author: CONLAN, J.

text:
    Ida M. Newcombe, Resp’t, v. Thomas Eagleton, App’lt.

      (New York City Court, General Term,

      Filed March 16, 1896.)

    jLease—Obligation of surety.
    As to rent thereafter accruing, the liability of'a surety on alease terminates with issuance by a justice, in summary proceedings, of a warrant for the removal of the tenant from the premises.
    Appeal from a judgment on a verdict directed for plaintiff,
    Foley & Early, for app’lt; George Lithauer, for resp’t.
   CONLAN, J.

Appeal from a judgment entered by direction ■of the court, and from an order denying a motion for a new trial. The legal obligation of the defendant as surety on the lease terminated with the issuance of the warrant by the justice.

The judgment should be reversed, and a new trial ordered, with, costs to the appellant to abide the event.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Watertown Paper Company et al., App’lts, v. George West et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    Bill of particulars—When granted.
    Where there is no allegation in the moving papers that a bill of particu- , lars is necessary to enable the defendant to prepare his answer, his motion for a bill of particulars, made before answering, demurring or otherwise; moving in reference to the complaint, is premature.
    Appeal from an order granting a motion for a bill of particulars.
    J. A. Arnold, for app’lts; 0. De H. Brower, for resp’L
   PER CURIAM.

It appears by the affidavit upon which this motion was made that this defendant has not answered or demurred or otherwise moved in reference to the complaint since the-same was served upon him. There is no allegation in the moving-papers that a bill of particulars is necessary to enablé the defendant to prepare his answer; and it is quite evident that it is not, as he can deny, either expressly pr upon information and belief, the-allegations contained in the complaint. We think, therefore, that this motion was prematurely made, aud that, at this stage of the-action, the facts necessary to be alleged and proved were not before the court to justify the granting of a bill of particulars.

The order should be reversed, with $10 costs and disbursements,, and the motion denied, with $10 costs.


author: HARDIN, P. J. WARD, J.

text:
    Abraham Picard et al., App’lts, v. Rosa Lang et al., Resp’ts.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed March, 1896.)

    1. Pleading—Counterclaim. "
    Where, in an action against a husband and wife on her note endorsed by him, which, with a certain amount of money, he gave plaintiff for a horse-which plaintiff sold and warranted to him, the jury have found that delivery of the note to plaintiff was without consideration, and that plaintiff . was liable for breach of warranty pleaded by the husband by way of" counterclaim, damages should not be awarded to both defendants, but only to the husband, and, as to the wife, the complaint should have been merely dismissed.
    9. Same.
    Inasmuch as the husband’s liability was a several liability, it was competent for him to set up a defense which should extinguish the cause of action relied upon by the plaintiffs, as well as to set upa counterclaim im. virtue of a contract of warranty which ran from the plaintiffs to him.

      3. Same.
    In this case, there is nothing to indicate any right on the part of the wife to enforce a counterclaim.
    4. Same.
    A person cannot recover damages upon a contract to which he is not a,party, or to recover upon a counterclaim which he has not set up in his answer.
    5. New trial—Judgment.
    Though there was no motion for a nonsuit or.for the direction of a verdict, or exception to the charge delivered by the judge, it is the power of the court, upon a motion for a new-trial made upon the minutes, to direct such judgment as, upon the evidence and the pleadings and the verdict, is-proper.
    5. Same.
    It is competent for the appellate division of the supreme court to make-such an order, in reviewing the motion for a new trial made upon the-minutes, as might have been made by the trial term.
    Appeal from an judgment in favor of the defendants, and from an order denying a motion for a new trial.
    This action was brought upon a promissory note made by the-defendant Eosa Lang, payable to the order of the plaintiffs (appellants) for the payment of the sum of $130, with interest, two-months after date, the date being the 9th day of December, 1890. This note was indorsed by the defendant Fred W. Lang, and delivered to the plaintiffs as part payment upon the purchase of a-horse that Fred W. Lang had made of the plaintiffs; $50 being paid by him to the plaintiffs at the time of the purchase. The-defendants are husband and wife. The defendants answered separately; the husband, Fred W. Lang, alleging that upon the-sale the plaintiffs represented and warranted the horse to be sound and healthy in all respects, without flaw or blemish, and, relying upon said warranty, he purchased the said horse ; that in fact the-horse was unsound, was lame, and had a disease known as the “side bone,” rendering him practically worthless; that he had rescinded the sale, and offered to return the horse to the plaintiffs,, who had refused to accept him; and further answering that the-note was without consideration, and void, as it was given for the said horse, and, in addition thereto, the said defendant paid the-said plaintiffs $50 in cash. Further answering, the said defendant alleged that he suffered damages by reason of the premises, and by reason of expenses he had been put to in consequence of the breach of said warranty, in the sum of $100, for which he demanded judgment against the plaintiffs, by way of counterclaim.. The defendant Eosa Lang interposed the same answer as her bus* band, except as to the counterclaim. The cause was tried at the Monroe circuit, in January, 1893, before a jury, and the jury rendered a verdict for both defendants in the sum of $81.30. The trial court charged the jury that, if they rendered a verdict for the plaintiffs, it should be for the amount of the note and interest: if for the defendants, they were entitled to a verdict for the $50 paid by the defendant to the plaintiffs upon the sale of the horse, and .the interest to the time of such trial. The defendants gave evidence tending to show the unsoundness set forth in their answer, and, in attempting to cure the horse of such unsoundness, they (the defendant _Fred_W. Lang) had expended about $25 or $30. which was specified in detail. The plaintiffs admit the making of the warranty as claimed by the defendants, and the only question was whether there' had been a breach of that warranty. Upon the coming in of the verdict, the court entertained a motion of the plaintiffs upon the minutes for a new trial, the ground of such motion being upon exceptions taken by the plaintiffs upon the trial, and because the verdict was excessive in amount, and because it was contrary to the evidence, contrary to the law, and’ against the weight of the evidence. The court denied the motion for a’ new trial upon the minutes; and from the judgment entered upon the verdict, and the order denying the motion for a new trial, the plaintiffs appealed.
    Cassius C. Davy, for app’lts; Wm. F. Rampe, for resp’ts.
   HARDIN, P. J.

From the pleadings and from the evidence ■offered at the trial, it is apparent that the female defendant executed her promissory note to the order of her husband, the male defendant, and that he indorsed the same, and used it in consummating the purchase from the plaintiffs of a hoi;se at the price of $180; delivering simultaneously with the note of $130 so made and indorsed the sum of $50, in full payment for the horse so purchased. The note is not set out in the appeal book. The evidence satisfactorily established the fact that the male defendant was the purchaser of the horse, and entered into the contract with the plaintiffs which was consummated by the delivery of the note and the $50. It is very apparent that the warranty of the horse disclosed by the evidence ran to the male defendant. In his answer there is a counterclaim set up in connection with the averment of a breach of the warranty made by the plaintiffs at the time of the sale of the horse. The evidence given at the trial satisfactorily established the warranty, and it also presented a question of fact for the jury to determine,—as to what damages the male defendant had suffered. Evidently the jury were of the opinion that the note on which the plaintiffs counted was without consideration, and that the male defendant was entitled to recover back the money which he had paid, to wit, $50, and the interest thereon, and was also entitled to receive damages by reason of -the breach ■of contract of warranty. Apparently the circuit judge, in delivering his charge, failed to discover that there was not any counterclaim set up in the answer of the female defendant. The- evidence does not disclose that any counterclaim existed in her behalf. The evidence does disclose that it exists in behalf of the male defendant. Inasmuch as his liability was a several liability, it was competent for him to set up a defense which should exting-; uish the cause of action relied upon by the plaintiffs, as well as! to set up a counterclaim in virtue of a contract of warranty which! ran from the plaintiffs to him. There is nothing in the case to indicate any right in the female defendant to enforce a counterclaim.■ It seems to be errpneous to allow the female defendant to recover damages upon a contract which she was not a party to, or to recover upon a counterclaim which she has not set up in her answer. Spofford v. Rowan, 124 N. Y. 108; 35 St. Rep. 65; Halliburton v. Clapp, 36 Supp. 1041.

Although there was no motion for a nonsuit or for the direction of a verdict, or exception to the charge delivered by the judge, it was in the power of the court, upon a motion for a new trial made upon the minutes, to direct such judgment as, upon the ■evidence and the pleadings and the verdict, was proper. Such omissions do not prevent the party from moving to set aside the verdict as being “founded on insufficient evidence.” Shearman v. Henderson, 12 Hun, 170, approved and followed in Lucas v. McEnerna, 19 Hun, 16. It is competent for this court to make such an order, in reviewing the motion for a new trial made upon the minutes, as might have been made by that court. It seems, under the circumstances of this case as now presented, the judgment as to the male defendant, should be affirmed, with costs, and the judgment modified as to the female defendant by striking therefrom the award of damages in favor of the female defendant, and directing that the complaint as to the female defendant be -dismissed, and that such modification be made without costs of the appeal to either the plaintiffs or the female defendant. Code Civ. Proc. § 1317; Altman v. Hofeller, 83 Hun, 429; 64 St. Rep. 669; Goodsell v. W. U. Telegraph Co., 109 N. Y. 147; 15 St. Rep. 73; Petrie v. Williams, 68 Hun, 697; 52 St. Rep. 587.

Judgment as to Fred. W. Lang, affirmed, with costs, and the judgment as to Rosa Lang modified by striking therefrom the award of damages in her favor, and directing the complaint as to her to be dismissed, and the judgment as so modified, as to her, is affirmed, without costs to her or to the plaintiffs.

WARD, J.

The exceptions taken upon the trial are without merit, and need not be considered. The damages awarded by the jury, so far as the defendant Fred W. Lang was concerned, were mot excessive. They were made up of $56.30, being the $50 paid by the defendant Fred W. Lang to the plaintiffs upon the purchase of the horse, and the interest on the same, and a veterinary-surgeon’s bill incurred by the defendant Fred W. Lang, and medicines procured by him, in a proper attempt to remove the disease and cure the horse of the lameness which the jury found existed at the time of the sale ; the surgeon’s bill and medicines amounting to $25 or $35.

