author: Barrett, J.

text:
    Alfred A. Blair et al., Resp’ts, v. James A. Flack, Sheriff, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Sheriffs—Farse return—Monet substituted for attached property.
    In an action against a sheriff for a false return it appeared that the defendant levied an attachment on the goods of a corporation which A. subsequently claimed as his own. Negotiations followed and A. gave the sheriff a check of a third party which covered the plaintiffs’ debt. The plaintiffs claimed that this check was given for their security; the sheriff that it was merely to stand for the goods. A sheriff’s jury subsequently decided that the goods belonged to A. The sheriff paid A. the check. The plaintiffs went on with their attachment action and recovered judgment. They issued execution. The sheriff returned it unsatisfied. Held, that the plaintiffs had the right to go to the jury upon the question whether or not the check was given for their security, it being competent for the sheriff to receive the check upon these terms.
    S. Same—Evidence competent under a return op nulla bona.
    The sheriff had a right, in defense of his return, to go to the jury upon the question whether or not the property attached belonged solely to A., as he had contended.
    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict had at circuit, and also from an order denying the ■ defendant’s motion for a new trial.

      David Tim, for app’lt; H. T. Ketcham, for resp’ts.
   Barrett, J.

This is an action against the late Sheriff Flack, in substance for a false return. The facts are peculiar and must be somewhat fully stated to appreciate the question mainly presented upon this appeal.

On the 23d of January, 1889, the plaintiffs obtained a warrant of attachment for $1,156.15 against the property of a foreign corporation known as the Illustrated News Company. This warrant was at once delivered to the then Sheriff (Flack) who, upon the same day, through one of his deputies, served a copy of the warrant, with the usual notice, upon a warehouseman named Hobby. Mr. Hobby then had in his warehouse, on storage, papers which were apparently the property of the defendants in the attachment . He says he told the deputy that “ the goods were there ” and the officer “ ¿ould make levy upon them,” but that it was not his (Hobby’s) “ business to point them out to him.” There is sufficient evidence in the case to warrant a finding that the property in question was actually levied upon, and remained in the warehouseman’s physical possession, subject to such levy, until it was taken away by the sheriff at a later date. In the early part of the following March, Mr. Horace J. Adams, a Boston gentleman, made a claim to the property which had been thus attached, and he and an assistant of the sheriff’s deputy, named Costa, called upon Mr. Fletcher, the plaintiffs’ attorney in the attachment suit, with a view of securing the immediate delivery of the goods to him, Adams. Adams insisted that he was the owner of the goods and that they should be at once turned over to him. He declared that he had sold the property to Jordan, Marsh & Co., of Boston, and that he would lose money if he failed to ship it to them that afternoon. Mr. Fletcher told Mr. Adams that the property had been attached and that he could only have it by paying the plaintiffs’ claim. At first Adams said he would do this (I am speaking now of Fletcken’s testimony), but finally requested Fletcher to accept a good check of Jordan, Marsh & Co.’s, for $1,400, which was enough to cover the plaintiffs’ entire claim, interest and costs. At this point there is a crucial conflict of testimony, Fletcher stating that the check was to be given as security for any judgment which the plaintiffs might recover, while Adams and Costa declare that the check was merely to stand in place of the goods attached. At all events, it was agreed that the sheriff should take the check, release' the levy and deliver the property to Adams. This was done. The plaintiffs in the attachment suit then proceeded with their action, which ripened into judgment on the 18th of April, 1889. Execution was issued upon the same day requiring the sheriff to satisfy the judgment out of the property attached; but this execution was returned unsatisfied, and it seems to be conceded that the proceeds of the check had in the meantime been paid over by the sheriff to Adams. What occurred after the delivery of the check to the sheriff and the property, to Adams was this: The sheriff treated the check as a mere substitute for the property and called a sheriff’s jury to pass upon Adams’ claim. The jury found in favor of Adams. At, this point we have another conflict of testimony. The sheriff’s assistant, Costa, says that he then demanded a bond of indemnity from Fletcher, and this is denied by the latter. The sheriff, treating the check as a substitute for the property, seems to have paid the proceeds over to Adams, because of the verdict of the sheriff’s jury and the alleged refusal to give a bond of indemnity. The defendant also offered to prove that such proceeds were so paid over by force of a judgment and execution obtained against him by Adams in an independent action.

Upon this state of facts the learned judge properly refused tO' dismiss the complaint, or to direct a verdict for the defendant The plaintiffs had a right to go to the jury upon the testimony of Mr. Fletcher, and if the jury found upon that testimony that the-check for $1,400 was given to the sheriff as security for any judgment which the plaintiffs might recover in the attachment suit, they were entitled to a verdict. In that case the plaintiffs were not bound to establish title in the Illustrated Hews Company to> the property attached. The sheriff’s liability would then rest upon the duty which he specifically assumed, to apply the money in his hands to the payment of the plaintiffs’ judgment If the agreement testified to by Mr. Fletcher was actually made and the check was given thereunder, the plaintiffs were no more bound to prove title in the Hews Company than if the action had been upon an undertaking given to discharge the attachment. The defendant also makes the point that the deputy sheriff was alone liable to the plaintiffs. And he invokes the principle that where a plaintiff instructs a deputy of the sheriff to depart from his-duty in executing process, the deputy ceases to be the servant of the sheriff and becomes the agent of the party. But that principle is inapplicable. The deputy was not instructed to, nor did he, depart from his duty. It was entirely competent for the plaintiffs and the claimant to make the agreement which Fletcher says they did, and under that agreement to substitute money for the property attached as security for any judgment which might be recovered in the action. It was by no means a departure from his duty for the sheriff to receive the money so substituted under the special agreement testified to. The rule invoked is inapplicable, too, because of the fact that the sheriff ratified his deputy’s acts in the premises by acceptance of the check and the receipt of its proceeds. With the money in his own hands, he cannot be heard to justify its misapplication on the plea that his deputy should not have entered into the arrangement.

It follows that the learned judge was right in submitting this question to the jury, and, if the case stood there, the judgment should be affirmed. But we think the learned judge erred in the view which he took of the case, if the facts with regard to the substitution of the check were as testified to by the claimant, Adams, and the deputy’s assistant, Costa. If the jury credited their testimony, the check was not given as security for the judgment, but was a substitute for the property attached and was held by the sheriff, just as the property was held, subject to the respective claims of the plaintiffs and of the claimant. In that aspect of the case the question of title was vital, for even if the sheriff turned over the attached property, or the proceeds of the check which represented it, to the claimant without giving the plaintiffs an opportunity to furnish a bond of indemnity, still, he could support his return nulla bona by proving that the property was owned by the claimant, Adams, and not by the defendants in the attachment As was said in Lummis v. Kasson, 43 Barb., 373:

Even after a levy and an inquisition finding the goods to be the property of the defendant, I apprehend the sheriff is at liberty to return nulla bona, provided he acts in good faith; but in so doing he assumes the responsibility of proving property out of the defendant in the execution, and thus supporting his return. And I think it reasonable to hold that he may make the same return after indemnity, but in so doing he assumes the like responsibility.”

The doctrine of this case was approved in Third National Bank of Buffalo v. Elliott, 3 St. Rep., 394 and 395, and it is in harmony with the principles enunciated in Watson v. Brennan, 66 N. Y., 621, and Mumper v. Rushmore, 79 id., 19.

The learned judge, however, withdrew this question of ownership entirely from the jury, and on this second branch of the inquiry, that is, in case they should find that the substitution of the check for the property was as testified to by Adams and Costa, directed them to find a verdict for the plaintiffs if the proceeds of the check were paid over to Adams without asking for a bond of indemnity. .

The penalty for what the sheriff thus did was not necessarily the payment of the judgment In so paying over the money to Adams, without giving the plaintiffs an opportunity to indemnify, he assumed the responsibility of justifying Adams’ claim. But that was all. The question, therefore, whether the Illustrated News Company owned the property attached, should have been submitted to the jury. There was ample evidence to go to them upon the sheriff’s contention that the property belonged exclusively to Adams. And .it was error, therefore, to instruct the jury in this aspect of the case that the plaintiffs were entitled to recover if, after the inquisition, the sheriff failed to go to Fletcher and to say to him, I quote from the learned judge’s charge: “ The sheriff's jury have awarded this $1,400 to Mr. Adams, and if you do not give me a bond of indemnity, I will pay it over to Mr. Adams.” This presentation was repeated at the close of the charge, when the learned judge said that if the jury should find against the plaintiffs on the first question, namely, whether the check was given to secure the judgment, still, “if Costa never asked him (Fletcher) for a bond of indemnity, at all, then the plaintiffs in the second instance would be entitled to your verdict.” That the learned judge meant to withdraw the question of ownership from the jury is further emphasized by his refusal to charge the following proposition:

“If the jury find from the evidence that Horace J. Adams claimed the property in quéstion, and thereupon the sheriff demanded a bond of indemnity from the plaintiffs herein, and they declined or refused to give the same, then the sheriff was not compelled to levy upon or seize said goods and take them into his possession, and if the jury find from, the evidence, that the property in question at the time of the attachment belonged to said Horace J. Adams, their verdict must be for the defendant” To this refusal the defendant duly excepted. • This was error which necessitates a new trial.

It follows that the judgment should be reversed, and a new trial ordered, with costs to appellants to abide the event.

Van Brunt, P. J., and Daniels, J., concur.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Frances H. Duclos et al., Resp’ts, v. Mary S. Benner, Individually and as Executrix, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Trust—“ Profits and earnings ”—Premium on bonds.
    A testator created a trust in favor of his widow by setting apart $30,000, and directed that she should receive the income, interest, profits and earnings thereof. Held, that these words did not cover a profit realized on the salé of certain lands in which the money had been invested, but that the widow was entitled to the income of the whole sum, the original amount and the profits added.
    2. Will—Constrction—Devise.
    The testator left him surviving five children and a grand-son. He directed that his residuary estate be divided into six parts, and that each be held'in trust. These trusts terminated at different periods. The-shares of the three unmarried daughters were to be paid at marriage or majority. The shares of the two other children were to be held in trust for life. The one for the grand son was to terminate at majority. The grand-son died without issue. The will provided that in such case his share should be divided among his surviving children in the same manner as before provided in the will. Held, that the share of each child in the share of the grand-son must be treated in the manner provided for treating the original share of each child.
    Appeal from judgment entered on decision construing, the will of Hiram Benner, deceased.

