author: Macombek, J.: Brady, J

text:
    THE GERMANIA FIRE INSURANCE COMPANY, Plaintiff, v. JOHN R. FRANCIS, Defendant.

      Evidence — what proof is required to authorize a recovery upon a judgment recovered, in a court of another State, or of the United, States.

    The plaintiff, claiming to have recovered a judgment against the defendant in the Supreme Court of the United States, brought this action to recover the amount due thereon. In order to prove the recovery of the judgment the plaintiff put in evidence the usual mandate of the Supreme Court, which follows its decision upon writs of error. It is in the name of the president of the United States, and is attested by the chief justice of the Supreme Court, and is addressed to the judge of the District Court of the United States for the northern district of Mississippi. It recites that lately, in the latter court, there was a cause pending between John R. Francis, plaintiff, and the Ger-mania Fire Insurance Company, defendant, wherein the verdict of the jury and the judgment of the District Court, entered in said cause on June 31,1869 were in favor of that plaintiff in the sum of $3,930.58, besides costs, and that the said cause was removed to the Supreme Court by a writ of error. It then recites that at the December term of the Supreme Court, iu 1870, that cause came on to be heard, and that on consideration thereof '“it is now here ordered and adjudged by this court that the judgment of the said District Court in this cause be and the same is hereby reversed, with costs, and that the said defendant recover against the said plaintiff, John R Francis, two hundred aud forty-one dollars and ten ce.nts, for its costs herein expended, and have execution therefor.” It then orders that the cause be remanded to the District Court, with directions to transmit it to the Circuit Court of Monroe county, in that State, for further proceedings in conformity to law and justice, and in conformity to the opinion and judgment of the Supreme Court.

      Held, that this instrument was not sufficient to support a recovery. (Brady, J., dissenting.)
    That there must be evidence of a judicial record, showing upon its face jurisdiction of the person of the defendant and of the subject-matter.
    Motion for a new trial by tlie plaintiff, upon exceptions ordered to be heard at the General Term in the first instance, after a dismissal of the complaint at the circuit.

      G-. W. Cotterill, for the plaintiff.
    . John jSI Risley, for the defendant.
   Macombek, J.:

At the close of the plaintiff’s evidence, the court dismissed the complaint, and ordered the exceptions to be heard at the General Term in the first instance. The ground of such dismissal is not stated.

When this ease was before the court on a previous appeal, the decision was put upon the ground that the claim made by the plaintiff had been paid and satisfied, through certain judicial proceedings in the State of Illinois. No evidence having been given of such matters, however, at the last trial, the question previously decided does not arise.

Much of the argument of counsel is devoted to the contention that the Supreme Court of the United States, under its own rules of practice, and under the statutes, did not have jurisdiction to award the costs for which the action is brought. But, in my judgment, we have not the power to question the propriety or the terms of the judgment, if there be a judgment, where jurisdiction of the subject and person has been acquired, and judgment rendered in a foreign court. A court of this State, unless fraud in procuring the judgment is shown, can neither inquire into the facts proved nor into the law applied to those facts by which such court was governed. Hence, if there be a judgment of the Supreme Court of the United States or of a court of a sister State before us, we are bound to give judgment for the plaintiff thereon, because, as the case is made up, there appears to be no claim made by the defendant of payment, or of want of jurisdiction of his person or of the subject matter, or that the supposed judgment was procured by fraud. The real question in the case, however, is whether there is a judgment of the Supreme Court of the United States, which has been recovered by the plaintiff against the defendant.

The only document that was put in evidence consists of the usual mandate of the Supreme Court of the United States which follows its decision upon writs of error. . It is in the name of the president of the United States, and is attested by the chief justice of the Supreme Court, and is addressed to the judge of the district court of the United States for the northern district of" Mississippi. It recites that lately, in the latter court, there was a cause pending between John R. Francis, plaintiff, and the Germania Fire Insurance Company, defendant, wherein the verdict of the jury and the judgment of the district court entered in said cause, on the 21st day of June, A. D. 1869, was in favor of that plaintiff in the sum of $2,930.58, besides costs, and which cause was removed to the Supreme Court of the United States by a writ of error. It then declares that at the December Term of the Supreme Court in the year 1870, that cause came on to be heard and was considered, and that such judgment of the District Court was reversed, with costs, and that such costs were $241.10. It then orders that the cause be remanded to the District Court, with directions to transmit it to the Circuit Court of Monroe county in that State, for further proceedings in conformity to law and justice, and in conformity to the opinion and judgment of the Supreme Court.