The remaining point made by the appellants is that the verdict and judgment in favor of the defendant Rosa Lang in connection with her husband (the other defendant) was erroneous, and this presents a serious question. . There were no exceptions to the charge of the court, or any request to charge, by either party; so that the charge of the court that verdict could be rendered for both of the defendants upon the counterclaim was not challengéd bv any exception of the plaintiffs upon the trial. The correctness ‘ of the verdict in favor of the wife was, perhaps, challenged upon,the motion for a new trial upon the minutes. No reason seems-to exist why the defendant Rosa Lang, who was in fact a surety upon the note in controvery, and who had advanced nothing upon-this purchase, and had suffered no damage by reason of the transaction, should recover damages as by way of counterclaim, none-being alleged in her answer. Had the attention of the trial court-' been properly called by the plaintiff to this matter, the court undoubtedly would have instructed the jury that, while the defendant Rosa Lang might be relieved altogether from her note, still, if the affirmative relief was granted by way of damages and counterclaim, the other defendant alone was éntitled to it. That was not done, and the question here is whether the plaintiffs can .avail themselves of the error thus committed upon the trial, upon this review. The court has the power and it is its duty to inspect the-whole record, and to correct every substantial error which is disclosed by the examination, though not specifically pointed out by exception (Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 510; Mandeville v. Marvin, 30 Hun, 282; Lattimer v. Hill, 8 id. 171; Maier v. Homan, 4 Daly, 168; Baylie, New Trials, 125); and the omission of the defeated party to move for a nonsuit, or to request that a verdict be directed in his favor, or to except to the-submission of any particular question to the jury, does not preclude-him from moving to set aside the verdict on the minutes of the-judge presiding at the trial, upon the ground that the evidence was insufficient or that the verdict was contrary to law, and I think we may assume, as to any of the other grounds specified in section 999 of the Code of Civil Procedure, Shearman v. Henderson, 12 Hun, 170, Lucas v. McEnerna, 19 id. 14; Tate v. McCormick, 23 id. 218; Kelly v. Frazier, 27 id. 314.

As no authority seems to exist in the law for this judgment in-favor of the wife, Rosa Lang, it must be reversed as to her. There was evidence sufficient to go to the jury upon the question as to the unsoundness of the horse, and to sustain the counterclaim alleged by the defendant Fred Lang to the extent of the damages awarded by the jury, and the judgment should therefore be affirmed as to him. The power of this court is ample to make-such a disposition of the case.- Code Civ. Proc. § 1317; Schoonmaker v. Bonnie, 20 St. Rep. 428; Simar v. Canaday, 53 N. Y. 298.

Judgment directed as recommended in the memorandum hereiu, of HARDIN, P. J.

FOLLBTT, ADAMS, and GREEN, JJ., concur.


author: HATCH, J.

text:
    William B. Powell, Resp’t, v. Edward F. Murray et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Corporations—Stockholders—Liability.
    By the terms of the amendment of chapter 333 of 1853 to the act of 1848, the property purchased must be such as is necessary for the business of the corporation, and the fact whether such property is in fact necessary for the purposes of the corporation is to be determined in the same manner as other controverted questions,
    2. Same.
    The purchase by a corporation, organized solely for the manufacture of electric appliances,- of the "right to act as agents for the sale of electric supplies manufactured by another company is ultra vires.
    3. Same—Powers.
    The enumeration of the powers of a corporation in its charter implies exclusion of all other powers. _
    Appeal from a judgment in favor of plaintiff, entered upon the decision of the court on-a trial without a jury.
    Davenport & Hollister, for app’lts ; O. B. Gould, for resp’t.
   HATCH, J.

This action seeks to charge a personal liability upon the defendants as stockholders of the National Electric Manufacturing & Construction Company of New York, a corpor-" ation organized, as appears by its charter, for “the manufacture of electric lamp sockets, safety cut-outs and the appliances connected with and used in the setting up and perfecting of electric machinery arid electric light and electric moror plants for public and private uses and purposes.” Its capital stock was $50,000, divided into 500 shares of $100 each. The defendants were the only stockholders of the company, and there was issued to each defendant 100 shares of stock, of the par value of $10,000. for which they paid nothing. The company was organized in May, 1890. On April 1st of the same year, the defendants Murray and Latshaw entered into a contract with the National Electric Manufacturing Company of Eau Claire, Wis., whereby they acquired the exclusive right and license, as agents, for the sale of electrical supplies manufactured by said company, in a portion of the state of New York, and in three other Eastern states. The trustees of the New York corporation purchased this contract of the defendants Murray and Latshaw, and as consideration therefor issued to said defendants the remainder of its capital stock. It does not appear that the contract was ever assigned or delivered to the corporation. The corporation did business until 1893, when it became insolvent, petitioned for its dissolution, and was placed in the hands of a receiver. No money was paid for any of the stock issued, and by section 10, Laws 1848, under which the coriporation was organized, liability against the stockholders would 'be created unless they are relieved by other considerations.

Appellants meet this by the claim that the transfer of the con- , ract was a purchase of the property by the corporation, authorized by Laws 1853, c. 333, which amended the act under which it was incorporated. This act provides:

“The trustees of such company may purchase mines, manufactories and other property necessary for their business, and issue stock to the amount of the value thereof in payment therefor; and the stock so issued shall be declared and taken to be full stock and not liable to any further calls; neither shall the holders thereof' be liable for any further payments under the provisions of the tenth section of said act.”

This claim is the sole question presented by this appeal. By the terms of this amendment the property purchased must be such as is necessary for the. business of the corporation, and it has been held that whether the property purchased was in fact necessary for the purposes of the corporation was to be determined in the same manner as other controverted questions. Schenck v. Andrews, 46 N. Y. 589; 57 id. 133.

3This contract did not provide for furnishing any material for purposes of manufacture bv the corporation. The company which executed it proposed to furnish a manufactured article, and constituted the defendants agents to sell; and by its terms the defendants agreed to organize a company for the purpose of placing the manufactured article upon the market in the specified localities. In what view, then, can it be said that it was necessary for the business of this corporation, which was organized solely to manufacture? An agency to sell is in no sense a business of manufacturing. People ex rel. U. P. Tea Co. v. Roberts, 145 N. Y. 375; 64 St. Rep. 827. It is doubtful if this license to sell, is property, within the meaning of the section invoked. It is not necessary, however, to determine that question, and we express no opinion thereon.

Hot only was this license to sell the manufactured article of another company not necessary for any business which could be lawfully carried on by this corporation, but the contract was ultra' vires of it make. The character of a corporation is the measure of its power, and the enumeration of these powers implies the exclusion of all others. Thomas v. Railroad Co., 101 U. S. 71. The., business proposed to be carried on under the contract was entirely foreign to the character and scope of the business for which the corpotation was chartered. As was said by judge Earl, in speaking of a similar case:

“It could not lawfully engage in this foreign business simply because it could make a profit therein. A corporation may foster its legitimate business by all the. usual and appropriate means. But it cannot, under the pretense of fostering, engage in transactions entirely ultra vires.” Holmes v. Willard, 125 N. Y. 75; 34 St. Rep. 455.

In the present case nearly the entire corporate stock was devoted to making á market for the manufactured article of another! concern, in which,, by the use of its property for that purpose, this1 corporation was wholly unable to carry on the manufacture of those .articles for which it w.as brought into being, and thus was wholly destroyed the purpose of its creation, The following cases are abundant authority for the view here taken: Thomas v. Railroad Co., supra; Minturn v. Larue, 23 How. 435; Alexander v. Cauldwell, 83 N. Y. 480; Diligent Fire Co. v. Com., 75 Pa. 291; Machine Co. v. Wilkinson, 79 Ala. 312; Lime Works v. Dismukes (Ala.) 5 Lawy. Rep. Ann. 100, and note, 6 South. 122.

It is true that a corporation, like individuals, has capacity to' contract, and it may be said, generally, that there is this difference: The latter may make all contracts that are not forbidden by law or opposed to the general welfare of society, while the former possesses those powers which are expressly granted, and the contract which it makes must be directly connected with those purposes and those which are necessary to accomplish the object of its creation. It is by no means certain that this contract could be assigned to this corporation. By its terms the defendants who ex-executed it agreed to organize a stock company with a bona fide paid in capital of not less than $25,000, and with that to thoroughly canvass the territory allotted to them for the sale of the system of electricity and supplies manufactured. That was a part ■of the contract, and it does not appear that defendants were authorized to assign it upon any other terms. The corporation to whom it is claimed that it was transferred in no sense answered its terms. But, whether we say it was never assigned, or could be assigned, it is clear, for reasons already stated, that the contract was not property necessary for the use of a corporation, that the contract by which it was transferred to it was ultra vires, and the issue of the stock therefore was unlawful.

It follows that the judgment appealed from should be affirmed, with costs.-


author: WILLIAMS, J.

text:
    James P. Kernochan et al., as Executors and Trustees, etc. v. Henry Wilkens, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    Landlord and tenant—Lease—Executor.
    Where parties, whose only authority with reference to land is derived from a will constituting them trustees, leased the same for ten years under a power in the will to one who knows the nature of their estate in the property, by a lease under seal, in form a lease by them individually, and unsigned by one of them, and the lessee takes possession of and occupies the property for five years, paying the rent specified by the lease, a tenancy from year to year is, though the lease is void as a lease for ten years, constituted, and the amount of rent payable is regulated by the lease as an agreement. If the lessee remains in possession after the close of one year, he cannot terminate the tenancy before the close of the following year.
    Appeal from a judgment in favor of plaintiffs, entered upon a verdict of a jury directed by the court, and from an order denying a motion for a new trial upon the minutes of the court.
    ' The action was brought to recover rent under a written lease under seal. In the title of the action the plaintiffs were named as executors of and trustees under a last will and testament. It was alleged in the body of the complaint that the testator died, January! 30, 1888, seised in fee of lots at 129, l&l and 133 Worth street,, city of New York, and left a will naming plaintiffs as executors of and trustees under the will; that the will was admitted to probate about May 1, 1888, and the plaintiffs duly qualified, and ever since have been acting as such executors and trustees; that the will directed plaintiffs to divide and partition certain lands, including-, the Worth street lots, into equal shares, one of which he gave and! devised to the plaintiffs in trust for the benefit of his son, and' authorized and empowered plaintiffs to lease the lands, but not for a term of more than five years, without the consent of the son, if of full age, and competent to give such consent; that the plaintiffs, pursuant to such authority, did divide and partition the lands in equal shares for the use and benefit of the son, and that these three lots were a part of that share; that plaintiffs held these three lots in trust for the use and benefit of such son, who was of full age, and competent to give such consent to the lease of such lots; that, April 24,1889, the lease in question was given to the defendant of the three lots, for ten years from January 1, 1890, at a yearly rent for the first five years of $10,000, and for the remaining five years $11,000, which was to be paid quarterly on the 1st days of April, July, October and January, in each year, the defendant to pay in addition thereto the Croton water taxes and chares on demand during the term, and the plaintiffs agreed to erect upon the lots a substantial store building six stories high, and the son consented to the making of the lease foi) the ten years; that the plaintiffs, pursuant to the terms of the lease, erected a building on the property before January 1,1890, and the defendant entered into possession of the property under the lease, and has ever since remained, and now is, in such possession, and has paid the rent provided in the lease for the first five years and up to January 1, 1895; that a quarter’s rent became due April 1,1895, amounting to $2,750, and payment thereof had been demanded, but remained wholly unpaid; that Groton water, taxes, and charges, amounting to $499.60, had become due and' payable, and payment thereof had been demanded, but remained unpaid,—and judgment was demanded for the amount of this rent and these taxes and charges, with interest. A copy of the lease was annexed to the complaint, and made a part thereof, and, it was stated to be made by the persons who are the. plaintiffs herein, adding to their names the words “trustees of Lorillard Spencer” (the son), and it was signed by two only of these persons, each writing the wordtrustee” after his name. The. answer of the defendant denied all the allegations of the complaint-as to the lease of the property, and possession, and payment of rent under it, and the amount unpaid for water rents and charges, but admitted the allegations with reference to the will, and character of plaintiffs thereunder. Upon the trial, evidence was given by plaintiffs tending to prove the allegations in the complaint. No evidence was given by defendant. The defendant objected to the plaintiffs’ evidence, and moved to dismiss the complaint, on the ground that the complaint did not state facts sufficient to consti'tute a cause of action, and no cause of action had been made out By the proofs; that the action was based on the lease, and there was nothing^ in that to show that these men made the lease as executors or trustees. The motion was denied, and the verdict for plaintiffs was directed.
    Maurice Rapp, for app’It; J. Mayhew Wain wright and Henry 13. Wardner, for resp’ts.
   WILLIAMS, J.

