniels, J.


text:
    Charlotte A. Wakeman, v. George H. Everett.
   Motion for reargument denied.


text:
    The Bowery National Bank, Respondent, v. The Mayor, etc., of the City of New York, Appellants.
   Order reversed, with ten dollars costs and disbursements, and order entered as directed in opinion. Opinion by

Daniels, J.


author: Brady, J.

text:
    Josephine Koush, Respondent, v. Joseph Ketzlik, Appellant.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    The Electrical Supply Company, Respondent, v. The Jersey City Electric Light Company, Appellant.
   Judgment affirmed. Opinion by

Davis, P. J.


author: Brady. J.

text:
    William Morris, Appellant, v. Emily W. Emmons Respondent.
   Judgment affirmed, with costs, and with liberty to plaintiff to reply. Opinion by

Brady. J.


text:
    Jane H. Cowdrey, Executrix, etc., Appellant, v. Ambrose K. Ely, Executor, etc., Respondent.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Levi M. Bates and others, Appellants, v. John C. McNulty, Respondent.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    John Hancock Mutual Life Insurance Company, Respondent, v. Julius Loewenberg, Appellant.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    The People of the State of New York ex rel. Annie M. Hoffman v. The Board of Education, etc.
   Proceedings affirmed, without costs. Opinion by

Daniels, J.


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

text:
    Anna A. Baird, Appellant, v. Elizabeth M Richardson and another, Respondents.
   Judgment affirmed. Opinions by

Brady, J., and Daniels, P. J.


text:
    In the Matter of Mary E. Hines.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Davis, P. J.


author: Davis. P. J.

text:
    James D. Brewster and others, Appellants, v. Walter T. Hatch and others, Respondents
   Judgment affirmed. Opinion by

Davis. P. J.


text:
    The People of the State of New York, Respondent, v. John McGrath and Mary McGrath. Appellants.
   Judgment reversed, new trial ordered.


text:
    Charles L. Weller, as Receiver, etc., Respondent, v. J. B. Pace Tobacco Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Minna De Kay, Appellant, v. Charles H. Bliss and others, Respondents.
   Judgment modified as directed in opinion, and affirmed as modified, without costs. Opinion by

Daniels, J.


text:
    Cornelius W. H. Elting, Respondent, v. Charles W. Dayton, Appellant.
   Order of reference affirmed, without costs, and motion to dismiss denied, without costs. Opinion

Per Curiam.


text:
    John Hayes, Plaintiff, v. Catharine E Rabold, Defendant.
   Orders affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Nathaniel Hooper and others, Respondents, v. Charles McC. Beecher and others, Appellants.
   Judgment reversedt new trial ordered, costs to abide event. Opinion by

Davis, P. J.


author: Davis, P. J,

text:
    Henry Welsh, Respondent, v. John Taylor, Appellant.
   Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Davis, P. J,


text:
    Max Hoffman and others, Respondents, v. Isaac Steinan and others, Appellants.
   Order reversed, without costs. Opinion by

Davis, P. J.


text:
    Philip Deobold, Respondent, v. Frederick Oppermann. Appellant.
   Judgment and order affirmed. Opinion by

Daniels, J.


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

text:
    The People of the State of New York v. Matthew McInerney and another.
   Judgment affirmed. Opinions byDavis,

P.J., and Daniels, J.


text:
    The People of the State of New York ex rel. John T. Lockman, Respondent, v. James A. Flack, Appellant.
   Order affirmed. Opinion by

Brady, J.


text:
    Susan F. Platt, Plaintiff, v. Annie R. Platt and others, Defendants.
   Orders affirmed. Opinion by

Daniels, J.


text:
    Susan F. Platt, Plaintiff, v. Annie R. Platt and others, Defendants.
   Order affirmed; with ten dollars costs and disbursements, and motion to dismiss appeal denied, without costs. Opinion by

Daniels, J.


text:
    Benjamin C. Thayer, Appellant, v. John Dempsey, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


author: Dan iels, J.

text:
    The Continental National Bank of the City of New York, Respondent, v. Hermann Koehler, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Dan iels, J.


text:
    Francis J. Byrnes, Respondent, v. Maria L. Labagh and others, Appellants.
   Order reversed, and order to he entered as directed in opinion. Opinion by

Davis, P. J.


text:
    Frank B. Stearns, Appellant, v. St. Louis and San Francisco Railway Company.
   Motion for reargument denied, with costs.


text:
    George W. Johnston v. Henry Spicer.
   —Motion denied.


text:
    National Thread Company, Appellant, v. Mansfield Silk and Thread Company, etc., Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    The People of the State of New York, Respondents, v. Charles J. Everhardt, Appellant.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Corn Exchange Bank, Appellant, v. Farmers' National Bank, Respondent.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Richard S. Roberts and others, Appellants, v. Henry M. Graves, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Jessup & Moore Paper Company, Respondents v. William H. Cox and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Charles S. Stearns, Respondent, v. Jacob A. Sherman and another, Appellants.
   Order modified as suggested in opinion, and, as modified affirmed, without costs. Opinion by

Davis, P. J.


text:
    Charlotte Meyer, Respondent, v. James P. Cahen and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Brady, J.


author: Macombcr, J.

text:
    In the matter of L. E. Chittenden, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Macombcr, J.


author: Daniels J.

text:
    Martha W. Leach, Respondent, v. James A. Flack, Appellant.
   Judgment reversed, new trial ordered, costs to aDide event. Opinion by

Daniels J.


text:
    John L. Dodge, Appellant, v. James Havemeyer, Respondent.
   Judgement affirmed. Opinion by

Davis, P. J.