There is annexed to this paper a certificate of the clerk of the Supreme Court of the United States to the effect that the paper is a true copy of the mandate issued in the case of the Germania Fire Insurance Company against Francis, No. 82, December Term, 1870.

Such is the only paper upon which the plaintiff seeks to maintain an action against the defendant. It is not, in my judgment, sufficient to support a recovery. It is only upon proof of a judgment record that an action can be maintained to enforce the judgments of the courts of foreign States. There must be evidence of a judicial record showing upon its face jurisdiction of the person of the defendant and of the subject-matter. Here we have simply a mandate, so-called, from the Supreme Court of the United States, which, so far as appeal’s, is of itself not a matter of record, which directs an inferior federal court in the State whose judgment had been transferred by writ of error to the Supreme Court, to take further action in the cause. Instead of obeying this mandate, the plaintiff brings it to the State of New York, and undertakes by an action at law to enforce it as a judgment. It lacks every essential element of a judgment. There is no process or pleading, no proof of service of process, no appearance by the defendant, and there is no judgment; it is simply an order, which, in connection with other judicial proceedings, might form the basis of a judgment. There is a total failure of proof. In the case of Forsyth v. Uamipbell (15 Hun, 235) it was held that, to prove the existence of a judgment, upon which an execution was issued, it was not sufficient to produce in court a certified copy of an order for judgment made by the County Court, directing a reversal of a judgment of a justice of the peace with costs. In that action, on the trial, the plaintiff put in-evidence a certificate under the hand and seal of the clerk of the county, annexed to a paper which was in the usual form of an order for judgment. In respect to the title of the court, names of parties and amount of the judgment, it corresponded with the allegations of the complaint. It recited the fact that an appeal had been brought on for argument, and was argued before the court, and it adjudged and ordered that the judgment of the Justice’s Court, from which the appeal was taken, be reversed, and that the appellant recover twenty-seven dollars and twenty-six cents for his costs and disbursements, and that he have judgment against the defendant for that sum. It was signed hy the deputy clerk. The certificate signed by the clerk was to the effect that he had compared the annexed copy'of a judgment, with the original entered in his office, and that it was a transcript therefrom, and of the whole of said original, in this particular differing entirely from the case now under consideration. Yet, even this paper, the court says, was not a judgment-roll or a judgment, hut was merely a certified copy of an order for a judgment. (See, also, Townsend v. Wesson, 4 Duer, 342; Archer v. Furniss, 4 Redf., 88 ; Burnell v. Weld, 76 N Y, 103 ; Howard v. Smith, 33 Sup. Ct. [1 J. & S.] 124, S. C, 35 id., 131; Sheriff v. Smith, 47 How. Pr., 470; Baker v Kingsland, 10 Paige, 366; Lansing v. Russell, 3 Barb. Ch., 325)

The plaintiff has failed to produce any evidence that he has a judgment of the Supreme Court of the United States or of any court in the State of Mississippi, and, consequently, its complaint was properly dismissed.

Judgment is ordered for the defendant on the nonsuit, with costs.

Daniels, J., concurred.

Brady, J

(dissenting):

This action is based upon an alleged judgment of the Supreme Court of the United States. It has had a somewhat checkered career and is again here for consideration. The complaint has been dismissed for the plaintiff’s supposed failure to prove any cause of action. The defendant’s counsel asked for judgment for his clients for that reason and the request was granted, although the exceptions were ordered to be heard here in the first instance. The demand made by the plaintiff rests upon a mandate issued from the Supreme Court of the United States in the case of the defendant against the plaintiff, and is as follows:

UNITED STATES OP AMERICA, ss.:

The President oe the United States of America.

To the Honorable the Judge of the District Court of the United [l. s.] States for the Northern District of Mississippi ' Greeting :

Whereas, lately in the District Court of the United States for the Northern District of Mississippi, before you, in a cause between John R. Francis, plaintiff, and the Germania Fire Insurance Company, defendant, wherein-the verdict of the jury and the judgment, of the said District Court entered in said cause on the 21st day of June, A. D. 1869, is in the following words, viz.: “ Came the parties by their attorneys, and thereupon came a jury of good and lawful men, to wit, jury No. 1, who, being duly elected, sworn to and charged well and truly to try the issue joined between the parties, oaths, do say they find the issue in favor of the plaintiff, and assess his damages at the sum of twenty-nine hundred and thirty dollars and fifty-eight cents ($2,930.58) damages. It is, therefore, considered by the court that the said plaintiff do recover of the said defendant the said sum by the jury aforesaid assessed, together with his costs herein expended, as by the inspection of the transcripts of the record of the said District Court, which was brought into Supreme Court of the United States by virtue of a writ of error, agreeably to the act of Congress, in such case made and provided, fully and at large appears.