      Jos. A. Shoudy, for app’lts; C. Bainbridge Smith, for resp’ts.
   Ingraham, J.

This is an appeal from a judgment entered on the decision of the court at special term construing the will of Hiram Benner, deceased, and two questions are presented on the-appeal.

First, whether the defendant Mary S. Benner is entitled to the premiums or surplus arising on the sale of $30,000 United States-four per cent bonds; the sum of $30,000 which the will directed should be held for the benefit of the appellant having been invested in such bonds.

The will gave to the executors and trustees all of the testator’s estate in trust, and then contained the follwing provision:

“ To set apart or invest the sum of $30,000, or one-third of the-appraised value of my personal estate, as my wife may elect in writing, and pay over the income, interest, profits and earnings thereof to my said wife one-half yearly so long as she shall live.”

The appellant elected to have the sum of $80,000 invested for-her benefit and the trustees under the will invested said sum with .other moneys of the estate in United States bonds, upon which the widow has received the annual interest. The bonds were subsequently sold at a profit over and above the amount paid for-them of $8,465.62, and the appellant claims that the profit upon the investment should be paid to her. .

The rules applicable to questions of this character have been settled by the court of appeals in the Matter of the Accounting of Gerry, 103 N. Y., 449; 3 St. Rep., 688, Ruger, Ch. J., delivering the opinion of the court, saying :

“The primary rule for the determination of questions arising' upon the construction of wills is the ascertainment of the intent, of the testator from a consideration of its provisions. In the casein hand the will provides specifically for the interest which the-legatee for life was to take in the fund, and it is limited to the annual interest, income and dividends thereof. All beyond this must from necessity have been intended to go to the remaindermen, for there are no other persons who could lawfully take-it."

Looking at the will in question to determine the intent of the-testator, I think that the appellant was to receive the yearly income of the trust estate. The trustees were to pay over “ the income, interests, profits and earnings thereof to my said wife one-half yearly so long as she shall live.” What was to be paid was-the income, interests, profits and earnings which accrued upon the fund so invested each half year.

Whether the securities in which the fund was invested increased or decreased in value during each half year had no effect upon the interests, profits, income and earnings during that half year. As was stated in the Matter of Gerry, supra, “ the theory of the will did riot contemplate any traffic in securities by the trustee, but a permanent investment in interest bearing obligations subject to be sold or exchanged only when the exigencies of the-trust required it to be done.”

It is quite clear that the life tenant could not have compelled' the trustee to sell securities lawfully purchased and held, upon the ground that their market value had appreciated in his hands,. any more than he could have compelled her to make good any deficiency in the value of such securities.

The addition of the words “profits and earnings” does not show that the testator had any other intention than that stated in the Matter of Gerry.

What the appellant was to receive was the regular income from the securities in which the trust estate was invested, and as that was to be paid to her each half year, it is clear that the regular-interests from such securities was that which the testator intended, she should receive.

It would be impossible to administer a trust of this character upon any other principle, for if the contention of the appellant is correct in case the securities in which the trust funds were invested at the end of the half year had enhanced in value, the cestui que trust would be entitled to have the amount of such enhancement during the six months paid to her, and that would be impossible without selling the securities in which the trust funds were invested. It is plain that a sale at the end of each six months of the trust securities would be contrary to the obvious intent of the testator.

Nor is there any principle upon which the appellant can claim that she is entitled to legal interest upon the trust fund or any sum save the yearly income that the securities in which the trust fund was invested realized.

But we think the appellant was entitled to have the whole-fund, including surplus, invested and receive the income thereof pending the trust. No division of the trust fund is to be mad© until after the death of the decedent; and it was the evident intention of the testator that the said fund should be invested and the income of the investment paid to the life tenant as long as she lived.

It is clear that if there had been a f^ll in the securities in which, the trust fund was invested, and. a loss occasioned, and. that instead of the fund being increased it had been diminished, that, the life tenant could only have received the income derived from the investment of the diminished funds.

There is no provision for supplying any deficiency which might arise from the depreciation of the securities in which the fund was invested by taking any other part of the estate. The $30,000 was to be invested and the income received.

If there had been a provision in the will that the $30,000 should be invested in a house and the rent received from the letting of the house applied to the life tenant, it certainly would not be-claimed if the house increased in value and the rent was in proportion that the life tenant would not be entitled to the whole amount derived from the corpus of the fund, although it had greatly increased in amount.

The $30,000 to be invested for the benefit of the wife was the corpus of the fund, and the income arising from any increase thereof the life tenant was entitled to receive. If this was not so then the executors would be holding the excess until the death of the life tenant, as there is no provision in the .will for a distribution until the happening of that event

The defendant's executors also appeal from the judgment that provided that the share held in trust for the testator’s grandson, Hiram B. Bonta, be equally divided between his surviving children.

The will directed the'executors to pay to the son-in-law .of the testator, Frank M. Bonta, for the support, maintenance and education of his grandson, Hiram B. Bonta, the son of his deceased daughter, Laura, and said Frank M. Bonta, the income of another sixth part of his residuary estate each and every year during his majority, such payments to be made half yearly, or oftener as his executors and trustees should determine, and upon attaining the ■ age of twenty-one years to transfer and pay over to his said grandson the said share and part of his estate. And by the fifth clause of the will it was provided as follows:

“Should my said grandson die, leaving lawful issue him■ surviving, such issue shall take and receive the principal of the share which he would receive and would have had the benefit of, but" should he die without leaving lawful issue him surviving, the share which would have gone to or been held for his benefit shall belong to and be divided among my surviving children and the lawful issue of those who shall have died in the same manner as hereinbefore provided.’’

There was no provision in the will making any bequest of the one-sixth part of the estate in question to the grandson until his arrival at the age of twenty-one. Prior to that time, that portion of the estate vested in the executors; the income was to be paid to the father of the grandson.

Upon the death of the grandson before arriving at the age of twenty-one, the trust had not terminated, and there is nowhere expressed any intention of the testator that the trust should then terminate. But from the language used in the fifth clause of the will it would rather appear to have been his intention that this one-sixth should be applied to the use of his other five children, in the same manner that he had provided; that the portion of the estate specifically bequeathed or devised to each, was to be by the will held for them. All of the estate was held in trust, one-sixth to each of the testator’s five children, and one-sixth for the grandson, and upon the death of the grandson his share was to- be divided among the testator’s surviving children and the lawful issue of those who shall have died, in the same manner as before provided in the will; or in other words, one-fifth of the grandson’s share was to go to each of his surviving children, or their lawful issue, in the same manner that he had before provided in his will, such child’s one-sixth was to go to him. If that manner was that it was to be held in trust for such child, then the one-fifth of the grandson’s share was to be held in trust for such child. If, on the other hand, by the terms of the will, such child’s one-sixth had already been, paid to her, or to her lawful issue, then the one-fifth of the grandson’s share should be paid to such child, or to his lawful issue.

The plain intent of the testator as to his son, Charles H. Benner, and his daughter, Frances EL Duelos, was that their share of the testator’s estate was to be held in trust during their lives, while as to his three unmarried daughters, their share was to be paid to them on their marriage, or upon their arrival at the age of twenty-one.

And I think it was also his intention that the one-fifth of the grandson’s share should be disposed of in the same manner.

No other construction will give effect to the words “ in the same manner as hereinbefore provided,” for if the testator had intended that the estate should be simply divided among his children those words were superfluous.

As by this construction of the will the estate of the trustees in the shares of the son, Charles H. Benner, and Frances Duelos had not terminated, and as the judgment of the court below directed them to pay absolutely to the two sons the trust estate, I think they had a right to appeal from the judgment directing such payment

It is not necessary to determine what effect this construction will have upon the trust fund of $30,000 for the benefit of the testator’s widow. When that fund is to be distributed after the death of the widow, the question as to its distribution can be determined.

I think, therefore, the judgment should be modified so as to provide that the trust as to the share of the grandson continue until the children of the testator or their lawful issue would be entitled to receive the one-sixth of the estate held for them respectively, and as so modified, affirmed, with costs to the plaintiffs and the defendant executors to be paid out of the estate.

Yah Brunt, P. J., and Daniels, J., concur.


author: Van Brunt, P. J. Ingraham, J.

text:
    Roseanna Cassidy, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Municipal corporations—Street opening—Conflicting claims to an award—Notice to city.
    One K. was in possession of a leasehold estate under certain conveyances which C. alleged to be fraudulent.. Commissioners of estimate and apportionment made an award to K. for a party wall taken in extending a street. The city paid the award to K. Held, that in the absence of notice of C.’s claim the city was protected in paying K.
    3. 3ame—Notice—Lis pendens.
    C., prior to the actual payment of the award, had begun an action against K. to set aside said conveyances and had filed a Us pendens in the action. Held,, that the lis pendens was not notice to the city.
    3. Same—Election of remedies—Ratification.
    In said action C. had claimed to recover of K. the award paid him by the city. Held, that C. had made his election and his attempt to recover the award of K. was a ratification of its payment to him by the city.
    Motion for new trial upon exceptions ordered to be heard in the first instance at general term.

      J. 0. Foley, for app’lt; G. W. Ridgway, for resp’t.
   Van Brunt, P. J.

While concurring in the result arrived at by Mr. Justice Ingraham in this case, it seems necessary to. notice that part of the opinion in which it is claimed that it is decided by the court of appeals in the Matter of Department of Parks, 73 N. Y., 560, that where the commissioners have made an award distinctly to one person in proceedings under the act of 1813 and cases to which the provisions of that act are made applicable, the city is bound absolutely to pay the award to the person to whom the award is made, leaving any other person claiming title to the property condemned and to the award to their action against the party to whom the award is made.

Upon reference to the case cited it will be seen that the court in speaking of the final and conclusive character of the award was referring to the interest condemned and its value and to those features only.

The court say: “ The award of the commissioners of estimate and assessment is required by the statutes to be confirmed by the supreme court, and when so confirmed is made final and conclusive upon the city and the owners of the land taken. Under the statute of 1813 there is ample opportunity for the correction of all mistakes of law and fact, and unless they are corrected in the proceedings before confirmation all parties interested are precluded from complaining of them. The award after confirmation becomes in the nature of a judgment which cannot be assailed collaterally. It is final and conclusive upon all parties as a judgment.” The court then say: “The amount awarded must be taken to have been made for the interest of the unknown owners, whatever it was. If it was too great the city should have moved to correct it before confirmation of the award.” The sole question before the court upon that application was to determine who the unknown owner of the land was, and when that was determined he was entitled to the money just as if he had been known, and the award had been to him by name.