text:
    James R. Keene, Respondent, v. Elmore A. Kent and another, Appellants.
   Order reversed and motion denied, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    The Germania Life Insurance Company, v. James Meagher and others, Appellants.
   Qrder affirmed, with ten dollars costs and disburse ments. Opinion by

Brady, J.


text:
    The People of the State of New York, Respondent, v. John C. Stoll, Appellant.
   Judgment meat affirmed. Opinion by

Davis, P. J.


text:
    Paul Bauer, Respondent, v. S. E. Schevitch and others, Appellants.
   Order reversed and order of arrest set aside, unless within ten days alter notice of decision the plaintiff obtain and file the undertaking directed by the opinion and pay the costs of opposing the motion and of appeal, in which cake order affirmed. But in case of failure to comply with these conditions, order reversed and order of arrest vacated, with like costs. Opinion by

Daniels, J.


text:
    George C. Genet, as Executor, etc., Appellant, v. Mary R. Hunt and others, Respondent.
   Judgment affirmed, with costs of appeal to all parties out of the fund. Opinion by

Davis, P. J.


text:
    Shepherd F. Knapp, as Receiver, Plaintiff, v. James Van Etten and others, Defendants.
   Reargument ordered.


text:
    In the Matter of Herman Duden.
   Reargument denied.


text:
    Helen A. Babcock and others, Appellants, v. Oliver M. Arkenburg, Respondent.
   Order reversed, without costs. Opinion by

Brady, J.


text:
    Alfred A. Cohen, Respondent, v. John W. Ellis, Appellant.
   Judgment reversed, and judgment entered as directed in opinion. Opinion by

Daniels. J.


text:
    John M. Burke, Respondent, v. the Mayor, etc., of the City of New York, Appellants.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


author: Daniels, o.

text:
    Joseph K. Murray, Respondent, v. Great Western Insurance Company.
   Motion denied, without costs. ■ Opinion by

Daniels, o.


text:
    Isaac Hamburger and another, Respondents, v. Rudolph Moeller, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


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

Davis, P. J.


text:
    Edith Storm and another, Respondents, v. Thomas Storm and others, Appellants.
   Judgment affirmed, costs of ail parties out of the tund. Opinion by

Davis, P. J.


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

text:
    Catharine Mendel, Respondent, v. Morris Mendel, Appellant.
   Order reversed and motion denied, with ten dollars costs and disbursements. Opinions by

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


text:
    William H. Sanger, Respondent, v. James M. Seymour, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Daniels and Brady, J. J.,

text:
    Samuel Bingham and another, Respondents, v. the Marine National Bank, Appellant.
   Motion for reargument denied. Opinions by

Daniels and Brady, J. J.,

and by Davis, P. J., dissenting.


text:
    Edward A. Morrison, Respondent, v. Moritz Bauer, Appellant.
   Judgment modified as directed in opinion and affirmed as modified, without costs. Opinion by

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


text:
    In the Matter of the Estate of John B. Page, deceased
   Order affirmed, with costs. Opinion by

Daniels, J.


text:
    James E. Brett, Appellant, v. Gustavus A. Brett and others, Respondents.
   Judgment modified as suggested in opinion and affirmed as modified, without costs. Opinion by

Brady, J.


text:
    William C. Cowper, Appellant, v. Thomas Theall, Respondent.
   Motion denied, with costs. Opinion by

Daniels, J.


text:
    John A. Kernochan, Appellant, v. Angeline A. Murray, Respondent.
   Judgment affirmed. Opinion by

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


author: Churchill, J.

text:
    Charles Wehrhane and others, Executors, etc., Appellants, v. The Nashville, Chattanooga and St. Louis Railway Company, Respondent.
   Judgment reversed} new trial granted, costs to abide event. Opinion by

Churchill, J.


text:
    The Gallatin National Bank, Respondent, v. The Nashville, Chattanooga and St. Louis Railway Company, Appellants.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Churchill, J.


text:
    Peter Bowe, Respondent, v. Robert C. Brown and others, Appellants.
   Judgment and order modified as directed in opinion, and affirmed as modified, without costs Opinion by

Daniels, J.


text:
    Henry Knickerbacker and others, Respondents, v. Charles W. Gould, Appellant.
   Judgment affirmed, with costs. Opinion by

Brady, J.


author: Hakdin, P. J.:

text:
    NANCY H. WILLIAMS, Respondent, v. GEORGE W. G. KINNEY and WILLIAM R. OLNEY, Appellants.

      Contract for the sale of real estate — when a purchaser is put on inquiry as to the title of one in actual possession — rights of the children of a deceased purchaser to compel payment of the amount clue from the personal estate of the deceased.

    In 1866, one Williams, having entered into an agreement with B. N. Huntington, for the purchase of certain lands owned by the latter, entered into possession of the lands, built a house thereon, and made other valuable improvements, and thereafter continued in possession thereof, making payments on the contract up to February, 1874, when he died, leaving a widow, the plaintiff, and seven children, all of whom were minors, and are still living, except one who died when seven years old. The widow and children were, at the time of Williams’ death, and have ever since continued in the possession of the said premises. The widow and her father, H. E. Kenyon, were appointed administrators of the estate of Williams. Kenyon took possession of the personal estate, and carried on the ice business, formerly carried on by the deceased, with the aid of the sons of the latter, mingling the assets of the estate and the proceeds of the business with his own moneys. Out of this mixed fund he supported the plaintiff and her children, and his own family, and made payments upon the contract to Huntington, and also paid his own debts and taxes, down to the year 1875.
    On November third of that year, after the time fixed by the agreement for the payment of the purchase-price, Huntington gave a notice to Kenyon to be served on the widow and children, declaring that he elected to terminate the contract, and statingthat he would take possession of the premises, which not'ce however was never served upon them. On November twenty-seventh, an agent and an attorney of Huntington entered the house and in the presence of the widow and some, but not all of the children, declared that they took possession of the house and premises for Huntington. On November twenty-ninth, Huntington deeded the premises to Kenyon by a deed which was duly recorded, of which deed no notice was given to either the widow or children. Thereafter Kenyon gave a mortgage upon the premises to secure persons who had indorsed notes for his accommodation, and who took the mortgage in reliance upon a search made by the county clerk.
    In this action, brought by the widow, to whom all the surviving children had conveyed their interests in the premises, to have the mortgage so given to the defendants canceled of record and discharged.