And whereas, in the present term of December, in the year of Our Lord one thousand eight hundred and seventy, the said cause came on to be heard before the said Supreme Court on the said transcript of record, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said District Court in this cause be and the same is hereby reversed, with costs, and that the said defendant recover against the said plaintiff, John R. Francis, two hundred and forty-one dollars and ten cents, for its costs herein expended, and have execution therefor.

And it is further ordered that this cause be and the same is hereby remanded to the said District Court, with directions to transmit it to the Circuit Court of Monroe county, for further proceedings in conformity to law and justice.

6th March, 1871.

You, therefore, are hereby commanded that such execution and further proceedings be had in said cause, in conformity to the opinion and judgment of this court, as according to right and justice and the laws of the United States ought to be had, the said writ of error notwithstanding. -

Witness, the Honorable Salmon P. Chase, Chief Justice of said Supreme Court, the first Monday of December, in the year of our Lord one thousand eight hundred and seventy.

Costs of defendants:

Clerk........... $221 10

Attorney........ 20 00

$241 10

Taxed by D W. Middleton, Clerk of the Supreme Court of the United States.

(True Copy.)

Test. JAMES H. McKENNEY,

Cleric Supreme Court, U. 8.

I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the mandate issued in the case of the Germania Fire Insurance Company v Francis, No. 82, December Term, 1870,

In testimony whereof, I hereunto subscribe my name and affix the seal of said Supreme Court at the city of Washington, the 7th day of May, A. D. 1871.

JAMES H. McKENNEY,

Clerk Sxvpreme Court, U. 8.

The admission of this paper was objected to, but the objection was overruled. It was claimed that it was not duly authenticated, but this was not'maintainable. It conforms to the provisions of the Code on the subject. (Sec. 943.) It was also contended, and, it seems, successfully, that it lacked all the essential elements of a judgment, and was but a mandate only. This is an erroneous view of its character. It is in some respects like our remittitur from the Court of Appeals, which directs this court to execute the judgment pronounced (Code Civil Pro., § 194), but goes farther for the reason that it awards the costs and declares the amount thereof.

It further appears upon examination that the United States Court, upon -consideration of the plaintiff’s appeal, ordered and adjudged that the judgment appealed from be reversed with costs, and that the plaintiff (then defendant) recover against the plaintiff (now defendant) the sum of $241.10 for his costs and have execution therefor, and sent this mandate announcing this judgment. It was sent to the court from the judgment of which the appeal was taken, with directions for that court to transmit the cause to the court of original jurisdiction for further proceedings, and commanded that execution and the further proceedings be had, in the cause in conformity to the opinion and judgment as according to right and justice and the laws of the United States ought to be had, that is to say, that the merits be considered and a judgment pronounced, but not whether the costs should be awarded. They were given absolutely. The laws of the United States in each State provide that a judgment for money may be enforced by action, if duly authenticated and such is the law of this State. The validity of this mandate, though now again questioned, was not doubted on the former argument herein. It was distinctly held to be evidence of a proceeding which created a cause of action for the costs awarded, but the judgment was supposed to have been superseded by other proceedings in the litigations had before Judge Treat. This court said on the motion for a reargument that the appeal was disposed of on the assumption that the judgment was valid and regular. The record now does not present any question which may be predicated of the want of jurisdiction in the United States Court to hear the appeal taken by the plaintiff, and, therefore, the cases affecting such an element do not apply. Here the jurisdiction existed and the power to impose costs in such cases is not to be doubted. The consideration of the exceptions herein, therefore, leads to this conclusion, namely, that if the contention of the defendant be correct, then the plaintiff is limited to his remedy by execution under the mandate and must make his judgment out of property in the State of Mississippi. This cannot be the law. A judgment rendered in a court of competent jurisdiction proceeding according to the course of the common law, and having jurisdiction of the person and subject-matter, may be enforced here if duly authenticated. There is no limit to such a judgment, therefore, as claimed.

The mandate was a judgment for costs, and was absolute, and no reference to any practice has been made showing the necessity of any other proceeding upon it to make it effectual as such. Indeed it cannot be necessary, for the mandate is the guide to the Circuit Court. It is the judgment of the Supreme Court committed to that court. (Sibbald v. The U. S., 12 Peters, 488; United States v. Fossat, 21 How., 445.) The Revised Statutes of the United States (§ 701), cited by the respondent, do not so declare. That section provides that the Supreme Court shall not issue execution' in a cause removed before it from a District Court, but shall send a special mandate to the inferior court to award execution thereon, an order of proceeding rendered necessary only because the execution cannot be issued out of the Supreme Court.