It must be conceded that the lease was not •made, in form, by the plaintiffs, either as executors or as trustees. Appropriate words were not used in the body of the lease, and the signatures were not in proper form, to make the lease one by the plaintiffs as executors or trustees. The property did not belong ■to the plaintiffs personally or as individuals, but as executors and trustees, and they very likely intended to make the lease in their capacity as executors and trustees, but it was not properly done. It was, in form, legally, a lease by them as individuals. The word trustees,” etc., in the body of the lease, and following the ■-signatures of the two who signed, were merely words describing ■‘the persons. It is claimed , moreover, that if the lease had been mode in proper form, it would have been void, only two of the ■three trustees or executors having signed it. Even if the lease was improper in form, and void because not signed by all the exe-cutors or trustees, still, under the facts alleged and proved in the case, the plaintiffs were entitled to recover.

There is n'o pretense that the plaintiffs, as individuals, had any right to lease this property, or that the defendant supposed they had. All the parties knew that the plaintiffs’ power and authority with reference to the property was derived from the will, and was :as executors and trustees only. They attempted to make the lease as such executors or trustees, but it was not properly prepared for them, and was not signed by all of them. It was, however, alleged and proved that, under this lease, the defendant took possession of the property January 1, 1890, and occupied it until April 1, 1895, and still remained in such occupancy at the time the action was commenced. He paid the rent provided for by the lease for five full years, and then sought to evade a recovery for the rent for the first quarter of the sixth year. Even though void as a lease for ten years, still, by the entry under the lease, and occupancy ■and payment of rent under it, a tenancy was created for one year, and then from year to year thereafter, and the lease, as an agreement, regulated the terms upon which the tenancy subsisted in all respects except as to the duration of the term. The defendant had a right to terminate the lease at the end of any year; but, if he remained in possession after the close of one year, he could not terminate the- tenancy until the close of the following year. Laughran v. Smith, 75 N. Y. 205; Porter v. Bleiler, 17 Barb. 149; Coudert v. Cohn, 118 N. Y. 309; 28 St. Rep. 684.

We think this case is clearly distinguishable from the case of Schaefer v. Henkel, 75 N. Y. 378. In that case a lease was made By a person who was in fact the agent of the owners of the property, he describing himself in the lease as agent, and adding thcr word_“ agent ” to his signature. The lease was under seal, the principals’ names did not appear in it, and there was nothing m> the lease to- show that they had anything to do with, or any interest in, the demised premises, or the execution of the lease, or thati it was executed in their behalf. It was not stated in whose behalf; the agent acted. It was not made to appear, upon the trial that: the defendant had any knowledge or intimation whatever, at the time of the execution of the lease, that the agent was acting in 'behalf of the owner, or for their benefit. For whom the agent acted was not made known to the defendant, and it only appeared by parol proof upon the trial. The plaintiffs, without any assignment of the agent’s interest under the lease, brought this action to recover the rent unpaid, upon the ground that the .lessor acted, merely as their agent, and that they were the actual parties-in interest. The question to be determined was whether the actual owners of the lease, which was in the nature of a deed inter partes,, which was not, and did not on its face show that it was, executed by them, but which did show an execution by a third person, claiming to act as agent, without disclosing the names of his' principals, and which contained covenants between the parties actually signing and sealing the same, can maintain an action upon it for the rent reserved therein, even although the person who executed' the same, describing himself ás “ agent and party of the first part,” had oral authority to enter into the contract, and act as the owner’s agent in the transaction The court held that the action would not lie, saying, among other things:

“It is urged that it is not essential to the plaintiffs’ right to recover that they should claim under the lease; but, as the contract is one not required to be under seal, or even in writing, there is no ground for claiming that the principal can be deprived of his remedy. It is a complete answer to this position to say that no-such question was presented upon the trial, and the plaintiffs do-claim under the lease. The complaint sets it up, and the evidence establishes its execution. Had the plaintiffs sued for use and occupation, claiming that the agent had acted without authority in making the lease in his own name, and that it really was made fertile plaintiffs’ benefit, a different case would arise. But such is-not the fact. The claim of the plaintiffs to recover rent rests-upon the lease only. Nor can it be claimed, upon any valid ground, that the question now presented is whether the lease is a bar, for the apparent reason that the plaintiffs have made-the lease the foundation of their right to recover, and claim under it, and under no other or different agreement. Upon the trial the plaintiff proved, by the agent, that he was authorized orally to-demise the premises in the complaint mentioned, and that he diJ so by the instrument in question. It was also proved that the defendant ' entered upon the premises and occupied the same; ancE that the amount claimed was due thereon. At this stage of thet case, the defendant’s counsel claimed that the lease was not the act and deed of the plaintiffs, and that they had no cause of action arising out of the same' against the defendant; no proof being, offered, and it not being claimed that the premises were let otherwise than under the lease. The plaintiffs made no application to-amend the pleadings, nor any claim that a recovery could be had except upon the lease. As no question was made upon the trial as to the authority of the agent to make the lease in the form it was executed, it cannot be urged, upon this appeal, that the question arises whether the agent could cut off plaintiffs’ rights or remedy. In the absence of direct proof that the agent exceeded his authority, and without the presentation of such a question upon the trial, it is difficult to see upon what basis any such claim rests. Even if, in a suit brought for that purpose, where the complaint set forth all the facts, the acts of the agent,when he exceeds-his powers, may be disregarded, there is no principle which upholds the doctrine, and no authority for holding that, when the action is brought upon the instrument itself, which is now alleged to have been unauthorized and no proof given of any want of authority or point made upon the trial the subject, the plaintiff can recover. But it is sufficient to say that the plaintiffs did not seek relief upon any such ground, either in the complaint or upon the-trial. If they had applied to amend the complaint, it would have rested with the court to determine whether the amendment proposed was proper, and upon what grounds or terms, if any, such an application should be granted, Some authorities are cited for the purpose of upholding the position that the deed may be resorted to as evidence of the terms of the agreement, although it-cannot be enforced as a specialty. Conceding that this may be done, when the action is brought setting forth the want of authority, we think that such is not the case where the complaint in the-action is founded entirely upon the instrument, and the plaintiffs, upon the trial, claimed to recover by virtue thereof. * * * Haight v. Sahler, 30 Barb. 218, holds that a corporation is liable upon its contract, although the agents have affixed their owned seals, when the instrument on its face purports to have been executed by the corporation, and their acts were ratified by the corporation, and it is apparent that there was no intention to bind the-the agents. This was decided upon the authority of Randall v. Van Vechten, 19 Johns. 60. * * * The point is made that the plaintiffs have ratified the contract, and the defendant has been in possession, and has paid the plaintiff §150 on account of the rent. There is no evidence of any possession otherwise than that under the lease which was executed by the agent, and the presumption is that it was in pursuant thereof, and not under the plaintiffs. The complaint alleges that no part has been paid, except the sum of $150, and the proof shows that a balance was duej ¡deducting this. It may, therefore, have been paid to the agent, ¡and not to plaintiffs; and no presumption arises that it was to the ¡plaintiffs.”

These statements and quotation from the opinion in the case ispeak for themselves, and distinguish that case from this. In this«ase all the facts were known to the defendant (the lessor) whenithe lease was made, and were set out in the complaint, and proven. ■on the trial. The defendant knew that the property was held by the plaintiffs, not personally, nor as individuals, but as executorsl .•and trustees under the will; that the building was build upon the property, under the terms of the lease, by the plaintiffs, as such-■executors and trustees; and that the lease was intended to be made' by them in their representative capacity, and'not as individuals. The rents were paid to the plaintiffs as executors aad trustees. All the parties seemed to have regarded the lease as properly executed by the plaintiffs as such executors and trustees, and the defendant dealt with the plaintiffs in their representative capacity for five years, and only when he was.sued by the plaintiffs in their representative capacity for the first quarter of the sixth year’s rent .and the defendant wanted to make some defense to the action, did he first discover what he thought was a technical defense to the action in the form of the lease, and its invalidity as a lease by the plaintiffs in their representative capacity. We think the case referred to is not an authority to defeat the right of recovery by ■the plaintiffs, as executors and trustees, 'of the rents sued for in ■this action, under the facts alleged and proved in this case.

No question of variance arises. All the facts were alleged, and 'the lease was set out, and the facts alleged were proved. Upon the pleadings and proofs, the verdict was properly ordered. Thomas v. Melson, 69 N. Y. 118.