It is immaterial whether he owned an absolute fee or a fee subject to a public easement. The amount awarded must be taken to have been made for his interest, whatever it was. That seems to have been the question which was adjudicated upon in the case cited and nothing more. Furthermore, the court could not have intended to hold that the report of the commissioners was final and conclusive upon the city in view of the provisions of § 183 of the act of 1813, by which it was provided that: “The respective person or persons, party or parties, in whose favor the same (the awards) shall be reported, or his, her or their executors, administrators or successors, at any time or times, after application first made, etc., may sue for and recover the same, with interest from and after the said application therefor and the costs of suit, in any proper form of action against the said Mayor, etc., in any court having cognizance thereof, in which it shall be sufficient to declare generally for so much money due to the plaintiff or plaintiffs therein, by virtue of this act, for premises taken for the purposes hereinbefore mentioned, and it shall be lawful for the plaintiff or plaintiffs to give any special matter in evidence under such general declarations; and this act and the report of said commissioner, with proof of the right and title of the plaintiff or plaintiffs to the sum or sums demanded, shall be conclusive evidence in such action.”

It is clear that if the report was to be conclusive as to the person named, the legislature would not have provided that the report with proof of the right and title of theplaintiff or plaintiffs to the ,sum or sums demanded shall be conclusive evidence in such .action. If the report itself was conclusive upon the point of ■ownership it would clearly not have been deemed necessary that proof thereof should be offered upon the part of the plaintiff.

This view is further emphasized by § 184 of the same- act, which provides that: “ Where any such sum or sums or compensation so to be reported by the said commissioners in favor of -any person or persons, whether named or not named in said report, shall be paid to any person or persons, party or parties whomsoever, when the same shall of right belong and ought to have been paid to some other person or persons, it shall be lawful for "the person or persons to whom the same ought to have been paid to sue for and recover the same as so much money had and re•ceived to his, her or their use, by the person or persons respectively to whom the same shall have been so paid.”

Here the right of the real owner to recover the award, even ■after it has been paid to the person named in the report, is distinctly recognized. How much more would he have the right to .recover before any payment to the person named in the report was made.

This is the construction put upon this section of the act of 1813 by the court of appeals in the case of Spears v. The Manor, 87 N. Y., 359.

In that case an award had been made to one Matthews as mortgagee after another claimant of the amount of the award commenced an action in equity to restrain the defendant, the city, from paying the award to Matthews and to establish the plaintiffs’ claim thereto. After the commencement of this action Matthews sued the city to recover as mortgagee the amount of the award. The city made default and judgment for the full amount was entered against it, which it paid, it claiming that, by virtue of the particular act then under consideration and various provisions of the statutes in relation to the opening of streets and avenues, the plaintiffs could not maintain their action.

It was held by the court of appeals that under these provisions the ascertainment of the person entitled to damages was incidental and the report of the commissioners was not conclusive in regard thereto, and.that the payment by the city after notice was at its peril, and the learned judge who wrote the opinion, being the ■same who wrote the opinion in the case first cited, uses the following language: “Under these provisions of law, the contention on the part of the appellants is that the report of the commissioners was so far conclusive as to the person entitled to the award that the city was obliged to pay the same to Matthews, and that the only remedy of the plaintiffs was to recover the ■ amount thereof of Matthews, after payment to him. Our attention' has been called to no decision giving such a construction to these provisions of law.

“ The main purpose of the appointment of commissidners was to have the damages in consequence of lands taken for street improvements appraised and the amount thereof assessed as directed by law and for that- purpose their report, when confirmed, unless vacated or set aside by some direct proceeding, was declared final and conclusive. The ascertainment of the names of the persons whose lands were taken orto whom damages were to be paid was merely incidental to the main purpose, and was for subsequent guidance of the city authorities and the protection of the city. The very terms in which the provisions of the law are expressed, show that the report was not to be conclusive as to the persons entitled to the damages awarded, because it is .provided in § 184 that even after payment to the person named "in the award, the rightful claimant of damages may recover them of the person thus paid; and in § 183 it is provided that before the person named'in the award can recover the amount thereof of the city, he must, prove not only the report of the commissioners, but his right and title to receive the same; hence, as we construe that section, in the suit by Matthews against the city for this award, if the city had defended, he would have been obliged to prove his right and title to the award, and he could have been defeated by proof that these plaintiffs were entitled to receive payment thereof. It is undoubtedly true that the city would be justified to pay the person named in- the award unless it had received notice of an adverse claim. After such notice, and certainly after suit commenced for the award by a person nqt named in the report as entitled thereto, the city would pay to the person named therein at its peril. This construction of the statutes can lead to no serious embarrassment of the city in paying such awards, because, in the case of conflicting claims known to it, it can compel.an interpleader and thus relieve itself from embarrassment or double responsibility. The construction contended for would operate unjustly upon persons situated, like these plaintiffs.

“ They could not sue the city, and they might not be able to compel the city to pay to the person named in the award, and they thus might be compelled to wait an indefinite time until the person named in the award should choose to compel payment to him, and after such payment the only security they would have for their damages would be the personal responsibility- of such person.

“ Here the plaintiffs were in fact entitled to the award made. They had a double remedy; before payment by the city to Matthews they could sue the city; after payment to Matthews they could sue him.”

The claim upon the part of the plaintiff that the filing of the notice of lis pendens in the action brought by her against Kennedy in respect to this property was notice to the city cannot be maintained, because it is well settled that even if a deed has been recorded (and certainly a lis pendens is no greater notice than a deed) the payment by the city in good faith to the party named in the report as the owner will protect the city against the true owner.

It is only when actual notice is given to the city that it has any reason to refuse to pay to the party named in the report

It would seem also that the plaintiff having elected to call Kennedy to account for the money which he had received, she is deprived from pursuing any remedy she might have had against the city.

The criticism passed upon the case of Fowler v. Bowery Savings Bank, 113 N. Y., 455; 23 St. Rep., 130, by the counsel for the plaintiff does not seem to distinguish it in principle from the case at bar.

The exceptions, therefore, should be sustained and a new trial ordered, with costs to defendant to abide event.

Ingraham, J.

There are two objections which are fatal to-plaintiff’s recovery in this action.

Upon the confirmation by the supreme court of the report of the commissioners of estimate and assessment relative to the opening of the street mentioned in the complaint, the order confirming such report became a judgment pronounced on a full hearing of the parties and conclusive in its character as to all questions litigated or which might have been litigated in the proceedings. Dolan v. The Mayor, etc., 62 N. Y., 475.

And this principle has many times been reaffirmed by the court of appeals. The last case is Donnelly v. The City of Brooklyn, 121 N. Y., 17; 30 St. Rep., 501.

It is a little difficult to see why the confirmation of the report is not conclusive between the owner of the property and the defendant as to the person to whom the award is payable.

By § 970 of the Consolidation Act, the commissioners were required to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage, or of the benefit and advantage over and above the loss and damage,, as the case may be, to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, etc., required for the improvement Such owners,lessees, parties and persons respectively entitled unto or interested in the lands, tenemens,etc.are parties to the proceedings; they have the right to appear before the commissioners and before the court,and the commissioners, and the court have power to correct any error in the report, and upon the report being confirmed it is conceded to be conclusive-as to the amount of the damages awarded and as to the amount, of the assessment for benefit.

The ownership of the award was a question that could have been litigated before the commissioners and before the court, and when the com missioners report that an individual is entitled to-the award, and such report is confirmed by the court, I do not see any reason why such an adjudication is not as conclusive as-between the owner of the property and the defendant as any other adjudication necessarily involved in the proceeding.

Such an adjudication is not conclusive as between claimants to the fund, for by § 184 of the act of 1813, re-enacted in § 993 of the Consolidation Act, it was expressly provided that where the ■sum reported by said commissioners in favor of any person or persons, whether named or not in such report, shall be paid to any person when the same shall of right belong to some other person, it shall be lawful for the person to whom the same ought to have been paid to sue for and recover the same as so much money had and received to his or their use by the person or persons respectively to whom the same shall have been so paid, but as between the owner of the property and the defendant, one of the questions upon which .the commissioners were to report, and which the ■court by its order confirming the report adjudicated upon, was the individual to whom the award should be paid.

In the case of Spears v. The Mayor, 87 N. Y., 372, the court of appeals appear to have held that this judgment was not conclusive as to the persons entitled to the damages awarded, although at page 374 the court say: “ If the commissioners had made the award distinctly to Matthews for his mortgage interest, then no other person could have claimed such award, and the city would have been absolutely bound to pay him upon principles laid down in the Matter of Department of Parks, 73 N. Y., 560.”

In that case the rule is stated as follows: “ Under the statute of 1813 there is ample opportunity for the correction of all mistakes of law and fact, and unless they are corrected in the proceedings before the confirmation all parties interested are precluded from complaining of them. The award after confirmation becomes in the nature of a judgment which cannot be assailed collaterally. .It is conclusive upon all parties as a judgment.”

In this case the award of the commissioners was to James C. Kennedy for the party wall, $900, and it is for that award that the plaintiff seeks to recover.

It would seem, therefore, that such an award made by the commissioners to Kennedy for his interest in a party wall comes within the rule, as stated in Spears v. The Mayor, etc., that no other person could claim it and the city was bound absolutely to paly him. But whether that is so or not, it is clear that the city would be justified in pajting Kennedy unless it had received a notice of an adverse claim to the fund. See Spears v. The Mayor, supra.

The evidence is that the city did pay Kennedy the amount of the award, and unless at the time of such payment the city actually had notice of the adverse claim, the city was protected by such payment and the plaintiff cannot recover.

It is not claimed that any express notice was given to the city, but it appeared that prior to such payment plaintiff had commenced an action against Kennedy claiming the title to the property and had filed a lis pendens, and it is claimed on behalf of plaintiff that the filing of such lis pendens was a notice to the city that she claimed this award.

We do not think that the notice of Us pendens was a notice to the city of the adverse claim. On the confirmation of the report the title of the property taken for the improvement vested in the •city, and the city became bound to pay to the person named, or to the owner of the property, the amount awarded as the value of the property taken, and such obligation of the city became a right •of action. No specific fund was set apart as belonging to the owner of the property the title to which vested in such owner.

The plaintiff was in contemplation of law' a party to the proceedings, and her lis pendens was subject to the judgments in that proceeding.