The mandate is not to enter a judgment for costs, and obviously for the reason that one has been already pronounced and exists upon which enforcement by execution is commanded.

This is the extent of the restriction, namely, you shall not issue execution out of the Supreme Court of the United States. It is not deemed necessary, however, to pursue this subject further. It has been judically declared that the plaintiff recover certain costs, and this is a judgment for money to be collected by the general rules governing such claims.

The judgment below is wrong, the exceptions of the plaintiff having been well taken, and there must be a new trial. Ordered accordingly, with costs to the appellant, to abide the event.

Judgment ordered for defendant, with costs.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    BERNARD SEILER, Appellant, v. HENRIETTA W. WILSON, Respondent.

      Practice — what averments in an affidavit, as to the non-residence of defendants, will eonfen' jurisdiction upon the court to make an order for publication.

    The plaintiff refused to accept a title tendered to him by the defendant, alleging as a reason therefor that an affidavit, under which an order was made (in a certain action of foreclosure, affecting such title), directing the service of the summons by publication on certain of the defendants, was so defective as to prevent the court from acquiring jurisdiction to make the order. The affidavit, which was made by the attorney for the plaintiff in that action, stated that the affiant had, in good faith, made diligent search and inquiry for the sa,id defendants, naming them, but that they could not be found within this State, and that he had been unable to make service of the summons upon either of them; that the summons had been issued to the sheriff, who had returned that the said defendants could not be found, and that, as affiant was informed and believed, the said defendants were non-residents of the State, their places of residence being then stated.

      Held, that the facts alleged in the affidavit were sufficient to confer jurisdiction upon the court to make the order, and that the objection to the title was not well taken.

      Kennedy v. The New York Life Insurance and Trust Company (10.1 N. Y., 487) followed: Carleton v. Carleton (85 id., 313); Lockwood v. Brantley (31 Hun, 155); Basierbrook v. Basierbrook (64 Barb, 421) and Bixby v. Smith (3 Hun, 60) distinguished.
    Appeal from a judgment entered upon a verdict directed for the defendant, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Joseph E. Eeviburger, for the appellant.

      Alexander <& Ash, for the respondent.
   Yan Brunt, P. J.:

' The plaintiff brought this action to recover a deposit of $100, received by the defendant as part of the purchase-money, upon an agreement to convey certain premises, and for the expenses incurred in examining the title of said premises, the title tendered being alleged to be bad. A verdict upon the trial was directed for the defendant, to which direction an exception was duly taken. The defect claimed to render the title of the premises in question unmarketable, was in an affidavit and order of publication made in May, 1860, by which the court was claimed to have obtained jurisdiction of certain necessary defendants in a foreclosure suit. The affidavit states that the affiant, attorney for the plaintiff in that action, had, in good faith, made diligent search and inquiry for the said defendants, naming them, but that they could not be found within this State, and that the affiant had been unable to make service of the summons upon either of them. The affidavit further stated that the summons had been issued to the sheriff, and he had returned that said defendants could not be found, and that, as affiant was informed and believes, the said defendants were non-residents of this State, and giving their places of residence. In the order the court certified that it appeared to the satisfaction of the court that the said defendants could not, either of them, after due diligence be found in this State and ordered a service by publication. This order is. claimed to have been made without jurisdiction because the affidavit did not show what effort had been made to serve the papers, the source of information and why the person who gave the information had not made the necessary affidavits, and because the affidavits as to the residence of the defendants, served under the order, was upon information and belief.

Several authorities are cited to support the objections, but none seem to be applicable. In the case of Carleton v. Carleton (85 N. Y., 313) a motion was made' to set aside the service. The affidavit contained only an allegation of non-residence and the court held that such an allegation did not tend to establish that the defendant could not, “ after due diligence, be found within this State.” In Lockwood v. Brantley (31 Hun, 155) a motion was made to set aside service, the only allegation in the affidavit being that the defendant was a non-resident, and that the affiant was informed by one Sterling that ihe defendant was there, a day or two before making the affidavit, which motion was denied. The question in Easterbrook v. Easterbrook (64 Barb., 421) arose upon a similar application, and all that was decided was that a certificate of the sheriff alone is not sufficient. In Bixby v. Smith (3 Hun, 60 ) is recognized a distinction between cases where an order of publication is attacked collaterally, and where it is sought to be set aside directly. The order in that case was attacked collaterally and held invalid because the only allegation was that of non-residence. There are numerous cases where affidavits no stronger than the one in the case at bar, have been held to confer jurisdiction when attacked collaterally, of which it is only necessary to cite one. (Kennedy v. The N. Y. Life Ins. and Trust Co., 101 N. Y., 487.)