The judgment should be affirmed, with costs. '

All conour.


author: O’BRIEN, J.

text:
    Joseph Steiner et al., App’lts, v. Merchants’ Despatch Transportation Company, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    Pleading—Amendment.
    Where the plaintiffs directly select the ground upon which they base their right to recover, they will not be allowed to amend their complaint by introducing a different cause of action, aflerdt is found that the theory adopted will not pi evail.
    Motion for a new trial on exceptions ordered tobe heard in the first instance by the appellate division.
    The plaintiffs, who are copartners in the wholesale fur business in New York, bring this action to recover damages for the failure -of the defendant’s company (a joint stock association, engaged in the transporation business) to transport within a reasonable time ■it case of Astrakhan furs, delivered by the plaintiffs to-such company for transportation to Sterling, MacCredie & Co., at Toronto,, Canada. In November, 1891, one of the firm of Sterling, Mac■Credie & Co. purchased of the plaintiffs a case of Astrakhan furs., -either upon approval, or, as one of the plaintiffs states,“conditional, i;o sample.” David Steiner, one of the plaintiffs, testified: “I had. three cases alike. One we kept in bond, which we shipped to Toronto; while one case Mr. Sterling seen here. We showed Tim how they run, and he said, ‘If they run that way, send them, on as quick as you can.’ * * * That is what I mean by -conditional to sample.” The Mr. Sterling referred to was called as a witness for defendant, and testified that his purchase of the skins was simply on approbation, and that there was no time ¡specified for delivery. The goods were shipped by Merchants’ Despatch on November 11th. In ordinary course, they should have arrived at Toronto within four or five days. By mistake, ■the goods were shipped via. Montreal, instead of by the usual route, via Suspension Bridge; so that they did not reach their destination until November 26th. On that day Sterling, Mac■Credie & Go. wrote the plaintiffs as follows: “Dear Sirs: The lost case of Astrakhans arrived to-day from Montreal, and to say that we were disappointed on examining the same is to put it mildly. We thought you would ship us some decently fair skins, but such, ¡a poor lot of skins we never handled. We inclose manifest, which please have filled in and return, and we will have cases shipped back at once. Regretting that the transaction is so very unsatisfactory, we are,” etc. On November 30th the plaintiffs replied: “ Gents: Your letter to hand, and we are sorry to hear that the goods did not come up to your expectations, and that there should have been such a delay in delivering the goods to you, as we sold several similar cases here at the time, and could also have sold the case we sent to you; but ¡since then these goods have declined in value, and we could not realize the same price now. We claim that it is the fault of. the Merchants’ Despatch that the goods were sent to Montreal instead of Toronto, and, had they been forwarded immediately, we certainly could have ordered them back, and sold them. We wish you would write us to the effect that the goods have been delayed, and came too late to your place, as we intend to make complaint .against the M. D. Hoping you will write us a letter" to that effect, we remain,” etc. Accordingly, on December 2d, Sterling, MacOredie & Go. accommodated the plaintiffs with a letter as follows: “Dear Sirs: Your case of Astrakhans invoiced to us 9 Novr., and shipped per Merchants’ Despatch, arrived via Montreal 26th ult., too late to be of any use to us whatever. This delay has caused us serious loss, as the season is so far advanced. We have no time to manufacture up the goods, even if we could- get them elsewhere. We await your instructions,” ete. Upon the trial, at the close of the case, the plaintiffs asked to go to the jury upon the questions: “First. Was there any delay? And, second, was there any damage caused by it?”—and further asked to be allowed to conform the pleadings to the proof, in order to raise the above questions. This motion was denied, and the plaintiffs excepted. The court directed a verdict in favor of the defendant, to which the plaintiffs excepted, and the court ordered the exceptions to be heard here in the first instance.
    Emanuel J. Myers, for pl’ffs ; Oliver P. Buel, for def’t.
   O’BRIEN, J.

The theory of the complaint is that the plaintiffs-lost the sale of the Astrakhan skins to the consignees by reason of: the delay in their delivery by the transportation company. Snehi Cause of action, however, they failed, to prove. Their testimony' tended to show that the goods were sold by sample; but whether such sijle was an absolute one or one subject to the approval of the consignees was brought in question. The weight of the evidence was favorable to the view that they were sent on approbation or approval; and, were there no other question in the case, there might be force in the plaintiffs’ argument that the judge below should not have directed a verdict .upon this ground, but should have submitted the question to the jury. This question, however, was not controlling, because it appears beyond cavil that the goods were rejected by the consignees because not according-to the sample or contract, being, in their view, inferior in quality. Although, at the request of the plaintiffs, the consignee afterwards? wrote a letter saying that the goods'arrived too late to be of any use, and that such delay caused loss, still it is placed beyond doubt that the real ground of rejection was not the delay, but the-inferior quality of the goods." It thus being shown that the delay was not what caused a loss of the' sale of the goods to the consignees, the plaintiffs failed to prove their alleged cause of action.

It is insisted, however, that conceding that the goods were shipped subject to approval, as the .transportation company failed to-transport and deliver them diligently, the plaintiffs, having asked to be allowed to amend the pleadings so as to conform to the proof, should have been permitted to go to the jury upon the question? of their damages. Such a ground, however, is entirely inconsistent with the cause of action alleged, and the plaintiffs’ motion was properly denied. But, even if granted, it would not have helped the plaintiffs, for the reason that there was a failure to-prove any loss or damage by reason of the delay. We think, therefore, where, as here, the plaintiffs, directly selected the ground upon which they based their right to recover, and endeavored to-fortify this by inducing the consignees to write a letter which cannot be said to reflect credit on any of the parties, that, after it was; found that such a theory would not prevail, the court was justified in disallowing an amendment which would have introduced a dif-1 ferent cause of action, and which, as we have said, upon the evidence, even if allowed, would not have saved the plaintiffs’ case.

We think that the direction in the defendant’s favor was right, and that the exceptions should be overruled, and judgment directed for the defendant upon the verdict, with costs. " '

All concur."


author: YAN BRUNT, P. J.

text:
    Francis F. Morton, as Sole Surviving Partner, etc., App'lt, v. George W. Chesley, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)
    Aebe st—Replevin.
    To justify an arrest of the defendant in replevin, the complaint must allege the value of the chattel, or damages for detention, with the facts showing that such value is real, or that the damages have some foundation.
    Appeal from an order vacating an order of arrest.
    J. A. Blair, for app’lt; 0. Norwood, for resp’t.
   YAN BRUNT, P. J.

This action was brought by the plaintiff as sole surviving partner to recover the possession of certain books of account, the property of the co-partnership of which the defendant’s father had been a member; said firm having been dissolved on the 4th of April, 1892, and the defendant’s father having died on the 12th of October, 1895, and the defendant having been appointed his administrator. The complaint contained no allegation in regard to the value of the books, nor was there any averment therein which showed that they, were of any value whatever. The damages for detention were alleged to be the sum of $1,000. Upon an-allegation that the defendant had removed a part of the books from the state of New York, so that they could not be found or taken by the sheriff, an order of arrest was granted in this action, with bail in the sum of $1,000. Upon motion this order was vacated, on the ground that there was no allegation of the value of the goods in the complaint, and consequently no foundation for the fixing of bail in the order of arrest.

The only allegation in the complaint was that the damages of detention were the sum of $1,000. This allegation is altogether too indefinite upon which to found any judgment as to the necessity of bail, and, there being nothing from which the court could judge as to the value of the property, it is evident there were no facts before the court upon which it could exercise its discretion in the matter of bail. At most, the defendant could only have been held in nominal bail; and the court will not grant orders of arrest under such circumstances. Even if there had been an allegation of value of a like character to that of the allegation of damages for detention, it would not have afforded any justification for the court to act. It requires something more than the mere allegation of damages or value. There must be some facts set forth showing that such value is real, or that the damages have some foundation.

The order should be affirmed, with $10 costs and disbursements.

All concur.


author: CULLEN, J.

text:
    William C. Chambers, as Assignee, etc., Resp’t, v. James H. Lancaster et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Assignment—Partial.
    A contractor may assign to' a subcontractor a part of his claim under the contract in payment of a portion of the work, and the assignee may maintain an action thereon.

      2. Sale—Acceptance.
    Where defects in machines do not appear on inspection but are solely to be determined by trial, the purchaser has the right to a trial of the machines before it is compelled to either accept or reject the same.
    3. Same.
    But, after the defective character of the machines have become known» by trial, then the purchaser is put to his election to accept or reject them.
    4. Damages—Warranty.
    Damages for breach of warranty cannot be set off by a purchaser in an_ action for the purchase money, where the only defense pleaded is a denial of the performance of the contract, and the purchasers have accepted tliearticles. - •
    Appeal from a judgment in favor of plaintiff.
    Joseph F. Daly, for app’lts; Charles L. Waring, for resp’t.
   CULLEN, J.

On the 2d of February, 1894, the defendant Lancaster entered into an agreement with the defendant the New York Stone-Crushing Company whereby the former was to erect and complete a stone-crushing plant, which included many named' articles, as shown on five blué prints, and according to the specifications (which blueprints and specifications were signed'by the-parties, and made part of the agreement), for the sum of $15,000, to be paid at specified times and in specified amounts. This plant, consisted in part of two stone crushers and a screen, for .the construction of which Lancaster contracted with one Dixon, the assignor of the plaint'ff. The plaintiff completed the construction:, of the stone crushers and screens, and delivered them to the defendant company, at whose yard they were set up about the 24th r of May, 1894. On the 28th of May, 1894, in payment of hisi contract price with Dixon, Lancaster assigned to the plaintiff the; payment of $6,000 which would become due to him, under his-1 contract with the stone-crushing company, upon the delivery of the two crushers and screen. The defendant the stone-crushing company refused to make this payment, and this action is brought" to recover its amount. The defendant, by its answer, denied that-Lancaster had carried out his contract with it, or that there was-an y sum due under the contract.

The first objection made to this recovery is that the claim or (demand of Lancaster was single and entire, and could not be (divided up, so as to authorize the plaintiff to maintain an action [to recover the part of it assigned to him. It is unnecessary to- discuss at any length this objection. The question has been conclusively settled contrary to 'he defendant’s claim, by the decided cases,—Risley v. Bank, 83 N. Y. 318, and Lauer v. Dunn, 23 St. Rep. 374.

The question whether Lancaster had performed his contract, so» as to entitle him or his assignee to the payment in suit, is a more serious question. The evidence on the part of the plaintiff was-that the crushers were constructed in exact conformity with the plans and specifications for the work. This does not seem to be-denied by the defendant company. The evidence for the defendant, substantially uncontroverted by the plaintiff, is that the-crushers constantly broke down when put in use, and were inadequate and insufficient for the work they were intended to perform. It must necessarily be concluded from these facts that the defect in or difficulty with the crushers lay in their design or plan. Of course, as between the plaintiff and Lancaster, the former was no wise responsible for any defect in the design or plans-of the crushers. He performed his contract, and was entitled to-his pay when he made crushers according to the plans furnished, even though such crushers were worthless. But the plaintiff’s right in this action is derived from Lancaster, and the question is, not whether the plaintiff performed his contract with Lancaster, but whether Lancaster performed his contract with the defendant company. The agreement between Lancaster and the defendant company was that he would furnish and erect, among other articles, two stone crushers in accordance wit.h the blue prints and specifications. Had the blue prints contained nothing but drawings of the machines to be constructed, Lancaster’s contract would have been of the same character as the plaintiff’s. These blue prints had this'caption:

“Stone Crushing Plant of the N. Y. S. C. Co., Hastings-on-Hudson, N. Y. Arrangement of crushers, elevator, and bin. Capacity 600 cubic yards daily. Scale, -| of an inch. Designed by James H. Lancaster, 59 Cortlandt St., N. Y.”