      Meld, that the possession by the plaintiff and her children, under the contract, of the premises described in it, was open, notorious, visible and sufficient to give notice to the defendants of their rights and interests in the premises, or to put the defendants upon inquiry which would have yielded such information. 'That upon the death of Williams his equitable interest under the executory contract descended to his heirs-at-law; the unpaid purchase-money being payable out of his personal assets.
    'That tlie equitable dower of the widow was subject to the equitable lien existing in favor of Huntington, but that she had an equitable claim to have the personal estate exhausted in discharge of the personal obligation of the husband under the contract of purchase.
    "That as the evidence failed to show the service of a notice of the intention of Huntington to forfeit the interest of the children, or an actual resumption of possession by him, the legal title acquired by Kenyon, under the conveyance from Huntington, was subject to the equitable rights and interest of the widow and the children.
    'That even if it were conceded that the facts and circumstances were sufficient to estop the plaintiff from claiming her dower as against the mortgagees, yet such estoppel would not extend to her claim as the grantee of the title and interest of the children.
    Appeal from a judgment, entered in Oneida county upon the report of a referee.
    The action was commenced by the plaintiff for the cancellation of a mortgage held by the defendants, upon premises which the plaintiff claimed belonged to her.
    The referee xouna, as a conclusion of law, “ That the plaintiff, having become the owner of all the title and interest of the heirs-at-law of her deceased husband and having the right of dower therein, is entitled to the relief demanded in the complaint; that the judgment of the court should declare said mortgage of the defendants to be void and that the same be set-aside and canceled, and that the county clerk of Oneida county be directed to cancel the same of record, and that plaintiff have her costs and disbursements,”

      J. P. Olney, for the appellants.

      G. IF White, for the respondent.
   Hakdin, P. J.:

June 19, 1866, B. N. Huntington was the owner of the premises described in the complaint, situated in the City of Borne, and entered into a contract with one Isaac N. Williams for the sale of the premises for the sum of $906.66, to be paid within six years from the date of the contract, providing that when the payments were all made the deed was to be delivered to Williams, his heirs and assigns. At about the date of the contract Williams entered into possession of the premises, built a house thereon, surrounded it with a fence and made considerable valuable improvements thereon.

Williams made payments on the contract up to the time of his death, which occurred on the 28th of February, 1874. He left him surviving his widow, who is the plaintiff herein, and seven children, all of whom survive, except Frederick who died when about seven years old intestate, some time after the death of his father. All of the children wore infants under the age of twenty-one years at the time of their father’s death. Tire widow and children were in possession of the premises described in the contract, at the time of the death of Williams and have remained in possession ever since.

Williams died intestate and on the 25th day of March, 1874, the plaintiff and her father, II. C. Kenyon, were duly appointed administratrix and administrator of the estate of the deceased.

The intestate left, at the time of his death, some personal property, having been engaged in the ice business, gathering and selling ice in the city of Borne, and having obtained for that business a lease of the ice-house and pond where he gathered and stored ice. The lease had three years to run at the time of his death. At the expiration of it Kenyon, while acting as administrator, procured a renewal of the said lease in his own name for said ice-house and pond. Adjacent to the lot in question Avas a low place or pond which the deceased, in his lifetime, filled with earth, and on which he erected a barn on the land thus made, and a fence separated it from the lot described in the contract occupied by the plaintiff and her children. The barn was used to stable teams and place tools used in the ice business; and it was used for a like purpose, after the death of Williams, by his sons and Kenyon, carrying on and continuing the ice business. Kenyon, after his appointment as administrator aforesaid, took possession of the personal estate of the deceased and had the sole management of the estate as such administrator. He caused an inventory to be made of the personal assets of the deceased, exclusive of the lease for the ice-house and pond of which no inventory was taken. The lease was used and treated as a part of the estate of the deceased. The property inventoried amounted to about $900. The ice business was continued by Kenyon, with the aid of the sons of the deceased, in the same way and manner that the deceased had carried it on in his lifetime, and the personal assets of the estate, including the ice then gathered and in the ice-house, valued at about $700, were managed and controlled by the administrator, together with about $4,370 contributed by one of the sons of the deceased, the administrator mingling the same and using it with his own property so that it could not be ascertained how much or what part of it was used for any specific purpose or object, or how much of it came from the increase of tlie ice business, or from other sources. Out of this mixed fund Kenyon, the administrator, paid debts of the deceased, amounting to about-$1,500, and paid Huntington “ on said land contract the sum of $662, and supported-plaintiff and her children out of the same, with what was done to aid in that respect by the sons of the plaintiff,” and also supported his own family, pajdng his own debts, taxes and insurance “ out of the general mixed fund.” Kenyon, as administrator, never accounted to the estate, and never had any accounting or settlement of or concerning the property of the estate of the deceased.

The-referee has found as a fact, viz.: “That from the death of said I. N. Williams, up to the time of the trial of this action, the plaintiff and her children, the only lieirs-at-law of the said deceased, have been in the exclusive possession of the premises described in said land 'contract.”