No authority has been cited showing that the allegation of non-residence, although upon information and belief, did not confer jurisdiction upon the court. It perhaps would have been more satisfactory to have had a fuller allegation upon this point, but nevertheless the court acquired jurisdiction. In the case of Belmont v. Cornen (82 N. Y., 256), the affidavit of non-residence was upon information and belief and the order was upheld even when directly attacked. It is true that the sources of information were stated but no reason was given for non-production of affidavit of informant. These objections are not therefore well taken. The order was not defective because it was a court order and not made by a judge, as section 135 of the Code of Procedure, under which this application was made, authorized the order to be made by the court or judge. It is not necessary to discuss the question as to whether the court erred in admitting the stipulation as to adverse possession or not, since we have come to the conclusion that no defect m the title was shown, and that the direction of a verdict was correct, entirely independent of the question of adverse possession.

The judgment and order appealed from must be affirmed.

Potter and Lawrence, JJ., concurred.

Judgment and order affirmed.


author: Follett, J.

text:
    Oscar Jennings, as Commissioner of Highways of the Town of Danby, Appellant, v. Frederick E. Bates, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Follett, J.


author: Boardman, J.

text:
    Eliza Cruger, Appellant, v. Richard Wigham, Respondent.
   Order of Special Term in this and five other cases affirmed, with ten dollars costs and disbursements in one case. Opinion by

Boardman, J.


text:
    William H. Dannatt and another, Respondents, v. Norman J. Fuller, Appellant.
   — Judgment affirmed, with costs. Opinion by Boardman, Jdissenting opinion by

Follett, J.


text:
    Frederick E. Welton, Appellant, v. William E Holmes, Respondent.
   — Judgment affirmed, with costs. Opinion by

Follett, J.


author: Hardin, P.J.

text:
    William Crabtree, Respondent v. Richard W. Pritchard, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Hardin, P.J.


text:
    Michael A. MacOwen, Appellant, v. Moses Barney and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Abel C. Benedict and others, Appellants, v. The Seventh Ward Railway Company of Syracuse, Respondent.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Follett, J.


author: Boardman, J.;

text:
    Ellis R. Williams, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   —Judgment and order affirmed, with costs, upon the opinion of Mr. Justice Martin. (39 Hun, 430.) Mem. by

Boardman, J.;

Follett. J., not sitting.


text:
    In the Matter of the Accounting of Stephen S. Otis, as General Guardian of Huldah A. Hall, now Carrie Rohr.
   — Appeal dismissed, with costs, Mem. by

Boardman, J.


author: Harclra, P. J.

text:
    John Wolf, Appellant, v. The Oswego and Onondaga Insurance Company, Respondent
   Judgment affirmed, with costs. Opinion by

Harclra, P. J.


text:
    Sylvanus Hoag, Appellant, v. William C. Wilcox, Respondent.
   — Judgment of the Oneida County Court, reversing a justice’s judgment, reversed, and judgment of the Justices’ Court affirmed, with costs. Opinion by

Boardman, J.


author: Hardin, P. J.;

text:
    Louis Weiler, Respondent, v. John A. Isley, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.;

dissenting opinion by Follett, J.


text:
    Joseph B. Dalrymple, Appellant. v. The City of Oswego, Respondent.
   — Judgment affirmed, with costs. Opinion by

Hardin, P. J.;

mem. by Follett, J.


text:
    The Village of Carthage, Respondent, v. Carlos L. Frederick, Appellant.
   — Judgment of the County Court of Jefferson county, affirming the judgment of the police justice, affirmed, with costs, upon the opinion of Judge Watts, delivered in the County Court.


text:
    Arthur Horr, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.
   Judgmcnl and order affirmed, with costs. Opinion by

Follett, J.


author: Hardin, P. O.

text:
    Martin Lally, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Hardin, P. O.


text:
    Herman A. Carmer, as Receiver, etc., Respondent, v. William J. Mantanye and others, Appellants.
   Interlocutory judgment affirmed, with costs, on opinion of Merwin J., delivered at Special Term; leave given to defendants to withdraw their demurrers and answer within twenty days, upon payment of costs of their demurrers and of this appeal.


text:
    Mary E. Locklin, Respondent, v. Clinton Beckwith and another, Appellants.
   — Judgment affirmed, with costs. Opinion hy

Follett, J.


text:
    John N. Holmes and another, Respondents, v. Charles Dix, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    B. Whitman Williams, as Executor, etc., Respondent, v. Charles F. Green, Appellant.
   Order affirmed, with ten dollars costs and dis bursements.


text:
    Benjamin L. Higgins and another, Respondents, v. Frank G. Burdick, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Edwin M. Harris and another v. George Clark, Impleaded, etc.
   — Order affirmed, with ten dollars costs and disbursements in one case.