It also appeared by the evidence that the plant was, as a matter of fact, wholly designed by Lancaster. I think that, taking the blue prints and the written agreement together, the fair import of the contract between the parties was that the machinery thus designed and to be furnished by Lancaster should have a capacity of 600 cubic yards, and that there was an implied warranty on the part of Lancaster that the machinery furnished should be suitable- and adequate for the purpose. The evidence seems to clearly establish that the crushers were insufficient and defective.

Though the defendant company might have properly rejected these crushers as not complying with Lancaster’s contract, it might also preclude itpelf from such a course by accepting the articles. The trial court has found, as a matter of fact, that the defendant company did accept the ctushers, and we think this finding justified by the evidence. The company kept the crushers for some-five months. The defect in the machines not appearing on inspection, but solely to be determined by trial, the company had the-right to a trial of the machines before it was compelled to either accept or reject the same. Brown v. Foster, 108 N. Y. 307; 13 St. Rep. 805. But, after the defective character of the machines' had become known by the trial, then the company was put to its ■election to accept or reject them. The use of the machines, for the purpose of their business, after the trial had shown that they were •defective, was a conclusive election to accept. In this respect the present case resembles closely that of Brown v. Foster, supra, andi the decision in that case that the plaintiff, by using a sawmill after knowledge that it failed to comply with the contract, had accepted it, and was precluded from substantially returning it, controls the disposition of this case. We do not say that, on the discovery of the first defect or fault of the machines, the defendant company was compelled to make its election. If the fault was trivial, or of such a character as easily to be remedied, the defendant would be justified in using the machines, and not precluded from returning them upon the subsequent appearance or discovery of a gross defect that would render the machines useless, or materially impair their value. But in this case, after the machines had- repeatedly broken down in vital parts, and the inadequacy •of the machines to perform the specified work had become apparrent, the defendant company still continued to use them. This operated as an acceptance.

It may be that in the agreement between Lancaster and the stonecrushing company there is a warranty that would survive the acceptance of the articles to be furnished. Gurney v. Railroad Co., 58 N. Y. 358. If this be so, doubtless the defen dent company might, in this action, have recouped its damages for the breach of the warranty, or set them off against the plaintiff’s claim. No such counterclaim or set off is pleaded by the defendant company, nor is there any evidence in the case to show either the contract price or the value of the two crushers; the screen being included in the contract between the plaintiff and Lancaster, and having been retained by the defendant company. The defendant company rested its defense solely on the denial of the performance of the contract; and it was not possible, either within the pleadings or under the evidence, to award damages for a breach of warranty.

The judgment appealed from should be affirmed, with costs.

All concur.


text:
    Abbott-Katz Brewing Co., Resp’t, v. Henry Bennett, App’lt.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Jennie Allen, Resp’t, v. Charles Grace, App’t.
    Sup. Ct., 3 D.
    May 4, 1896.
   No opinion. Judgment of county court affirmed, with costs. All concur,


text:
    Soterios A. Anargyros, v. John W. Poulides.
    Sup. Ct., 1 D.,
    May 15, 1896,
   No opinion. Motion granted, with $10 costs.


text:
    Sarah M. Ashley, Resp’t, v. Harford Ashley, App’lt.
    Sup. Ct., 2 D.,
    June 9, 1896,
   No opinion. Motion to dismiss appeal denied.


text:
    In re Deborah H. Barkley’s Will.
    Sup. Ct., 2 D.,
    June 25, 1896.
   No opinion. Decree of surrogate affirmed, with costs to the respondent, payable out of the estate.


text:
    In re Chalres A. Baudoine.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Ligette Bayer, Resp’t, v. Equitable Gas-Light Co., App’lt.
    Sup. Ct., 1 D.,
    June 5, 1896.
   No opinion. Order modified so as to require the plaintiff to serve a copy of his complaint as amended by the order below, and striking out so much of the order as provides that the present answer of the defendant he the answer to the complaint as amended, and as modified affirmed, without costs to either party.


text:
    Leonard Bibbey et al., Resp’ts, v. William M. Frommel et al., App’lts.
    Sup. Ct., 3 D.,
    April 20, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. PITTHAM, J., not sitting.


text:
    William C. Blodgett et al., App’lts, v. Concetta Butler, Resp't.
    Sup. Ct., 2 D.,
    June 23, 1896,
   No opinion. Judgment affirmed, with costs. All concur.


text:
    In re Board of Rapid Transit Com’rs.
    Sup. Ct., 1 D.,
    May 25, 1896.
   No opinion. Motion granted, and compensation fixed at $5,000 each.


text:
    John Crosby Brown et al., App’lts, v. Central Nat. Bank et al., Resp’ts.
    Sup. Ct, 1 D.,
    June 12, 1896.
    W. P. Butler, for app’lts ; William B. Hornblower, for resp’ts.
   PER CURIAM.

There is no distinction in the facts disclosed by this record and those that appear in the case of Trust Co. v. Lipman, 91 Hun, 554; 36 N. Y. Supp. 355. The judgment appealed from should he affirmed, with, costs.


text:
    Anna J. Brown, Resp’t, v. William G. Neubauer et al., App’lts.
    Sup. Ct., 2 D.,
    June 2, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Charles Brown, Pl’ff, v. New York Cent. & H. R. R. Co., Def't.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Motion denied.


text:
    Marie Brunner, Resp’t, v. Max Kaempfer, App’lt.
    Sup. Ct., 1 D.,
    May, 1896.
    Motion for reargument.
   PER CURIAM.

The decision of the court found that the defendant paid the stipulated royalty, aud, on the trial of the action, further accounted for his sales to and including the 20tli day of April, 1895. The judgment ordered no-accounting, and directed no recovery by the plaintiff against the defendant, ■which would have followed had anything been due .on such an accounting in court. There is nothing, therefore, to entitle the plaintiff to any judgment, as it did not appear that there was anything due from the plaintiff to the defendant on the accounting; and, as nothing was due, plaintiff was not entitled to-en ti r judgment in such an action, if brought. There is no finding and no evidence that the defendant had ever threatened to manufacture these belts when the elastic on hand January 1, 1895, had been used úp, and the court below held that they had a'fight to manufacture such elastic into belts. Nor ia there the slightest justification for saying that under the agreement, plaintiff had any right to royalties before the belts were accurately manufactured. If plaintiff had been dissatisfied with the judgment as directed by the court, as to the right to manufacture the elastic on hand, she should have appealed. As she did not appeal, and on the decision rendered the defendant was entitled to a judgment, this court could do nothing except direct such judgment. The injunction was entirely unauthorized by anything that appeared in the decision, and, upon the decision as filed, the defendant was eutitlcd to judgment. Motion for reargument is therefore denied, with $10 costs.


text:
    George A. Buell, Resp’t, v. Samuel Massey et al., App’lts.
    Sup. Ct., 3 D.,
    April 27, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Bussey & McLeod Stove Co., App’lt, v. David W. Wilkins, Resp’t.
    Sup. Ct., 3 D.,
    April 20, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Edward W. Butcher, App’lt, v. John L. Henning et al., Resp’t.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Motion for leave to appeal to the court of appeals denied.


text:
    John C. Callan, App’lt, v. Mayor, Etc., of City of New York, Resp’t.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Joseph Campbell et al., v. New York Life Ins. Co.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Motion denied.


text:
    Mamie F. Carr, Resp’t, v. Brooklyn Heights R. Co., App’lt.
    Sup. Ct., 2 D.,
    June 25, 1896.
   No opinion. Judgment and order unanimously affirmed, with costs. All concur,- exept PRATT, J., not sitting.


text:
    William C. Chambers v. James H. Lancaster et al.
    Sup. Ct., 2 D.,
    June 25, 1896.
   No opinion. Motion for a reargument denied, with $10 costs. All concur,, except PRATT, J., not voting, and BROWN, P. J., not sitting.


text:
    Edward Christie, Resp’t, v. New York Bowery Ins. Co., App’lt.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    George Coles, Resp't, v. Herman Duden, App’lt.
    Sup. Ct., 2 D.,
    June 2, 1896.
   No opinion. Judgment and order reversed, and new trial granted, costs to-abide the event, unless plaintiff stipulates within twenty days to reduce the verdict to $1,000, and extra allowance to $50. If such stipulation is filed, the judgment so reduced is unanimously affirmed, with costs to the respondent.» All' concur.


text:
    Charles H. Colton, Resp’t, v. New York El. Ry. Co., App’lt.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Mary B. Cone, Pl’ff, v. William T. O’Connor et al., Def't.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Motion denied, with costs.


text:
    M. B. Connolly v. Manhattan Ry. Co.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Motion granted, with §10 costs.


text:
    Robert B. Corey, Pl'ff, v. Electric Construction & Supply Co., Def't.
    Sup. Ct., 1 D.,
    June 29, 1896.
   Ho opinion. Order affirmed, with §10 costs and disbursements.


text:
    Jacob Corleis, Resp’t, v. Benedict Fischer et al., App’lts.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Thomas Corliss, Resp’t, v. Brooklyn Heights R. Co., Appl’t.
    Sup. Ct., 2 D.,
    June 25, 1896.
   No opinion. Judgment and order unanimously affirmed, on authority of Zimmerman v. Railway Co., 3 App. Div. 219. All concur, except PRATT J., not sitting.


text:
    Fannie M. Crawford, Resp’t, v. Brooklyn El. R. Co., App’lts.
    Sup. Ct., 2 D.,
    June 23, 1896.
   Ho opinion. Judgement affirmed, with costs. All concur.


author: COHLAN, J.

text:
    Henry B. Crawford et al., Resp’t, v. Thomas M. Tyng, App’lt.
    N. Y. C. C.,
    May 23, 1896.
    J, M. Tyng, in pro. per.; Jacob Fromme, for resp’ts.
   COHLAN, J.