The referee alsó fóünd that the intestate paid on the land contract to Huntington clivers sums of money, and that several of the payments wore made after the time for the payment of the whole purchase-price, by the terms of said contract, had become due, and that Kenyon paid out of the “mixed fund” the sum of $662 to Huntington on said contract, and which said Huntington received as payment thereon ; the last payment having been made November 1, 1S75, and which was long after the whole purchase-price on said contract for said premises had become due.

The referee has also found, viz.: “ That on the 3d day of November, 1875, said Huntington prepared a notice, and intrusted the same to the said Kenyon, to serve on the plaintiff and her said children, declaring that he elected to terminate said contract, stating therein that'lie should proceed to take possession of said premises ; that said Kenyon testified, on the trial hereof, that he did not serve the said notices on the plaintiff and her children, and the plaintiff and several of tlio children also testified that such notice was not served on them; * * * that said notice was not served on said plaintiff and her said children.”

The referee also found that on the 27th of November, 1875, an agent of Huntington, together with an attorney of Huntington, and at his request, entered the house of plaintiff on said premises, in said contract described, and in the presence of the plaintiff and some of her children, but not all of them (nor does it appear how many or which of the children were present), made a formal declaration that they took possession of the house and premises in behalf of said Huntington, stating that they did so under and in pursuance of a forfeiture of said contract, and stating that the premises thereafter would belong to said Huntington and that he should contract the same to H. C. Kenyon ; that no proceedings were ever taken to dispossess the plaintiff or her said children of said premises.

By the evidence it appears that the steps taken by Huntington were with the knowledge and apparently by the procurement of Kenyon, who was thus contriving to get the “legal title to the premises covered by the contract.”

The referee also found, viz.: “ That on the 29th day of November, 1875, the said Huntington and liis wife deeded the premises described in said contract to said H. C. Kenyon, which deed was duly recorded in the county clerk’s office of the county of Oneida, in which county the premises are situated, on the 14th day of December, 1875. That said Kenyon did not inform or let the plaintiff and her children know that he had received or taken a deed in his own name for said premises from said Huntington ; nor did they know of it till about two years before this action was commenced, nor till after the said II. C. Kenyon had given the mortgage hereinafter named to the defendants in this action.”

It also appears by the findings of the referee that at the same time that Huntington executed the deed to Kenyon, Kenyon executed and delivered to the Home Savings Bank a mortgage on the same premises “ for seven hundred dollars; ” that being the sum then due on said contract at that date as balance of the purchase-price of the premises, and which sum was paid to said Huntington therefor; which mortgage was soon thereafter duly recorded in the county clerk’s office of Oneida county.

In this action no question is made in regard to the validity of the mortgage to the Savings Bank, as the money received upon it was applied in discharge of Huntington’s lien on the real estate covered by the contract.

The referee has also found “ that on the 29th day of December, 1SS3, the said Kenyon executed and delivered to the defendants herein the mortgage described in the complaint herein, covering the same premises, for one thousand five hundred dollars to indemnify them for indorsing for him two several promissory notes for four hundred and forty-three dollars each, payable at some of of the banks in Home, New York, in three months from date, and all renewals of said notes were to be also secured by such mortgage ; and, thereupon, said defendants indorsed other notes for said Kenyon, which said mortgage was also intended to secure.” That mortgage was recorded on the 15th of December, 18S3, and he has also found that the notes so indorsed were for Kenyon's benefit, the defendants being accommodation indorsers. That Kenyon is insolvent and unable to pay the notes; that before the defendants took the mortgage from Kenyon they obtained a search from the clerk’s office and “found thereby that the title to the premises described in said mortgage was in said Kenyon by deed from said Huntington, and that they relied expressly on said search in reference to the title of said premises.”

The referee also found that the defendants knew said I. N. Williams in his lifetime, and the said premises occupied by him up to the time of his death; that they knew of the death of said Williams at the time it occurred and that he left a widow and children him surviving; but they did not know that said IT. ,C. Kenyon was one of the administrator’s, or was acting as such, of the estate of said Williams when they took said-mortgage from said Kenyon; but that the defendants did know at the time they took said mortgage that the plaintiff was then residing on said premises covered by said mortgage.”

He also found, as a matter of fact, viz.: That before the commencement of this action, the said H. C. Kenyon and each and all of the heirs-at-law of the said I. N. Williams, deceased, duly sold and conveyed, by deed, the premises described in said contract, and covered by said mortgage to the defendants, to the plaintiff herein, who is now the owner of all the right, title and interest which they had therein.”

The evidence given upon the trial indicates that the plaintiff and her children were in the open, visible and -exclusive possession of the premises described in the contract. The attempt to show that Kenyon was in possession in conjunction with her children of the premises in question was a failure. All that he could have said to have been in possession of was the barn, which, by the evidence upon the trial as well as'by the referee’s findings, appears not to have been situated upon the premises described in the contract but adjacent thereto, upon the earth which had been filled in and upon which the barn was situated, adjacent to and near the premises covered by the contract.

The possession by plaintiff and her children, under the contract, of the premises described in it, was open, notorious, visible and sufficient to give notice to the defendants of the rights and interest of the plaintiff and the children in tne pi'emises, or to put the defendants upon inquiry which would have yielded information of the plaintiff’s and the childrens’ rights and interest in the premises. (Brown v. Volkening, 64 N. Y., 82.)