Hardin, P. J., not sitting.


text:
    Thomas N. Williams, Appellant, v. Caroline Hart Merriam, Respondent.
   — Judgment affirmed, with costs.


text:
    Giles Everson and others, Respondents, v. The Syracuse Iron Works and others, Appellants.
   Order modified, without costs to either party.


text:
    Oscar T. Hall, Respondent, v. John R. Stannard and another, Appellants.
   — Judgment and order affirmed, with costs.


text:
    Joseph E. West, Administrator, etc., v. George A. Reynolds and others.
   — Motion for leave to appeal to the Court of Appeals denied.


text:
    Jacob Kent, Respondent, v. Jacob Crouse, Appellant.
   — Motion for leave to go to the Court of Appeals denied.


author: Barker, J.

text:
    Emma S. Gordon, Respondent, v. George W. Barney and others, Executors, etc., Appellants.
   — Judgment reversed and new trial granted before another referee, costs to abide the event. -Opinion by

Barker, J.


author: Haight, J.;

text:
    Eugene B. Palmer, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order reversed and new trial ordered, costs to abide event. .Opinion by

Haight, J.;

Smith, P. J., taking no part.


text:
    John M. Harding and others, Respondents, v Delevan Stevens and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Bradley and Childs, JJ., not sitting.


author: Angle J.;

text:
    Westel W. Blake, Appellant, v. Hardin P. Herrick, Respondent.
   — Judgment and order affirmed. Opinion by

Angle J.;

Haight J., not sitting.


author: Smith. P. J.

text:
    Holmes, Booth & Hayden, Respondents, v. James Rogers, Appellant.
   — Judgment affirmed. Opinion by

Smith. P. J.


text:
    Benjamin Grimes, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.
   Judgment and order affirmed.


text:
    Adelaide L. Harrington and others, Respondents, v. The Hanover Fire Insurance Company of New York, Appellant.
   — Judgment of the County Court affirmed. Opinion by

Barker, J.


author: Smith, P. J.

text:
    Charles Huggins, Appellant, v. The Village of Salamanca, Respondent.
   — Judgment reversed, and new trial ordered, costs to abide event, Opinion by

Smith, P. J.


author: Barber, J.

text:
    Louis M. Walters, Appellant, v. Mrs. C. A. Kenyon. Respondent.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Barber, J.


text:
    John Boyer, Administrator, etc., Appellant, v. Henry S. Marshall and others, Respondents.
   Decree affirmed, so far as it finds a balance in Marshall’s hands of $54.02, and orders him to pay to Miller $47.61, and that it he so modified as to provide that the amount to be paid by him to Miller for his costs shall be the balance of assets in Marshall’s hands, to wit, $6.41; and in all other respects the decree is reversed, without costs of this appeal to either party. Opinion by

Smith, P. J.


text:
    Charles P. Hurlburt, Appellant, v. Walter D. Parker and another, Respondents.
   — Order affirmed. Opinion by

Barker, J.


text:
    Calvin P. Brown, Assignee, etc., Respondent, v. Benjamin F. Pease, Appellant.
   — Judgment affirmed. Opinion by

Smith, P. J.


author: Per Curiam

text:
    John J. Kenyon, Appellant, v. Arvid M. Bennett, Respondent.
   — Judgment of the County Court reversed, and that of the justice affirmed.

Per Curiam

opinion filed with the clerk.


text:
    Arvid M. Bennett, Respondent, v. John J. Kenyon, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


text:
    Seward A. Simons, Respondent and Appellant, v. Hobart Mirl Thatcher and another, Appellant and Respondent.
   — Order affirmed, with ten dollars costs and disbursements. Plaintiff’s appeal in same case dismissed, without costs.