Appeal from an order denying a motion to set the cause down for a day certain for trial. Order appealed from reversed, and cause set down for June 1, 1896—part 1. SCHUCHMAH, J., concurs.


text:
    Defrees Critten et al. v. Charles W. Vredenburgrh.
    Sup. Ct., 3 D.,
    May 21, 1896.
   Ho opinion. Motion for leave to appeal to the court of appeals granted, without costs; question certified being, “ Was the statement sufficient, under subdivision 2 of section 1274 of the Code ?”


text:
    Robert A. Crittenden et al., Resp’ts, v. William H. Liddle, App’lt.
    Sup. Ct., 4 D.,
    June 17, 1896.
   Ho opinion. Order affirmed, with §10 costs and disbursements. WARD, J., not sitting.


text:
    In re Abijah Curtiss’ Estate.
    Sup. Ct., 2 D.,
    June 2, 1896.
   No opinion. Motion to dismiss appeal, and motion to advance cause on the calendar, denied, without costs.


text:
    Augusta C. Davidson, App’lt, v. George L. Davidson, Resp’t.
    Sup. Ct., 1 D.,
    June 5, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    William G. Davies et al. v. Francis A. Clark.
    Sup. Ct., 1 D.,
    June 19, 1896.
   Ho opinion. Motion denied, upon payment of §10 costs.


text:
    Mary A. De Balaine v. Manhattan Ry Co.
    Sup. Ct., 1 D.,
    June 19, 1896.
   Mo opinion. Motion granted, with §10 costs.


text:
    Livingston Disbrow, App’lt, v. Jacob R. Wilkins et al. Resp’ts.
    Sup. Ct., 2 D.,
    June 9, 1896.
   Ho opinion. Order affirmed, with §10 cost and disbursements. All concur,


text:
    Delia I. Donihee, App’lt, v. Darius G. Crosby et al. Resp’ts.
    Sup. Ct., 1 D.,
    June 29, 1896.
   Ho opinion. Order reversed, with §10 costs and disbursements, and motion granted.


text:
    Delia I. Donihee v. Darius G. Crosby.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Motion denied, upon payment of §10 costs.


text:
    William Duge, Resp’t, v. Nelson Morris et al., App’lts.
    Sup. Ct., 2 D.,
    June 2, 1896.
   No opinion. Motion to dismiss appeal denied, on condition that the printed .cases on appeal are filed and served within twenty days. In case the papera .are not served, respondent may enter an ex parte order dismissing the appeal. ÍTen dollars costs to the respondent.


text:
    Charles R. Eddy, Resp’t, v. Mary Warner, App’lt.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Eleventh Ward Bank v. John Power.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Order resettled.


text:
    Sarah M. Elliott, Resp’t, v. Rochester Ry. Co., App’lt.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Judgment and order affirmed, with costs.


text:
    Eleanor Emmett, Pl’ff., v. Charles W. Van Cleef et al., Deft's.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Motion denied, with costs.


text:
    William Evans v. Paulina Silberman et al. (eight cases.)
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Motion dismissed, without prejudice to renewal after the appeal from the order striking out the affidavit has been heard and decided.


text:
    Elizabeth T. Favro, Resp’t, v. Troy & W. T. Bridge Co., App’lt.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Motion to modify the order entered denied, without costs. ■


text:
    Harry Ferguson, Resp’t, v. Commonwealth Rubber Co., App’lt.
    Sup. Ct., 1 D.,
    April 10, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Joseph A. Ferris v. Tilly Haynes.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Motion denied upon payment of $10 costs.


text:
    Fidelity Printing Co. v. William Lowey.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Margaret Fifer, Resp’t, v. Prudential Ins. Co. of America, App’lt.
    Sup. Ct., 2 D.,
    June 2, 1896.
   No opinion. Motion for leave to appeal to the court of appeals denied, without costs. . .


text:
    Austin Finegan v. Mayor, etc., of City of New York.
    Sup. Ct., 1 D.,
    June 5, 1896.
   No opinion. Motion denied.


text:
    Stephen R. Fisk v. Mary F. Fisk.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Motion denied.


text:
    Wilmer H. Fitch, Resp’t, v. Napoleon Olena, App’lt.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Joseph Flynn, Resp’t, v. Brooklyn Heights R. Co., App’lt.
    Sup. Ct., 2 D.,
    June 25, 1896.
   No opinion. Judgment and order unanimously affirmed, with costs. All concur, except PRATT, J., not sitting


text:
    William Francisco, Respt, v. Troy & L. R. Co., App’lt.
    Sup. Ct., 3 D.,
    May 4, 1896.
   No opinion. Judgment and order affirmed, with costs. The court is not unanimous on questions of fact involved in the case. All concur.


text:
    In re Fred Hower Brewing Co., Limited.
    Sup. Ct., 2D.,
    June 23, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur, except PRATT, J., not sitting.


text:
    Edward Freel, App’lt, v. Queens County, Resp’t.
    Sup. Ct., 2 D.,
    June 9, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Henry Fritchett, Appl’t, v. Alice Falls Co., Resp’t.
    Sup. Ct., 3D.,
    May 21, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Adolph Garbaczewski v. Third Ave. R. Co.
    Sup. Ct., 1 D.,
    June 29, 1896.
   Ho opinion. Motion denied.


text:
    In re Nicholas M. Goodlett, Jr.
    Sup. Ct., 2 D.,
    June 23, 1896.
   No opinion. Petition granted, and applicant may take the oath.


text:
    In re William E. Gowdey.
    Sup. Ct., 2 D.,
    June 2, 1896.
   No opinion. Order of the general term, which suspended the respondent, is modified so that he is restored to practice from this date.


text:
    Edward Grant, Resp’t, v. Brooklyn Heights R. Co., App'lt.
    Sup. Ct., 2 D.,
    June 25, 1896.
   No opinion. Judgment and order reversed, and new trial granted, eosfs to abide the event, unless the respondent stipulates within twenty days to reduce the verdict to $1,000, and the extra allowance proportionately, in" which case the judgment so reduced is unanimously aflirmed, without costs. All concur, except PRATT, J., not sitting.


text:
    August Granz, Resp’t, v. Louis Lichtenheim, App’lt.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur, except LANDON, J., not voting.


text:
    John Griffin, Resp’t, v. City of Brooklyn, App’lt.
    Sup. Ct., 2 D.,
    June 23, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Azariah J. Hathaway v. George N. Luther.
    Sup. Ct., 3 D.,
    April 27, 1896.
   No opinion. Judgment of county court affirmed, with costs. All concur.


text:
    Frederick Hauser, App’lt, v. Henry Luhrs et al., Resp’ts.
    Sup. Ct., 2 D.,
    June 23, 1896.
   No opinion. Judgment affirmed, with costs. All concur, except PRATT, J., not sitting.


text:
    John Heerdegen, App’lt, v. American Surety Co. of New York, Resp’t
    Sup. Ct., 1 D.,
    June, 1896.
   No opinion. Upon argument, appeal was dismissed, with costs and disbursements.


text:
    Samuel Heilbronner, Resp’t, v. New York El. Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Judgment aflirmed, with costs.


text:
    Jacob Hirshfeld, App’lt, v. Lawrence J. Fitzgerald et al., Resp’ts.
    Sup. Ct., 1 D.,
    June 12, 1896.
    Louis Marshall, for app’lt; Franklin Pierce, for resp’ts.
   PER CURIAM.

We do not think that there was any error committed by the court below in allowing the defendants to serve the supplemental answer in question. In affirming this order, we do not, however, intend to intimate what the legal effect would he of the proof which may he offered to sustain the allegations contained in such supplemental answer. That depends so largely •upon the nature of the evidence* which may he offered that any assumption arising from our affirmance of the order, as to our views upon the law, might he entirely erroneous. And, furthermore, if the order were reversed, and the motion to serve the supplemental answer denied, there would he no opportunity for the defendants to review our decision. The order should be affirmed, with $10 costs and disbursements,


text:
    Jacob Hirshfeld, App’lt, v. Ronald T. McDonald et al., Resp’ts.
    Sup. Ct., 1 D.,
    June 12, 1896.
    Louis Marshall, for app’lt, Franklin Pierce, for resp’ts.
   PER CURIAM.

For the reasons stated in the opinion in the case of Hirchfeld v. Fitzgerald and others (decided herewith), the order appealed from Should he affirmed, with $10 costs and disbursements.


text:
    In re Hitchcock Manuf’g Co.
    Sup. Ct., 3 D.,
    April 27, 1896.
   Ho opinion. Motion for leave to appeal to the court of appeals granted. All concur.


text:
    John Hogan, Resp’t, v. Larchmont Electric Co., App’lt.
    Sup. Ct., 2 D.,
    June 2, 1896.
   Ho opinion. Judgment affirmed, with costs, upon the opinion in Palmer v, Larchmont Electric Company. All concur, except CULLEH, J., not sitting


text:
    Jacob Hopp, Resp’t, v. Norton Can Co., App’lt.
    Sup. Ct., 2 D.;
    June 23, 1896.
   Ho opinion. Order affirmed, with §10 costs and ■ disbursements, upon the plaintiff's attorney filing stipulation to act without compensation. All concur.


text:
    Gordon Hough et al., Resp’ts, v. Melissa P. Benedict et al., App’lts.
    Sup. Ct., 3 D.,
    April 20, 1896.
   Ho opinion. Order affirmed, with §10 costs and disbursements.


text:
    Hezekiah Howe et al., Resp’ts, v. William H. Clark et al., App’lts.
    Sup. Ct., 4 D.,
    December, 1895.
   Ho opinion. Judgment reversed, and a new trial ordered, with costs to abide the event.


text:
    Hezekiah Howe et al., App’lts and Resp’ts, v. William H. Clark et al., Resp’ts and App’lts.
    Sup. Ct., 4 D.,
    December, 1895.
   Ho opinion. Judgment affirmed, without costs of the appeals to either party.


text:
    Mary Ann Hoyt, App’lt, v. City of Brooklyn, Resp’t.
    Sup. Ct., 2 D.,
    June 16, 1896.
   Ho opinion. ,J udgment affirmed, with costs. All concur.


text:
    John C. Hurley, Pl’ff, v. Erie County Natural Gas Fuel Co., Limited, Def’t.
    Sup. Ct., 4 D.,
    June 17, 1896.
   Ho opinion. J udgment affirmed, with costs.


text:
    Stephen Hurst, Resp't, v. New York El. Ry. Co. App’lt.
    Sup. Ct., 1 D.,
    May 15, 1896.
   Ho opinion. Judgment modified by reducing fee damage to §1,500, and rental damage to ,$125 per year, and as modified affirmed, without costs.


text:
    Nathan Hutkoff, Resp’t, v. Amelia Gorman, App’lt.
    Sup. Ct., 1 D.,
    June 4, 1896.
   Ho opinion. Upon argument, appeal was dismissed, with §10 costs and disbursements.