The city was, therefore, justified in assuming that the direction •of the court directing the money to be paid to Kennedy was, as between plaintiff and defendant, a protection for the payment of such money, notwithstanding any prior claim or general notice that the plaintiff had given that she claimed an interest in the property, and that any claim that would entitle plaintiff to the Award made before the adjudication had been determined by the order of the court confirming the report of the commissioners Adversely to the plaintiff.

We are also of the opinion that the action of the plaintiff in seeking to recover from Kennedy the amount paid to him by the ■city was a ratification of such payment and legalized it as between plaintiff and the city.

The action given to the plaintiff against the person to whom the payment had been made was by the statute declared to be an Action for money had and received. Such an action depends upon the receipt by the defendant of money belonging to the plaintiff, .and when plaintiff sought to recover such money from Kennedy it legalized the payment by the city to Kennedy, thus discharging the city.

The plaintiff could not occupy the position of claiming that the •city had paid her money to Kennedy and obtaining a judgment .against Kennedy for such money and at the same time claim that the city was still her debtor and owed money to her.

See Fowler v. Bowery Savings Bk, 113 N. Y., 455; 23 St. Rep., 130, where the court say, “ But if a trustee is bound to pay money "to a beneficiary as a debt due from him to the beneficiary, then if he makes payment to another person he has not paid the debt, •and the money paid is not in fact the property of the beneficiary.. In such case the beneficiary may ignore the payment and sue the "trustee as his debtor, or he may ratify and adopt the payment and sue the person receiving the money as his debtor, but he cannot do both. There is in such a case a breach of trust or not as he may elect, and his election once effectually made is conclusive forever.”

In this case the defendant was upon the confirmation of the report liable to pay to the owner of the property the award made by the commissioners; that money was paid to Kennedy. Assuming that plaintiff’s position is correct, that she then had a cause of action against the city for the amount of the award as owner of the property, she could either sue the city disregarding the payment to Kennedy, or sue Kennedy, affirming that her money had been paid to Kennedy by the city.

Sl\e made her election to sue Kennedy and obtained against him a judgment for the amount paid by the city to him, and by such action ratified that payment by the city as a payment on her account

We think, therefore, that plaintiff upon the facts proved was not entitled to recover, and that the exceptions must be sustained and a new trial ordered, with costs to defendant to abide the event

Daniels, J., concurs in the conclusion.


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. James Barker, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Criminal law—New trial.
    Where it appears that extraneous matters have been brought into a trial by the district attorney and the verdict is against the weight of evidence and is inconsistent, the court will grant a new- trial.
    3. Same—Evidence—Unsworn statements.
    It is improper to state the character of a newspaper article concerning the defendant where the article itself i,s excluded, nor can it be stated that the reputation of the defendant was vile when there was no evidence to that effect.
    Appeal from judgment of the court of general sessions convicting the defendant of the crime of assault in the third degree.

      Donohue, Newcornbe & Gardozo, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

Upon an examination of the record in this case we do not find any exceptions to the admission or exclusion of testimony, but it is claimed upon the part of the appellant that the prosecution of this case was conducted in such a manner that the rights of the defendant were seriously invaded, in that statements were made reflecting upon the character of the defendant and dwelt upon in the address of the district attorney to the jury, in respect to which no evidence was offered, neither would evidence have been admissible. The record submitted to us, however, presents but one or two instances in which the district at- . torney seems to have trespassed upon the rights of the defendant,, viz.: the reference to a newspaper article which was not admitted before the jury, stating its character and characterizing the reputation of the defendant in the community as vile, when there was not only no evidence whatever before the jury to that effect, but the only evidence that was offered tended to exactly the opposite conclusion. The statement of the district attorney that his remark was merely argumentative, and that he would give to the jury the reasons for his assertion, tended perhaps to show that it was not, intended to be more than a comment upon the evidence.

It is possibly true that more references occurred upon the trial to these outside and improper matters than appears upon the record; otherwise the learned judge who presided at the trial would not have thought it necessary to devote so large a portion of his charge to admonishing the jury to refrain from considering these extraneous questions in determining the guilt or innocence of the defendant. These circumstances, however, were not of a sufficiently grave character in themselves to justify the court in interfering with the verdict. But in view of the weight of the evidence in favor of the defendant and the character of the verdict, it would appear that some influence other than that which would properly result from a consideration of the evidence determined the verdict

This will appear from a brief consideration of the case, and of the fact that the complaint stands absolutely uncorroborated in respect to every material point in the case and pointedly contradicted by the only witness to the assault examined on his behalf in respect to one of its prominent features.

The story of the complainant is that upon the 19th of September, 1889, the complainant and a companion by the name of Corcoran went into a saloon at the corner of Eighth avenue and Twenty-fifth street for the purpose of taking a drink, they being on their way to the Fourteenth street Theater, which was situated in Fourteenth street just west of the Sixth avenue; that they went to the bar and ordered their drinks; that at this time there were five or six men at the other end of the room ; but the complainant did not notice that the defendant was among them; that the complainant commenced a conversation with the barkeeper in respect to a man of the name of Kinnan, and the complainant said to the barkeeper that Mr. Kinnan “ ought to hit Mr. Barker a punch in the nose for offering such a thing to him ” (referring to a ticket that the defendant had given to Kinnan for the street cleaning department) ; that as soon as he mp.de that remark he was grabbed by Barker, who butted him and struck him under the mouth with his fist, and threw him on the‘floor; that the complainant was in a dazed condition from the violence of the assault, but while lying on the floor saw Barker standing up about to kick him, and that his intention was to kick him in the privates, and he said to him: Don’t do that; no one but a brute would do that; ” whereupon defendant kicked him three or four times, the first time in the privates; During this scuffle the complainant was not sure whether he hit Barker or not, but he believes that he did. The complainant further testified that he did not know how he got up, but was kind o’ dazed, and that his friend Corcoran fetched him out of the store, and he went to another liquor store, and a doctor was brought to him. It further appears from the medical testimony that the complainant was severely injured in one of his testicles, and was confined to his bed for a considerable period of time because of such injury.

Corcoran was examined as a witness and testified that he was in the saloon with the complainant, and that the complainant stated to the barkeeper that if he was in Kinnan’s place he would punch Jim Barker in the nose; that witness turned away to get a piece of cheese from the bar, and when he turned back he saw the complainant and the defendant clinched, and saw the defendant butting him with his head and knocking him down on the floor; that when he got the complainant on the floor defendant said: “ You son of a bitch, you will lick Jim Barker, will you ? ” and punched him twice; and that as he (defendant) was getting up, he kicked the complainant, who then got up and went to the side door,, and as he stood in the door said : “Nobody would do that but a. brute,” and then Barker “ pulled out ” and kicked him again.

This was all the evidence in reference to the assault upon the-part of the People.

The defendant was the first witness examined on his own behalf. He testified to being in the saloon on the night in question when the complainant and Corcoran came in and went up to the-bar and called for a drink and commenced talking to the barkeeper, and the ticket for the street cleaning department was spoken of, and complainant said “We don’t want that ticket; my friend won’t use no ticket like that; Barker' ought to stick that ticket up his ass. If I was in this man’s place I would punch. Barker in the nose ; Barker is no good, etc.” ; that Barker then walked from the end of the room where be was, going towards, the complainant for the purpose of going to the washroom or water closet, and that as he got opposite to the complainant, the-complainant turned around from the bar and said “ Here’s the-son of a bitch now,” and struck him on the left side of the head so powerful a blow that he staggered; that they then clinched,, and the defendant threw the complainant, and he fell on the iron rail at the foot of the bar, and they rolled off together on the floor,, where the defendant held the complainant until he promised to-keep still if he would let him up, whereupon defendant let him up, and as soon as he got up he struck the defendant again, and the defendant threw him again on the floor; and that during the encounter several blows were exchanged, the defendant however-denying that he kicked complainant at all.

On behalf of the defendant five witnesses were examined who-were present in the saloon at the time of the encounter, all of whom testified to the commencement of the assault by the complainant, to the fact of abusive language having been used by the-complainant (although they differed somewhat as to its phraseology, some stating more than others, and also differed as to the side of the head upon which the first blow .was struck, and as to-whether when complainant fell he fell upon the iron rail at the bottom of the bar), and all concurring that the defendant did not. kick the complainant, contradicting him in fact in respect to all the main features of the assault as testified to by him.

The variance in the testimony of these witnesses is urged by the learned district attorney as an evidence that they were not testifying truly as to what they had seen, but simply for the purpose of shielding the defendant from the consequence of his acts. But this criticism does not seem to me to be well founded ; because it is seldom that even two witnesses will agree in respect to. the details of" a transaction such as this was where there is necessarily so much excitement and confusion and the parties are acting with the greatest quickness and where the observers are differently placed.

The story of the complainant in reference to what occurred at; the time he was kicked by Barker certainly does not commend itself with great force to the judgment He states that before Barker kicked him at all, he saw that he intended to kick him in the privates and that he had time enough to say : “ Don’t do that no one but a brute would do that,” before the kick was delivered. This story seems to be simply incredible even if it is physically possible to do the act in the manner testified to by complainant,, as to which there is much doubt, to say the least.

The complainant’s witness Corcoran tells an entirely different, story in reference to the transaction of the kicking. He says that-as defendant was getting up he kicked the complainant. Exactly how the defendant was able to do that he did not explain. He then says that the complainant got up and was standing in the door when he made the remark testified to, and that Barker then kicked him again. He was positive that the complainant was-standing at the time he made the remark, and defendant was going: to kick him, and that it was after all the trouble that occurred on the floor; a condition of affairs absolutely and pointedly different, from and incompatible with that which had been sworn to by complainant. I

If this evidence is true', then the complainant testified falsely as to a material part of tl is assault in respect to which it is not to-be conceived that he could honestly make so radical an error, and therefore his testimony in other particulars, when contradicted as. it was by a multitude of witnesses, should not have been entertained by a jury.

It is to be observed that he is the only witness as to who struck the first blow upon the part of the People, as Corcoran did not see the commencement of the assault. And yet the jury seem for some reason to have given credit to the testimony of the complainant although impeached in a material point, as already suggested, not only by the defence, but also by the only witness to the assault called on his behalf. And it would appear from the verdict of the jury that they did not believe this point of his story, because if this injury was inflicted in the manner claimed by him then he certainly had suffered grievous bodily harm at. the hands of the defendant in the commission of an outrageous assault and the defendant was clearly guilty of an assault in the second degree. But the jury found a verdict of assault in the-third degree, in which the element of grievous bodily harm is. wanting. The jury thus having found that the complainant testified falsely in respect to what he evidently considered a. material part of his evidence, it seems remarkable that they should have believed his story as to the commencement of the assault, although contradicted by every witness who saw it.