The case before us, upon the facts which we have already stated, distinguish it from Pope v. Allen (90 N. Y., 302). In that case the occupation was equivocal, “since Pope was also in possession and there was nothing to indicate that defendant’s possession was not subordinate to his, or suggest hostility to the record title.” Defendants were “ put upon inquiry” and omitted to pursue the proper investigation -with due diligence. (Brumfield v. Boutall, 24 Hun., 456.) At the death of Williams his equitable interest as a purchaser under the executory contract for the premises in question was in equity real estate and descended to his heirs-ai-law, and the unpaid purchase-money was payable out of the personal assets of the intestate. (Champion v. Brown, 6 John. Ch., 398; Griffith v. Beecher, 10 Barb., 432.) The equitable dower of the widow in the premises was subject to the equitable lien existing in favor of Huntington, the vendor of the premises, and arose by operation of law and not as on a purchase for value. She had an equitable claim to have the personal estate exhausted in discharge of the personal obligation of her husband under the contract of purchase of the land. (Warner v. Van Alstyne, 3 Paige, 513.) Her claim of dower was a mere right of action which could not be conveyed before an admeasurement. (Siglar v. Van Riper, 10 Wend., 414; Ritchie v. Putnam, 13 id., 524.) It could not be alien so as to enable the grantee to sell in his own name. (Jackson v. Van derheyden, 17 Johns., 167; Tompkins v. Fonda, 4 Paige, 448.) It could only be reached by a creditor’s bill as a thing in action before formal assignment, or supplementary proceedings. (Tompkins v. Fonda, supra ; Payne v. Becker, 87 N. Y., 155.) Forfeitures are no£ favored in law or in equity. Before Huntington could forfeit the interest of the children in the property under the contract in question he would be required to give notice of his intention and to make a demand for fulfillment of the contract within a reasonable time.

In the language of the contract we find the following, viz.: “ The said party of the first part, his certain attorney, executors, administrators or assigns, shall have the right to terminate this contract, and thereupon, on giving written notice to the said party of the second part, his heirs, executors, administrators or assigns, of having so terminated said contract, to recover by suit at law all the interest which shall have accrued upon this contract up to the day of so terminating the same as rent for the use and occupation of said premises, to take immediate possession thereof.”

The evidence fails to show the actual resumption o_ possession of the property by Huntington. The evidence indicates that the effort to cut off the rights of the widow and children in the premises was by a concert of action between Huntington and Kenyon. Kenyon was an administrator charged with the duty of applying the personal assets to a satisfaction of the amount due upon the contract. Instead of performing that duty and rescuing the property for the benefit of the widow and children, he apparently entered into a collusive scheme to acquire the legal title of the premises himself ■ with the knowledge, assent and co-operation of Huntington. The'I children could not be barred of their rights without notice requiring performance in a specified reasonable time, or in default, notice that their rights would be deemed abandoned.” In the absence of such a notice to the children they were entitled to a specific performance of the contract, as against Huntington or his grantee, with j the knowledge of their equities. (Myers v. De Mier, 52 N. Y., 648; Divine v. Divine, 58 Barb., 264.) It seems to follow, therefore, that when Kenyon took the conveyance from Huntington of the premises he acquired only the legal title thereto, which in his! hands, as in the hands of Huntington, was subject to the equitable' rights and interest of the widow and children of the deceased who¡ were in possession of the property. /

This action is unlike Havens v. Patterson (43 N. Y., 218), as in that case the sale was to two parties, one of whom died, and the court remarked, viz.: Although equitable title under the contract was held by the purchasers as tenants in common, yet the contract itself was single. As to the vendor, the purchasers were one party, and a notice to one being in possession, and a refusal by him to perform, in the absence of collusion or bad faith, was sufficient and affected the rights of the purchasers and the vendor under the contract and to the same extent as though both had been served.” Besides, in that case the vendor took possession and there were no personal assets in fact, and it appeared that the administi’ators consented, without any fraud or collusion, to abandon the contract. Risley v. Rice (40 Hun, 585) is unlike tñe case in hand. That Avas a law action where the parties sued upon their legal rights, as distinguished from their equities, and it did not appear that any of the purchase-money had been paid and the action rested wholly upon the legal title and the right to the possession of the premises, no equities being established sufficient to defeat the legal title.

Plaintiff, upon the facts appearing at the trial, holds three relations to the premises in question. First, as dowress; second, as grantee from Kenyon; third, as grantee from the children of her deceased husband. It is insisted by the appellants that she is estopped from questioning the lien of the defendant’s mortgage upon the premises.

It is insisted in the defendant’s answer that the plaintiff, by her delay and laches, is “ estopped from claiming that said mortgage is not a valid and existing lien on said pi’operty, and free and clear of any alleged equitable or other claim of plaintiff.” The answer contains no defense setting up the statute of limitations.

If it be conceded that the facts and circumstances disclosed in the evidence were sufficient to estop the plaintiff as dowress in the premises, such estoppel would not extend to her as the grantee of the title and interest of the children. As to that title or interest she stands in the shoes of the children, and such rights as they had in the property at the time of their conveyance to her she is entitled to assert as their grantee. The effect of that estoppel on the plaintiff, at most, could be to bar her of the right to assert her dower in the premises as against the defendant’s mortgage upon the assumption that to allow her to make such an assertion of dower would be a fraud upon the defendants as mortgagees. (Dougrey v. Topping, 4 Paige, 94; Hawley v. James, 5 id., 453.)

It is difficult to see how the defendants in virtue of their mortgage, although the plaintiff may be estopped from setting up a dower in the premises as against them, can realize all the beneficial fruits of such an estoppel.

Appellant calls our attention to Payne v. Becker (87 N. Y., 153); Gregg v. Von Phul (1 Wallace, 274). There the doctrine of estoppel was applied to a deed which was tendered, and it was held “if the deed was justly liable to objections, they should have been stated * * * when the deed was tendered and the money due on the contract demanded.” And it was said that if one has a claim against an estate and does not disclose it, but stands by and suffers the estate to be sold and improved, witli tlie knowledge that the title has been mistaken, he will not be allowed afterwards to assert his claim against the purchaser. However, without passing upon the question as to how much the defendants may be benefited by the application of the doctrine of estoppel, insisted upon by them as against the plaintiff as equitable dowress in the premises, we may modify the judgment so that it shall not be a bar to the defendants’ lights, as mortgagees as against plaintiff’s dower interest in the premises.