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


text:
    The First Presbyterian Society of Lewiston, Respondent, v. Charles R. Ayer, Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    William Keeler, Respondent, v. Maria Dennis, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


text:
    Irving C. Hall, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   — Judgment affirmed on the opinion of the county judge.


text:
    Elijah R. Schoonmaker, Respondent, v. Frank W. Bonnie and others, Appellants.
   — Judgment as to appellants, Mrs. Frank Bonnie ana Mrs. Robert P. Bonnie, reversed, with costs, and as to Frank W. Bonnie and Robert P. Bonnie, judgment reversed and new trial granted before another referee, costs to abide event, unless the plaintiff stipulates within thirty days that the judgment may be modified, by striking out the provision requiring the defendants, Frank W. and Robert P. Bonnie, to procure a release of the inchoate right of dower of their respective wives. If such stipulation is made, then that the judgment be so modified and, as so modified, affirmed, without costs to either party. Judgment to be settled by Barker, J., unless agreed upon. Opinion by

Barker, J.


text:
    James H. Hooker, Respondent, v. The City of Rochester, Appellant.
   — Judgment affirmed on authority of Hooker v. The City of Rochester (37 Hun, 181).


text:
    Abram L. Walker, Appellant, v. William O. Leland and another, Respondents
   — Judgment modified by striking out the words, “on the merits,” and, as so modified, affirmed, with costs. Opinion by

Smith, P. J.; Haight, J., not voting.


text:
    Julius S. Chase, Respondent, v. Ruth C. Farnsworth and others, Appellants.
   — Order affirmed, with ten dollars costs and disbursements. Held, that the plaintiff was not stayed by reason of non-payment of the costs, allowed by the order of July 28, 1886; that the order was served by mail, and the plaintiff, consequently, had twenty days in which to pay the costs, and that time had- not expired when the order was made. Also held, that the order is not a bar to the granting of the order appealed from.


text:
    The People of the State of New York, Respondent, v. Frederick L. Webb, Appellant.
   — Judgment affirmed.


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

Smith, P. J.


text:
    Edward N. Yerxa, Respondent, v. Peter Weller and others, Appellants.
   — Order affirmed


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railway Company, Appellant, to Acquire Lands of Harriet A. Bennett, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.

Haight and Bradley, JJ., not sitting.


author: Bradley, J.

text:
    George Penschl and others, Appellants, v. William F. Wendt, Respondent.
   — Order modified by deducting fifty dollars from the amount awarded to defendant, and as so modified affirmed, without costs of this appeal to either party. Opinion by

Bradley, J.


text:
    Dwight B. Cowles, Appellant, v. Frederick P. Michel, Respondent.
   — Judgment affirmed. Opinion by

Bradley, J.


text:
    Mary Reynale, Respondent, v. Henry T. Harrison, Appellant.
   — Judgment and order affirmed. Opinion by

Bradley, J.


text:
    William A. Ferguson, Plaintiff, v. The Fall Brook Coal Company, Defendant
   —Motion for new trial denied, and judgment ordered for the defendant on the non-suit. Opinion by

Angle J.;

Bradley, J., taking no part.


text:
    William Donnelly, Respondent, v. Sarah B. Christie, as Administratrix, etc., Appellant.
   Judgment affirmed.


author: Angle, J.

text:
    Charles J. Boehme, Respondent, v. Morris Michael, Appellant.
   — Judgment reversed, and new trial ordered before another referee, costs to abide event. Opinion by

Angle, J.


author: Bradley, J.;

text:
    William C. Barker, Appellant, v. Antoinette Gillett, Respondent.
   — Judgment affirmed. Opinion by

Bradley, J.;

Childs, J., not sitting.


author: Haight, J.

text:
    Frank Landers, Respondent, v. The Watertown Fire Insurance Company, Appellant.
   — Judg- • ment and order affirmed. Opinion by

Haight, J.


author: Bradley, J. ,

text:
    George F. Rogers, Respondent, v. James W. Rogers, Appellant.
   — Judgment affirmed. Opinion by

Bradley, J. ,


author: Childs, J.

text:
    Charlotte M. Smith, Respondent, v. The Agricultural Insurance Company, Appellant.
   — Judgment and order affirmed. Opinion by

Childs, J.


text:
    The People of the State of New York ex rel. David Cronk, v. Dwight Weld, Commissioner of Highways, etc.
   — Proceedings confirmed and writ dismissed, with fifty dollars costs. Opinion by

Haight, J.


text:
    Jonathan B. West, Appellant, v. The Conesus Lake Salt and Mining Company, Limited, Respondent.
   — Judgment and order affirmed. Opinion by

Bradley, J.


text:
    William Barnett, Appellant, v. Dan. E. Linsley, Respondent
   — Judgment and order affirmed. Opinion by

Childs, J.


author: Childs J., not sitting.

text:
    Lorenzo J. Bovee and others, Respondents, v. Robert C. Lowry, Appellant, Impleaded, etc.
   —Judgment affirmed, on the opinion of the referee.