Ordinarily a defendant cannot complain that a verdict has been rendered of a lesser degree of crime than the facts warranted; but-in the weighing of testimony in a case like the one at bar, where it appears (if only from the charge of the court) that extraneous matters had been brought into the case by counsel and thus the-jury attempted to be prejudiced, and the verdict apparently being plainly against the weight of evidence, the nature of the verdict necessarily gives sortie insight into the influences which operated upon the jury in the rendition thereof. If the defendant was guilty at all he was guilty of an unjustifiable assault resulting in grievous bodily harm and the rendition of a verdict for a lesser offence seems under the evidence in this case to indicate either a misconception of that evidence by the jury or some prejudice against the defendant.

Under such circumstances, justice would seem to require a new trial in order that the guilt or innocence of the defendant may be determined upon evidence and not upon suggestion.

Barrett and Patterson", JJ., concur.


text:
    Court of Appeals.
    Filed January 20, 1892.
    Geo. E. Bacon, Resp’t, v. The Home Sewing Machine Co., App’lt.

      Henry S. Bennett, for resp’t; Boyal B. Crane, for app’It.
   Memorandum of eases in which no opinions were written.

Judgment affirmed, with, costs. All concur.

Affirming 37 St. Rep., 56.


text:
    Catharine Keating, Resp’t, v. Jacob Gunther, App’lt.

      Wm. F. O'Neill, for resp’t; Wm. Vanamee, for app’It.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 1112.


text:
    Edward McSorley, Resp’t, v. Brian G. Hughes et al., Impl’d, App’lts.

      Lyman L. Bettel and Sidney F. Bawson, for resp’t; Samuel Greenbmm, for ¡app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 34 St. Rep., 945.


text:
    The People ex rel. Geo. W. Sayre, App’lt, v. Chas. F. MacLean et al., Com’rs, Resp’ts.

      Louis J. Grant, for app’It; David J. Dean, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 32 St. Rep , 820.


text:
    The Merchants’ Nat. Bk. of Binghamton, N. Y., App’lt, v. Selim Kirby et al., Resp’ts.

      Edmund O’Conner, for app’It; Fred’k Collin and H. Austin Clark, for .resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 29 St. Rep., 891.


text:
    The Manufacturers’ Nat. Bank, v. Dudley Hall et al.

      Boot & Clarke, for app’It; Geo. M. Pinney, Jr., for resp’t.
   Order affirmed, with costs. All concur, except Peckham, J., dissenting.

Affirming 39 St. Rep., 463.


text:
    Ruana Clark, Adm’rx, Resp’t, v. Susan M. Corwin et al., Ex’rs, App’lts.

      Wm. F. O’Neill, for resp’t; Gilbert 0. Hulse, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 39 St. Rep., 784.


text:
    In the Matter of the Application of Mary Walker for relief, etc.

      S. M. Lindsley, for app’It; W. B. Bliss, for resp’t.
   Appeal dismissed on the ground that it was with the Oneida, •county court of sessions to vacate or modify the order, with costs. All concur.

See 59 St. Rep., 986.


text:
    Wm. P. Walton et al., Resp’ts, v. Albert P. Stewart, Trustee, Appl’t.

      Charles H. (Jollins, for resp’ts; J. K. Hayward, for app’It.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 40 St. Rep., 796.


text:
    Fred’k K. Keller, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.

      Edwin M. Felt, for resp’t; Julien T. Davies and Brainard Tolies, for app’lts.
   Judgment reversed, new trial ordered, costs to abide event, on case of Roberts v. Same Defts, 40 St. Rep., 454. All concur.

Reversing 89 St. Rep., 143.


text:
    Lewis S. Chase, App’lt, v. Marie L. Kellogg, Resp’t.

      Edwin R. Leavitt, for app’lt; Edward 0. Rm-kins, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 832.


text:
    Lizzie Koetter, Resp’t, v. The Manhattan R. Co., App’lt.

      S. W. Rosendale, for resp’t; Samuel Blythe Rogers, for app’lt.
   Judgment affirmed, with costs: All concur.

Affirming 36 St.. Rep., 611.


text:
    Clark Woodworth, Resp’t, v. Thos. C. Hodgson et al., App’lts.

      Edward Harris, for resp’t; Wm. F. Cogswell, for app’lts.
   Judgment affirmed, with costs. All concur.'

Affirming 35 St. Rep., 964.


text:
    Claudine B. Weed, App’lt, v. Van Wyck Hewlett, Resp’t.

      Daniel 8. Rrnnsen, for app’lt; Jodah T. Morrean, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 201.


text:
    Ellen M. Quinn, App’lt, v. Margaret McDonald et al., Resp’ts.

      E. H. Benn, for app’lt; Henry C. Wilcox, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 722.


text:
    Ellen M. Quinn, App’lt, v. Ann McDonald et al., Resp’ts.
   Same as last above.

Affirming 32 St. Rep., 724.


text:
    Alice Holland, App’lt, v. The Mayor, etc., of N. Y., Resp’t.

      Wm. King Hall, for app’lt; David J. Dean, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 30 St. Rep., 850.


text:
    Thos. B. Guilford, Resp’t, v. The Mayor, etc., of N. Y., App’lt.

      Chas. E. Miller, for resp’t; David J. Dean, for app’lt.
   Judgment reversed, new trial granted, costs to abide event, on authority of Tripler v. Mayor, etc., of N. Y., 125 N. Y., 617; 36 St. Rep., 141, and Redmond v. Mayor, etc., 125 N. Y., 632; 35 St. Rep., 917. All concur, Andrews,. J., not voting.

Reversing 37 St. Rep., 967.


text:
    Sigmund Oppenheimer, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.

      Leo C. Dessao-, for resp’t; Brainard Tolies, for app’lts.
   Judgment affirmed, with costs, on the ground that the question is not sufficiently raised by the exception. All concur.

Affirming 88 St. Rep., 1024.


text:
    Chas. H. Otis, App’lt, v. Andrew T. Bertholf et al., Resp’ts.

      Wm. Yanamee, for app’lt; Lewis E. Cao-r, for resp’ts.
   Judgment affirmed, with costs, on authority of Manning v. Beck, 41 St, 199. All concur.

Affirming 37 St. Rep., 172.


text:
    Michael Sheehan, Resp’t, v. Lizzie Mayer, App’lt.

      Ansley & Yreeland, for resp’t; Won. H. Henderson, for app’lt.
   Judgment affirmed, on opinion of general term, with costs. All concur.

Affirming 5 St. Rep., 235.


text:
    Fred’k A. Schroeder et al., Resp’ts, v. Daniel Frey et al., App’lts.

      John Henry Hull, for resp’ts; M. H. Begensburger, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 1017.


text:
    Samuel S. Hart, App'lt, v. Jones W. Wilder et al., Resp’ts.

      Cephas Brainerd, Jr., and Joseph Fettretch, for- app’lt; B. F. Tracy, for tresp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 895.


text:
    Warren Bryant et al., Ex’rs, App’lts, v. Harriet F. T. Thompson, Impl’d, Resp’t.
    No papers.
   Motion for re-argument denied; ten dollars costs.

See 40 St. Rep., 439.


text:
    Filed January 26, 1892.
    Daniel W. Tallmadge, Resp’t, v. The Press Publishing Co., App’lt.

      James I). Bell, for resp’t; Joseph M. Keatinge, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 968.


text:
    The People ex rel. The Prest., etc., D. & H. Canal Co., Resp’t, v. John Ganley et al., Assessors, etc., of Fort Edward, App’lts.

      Bdwin Young, for resp’t; A. D. Wait, for app’lts.
   Order affirmed, with costs, on opinion of Judge Learned, below. AH concur.

Affirming 29 St. Rep., 130.


text:
    Charles U. Wing, Resp’t, v. Bernardo de la Rionda et al., App’lts.
    No papers.
   Motion to put cause on calendar granted, without costs.

See 39 St. Rep., 119.


text:
    The People ex rel. The Oak Hill Cemetery Ass’n, v. Luther A. Pratt et al., Assessors.

      C. B. Kielil, for motion; Martin W. Cooke, opposed.
   Motion for re argument denied; ten dollars costs.

See 41 St. Rep., 244.


text:
    M. A. Oliver, Resp’t, v. Wm. L. Moore, Adm’r, App’lt.
    No papers.
   Motion to amend return granted, with costs.

See 39 St. Rep., 500.


text:
    Bertha E. Martin, Adm’rx, Resp’t, v. Spencer C. Platt et al., Impl’d, App’lts.
    No papers,
   Appeal dismissed, with costs of appeal and ten dollars costs of motion.

See 40 St. Rep., 761.


text:
    James R. Wright, Resp’t, v. Guillaume A. Reusens, Impl’d, App’lt.
    No papers.
   Motion to dismiss denied, without costs.

See 39 St. Rep., 802, 804. ”


text:
    Filed February 2, 1892.
    Wm. M. Peck, App’lt, v. Alva M. Baldwin, Resp’t.

      Ceylon II. Lewis, for app’lt; M. N. Tompkins, for resp’t.
   Order affirmed, with costs, on opinion of Martin, J., below. AH concur, ■except Maynard, J., taking no part.

Affirming 34 St. Rep., 511.


text:
    In the Matter of the Application of John A. Holmes, for an order granting leave, etc.

      Bamd Thornton, for app’lt; Thos. J. Keighcvrn, for resp’t.
   Order affirmed, with costs, on opinion in In re Appl’n of John A. Holmes„ for order granting leame to issue execution, etc., ante, 641. All concur, Maynard, J., taking no part.

Affirming 40 tit. Rep., 743.


text:
    Wm. Savage et al., Resp’ts, v. The City of Buffalo, App’lt.

      Step7ten Lockwood, for resp’ts; George M. Brown, for app’lt. .
   Order affirmed, with, costs, on the opinion of Judge Daniels in the special term. All concur, Maynard, J., taking no part.

40 St. Rep., 989.


text:
    Wm. Duffus, App’lt, v. Eli T. Bangs et al., Resp’ts.

      Walter S. MacGregor, for app’lt; T. K. Fuller, for resp’ts.
   Appeal dismissed on argument. All concur, Maynard, J., taking no part.

See 39 St. Rep., 833.


text:
    Thos. Heslan et al., App’lts, v. Wm. W. Fowler et al., Resp’ts.