text:
    Hampden Hyde, Resp’t, v. William M. Pennington et at., App’lts.
    Sup. Ct., 4 D.,
    June 17, 1896.
   Ho opinion. Judgment affirmed, with costs against the appellants personally.


text:
    Importers’ & Traders’ Nat. Bank of New York, Resp’t, v. Cebra Quackenbush, App’lt.
    Sup. Ct., 3 D.,
    May 21, 1896.
   Ho opinion. Order affirmed, with $10 costs and disbursements. All concur, except HEBBICK, J., not acting.


text:
    Edward P. Kain v. Stepen J. Stilwell.
    Sup. Ct., 2 D.,
    June 2, 1896.
   Ho opinion. Attorney found guilty of misconduct as an officer of the court, and is suspended from practice for the term of six months. The fees of the referee to be taxed by a judge of the supreme court residing in Westchester county, and paid by the" county treasurer out of the fund applicable to the payment of jurors.


text:
    John Kenny, Resp’t, v. City of Brooklyn, App’lt.
    Sup. Ct., 2 D.,
    June 16, 1896.
   Ho opinion. Judgment and order reversed, and a new trial granted, without costs of appeal, but upon payment by the appellant of the costs of the trial, on the ground that the verdict is against the weight of evidence. All concur.


text:
    William Kiernan et al., App’lt, v. Agricultural Ins. Co., Resp’t.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Motion for a reargument denied. See Cuykendall v. Douglass, 17 Wkly. Dig. 315; Fosdick v. Town of Hempstead, 126 N. Y. 651; 27 N. E. 382. Motion for leave to appeal to the court of appeals denied, on the ground that the case does not involve a question of law which ought to be re* viewed by that court. See Singleton v. Insurance Co., 121 N. Y. 644; 24 N. E. 1031; section 191, Code Civ. Proc. subd. 1.


text:
    Andrew Kipp, App’lt, v. Nettie E. V. Peabody et al., Resp’t.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur,


text:
    Eleanor Knott, Resp’t, v. George W. P. Knott, App’lt.
    Sup. Ct., 1 D.,
    June 5, 1896.
   No opinion. Order modified so as to provide that the answer interposed by defendant be stricken out, and that the action proceed as if such answer had aot been interposed, and as so modified affirmed, without costs of appeal to either yarty.


text:
    Herman F. Koepke v. Claudius F. Bradley et al.
    Sup. Ct., 2 D.,
    June 16, 1896.
   No opinion, Motion for leave to go to the court of appeals granted.


text:
    Z. Douglass Lansing v. Eliphalet W. Bliss.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Elizabeth Laufer, App’lt, v. Joseph I. Sayles, Resp’t.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Judgment affirmed, with costs. All concu


text:
    Kate Lawlor v. Taomas H. French.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Motion for resettlement granted as show on face of notice of motion.


text:
    Francis H. Leggett et al., v. Resp’ts, v. Walter Radford, App’lt.
    Sup. Ct., 2 D.,
    April 7, 1896.
    John F. Brennan, for app’lt; James M. Hunt, for resp’ts.
   PER CURIAM.

— We think this judgment should be sustained upon the theory that the defendant was the principal, and wholly irrespective of any question of guaranty. The complaint does not seek to charge the defendant as guarantor, nor is there anything about a guaranty in the findings of the referee upon which the judgment was directed. Judgment affirmed, with costs.


text:
    Caroline H. Lexow, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Judgment modified by reducing fee damage to $3,000 and as modified affirmed, without costs.


author: MCCARTHY, J.

text:
    Lincoln Nat. Bank of New York, Resp’t, v. Harford B. Kirk et al., App’lts.
    N. Y. C. C.,
    May 23, 1896,
    G. P. Smith, for app’lts; Dittenhoefer, Gerber & James, for resp’t.
   MCCARTHY, J.

— We think the court properly directed a verdict for the plaintiff, and the evidence warranted it. Stillman v. Northrup, 109 N.Y. 473; 17 N. E. 379; Baldwin v. Doying, 114 N. Y. 457; 21 N. E. 1007. Judgment affirmed, with costs. All concur.


text:
    Gustave Lindenmeyer et al., Resp’ts, v. Max Oppenheimer, App’lt.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Lucy Ludlow, Resp’t, v. Herman J. Westwood, App’lt.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    George N. Luther, Resp’t, v. Azariah J. Hathaway, App’lt.
    Sup. Ct., 3 D.,
    April 27 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    In re Thomas J. Lynch.
    Sup. Ct., 1 D.,
    June 12, 1896.
    Charles Le Barbier, for app’lt; George W. Wingate, for resp’t.
   PER CURIAM.

A careful examination of the record in this case has convinced us that the court below was clearly right in refusing to supersede the Inquisition by which the petitioner was found to he an habitual drunkard, and incapable of governing himself and managing his property. So far as appears, his wife has devoted herself to him and to his interest, and the evidence shows that he has continued in his habits of intoxication down to a short period prior to the time at which he made this application. The fact he has been grossly intemperate in the past, having several times had delirium tremens, is established by most satisfactory evidence; and to justify the court in superseding the inquisition, and in-restoring him to the possession of his property, it must appear that his habits have changed so that the danger of his resuming his old habits and squandering his property is removed. This the petitioner has failed to show. On the contrary, we are satisfied, upon the evidence, that, if he was again placed in the possession of his property, he would be most likely to continue in his old habits. It is hardly conceivable that his sister and all of his other relatives should so strenuously oppose the restoration of his property, if he was competent to manage it. We think that the welfare of the petitioner, as well as that of his wife and child, requires that he should he kept from temptation until a sufficient time has elapsed since he has yielded to his craving for spirits to show that he can properly care for himself. The mere fact that people who have known him have seen him when he was not intoxicated is not sufficient to overcome the very convincing evidence that he is not now in a position that would justify the court in placing his property in his hands. The order appealed from should therefore be affirmed, with $10 costs and disbursements.


text:
    Catharine Lynch, Resp’t, v. Brooklkn City R. Co., App’lt.
    Sup. Ct., 2 D.,
    June 25, 1896.
    William W. Goodrich, for app’lt; Charles J. Patterson, for resp’t.
   PER CURIAM.

There are no good exceptions in this record. We cannot reverse the judgment on the ground that the verdict was against the evidence; for. even if the testimony of the South Carolina witness, which is so severely criticised, be left out of consideration; there is quite enough to sustain the finding of negligence. The case was one in which the jury might have found either way, according to their view of the credibility of the witnesses; and where there is such a conflict of proof their determination of the issues of fact must be allowed to stand, in the absence of legal error calling for a reversal. Judgment and order affirmed, with costs.


text:
    Bryan McAveney, Resp’t, v. Thomas H. Brush, App’lt.
    Sup. Ct., 1 D.
    June 29. 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    In re Mary McBride.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Motion denied.


text:
    David K. McCarthy et al. v. Frederick P. Ockerman.
    Sup. Ct., 1 D.,
    May 21, 1896.
   No opinion. Motion to modify the judgment entered upon the appeal is this action so that it will conform to the memorandum of decision handed down by the general term granted, with $10 costs and disbursements.


text:
    McCone v. Gallagher.
    Sup. Ct., 1 D.,
    June 29, 1896.
    Action by Alexander C. McCone against Patrick Gallagher.
   No opinion. Motion granted, with $10 'costs.


text:
    Mary R. McCullough, Resp’t, v. Metropolitan El. Ry. Co. et al. App’lt.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Judgment modified by reducing the fee damage to $3,000, and the rental damage to $1,772, and as modified affirmed, without c sts.


text:
    Daniel McElroy et al., Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct. 1 D.,
    June 5, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Hugh McGraw, Resp’t, v. Village of Seneca Falls, App’lt.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Motion denied, with costs. See Cross v. City of Elmira, 86 Hun, 471. ADAMS, J., not sitting.


text:
    Arthur McKeown, Resp’t, v. Utica City Nat. Bank et al., App’lts.
    Sup. Ct., 4 D.,
    December, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements. HARDIN, 3?. J., not sitting.


text:
    Daniel Mahoney v. Michael Reddington, App’lt.
    Sup. Ct., 2 D.,
    June 23, 1896.
   ' No opinion. Order modified so as to require payment by the appellant, as a condition of the satisfaction o£ the judgment, only the costs awarded by the original judgment; the costs awarded on appeal to be paid out of the fund. All concur, except, PRATT, J., not voting.


text:
    A. L. Martin, App’lt, v. Helen Moore et al., Rep’ts.
    Sup. Ct., 2 D.,
    June 23, 1896.
   No opinion. Motion for reargument denied, with §10 costs and disbursements. All concur.


text:
    William D. Marvel, Resp’t, v. Georgiana C. Stone et al., App’lts.
    Sup. Ct., 2 D.,
    June 2, 1896.
   No opinion. Motion denied, with costs.


text:
    Frederick G. Mather, Resp’t, v. Standard Pub. Co., App’lt.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur,


text:
    Stephen Matherson v. George W. Edwards et al.
    Sup. Ct. 1 D.,
    May 22, 1896.
   No opinion. Motion denied, upon payment of §10 costs.


text:
    Metropolitan Life Ins. Co., Resp’t, v. Jaboc Mullon et al., App’lts.
    Sup. Ct., 3 D.,
    April 27, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


author: McADAM, J.

text:
    Annie Meyerson, v. Hartford Fire Ins. Co.
    Sup. Ct., 1 D.,
    June 22, 1896.
    Defendant moves for reargument, or for leave to appeal to the appellate division.
    Carduzo & Nathan, for the motion ; Charles Wehle, opposed.
   McADAM, J.