But my brethren are of the opinion that the judgment should be affirmed, with costs. Such will be the decision of the court.

Present — Hardin, P. J., Boakdman and Follett, J<I.

Judgment affirmed, with costs.


author: Hardin, P. J.:

text:
    OLIVER PORTER, Appellant, v. FRANKLIN PIERCE and H. G. BORTHWICK, Respondents.

      Redemption of real estate sold wider execution — a redemption on Saturday (when that is the last day to redeem) muy he redeemed, from on the following Monday.

    A judgment creditor redeemed real estate sold upon execution, on Saturday, October 81, 1885, which was the last day of the fifteen months within which he was entitled to redeem. On Monday, November second, within twenty-four hours of the redemption (excluding the intervening Sunday), another judgment creditor redeemed. ■

      Held, that the second redemption was valid.
    That in computing the time within which the redemption should be made, Sunday should be excluded for two reasons:

      First. Because if considered the last day, the case was covered by section 788 of the Code of Civil Procedure, declaring that “if the last day is Sunday, or a public holiday, it must be excluded.”

      Second. Because, as the redemption must be made at the sheriff’s office (Code of Civil Procedure, § 1455), it can only be made on days on which the sheriff, or the under sheriff or a deputy could lawfully attend at the sheriff’s office for the transaction of business of this character, which he cannot do on Sunday.
    Appeal from a judgment entered in Cortland county, upon the decision of a Special Term dismissing the plaintiff’s complaint.
    A judgment creditor redeemed real estate sold upon execution on Saturday, October 31, 1885. Another judgment creditor, entitled to twenty-four hours in which to redeem, redeemed on Monday, November 2, 1885, within twenty-four hours of the last redemption, excluding the intervening Sunday. The question presented by the appeal was whether the second redeeming creditor was in time, or whether he lost his right to redeem by not redeeming on Sunday, November 1, 1885.

      Olive?' Porter, for the appellant.

      Pierce de Stone, for the respondents.
   Hardin, P. J.:

Section 1155 of the Code of Civil Procedure provides that a redemption made by the creditor after the fifteen months expire must be made at the sheriff’s office.” It also provides, “ the sheriff or his under-sheriff, or a deputy sheriff in his behalf, must attend at the sheriff’s office for that purpose on the last day of the fifteen months, and on each day thereafter in which a redemption can be made, during the time when the sheriff’s office is required by law to be kept open.”

A redemption elsewhere, though in the same village, is invalid. (Morss v. Purvis, 68 N. Y., 225.) A construction which would require a creditor to redeem within twenty-four hours, next after Saturday, so as to include Sunday, would require the sheriff’s office to be kept open on Sunday. No statute has expressly required such .office to be open on Sunday. Indeed, the policy of the law is to exclude a violation of Sunday by the performance of secular business by officers, as well as individual citizens, on Sunday. (People ex rel. Pugsley v. Luther, 1 Wend., 12.)

The duty imposed by statute upon the sheriff to keep an office, and to keep it open for the presentation of business, expressly excepts from its operation “ Sundays, and such other days as are or shall be declared by law to be holidays.” (3 R. S. [7th ed.], 2371, §§ 51, 55.) Certain acts of the sheriff may be effectual in regard to his business away from his office, but not those pertaining- to redemptions like the one under consideration. (France v. Hamilton, 26 How., 180.)

It was held in Van Vechten v. Paddock (12 Johns., 178) that, apart from a statute, at common law no judicial process can issue on Sunday. (See Strong v. Elliot, 8 Cow., 29 and note.) Until a statutory requirement shall authorize and require a sheriff’s office to be opened on Sunday for the transaction of business, a construction of a general provision of law should not be had which would impose the duty or the right of the sheriff to open his office on Sunday for the transaction of civil secular business officially. This view is in conformity with section 788 of the Code of Civil Procedure, which declares, viz.: “ If the last day is Sunday, or a public holiday, it must be excluded.” As the twenty-four hours in which such redemption may be made may be deemed the “ last day,” and is Sunday, it should be excluded. That provision of the statute just quoted from, section 788, relates to acts to be done upon the “ last day” granted by statute therefor. The further provision of the statute “when the act is required to be done within two days and an intervening day is Sunday or a public holiday, it must be excluded,” refers to a second class of cases, to wit, when “ the act is required to be done within two days.” The case of Marvin v. Marvin (75 N. Y., 240), turned upon the construction of a statute which permitted an act to be done “ after the expiration of four days,” and contains nothing inconsistent with or at variance with the views already expressed.

The views already expressed lead to the same result, as the authorities cited in the ouinion óf Merwin, J., which meets with’ our approval.

"We, therefore, hold the case was properly decided below, and the iudgment should be affirmed, with costs.

Boardman and Follett, J. J., concurred.

Judgment affirmed, with costs.


text:
    ELIAS W. THOMAS and JENNIE E. THOMAS, by Guardian, Appellants, v. JANE E. SNYDER and ESTHER R. CORT Respondents.