      James Coupe, for app’lts; 8. J. Barrows, for resp’ts.
   Order affirmed, with costs. All concur, Maynard, J., taking no part.

Affirming 40 St. Rep., 985.


text:
    In the Matter of the Application of The Board of Street Opening, etc., N. Y., relative to opening One Hundred and Sixty-third St., etc.

      B. J. Bean, for app’lt; J. A. Beering, for resp’ts.
   Appeal dismissed, with costs; All concur, Maynard, J., taking no part.

See 40 St. Rep., 684.


text:
    The People ex rel. Nellie A. Cronin, Resp’t, v. Jas. W. Coffey, Comptroller of the City of Troy, Appl’t.

      Chas. E. Patterson, for resp’t; Wm. J. Bache, for app’lt.
   Order affirmed, with costs, on opinion of Learned, J., helow. All concur,

Maynard, J., taking no part.

Affirming 41 St. Rep., 449.


text:
    In the Matter of the Petition of Elizabeth G. Ciancimino, App’lt, to vacate, etc.

      John Jay McKelvey, for app’lt; Henry H. Man, for resp’t.
   Order affirmed, with costs. All concur, Maynard, J., taking no part.

Affirming 36 St. Rep., 1017, 1018.


text:
    In the Matter of the Application of The Pierce, Butler & Pierce Mfg. Co. for mandamus, v. Fred’k W. Bleckwenn, Treasurer, etc.

      A. T. Payne, for app’lt; Geo. W. Stephens, for resp’t.
   Order affirmed, with costs. All concur, Maynard, J., taking no part.

Affirming 43 St. Rep., 568.


text:
    The German American Real Estate Title Guarantee Co., v. Gerrit J. W. Van Slingerlandt et al.

      B. C. Chetwood, for app’lt; Thos. C. Ennevw, for resp’ts.
   Appeal dismissed, with costs. All concur, Maynard, J., taking no part.

See 39 St. Rep., 983.


text:
    Filed February 9, 1892.
    John Hayes, Rec’r, App’lt, v. Mrs. Wm. Beard, Resp’t.

      A. B. More, for app’lt; J. Nolle Hayes, for resp’t.
   Appeal dismissed, with costs. All concur.

See 37 St. Rep., 535.


text:
    In the Matter of the Judicial Settlement of Accounts, etc., of John L. Hobson, Adm’r.

      Thos. 8. Moore, for app’lts; Howa/rd B. Bayne and Anson Maltby, for resp ts.
   Judgment affirmed on opinion helow, with costs. All concur.

Affirming 41 St. Rep., 565.


text:
    Frank W. Ehrman, an Infant, Resp’t, v. The Brooklyn City R. R. Co. App’lt.

      James B. Bell, for resp’t; Thomas 8. Moore, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 990.


text:
    In the Matter of the Judicial Settlement of Accounts of Fielding L. Whittemore, Sole Surviving Trustee, etc.

      Howard R. Bayne, for app’lt; Be Witt O. Brown, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 1007.


text:
    Catherine McGovern, Adm’rx, Resp’t, v. The Central Vermont R. R. Co., App’lt.

      O. A. Kellogg, for resp’t; Louis Hasbrouck, for app’lt.
   Judgment affirmed, with costs. All concur, except Peckham, J., dissenting.

Affirming 38 St. Rep., 1021.


text:
    Amy Lee Tompkins, Adm’rx, Resp’t, v. The City of Oswego, App’lt.

      B. P. Lester, for resp’t; Thomas H. King, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 4.


text:
    Filed February 12, 1892.
    In the Matter of the Judicial Settlement of Account of Geo. Green, Ex’r of John Green, Dec’d.

      Eugene 8. Ires, for app’lt; Scott Lord, for resp’ts.
   Judgment affirmed on the opinions below, with costs. All concur, Maynard, J., taking no part.

Affirming 39 St. Rep., 510.


text:
    Myra L. Spring, Ex’rx, Resp’t, v. The Chautauqua Mut. L. Ass’n, App’lt.

      A. <6 (?. E. Spring, for resp’t; W. 8. Thrasher, for app’lt.
   Judgment affirmed, with costs. All concur, Maynard, J., taking no part.

Affirming 38 St. Rep.,, 968.


text:
    Margaret A. Oliver, Resp’t, v. Wm. I. Moore, Adm’r, App’lt.

      J. Noble Hayes, for resp’t; H. Kettell, for app’lt.
   Judgment affirmed, with costs. All concur, Maynard, J., taking no part.

Affirming 39 St. Rep., 500.


text:
    In the Matter of the Probate of Will of Joseph Gall, Dec’d.

      EMMore for app’lt; A. Simis, Jr., resp’t.
   Judgment affirmed, with costs. All concur, Maynard, J., taking no part.

Affirming 36 St. Rep., 1018.


text:
    Christine Ott, Adm’rx, Resp’t, v. The City of Buffalo, App’lt.

      O. 8. Orosser, for resp’t; W. E. Mackey, for app’lt.
   Judgment affirmed with costs. All concur, Maynard, J., taking no part.

Affirming 40 St. Rep., 716.


text:
    Bridgett Noonan, Adm’rx, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      J. Newton Mero, for resp’t; R. A. Pm'menterr, for app’lt.
   Judgment affirmed, with costs. All concur, Maynard. J., taking no part.

Affirming 42 St. Rep., 41.


text:
    Herbert M. Taylor, Resp’t, v. The Town of Constable, App’lt.

      John P. Kellas, for resp’t; J. P. Badger, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur, Maynard, J., taking no part.

Affirming 40 St. Rep., 60.


text:
    Second Division.
    Filed January 20, 1892.
    Erastus H. Barnes, Resp’t, v. Walter P. Denslow et al., App’lts.

      N. B. Hoxie, for resp’t; Van Burén Benslow, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 315.


text:
    Joseph P. Toms, Resp’t, v. Henry Greenwood et al., Impl’d, App’lts.

      W. 0. Miner, for resp’t; Frank C. Ferguson, for infant def'ts; Simon FieiscF mann, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 478.


text:
    Van Allen Pugsley et al., Resp’ts, v. John Devlin, App’lt.

      Fdward F. Brown, for resp’ts; "Horace Orares, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 814.


text:
    Philip Goerlitz, App’lt, v. Charles Malawista et al., Resp’ts.

      F. Fllery Anderson, for app’lt; A. Stern, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 126.


text:
    Francis Dougherty et al., Resp’ts, v. Henry J. McGuckin, App’lt.

      Hector M. Hitchings, for resp’ts; Daniel P. Mahony, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 1023.


text:
    Richard Piggott, Resp’t, v. Lyman Hanchett, App’lt.

      Geo. J. Greenfield for resp’t; Wm. M. Mullen, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 379.


text:
    Jacob Kent, Resp’t, v. Jacob Crouse, App’lt.

      Franklin Pierce, for resp’t; M. M. Waters, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 1004.


text:
    James P. Kernochan, Ind. and as Ex’r, et al., Resp’ts, v. The New York Elevated R. R. Co. et al., App’lts.

      Davies & Sapallo, for app’lts; G. Willett Van Nest, for resp’ts.
   Motion for re-argument denied, with costs. All concur.

See 41 St. Rep., 266.


text:
    Mary Duffy, Resp’t, v. Catharine Duffy, Impl’d, App’lt.

      Sidney H. Stuart, for resp’t; Rufus M. Williams, for app’lt; Wm. Irwin and Delos McCurdy, for Daly et al.

   Motion for re-argument denied, with costs. All concur.

See 41 St. Rep., 950.


text:
    William Lockwood et al., Resp’ts, v. Edward B. Bartlett et al., App’lts.

      Wm. W. Goodrich, for app’lts; Charles Me Veagh, for resp’ts.
   Motion for re-argument denied, without costs. All concur.

See 41 St. Rep., 703.


text:
    Filed February 9, 1892.
    Slyvester Trimmer, App’lt, v. The City of Rochester, Resp’t.

      D. Clinton Barnum, for app’lt; Henry J. SuMran, for resp’t.
   Motion for re-argument granted, without costs. All concur.

See 42 St. Rep., 382.


text:
    Clarence R. Conger, App’lt, v. John Treadway, Resp’t. Clarence R. Conger, App’lt, v. Wolsey T. Weiant, Resp’t.

      Irving Brown, for app’lt; George W. Weiant, for resp’ts.
   Motion to open defaults and restore causes to calendar granted, without costs, and leave is given to place cause on calendar at the opening of the next term. All concur.

See 28 St. Rep., 745.


text:
    Charles T. Mitchell et al., Resp’ts, v. Mary A. W. Thorne, App’lt.

      A. N. Weller, for resp’ts; Parsons, Shepard & Ogden, for app’lt.
   Motion for leave to furnish cerifícate of general term granted, without costs. All concur.

See 32 St. Rep., 958.


text:
    Frederick N. Smith, Rec’r, App’lt, v. Rosalie Hahn et al., Resp’ts.

      Geo. A. Stearns, for app’lt; Jas. T. dwell, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 349.


text:
    Wilson S. Tifft, Resp’t, v. The City of Buffalo, App’lt.

      Giles B. Stilwell, for resp’t; Philip A. Laing, for app’lt.
   Order affirmed, and judgment absolute rendered against appellant, with -costs. All concur.

Affirming 27 St. Rep., 72.


text:
    Joseph Levi et al., Resp’ts, v. Edward W. Newhall et al., App’lts.

      A. J. Simpson, for resp’ts; Galen B. Hitt, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 283.


text:
    Samuel G. Brown, App’lt, v. Emil Ney et al., Resp’ts.

      Moi'ris S. Wise, for app’lt; Charles Strauss, for resp’ts.
   Judgment affirmed, with costs. All concur, except Haight, J., absent.

Affirming 32 St. Rep., 1138.


text:
    Wm. M. Van Antwerp et al., Resp’ts, v. Henry Kelly, Co. Treas’r, App’lt.

      James F. Cooper, for resp’ts; Myer Nussbaum, for app’lt.
   Order affirmed and judgment absolute rendered against app’lt, without costs. All concur, except Landón, J., not sitting.

Affirming 20 St. Rep., 244.


text:
    George Schuchman, Resp’t, v. Solon Winterbottom et al., App’lts.

      John P. Schuchman, for resp’t; Hays & Greenbaum, for app’lts.
   Judgment affirmed, with costs, on opinion of the general term. All concur.

Affirming 31 St. Rep., 184.


text:
    James N. Darrah, Resp’t, v. James Boys, App’lt.