The defendant, in its moving papers, asserts that the difference between what is called a “public adjuster” and an “insurance adjuster” is that tiie former acts for the public, the latter for the companies, and that this circumstance escaped the attention of the court. The distinction was clearly presented at the argument, and was not overlooked in making the decision. It was not more specially marked, because too apparent to require particular reference. On the principle urged by the defendant, a lawyer who acts only for insurance companies should be termed by the court an “attorney,” but error might be imputed if it failed to designate an attorney not so specially engaged as a “public attorney.” Such technical nomenclature is hardly subtle enough to require amplification, or call for special comment by way of emphasis to convince litigants Unit it is understood by judical mind. The defendant has not brought itself within the rules entitling it to a reargument (Hand v. Rogers, 16 Misc. Rep. 364; 38 N. Y. Supp. 2), or for leave to appeal to the appellate divison (Lynch v. Sauer, 16 Misc. Rep. 362; 38 N.Y. Supp. 1), and the motion must be denied, with §10 costs.


text:
    Charles A. Miller v. Lewis Edwards.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Motion denied.


text:
    Angela E. Moosbrugger, App’lt, v. Alzada Barker, Resp’t (four cases)
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements in each of the four actions.


text:
    Lawrence Mullen, Resp’t, v. Town of Rockland, App’lt.
    Sup. Ct., 3 D.,
    May 4, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Ellen Mulqueen, App'lt, v. Rochester Ry. Co. Resp’t.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Julia T. Munroe, Resp’t, v. Jacob Crouse et al., App’lts.
    Sup. Ct., 4 D.,
    December, 1895.
   No opinion. Judgment and order affirmed, with costs.


text:
    National Broadway Bank, Resp’t, v. J. B. Brewster & Co. et al., App’lts.
    Sup. Ct., 1 D.,
    June 29, 1896.
   N > opinion. Order affirmed, with §10 costs and disbursements.


text:
    National Harrow Co., Resp’t, v. E. Bement & Sons et al., App’lts.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Ordered: That the decision of this case be suspended. Second. That the case be sent back to the referee to resettle and attacli a certificate that the case, as resettled, contains all the evidence given and proceedings had before him upon the hearing. Third. The foregoing relief is granted upon condition that the appellants shall pay to the respondent the costs and disbursements of the argument already had, $10 costs of opposing this motion, and shall stipulate to, and shall, pay to the referee the fees for resettlement of the •case, and shall reprint the case, and in reprinting the case the pleadings shall be printed as they are amended. And the case, as thus amended, shall be filed with the'clerk of this court, and the causes may be reargued under the usual rules and practice. Fourth. In the event of a failure to comply with the conditions already mentioned, the motion is denied, with $10 costs.


text:
    New Jersey & Pa. Concentrating Works v. Charles F. Ackerman et al.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Motion granted.


text:
    Oscar C. Newton, App’lt, v. George N. Pierce et al., Resp’ts.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Judgment and order affirmed, with costs.


text:
    New York Small Stock Co., Resp’t, v. Samuel S. Kahn, App’lt. Abram M. Levy, Resp’t, v. Same, App’lt.
    Sup. Ct., 2 D.,
    June 9, 1896.
   No opinion. Motion to dismiss appeals denied, without costs.


text:
    Miles M. O’Brien et al. v. Lawrence F. Fitzgerald et al.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Motion granted; issues to be certified as directed in motion papers.


text:
    Edward D. O’Brien et al. v. Peoria Water Co.
    Sup. Ct., 1 D.,
    June 5, 1896.
   No opinion. Motion denied, with $10 costs.


text:
    In re Mary J. O’Hare. In re Audubon Avenue.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Oswego County, Resp’t, v. Willis G. Babcock, App’lt (two cases).
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Orders in each case affirmed, without costs of the appeal to •either party.


text:
    Joseph B. Pennell et al., Resp’ts, Charles L. Bucki, App’lt.
    Sup. Ct., 2 D.,
    May 8, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur, except BARTLETT, J., not sitting.


text:
    People, App’lt, v. Ames, Resp’t.
    Sup. Ct., 4 D.,
    December, 1895.
   No opinion. Interlocutory judgment reversed and demurrer disallowed, and proceedings remitted to the court of sessions of Oswego county.


text:
    People v. Anderson.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Motion to dismiss appeal granted.


text:
    People, Resp’t, v. Mansfield Compton, App’lt.
    Sup. Ct., 2 D.,
    June 16, 1896.
   No opinion. Judgment reversed upon the ground that the language alleged to have been spoken, and the occasion upon which it was uttered, do not bring the case within the statute, but that the offense was one which the court was competent to deal with as a contempt. All concur.


text:
    People v. McGovern.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Motion to dismiss appeal granted.


text:
    People, Resp’t, v. Yerkey, App’lt.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Judgment and order affirmed, and proceedings remitted.


text:
    People ex rel. Thomas F. Brady, App’lt, v. Theodore Roosevelt et al., Resp’ts.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Proceedings affirmed, and writ dismissed, with costs.


text:
    People ex rel. Christian Clausen v. Joseph Murray et al.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Order affirmed, with costs, on opinion of PRYOR, J., in the court below.


text:
    People ex rel. Commissioners of Charities and Corrections v. Cullen.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Motion denied, with $10 costs, to abide the event of the appeal.


text:
    People ex rel. Commissioners of Charities and Corrections v. Karlsioe.
    Sup. Ct., 1 D.,
    May 25, 1896.
   No opinion. Motion granted, requesting that remittitur be sent back.


text:
    People ex rel. Congress Brewing Co. Resp’t. v. Board of Assessors of the City of Brooklyn, App’lt.
    Sup. Ct., 2 D.,
    June 9, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur, except CULLEM, J., not sitting.


text:
    People ex rel. Richard Dillon, Resp’t, v. Leonard R. Welles, Police Commissioner, App’lt.
    Sup. Ct., 2 D.,
    June 23, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur, except CULLEN, J., not sitting.


text:
    People ex rel. Herbert V. Falk, Resp’t, v. Manhattan Oil Co. et al., App’lts.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    People ex rel. Samuel B. Lawrence, Resp’t, v. John Fallon et al., App’lts.
    Sup. Ct.. 1 D.,
    April 17, 1896.
    John D. Lindsay and Noah Davis, for app’lt; Elihu Root and J. S. Auerback, for resp’t.
   PER CURIAM.

For the reasons stated in the case of People v. Fallon, 39 N.Y. Supp. 865 (decided herewith) the order appealed from should be affirmed.


text:
    People ex rel. Lawyers’ Surety Co. v. D. Edgar Anthony.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Motion denied, with $10 costs, to abide event of appeal.


text:
    People ex rel. Patrick McElroy, App'lt, v. Roosevelt et al., Resp’ts.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Proceedings affirmed, and writ dismissed, with costs.


text:
    People, ex rel. John J. McGinniss, App’lt, v. George W. Palmer, Comptroller, Resp’t.
    Sup. Ct., 2 D.,
    June 16, 1896.
   No opinion. Motion to quash and set aside the writ of mandamus denied, without costs.


text:
    People ex rel. Edward J. McKeever, App’lt, v. Willis, Commissioner, Resp’t.
    Sup. Ct., 2 D.,
    June 16 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    People ex rel. John Vanderhoof, Resp’t, v. George W. Palmer, App’lt.
    Sup. Ct., 2 D.,
    June 9, 1896.
   No opinion. Appeal dismissed.


text:
    People ex rel. Lewis P. Warren, App’lt, v. Theodore Roosevelt et al., Resp’t.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Proceedings affirmed, and writ dismissed, with costs.


text:
    Alonzo C. Pickard, App'lt, v. Adam V. Pickard, Resp’t.
    Sup. Ct., 4 D.,
    June 17, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Maggie Piehl, Resp’t, v. Albany Railway, App’lt.
    Sup. Ct., 3 D.,
    April 20, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. HERRICK, J., not sitting.


text:
    Quinine Whiskey Co., Resp’t, v. Edward G. Geisenheimer, App'lt.
    Sup. Ct., 2 D.,
    June 23, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All coa©ur except PRATT, J., not voting.


text:
    William A. Randall, Resp’t, v. Charles R. Cline, Jr., Town Clerk, App’lt.
    Sup. Ct., 2 D.,
    June 23, 1896.
   No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, upon opinion in People v. Randall, 91 Hun. All concur, except BROWN, P. J., not sitting.


text:
    Horace H. Rapalyea, Jr., Resp’t, v. Malcolm Anderson, App'lt.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    In re Richardson.
    Sup. Ct., 1 D.,
    May 22, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    William S. Ridabock, Resp’t, v. Metropolitan El. Ry. Co. et al. App’lts.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Judgment affirmed, with costs. VAN BRUNT, P. J., and O’BRIEN, J., dissenting on the ground that there is no evidence of rental damages.


text:
    James Rogers, App’lt, v. Edward C. O’Brien et al., Resp’ts.
    Sup. Ct., 1 D.,
    June 29, 1896.
   No opinion. Judgment affirmed, witk costs.


text:
    Simon Rothschild v. Rio Grande Western Ry. Co.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Motion denied,’upon payment of $10 costs.


text:
    In re Antonie Ruppaner’s Will.
    Sup. Ct., 1 D.,
    May 15, 1896.
   No opinion. Motion granted, with $10 costs, unless appellant serve upon, his adversary, and also file with the clerk of the appellate division, the printed papers on appeal on or before the 22d of May, 1896, and pay such costs.


text:
    Leve N. Safford, App’lt, v. Urban S. Stevens, Resp’t.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Order affirmed, with costs. All concur.


text:
    Nelson E. Sauer, Resp’t, v. Samuel G. De Coursey, App’lt.
    Sup. Ct., 5 D.,
    December, 1895.
   No opinion. Judgment and order affirmed. ADAMS, J., not voting.


text:
    Jacob Schwartz, Resp’t, v. New York El. R. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Morris Shidlovsky v. Lazarus Levy.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Motion denied.


text:
    Ellen Shields, Resp’t, v. Central Park, N. & E. R. R. Co. et al., App’lts.
    Sup. Ct., 2D.,
    June 23, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    William H. Simonson v. George A. Waller et al.
    Sup. Ct., 1 D.,
    May 25, 1896.
   No opinion. Motion denied.


text:
    In re James Slevin.
    Sup. Ct., 1 D.,
    June 5, 1896.
   No opinion. Application dismissed.


text:
    In re Martin Slough.
    Sup. Ct., 2 D.,
    June 23, 1896.
   No opinion. Petition granted, and applicant may take the oath.


text:
    Sarah M. Smith, Resp’t, v. Arad S. Beach, App’lt.
    Sup. Ct., 3 D.,
    May 21, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Catherine H. Smith v. George Crawford.
    Sup. Ct., 1 D.,
    June 19, 1896.
   No opinion. Motion denied, upon payment of $10 costs.


text:
    Dora Snyder, App’lt, v. Peter E. Launt, Resp’t.
    Sup. Ct., 3 D.,
    April 27, 1896.
   No opinion. Motion for reargument denied, with $10 costs and disbursements. All concur.


text:
    Henry Spath, Resp’t, v. Brooklyn Heights R. Co., App’lt.
    Sup. Ct., 2 D.,
    June 16, 1896.
   No opinion. Judgment and order unanimously affirmed, with costs. All concur.


text:
    Evelyn Stedeker, Resp’t, v. Cesar L. Pinto, App’lt.
    Sup. Ct., 1 D.,
    June, 1896.
   No opinion. Upon argument, appeal was dismissed, with costs and disbursements.