      Will —• construction of a power to dispose of property by will — when it will be deemed executed by the use of general language in the will of the devisee of the power

    Oa May 10,1880, Elias Thomas died, leaving him surviving his widow, Electa, two daughters, the defendants, and' the plaintiffs, the children of a deceased son. By his will he gave and bequeathed to his wife, Electa, “the use of the farm on which I now reside, together with the one now occupied by William Fairchild, and all the personal property on the said farms, and the income of my bank stock, during her natural life, and the right to dispose of the same by will, except the bank stock, and if the income from the above-mentioned property shall be insufficicnt.for her maintenance the deficiency shall be made made up from the income of the farm now occupied by James Hodge.” By other clauses of his will the testator disposed of all his real estate, except the two above-mentioned farms, and of all the rest, residue and remainder of his personal estate. The widow died in 1884, leaving a will by which she devised all her real estate and all her personal estate of whatsoever name or value to her daughters. At the time of her death she owned no other real estate than the farms above mentioned.

      Held, that the word “same,” as used in the will of Elias Thomas, included the farms as well as the personal property.
    That by the devise in the will of their mother the daughters acquired a valid title to such farms.
    That the general language of the will of the widow was adequate, as an execution of the power of disposition conferred upon her by her husband’s will.
    Appeal from a judgment entered in Oswego county upon a decision made at Special Term dismissing tlie plaintiffs’ complaint .in this action brought for a partition of two farms.
    On May 10, 1880, Elias Thomas died in the town of Yolney, Oswego county, leaving a will made on March 5, INS. The plaintiffs are the children of a deceased son of the testator who died before the testator. The defendants are the testator’s daughters. July 3, 1884, the testator’s widow, Electa T. Thomas, died. The testator’s will contains the following bequest: “ First, I give and bequeath, to my wife, Electa T. Thomas, the use of the farm on which I now reside, together with the one now occupied by William Fairchild, and all the personal property on the said farms, and the income of my bank stock during her natural life, and the right to dispose of the same by will except the bank stock, and if the income from the above-mentioned property shall be insufficient for her maintenance the deficiency shall be made up from the income of the farm now occupied by James Iiodge, and known as the Keeter farm.” Before her death the widow made her will, wherein she devised all her real estate and all her personal estate of whatsoever name or value, to be divided equally between her two daughters, share and share alike. At the time of her death she owned no other real estate.
    This is an action of partition. The plaintiffs claim title to one-third of the lands and defendants claim title to the whole thereof. The trial judge decided that the plaintiffs have no title in the lands and dismissed their complaint, with costs, upon the merits.

      Avery c& Merry, for the appellants.
    Rhodes, Coon & Higgins, for the respondents.
   Hardin, P. J.:

From the general tenor and scope of the testator’s will it is inferable that he did not intend to die intestate as to any portion of his estate. After enumerations of it in detail as to real estate, and partially so as to the personal estate, he adds a clause, lastly, to the effect that all the rest, residue and remainder of my personal estate, goods and chattels of what nature or kind soever to my said wife, Electa T. Thomas.”

A construction which does not leave the testator intestate as to any portion of his estate is preferable and more reasonable of the will in question, than a construction which would leave him clying intestate as to two of the several farms of which he was the owner at the time of making and publishing his will, as well as at the time of his death. “ The law prefers a construction of a will which will prevent partial intestacy to one which will permit it. (Vernon v. Vernon, 53 N. Y., 361.)

While it was within the power of the testator owning thirteen farms to so dispose of eleven as to satisfy his intention, and to leave the other two undisposed of, except as to the use thereof during the life of his widow, it does not seem reasonable to impute such an intention to a testator upon doubtful and equivocal language. The testator limited the gift and devise to his wife “ during her natural life.” The use and devise are clearly unlike that considered in Campbell v. Beaumont (91 N. Y., 464), which were absolute, and the widow took the whole estate with power of disposition. Following the limitation to and “ during the widow’s natural life,” which confessedly applies to the real and personal property given to her, and the words “ and the right to dispose of the same by will, except the bank stock,” apparently the intent in the use of the latter words was to make them coextensive with the prior words used to give her the use of the property of both classes “ during her natural life.” Besides the exception of the bank stock and of the before-named personal property, it is suggestive of an intent to include, in “the right to dispose,” the two classes of property entirely, save that portion thereof known as the bank stock. The original will, handed up upon the argument, gives the language continuously without any use of punctuation or capitals, to indicate an intent to separate the personal from the real in the application of the words “and the right to dispose of the same by will.” (Areson v. Areson, 3 Den., 458 ; Van Allen v. Mooers, 5 Barb., 110.) It was competent for the widow to dispose of the property by will, and, having done so, the property passed under her will to the defendants. (Cutting v. Cutting, 86 N. Y., 540; Hutton v. Benlcard, 92 N. Y., 295.) It is found that the widow executed a will which, with a codicil, was probated, and that it gave the property in question to the defendants. The general language of the will was adequate ’ as an execution of the power conferred upon her to dispose of the property in question by will. (Mott v. Ackerman, 92 N. Y., 539; Hutton v. Benkard, supra.) It follows that the plaintiffs had no title, interest or estate in the lands in question, and that their attempt to partition the same was properly defeated at the trial.

The judgment should be affirmed, with costs.

Boardman and Follett, J. J., concurred.

, Judgment affirmed, with costs.


author: .Hardin, P. J.:

text:
    ANDREW J. FARGO and CURTIS A. FARGO, Appellants, v. LOUISE A. HELMER, Respondent, Impleaded with WILLIAM J. GILLETT.

      Costs — regulated by the statute in force at the termination of the action — are to. be awarded by the court, in its discretion, in proceedings to enforce hens filed unde/r chapter 343 of 1885.
    . In this proceeding, commenced on April 14, 1885, by the plaintiffs, to foreclose a mechanics’ lien upon the respondent’s premises, an answer was served, on May 9, 1885, raising issues of fact, which were tried at a Special Term in February, 1886. Findings of fact, and a decision in favor of the plaintiff, which was silent upon the question of costs, were handed down on'June 13, 1886.