      A. B. Carrington, for resp’t; J. M. Ferguson, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 297.


text:
    Emma L. Shaw, Resp’t, v. Winfield S. Shaw, App’lt.

      Abner C. Thomas, for resp’t; E. H. Benn, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 80.


text:
    Filed February 12, 1892.
    James Brown, Resp’t, v. The Hartford Fire Ins. Co., App’lt.

      B. F. Searle, for resp’t; A. H. Sawyer, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 23 St. Rep., 683.


text:
    Nellie L. Dexter, App’lt, v. Edward Dexter, Resp’t.

      Alex. Thain, for app’lt; Jacob F. Miller, for resp’t.
   Judgment affirmed, with costs. All concur, except Bradley, J., not voting.

Affirming 23 St. Rep., 208.


text:
    Supreme Court—General Term—First Department.
    Filed December 31, 1891.
    Julius F. Chesebrough, Resp’t, v. Daniel D. Conover, App’lt.
    _ The judgment from which this appeal is taken having been vacated on motion, it is not necessary to decide the appeal, there being now no judgment in existence.
    Appeal dismissed.


text:
    Ambrose J. Agate v. Caroline E. House.
    Order resettled so far only as to declare that the conveyance of the property to the plaintiff shall be subject to defendant’s right to reimbursement of any sum owing to her, and for the reimbursement of which the premises were a security in her hands.


text:
    Shaw v. Old Dominion S. S Co. Beran v. Tradesmans’ National Bank. Blake v. Barnes. Caffe v. Ottman. Wall v. Jones.
   The foregoing cases were assigned to Lambert, J., to write, and he having failed to do so, re-arguments are ordered.


text:
    General Term—Second Department.
    Filed December 14, 1891.
    Henry C. Griffin v. John A. Todd.
   Motion denied, with ten dollars costs. Dykman, J., not sitting.


text:
    Mary Hoskins, Adm’rx, v. James Stewart et al.

   Judgment affirmed, with costs. Opinion by Barnard, J., on former appeal, Dykman, J., not sitting.


text:
    William V. Molloy et al. v. The Board of Health of Mamaroneck.
    Motion denied.
   Dykman, J., not sitting.


text:
    The Board of Health of New Rochelle, v. Eugenia Valentine.
    Motion denied.


text:
    John M. Bridge v. The Orange County R. R. Co.
    Motion denied.
   Barnard, J., not sitting.


text:
    Alexander Saunders v. The New York Central & Hudson River R. R. Co.
   Judgment affirmed, with costs, on opinion in N. Y. C. & H. R. R. R. Co. v. Aldridge, 43 St. Rep., 18. Dykman, J., not sitting.


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

text:
    In the Matter of John Newton, Commissioner of Public Works. Claim of Academy of the Sacred Heart.
    Appeal from order confirming report of commissioners of appraisal.

      James A. Beering, for app’lt; Wm. H. Clark, corporation counsel (Arthur II. Mast&n, of counsel), for Commissioner of Public Works, resp’t.
   Dykman, J.

This is an appeal by the Academy of the Sacred Heart from an order of the special term confirming the report of commissioners appointed to appraise the damages resulting from the construction of the new aqueduct.

The claim filed by the appellant was for $360,000 of which $195,000 was for land in Convent avenue, upon which eight pipes were laid for the transmission of water.

It appeared that the land upon which Convent avenue was constructed belonged to the city and therefore the claim for compensation therefor made by the appellant was disallowed.

The remainder of the claim was divided into several branches and the appellant was allowed $5,500.

The record discloses no error and a careful examination satisfies us that thp allowances made are liberal.

The commissioners have written a long and carefully prepared opinion which fully justifies their action in every respect.

The order should be affirmed, with ten dollars costs.

Barnard, P. J.

The commissioners have made a minute and careful report. They rejected the great item claims because the petitioner had conveyed the land taken to the city of New York. The commissioners had no power to set aside thy deed, and there was no reason for. so doing. There are several other items of consequential damages to land not taken, such as putting the excavated material temporarily on the petitioner's land, and for use and occupation of petitioner’s lands while the work was going on, and for depreciation in value of lots because the city improvement would make the cost of removing excavation for cellars on petitioner’s lots more, which would be included, and the lots so far diminished. For some of these claims the commissioners have made allowance, and for others they have made none. We find no reason to differ from the commissioners as to the sufficiency of the same, nor to the rejection of items which they have rejected. The case is very voluminpus, and the examination of the review of the evidence made by the commissioners is full and complete.

The order should be affirmed, with costs.


author: Dykman, J.

text:
    In the Matter of The Revocation of the Probate of the Will of William Townsend.
    Appeal from decree of surrogate denying petition for revocation of will.

      A. H. F. Seeger, for app’lts; M. H. Hirschberg, for resp’ts.
   Dykman, J.

This is an appeal from the decree of the surrogate of Orange. county, denying the petition for the revocation of the probate of the last will and testament of William Townsend, deceased.

The testator died December 1, 1889, leaving a will dated November 24, 1889, which was proved and admitted to probate January 30, 1890.

Within a year thereafter and on the twenty sixth day of December, 1890, this proceeding was instituted, and resulted in a decree which was made March 19, 1891, confirming the probate of the will.

We discover no merit in this appeal and a careful examination of the testimony conducts the mind easily to the conclusion reached by the surrogate.

The will is a natural one under the circumslances in which the testator was placed, and his brother, who alone might deem the discrimination against him unjust, has acquiesced in its proof and collateral relatives alone contest its validity.

The proof of the competency of the testator is overwhelming and the testimony against it is quite unsatisfactory. There are no circumstances of suspicion attending the making of the will, and its execution was in all respects regular.

We find no error and the decree should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur. •


author: Dykman, J. Pratt, J.

text:
    Elie Weill et al., App’lts. v. Joseph Malone et al., Resp’ts.
    Motion for re-argument.

      James O. Ohurch, for motion; Frederic S. Barnum, opposed.
   Dykman, J.

This is a motion for a re-argument in this court, but there is no reason why the motion should be granted.

There was no oversight in making the decision, and the motion should be denied, with ten dollars costs and disbursements.

Barnard, P. J., concurs.

Pratt, J.

(dissenting).—Upon the case made by the affidavits of both parties, taken together, the attachment was properly dissolved.

We do not think it clearly appears that any property has been fraudulently disposed of.

Order affirmed, with costs.


text:
    Anna B. Anderson, Resp’t, v. The Supreme Council of the Order of Chosen Friends, App’lt.
    Appeal from judgment in favor of plaintiff entered upon verdict, and from order denying motion for a new trial.

      Jas. MeO. Smith (Howard JH. Morse and J. Alex. Koones, of counsel), for app’lt; J. Edward Swanstrom, for resp’t.
   Dykman, J.

This action was commenced by the plaintiff upon a member- , ship of the order of Chosen Friends, issued by the defendant to the husband of the plaintiff for her benefit.

The defendant set up three defenses: First, that the husband of the plaintiff was in default for non-payment of assessments at the time of his death; second, that he had voluntarily resigned from the order; and, third, that due proof and notice of the death of the deceased man were not presented to the order.

All these defenses presented questions of fact only, and upon the trial proof was introduced by both parties.upon all of the questions and the case was presented to the jury by the trial judge, and a verdict was rendered for the plaintiff.

So it is to be assumed now that all the facts were found in accordance with the proof offered by the plaintiff, and we can easily perceive that no other conclusion could fairly be reached. The evidence on the part of the defense was quite unsatisfactory and fails to Command respect, and the jury evidently gave it no heed.

The verdict meets our unqualified approval, and the judgment and order denying a motion for a new trial should be affirmed, with costs.

Babnabd, P. J., and Pratt, J., concur.


text:
    William Johnston, App’lt, v. Mary E. Theall, Resp’t.
    Appeal from judgment dismissing the complaint.

      Walter S. Logan and Oliarles W. Demond, for app’lf; Bewj. W. Downing, for resp’t.
   Dykman, J.

This action was commenced to procure the cancellation and nullification of certain deeds of conveyance of real property made by Robert H. Johnston, deceased, to the defendant, upon the ground of mental incapacity of the grantor and fraud and undue influence on the part of the defendant.

The action was tried before a judge without a jury, and he has found all the facts against the plaintiff and in favor of the defendant, and directed judgment in her favor and the plaintiff has appealed from the judgment.

A full and careful examination of the testimony shows its failure to sustain the allegations in the complaint and shows that the finding of the court is fully sustained by the evidence.

The case turned entirely upon questions of fact and we concur with the conclusions of the trial judge.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    Burton E. Kipp, Resp’t, v. Charles B. Scott et al., App’lts.
    Appeal from judgment in favor of plaintiff, entered on verdict.
    P. B. De Fere, for app’lts; Geo. L. Garlüle, for resp’t.
   Barnard, P. J.

This action is one to recover the value of the plaintiff’s services as an accountant. The sum demanded therefor in the complaint is $250. The answer admits the employment and admits the value to no greater extent than fifty-six dollars. This difference was lessened on the trial by the evidence, which tended to show that the services were only ninety hours, all rendered during some seven or eight days, and that the defendants were willing to pay twenty-five dollars per day. The value of the services was proven to be much greater than the sum claimed in the complaint. There was proof given by the defendants tending to show that the employment was agreed upon at the sum of eight dollars a day; but this was denied by the plaintiff.

The verdict of the jury on such a condition of the evidence must be held final upon the questions between the parties.

The witness Silden was an expert witness; he had been in the habit of employing accountants and knew what their usual charge was.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Ambrose Lee, Resp’t, v. Andrew J. Wightman, App’lt.
    Appeal from judgment in favor of plaintiff, entered on verdict.

      Geo. II. Bruce, for app’lt; Edward F. O’Dwyer, for resp’t.
   Dykman, J.

This is an action for the recovery of commissions as a real estate broker.

The cause was tried at the circuit before a jury and a verdict was rendered for the plaintiff.

The defendant has appealed from the judgment entered upon the verdict,, and from the order denying a motion for new trial upon the minutes.

The appeal presents no scope for the action of an appellate tribunal. The testimony is somewhat contradictory, and there was room for the jury to criticise the character of both of these parties.

The verdict has sufficient support in the testimony, and tlie_ judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not .sitting.


text:
    Edward Leach, App’lt, v. The Brooklyn, Bushwick & Queens County R. R. Co., Resp’t.
    Appeal from judgment dismissing the complaint.

      M. L. Towns, for app’lt; H. D. Donnelly, for resp’t.
   Dykman, J.

This is an action for the recovery of damages by reason of the negligence of the defendant

It appeared upon the trial that the car of the defendant ran over the plaintiff and cut off one of his legs, and injured the other; hut it appeared also that the injury was brought upon the plaintiff by his own carelessness.

The plaintiff was nonsuited for contributory negligence and he has appealed from the judgment.

The judgment and order denying a motion for a new trial should be affirmed, with costs.

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


author: Pratt, J.

text:
    Mary L. Young, Resp’t, v. Joseph A. Kingsbury, App’lt.
    Appeal from judgment of Westchester county court in favor of plaintiff. Action upon a promissory note.
    " Joseph H. Daly, for app’lt; Allen Taylor, for resp’t.
   Pratt, J.

The judge’s charge correctly set forth the law, and the verdict of the jury is supported by the evidence.

The defect in the satisfaction piece was waived and defendant’s liability attached.

Judgment affirmed, with costs.

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


text:
    General Term—Third Department.
    Filed December 5, 1891.
    John Leedings, App'lt, v. Daniel Wilsey, Resp’t.
   Judgment of county court affirmed, with costs.


text:
    Filed December 8, 1891.
    Orrando P. Dexter, App’lt, v. Warren Joseph Alfred, Resp’t.
   Order denying motion to change place of trial affirmed, with ten dollars costs and printing disbursements.


text:
    The People ex rel. John H. Derby v. Frank Rice et al.

    And four other cases against same defendants.
    Order affirmed.


text:
    The People ex rel. Rufus D. Peck v. Frank Rice et al.

    And three other cases against same defendants.
    Order affirmed.


text:
    New York Common Pleas
    General Term.
    Filed November 2, 1891.
    Bernard Mahon, Resp’t, v. Anna M. Guilfoyle, App’lt.
    Motion to dismiss appeal for failure to serve printed papers.
   Motion granted, unless appellant serve printed papers on or about the 13th day of November, 1891.


text:
    Henry Flegenheimer et al., Resp’ts, v. Henry Lenz, App’lt.
    Appeal from judgmeñt of fourth district court.
   Judgment reduced to fifty-three dollars, and affirmed for that amount, without costs of appeal to either party.


text:
    Filed November 5, 1891.
    Jacob Schapierer, Resp’t, v. The Third Avenue R. R. Co., App’lt.
    Appeal from judgment of general term of the city court of New York, affirming judgment in favor of plaintiff.
   Appeal dismissed, without costs to either party.

See 39 St. Rep., 209.


text:
    Filed November 6, 1891.
    Keefe S. O’Keefe, Resp’t, v. Arabella D. Huntington, App’lt.
    Appeal from order.
   Order affirmed, with costs.


text:
    The People ex rel. John Ward v. Henry D. Purroy et al.

      Certiorari to review proceedings of defendants.
    Writ dismissed and decision of commissioners affirmed.


text:
    Filed November 11, 1891.
    Lena Clements, App’lt, v. Julius Knoesel et al., Resp’ts.
    Appeal from order denying motion to resettle order.
   Order appealed from should be modified by directing the resettlement of the order of the 80th day of January, 1891, by inserting after the words “coming on to be heard ” as follows: “ upon the order to show cause and the' affidavits of Julius, Emily and William Knoesel, served therewith.” No costs of this appeal to either party.


text:
    Filed November 13, 1891.
    Henry Nordlinger, Resp’t, v. Morris Levine, App’lt.
    Appeal from fifth district court.
   Judgment affirmed, with costs.


text:
    Morris Rosencranz, App’lt, v. Lender Jarmolowsky, Resp’t.
    Appeal from fourth district court.
   Judgment affirmed, with costs.


text:
    Abraham Scheider et al., Resp’ts, v. Jacob Levi, App’lt.
    Appeal from ninth district court.
   Judgment affirmed, with costs.


text:
    Filed January 4, 1892.
    Wm. Gray, App’lt, v. Calvin Tomkins, Resp’t.
    Motion to strike cause from calendar.
   Motion denied, without costs.


text:
    John G. Crotty, Resp’t, v. Robert S. Jarvis, App’lt.
    Appeal from order of the special term of this court.
   Order affirmed, with costs.


text:
    Nancy E. Banta, App’lt v. Pananos Naggitiris, Resp’t.
    Appeal from order of the special term of this court.
   Order reversed, with costs.


text:
    Louis Kohlman, Resp’t, v. Louis Minicus, App’lt.
    Appeal from fourth district court.
   .Judgment reversed, new trial ordered, costs to appellant to abide the event,


text:
    John Borne, Resp’t, v. Louis Minicus, App’lt.
    Appeal from fourth district court.
   Judgment affirmed, with costs.


text:
    The Grand Rapids School Furniture Co., App’lt v. Oscar Hammerstein, Resp’t.
    Appeal from third district court.
   Judgment affirmed, with costs.


text:
    The People v. Jas. J. Madden et al.

    Motion to vacate judgment entered on forfeited recognizance.
   Judgment vacated and cancelled of record.


text:
    Israel Cohen. Resp’t, v. Joseph Glaser, App’lt.
    Appeal from order of the city court.
   Order affirmed, with costs.


text:
    Cornelius McAuliffe, App’lt, v. Hugh J. Grant, Resp't.
    Appeal from judgment of this court.
   Judgment affirmed, with costs.


text:
    Jefferson M. Levy, Resp’t, v. The Manhattan R. Co., App'lt.
    Appeal from judgment on the report of a referee.
   Judgment reversed; new trial ordered, costs to appellant to abide the event,


author: Per Curiam.

text:
    John W. Dunne, App’lt, v. Annie Young, Resp’t.
    Anpeal from judgment of the eleventh district court.

      G. ¿ A. Kenneson, for app’lt; F. Higley. for resp’t.
   Per Curiam.

This action was brought upon a written contract, and of course the burden of showing the fulfilment of it according to its terms was upon the plaintiff. The defense relied upon was that the plaintiff neglected the business, was incompetent to do the work which he undertook to do, and that it became necessary for the defendant to hire another man to do part of his work. It is true that the plaintiff contradicts this testimony upon these points, but this makes it a question of conflict of evidence merely; and, as there is enough to sustain the finding of the court below upon these questions, we think the judgment should be affirmed, with costs.


author: Freedman, J.

text:
    New York Superior Court
    General Term.
    Filed January 11, 1892.
    Julia Menike, Resp’t, v. The Manhattan R. Co., App’lt.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of ■ a jury and from order denying defendant’s motion for a new trial.

      Davies & Sapallo, for app’lt; George J. Greenfield, for resp’t.
   Freedman, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff through the negligence of defendant’s servants in attempting to get on board of one of the trains of defendant’s railway. Upon the trial the defendant produced no evidence and the case was submitted to the jury upon the testimony given by and on behalf of the plaintiff. Upon such testimony the case was clearly one for the jury. A dismissal of the complaint would have been error. All ‘the questions as to which the trial judge was requested to charge were submitted to the- jury under a charge which fully guarded every right the defendant had. The jury were expressly instructed that they might render a verdict for the defendant, although the testimony of the plaintiff was uncontradicted. Upon the whole case no exception appears ■of sufficient merit to call for reversal.

The judgment and order should be affirmed, with costs.

McAdam and Gtldersleeve, JJ., concur.


text:
    Frederick Zimmerman, Resp’t, v. The Broadway & Seventh Ave. R. R. Co., App’lt.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of .a jury, and from order denying defendant’s motion for a new trial.

      Soot & O lárice, for app’lt; Darned <6 Warren, for resp’t.
   Freedman, J.

The action is for personal injuries alleged to have been sustained by the plaintiff through the negligence of defendant’s servants. Upon the trial all questions in dispute were submitted to the jury under a charge to which no exception was taken, and the jury found for the plaintiff. ' There was no error in the admission or exclusion of evidence, and, upon consideration of the whole case, it cannot be held that the verdict is against the weight •of the evidence. It is a case of conflicting evidence which falls within the rule that the verdict of the jury should not be disturbed, unless there was error in the course of the trial.

The foregoing remarks dispose of all the points raised by the brief of the appellant, and no error having been found the judgment and order should be .affirmed, with costs.

McAdam and Gildersleeve, JJ., concur.


text:
    William Murphy, Resp’t, v. The Broadway & Seventh Ave. R. R. Co., App’lt.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury and from order denying defendant’s motion for a new trial.

      Root & Glarlce, for app’lt; Shaffer & Burt, for resp’t.
   Per Curiam.

The points raised by the appellant’s brief appear, on examination, to be untenable. The case was one for the jury. The manner in which it was submitted has not been assailed.

The judgment and order should be affirmed, with costs.

Freedman, McAdam and Gildersleeve, JJ., concur.


text:
    Philip Milligan Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.
    Appeal from judgment entered in favor of the plaintiff upon the report of a. ¡referee.

      Davies & Sapallo, for appT s; Fdwin M. Felt, for resp’t.
   Per Curiam.

The judgment should be affirmed, with costs.

Freedman, McAdam and Gildersleeve, JJ., concur.


text:
    Emanuel S. Sutro et al., Resp’ts, v. The Manhattan R. Co. et al., App’lts.
    Appeal from judgment entered in favor of the plaintiffs upon the decision of a judge at special term.

      Davies, Short & Townsend, for app’lts; Peekham & Tyler, for resp’ts.
   Per Curiam.

The judgment should be affirmed, with costs.

Freedman, McAdam and Gildersleeve, JJ., concur.


text:
    Valentine Diefenthaler, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.
    Appeal from judgment in favor of the plaintiff entered upon the report of a. referee.

      Dames & Sapallo, for app’lts; Bdwin M. Belt, for resp’t.
   Per Curiam.

The judgment should be affirmed, with costs.

Freedman, McAdam and Gildersleeve, JJ.; concur.


text:
    Dedrick H. Bultman, Resp’t, v. The New York El. R. R. Co. et al., App’lts.
    Appeal from judgment in favor of the plaintiff entered upon the decision of a judge at special term.

      Dames, Short <6 Townsend, for app’lts; Peekham & Tyler, for resp’t.
   Per Curiam.

A careful examination and analysis of the evidence discloses-no reason for disturbing the result arrived at by the learned judge below, and. none of the exceptions appears to have sufficient merit to work a reversal.

The judgment should be affirmed, with costs.

Freedman, McAdam and Gildersleeve, JJ., concur.