      Held, that the right of the plaintiffs to recover the costs of the proceedings depended upon the statute in force at the time of its termination; that such right was, in this case, to be determined from an examination of the provisions of section 14 of chapter 312 of 1885, which took effect on May 27,1885, and which provided that, in actions brought in a court of record, “such direction shall be made, in the discretion of the court, as to the payment of costs, as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid.”
    That as no costs were awarded to the plaintiffs by the court in this case they were not entitled to any.
    That the alteration in the law regulating the right to recover costs did not “ affect, enlarge, invalidate or defeat any lien, or right to a lien, now existing, or any proceeding to enforce such lieu now pending by virtue of any of the provisions of the acts hereby repealed,” within the meaning of those terms as used in the saving clause contained in section 26 of the act of 1885, which act repealed, with other acts, those under which these proceedings were commenced.
    The meaning of the word “proceeding” considered, and the definition thereof by Duer, J., in Rich v. Husson (I Duer, 617), approved.
    Appeal from an order of the Onondaga Special Term setting aside a taxation of costs in favor of plaintiffs.
    The plaintiffs were contractors and builders, who had liens as mechanics upon the respondent’s premises, and commenced this proceeding -April 14, 1885. The answer was served on May 9, 1885. Issues of fact were tried at the Onondaga Special Term of February, 1886 ; findings of fact, and a decision which is silent upon the question of costs being handed down on June 12, 1886. The plaintiffs taxed costs as in an ordinary action, and entered a judgment therefor, which taxation was set aside by the Special Term, which held that as costs were not awarded to the plaintiffs by the trial court they could not tax and have costs.

      Edwin S. Butterfield, for the appellants.

      Knapp, Nottingham <& Andrews, for the respondent.
   .Hardin, P. J.:

May 27,1885, by chapter 342, of the Laws of 1885, the legislature passed a general lien law applicable “in the several cities and .counties,” and repealed “ certain acts and parts of acts.” The “Onondaga Act” and “the City Act,” referred to in our opinion in Ryan v. Klock (36 Hun, 104), were repealed by section 26 of the act of 1885, and the repealing section contains a saving clause which must be examined and construed in determining the question brought to us by the present appeal. That clause reads, viz.: “ But this act shall not be so construed as to affect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce such lien, now pending by virtue of any of the provisions of the acts hereby repealed, nor to revive any other or ■former acts or parts of acts repealed by the acts hereby repealed.”

No question arises here as to “ any lien or right to a lien.” The The lien and right to a lien have been established fully by the ■decision of the Special Term given in June, 1886. By section lit, ■of the act of 18S5, it is provided “ costs and disbursements shall ■rest in the-discretion of the court.”

Appellants contend that the saving clause found in the repealing ■act should be so construed as to allow costs to be recovered by the plaintiffs without any award thereof, as a matter of discretion, by .the trial court. While, on the other hand, the respondent contends that the rule laid down in the act of 1885 is the only one in force .at the time of the decision, and that, because the court did not .award costs to the. plaintiffs, they are not entitled to recover them. Supervisors v. Briggs (3 Denio, 173), is an authority for holding “ the right to costs is created by statute, and wholly depends upon .it, and the right does not become fixed until the termination of the .suit.” That rule was again asserted in Garling v. Ladd (27 Hun. 112), and in Balcom v. Terwilliger (42 Hun, 170).

We are ashed to hold that the saving clause in the repealing act leaves in force the former statutes as far as they relate to costs. The words declaring that the repealing act shall “ not be so construed as to affect, enlarge, invalidate or defeat” any proceeding to enforce such lien, now pending by virtue of any of the provisions of the acts, are relied upon. But we think they do not aid the appellants. The “proceeding” to enforce any such lien “now pending,” referred to in the statute, is quite obviously the prescribed mode of action for carrying into effect a legal right. In Rich v. Husson (1 Duer, 611), we find an interpretation of the word proceeding which we deem apt and appropriate, and pertinent to the question before us. "We quote from the opinion of Duer, J"., viz.: “ The word proceeding,’ both in its popular use and in its technical application, has a definite meaning which we cannot alter or enlarge. It means, in all cases, the performance of an act, and is wholly distinct from any consideration of an abstract right. A pi’oceeding in a civil action is an act necessary to be done in order to attain a given end. * * * The rules by which proceedings are governed are rules of procedure; those by which rights are established and defined, rules of law. It is the law which gives a right to costs and fixes their amount. It is procedure which declares when and by whom the costs, to which a party has a previous title, shall be adjusted or taxed, and when and by whose direction a judgment in his favor shall be entered.”

If the trial court had exercised its discretion and awarded costs to the plaintiffs, it would not thereby have affected, enlarged, invalidated or defeated any “ proceeding” pending by virtue of any of the provisions of the acts repealed. (People v. Herkimer, C. P., 4 Wend., 211.) The object of the saving clause was to preserve “ any lien or right to a lien” and any pending proceedings. The lien has been saved ; the “ proceedings to enforce such lien” have been preserved. It was competent for the legislature to repeal all provisions heretofore existing as to costs, to place the costs to be given in all proceedings, then pending or thereafter brought, within the discretion of the trial court. (Jackett v. Judd, 18 How., 385.) Appellant refers to Dean v. Gridley (11 Wend., 169), to support his contention.

We think the language of the statute saving pending actions quite unlike that found in the act of 1885. That statute declared “no prosecution pending at the time of any statutory provision shall be repealed, shall be affected by sucli repeal,” but the same shall proceed in all respects as if such provision had not been repealed. We are of the opinion that the Special Term reached the proper conclusion and gave the saving clause in the statute the proper construction. The question is novel and the order may, therefore, be affirmed, properly, without costs to either party.

Boardman and Follett, concurred.

Order of the Special Term affirmed, without costs to either party.