Childs J., not sitting.


author: Bradley, J. Haight and Angle, JJ., Childs, J., not sitting.

text:
    Ella A. Sabin, Respondent, v. The Grand Lodge of the A. O. U. W., Appellant.
   — Judgment reversed, and new trial ordered before another referee, costs of this appeal to abide the final award of costs. Opinion by

Bradley, J. Haight and Angle, JJ.,

concur upon the last ground stated in the opinion, without expressing any opinion upon the preceding one discussed therein.

Childs, J., not sitting.


text:
    Ignatz Thalheimer, Appellant, v. Ferdinand Hays and others, Respondents.
   -Order reversed, with ten dollars costs and disbursements, and motion remitted to the Monroe Special Term to proceed thereon. Opinion by

Angle, J.


text:
    Abram T. Kerr and others, Respondents, v. Zacharias Dildine, Appellant. Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements, and motion to vacate injunction granted. Opinion by

Bradley, J. Haight, J., not sitting.


text:
    Thurlow W. Abell and others, Respondents, v. Alonzo Bradner, Individually and as Assignee, and others, Appellants.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    James J. W. Dawley, Appellant, v. John P. Brown, Respondent.
   — Judgment reversed and new trial ordered, costs to abide event. Opinion by

Haight, J.;

Lewis, J., not sitting.


author: Lewis, J.;

text:
    The People of the State of New York, Respondant, v. David C. Jones, Appellant.
   Judgment affirmed, and proceedings remitted to the Court of Sessions, of Erie County to proceed thereon. Opinion by

Lewis, J.;

Bradley, J., not voting.


text:
    Mary A. Goo, Appellant, v. Ruth A. Gilmore, Respondent.
   — Judgment 'affirmed, on the opinion of the referee.


text:
    Carrie Breakey, Appellant, v. James W. Breakey, Respondent.
   — Judgment and order affirmed, without costs. Opinion by

Haight, J.


text:
    William Burke, Appellant, v. John Quinn, Respondent.
   Judgment affirmed.


text:
    Crooked Lake Navigation Company, Respondents, v. The Keuka Navigation Company, Appellants.
   —Judgment affirmed. Opinion by

Haight, J.


text:
    Philena Read, Respondent, v. Melville Farrar, Appellant.
   — Judgment affirmed. Opinion by

Bradley, J.


author: Lewis, J.

text:
    Emma Casey, as administratrix, etc., Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
   — Motion for a new trial denied, and judgment ordered for defendants on the nonsuit. Opinion by

Lewis, J.


text:
    Philip Garbutt, Appellant, v. John W. Garbutt, Respondent.
   — Judgment and order affirmed, with costs. Opinion by

Bradley, J.


text:
    James R. Wilson, Respondent, v. Richard Attridge, Appellant.
   — Judgment affirmed. Opinion by

Lewis, J.


text:
    Margaret Coyle, Respondent, v. Charles Nies, Appellant.
   — Judgment and order affirmed. Opinion by

Bradley, J.;

Lewis, J., not sitting.


text:
    Samuel Holman, Respondent, v. Daniel Randall, Appellant.
   — Judgment and order affirmed. Opinion by

Lewis, J.


text:
    Amos H. Cobb, and others, Respondents, v. Jessie B. Hannan, Appellant.
   —Interlocutory judgment affirmed, with costs, on the opinion of Dwight, J., at Special Term, with leave to withdraw demurrer in twenty days and answer the complaint, on payment of the costs of the demurrer and of this appeal.


text:
    Mavor Martin, Respondent, v. Milton Brown, Appellant.
   — Motion for leave to appeal to the Court of Appeals denied.


text:
    Henry R. Granger v. Electa M. Granger.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Hudson T. Baker, as administrator, etc., v. The Rochester City and Brighton R. R. Co.
   Motion for reargument denied.


text:
    Emily J. Smith v. Jeremiah B. Rogers.
   — Motion for reargument denied, leave to ai>peal to the Court or Appeals granted.


text:
    The Buffalo Lubricating Oil Co., limited, v. The Standard Oil Company.
   — Motion for leave to appeal to the Court of Appeals granted.


text:
    The Buffalo Lubricating Oil Co., limited, v. The Acme Oil Company.
   — Motion for leave to appeal to the Court of Appeals granted.


text:
    The People of the State of New York v. Lorenzo Dimick.
   — Motion for reargument to resettle case denied; motion for reargument of the appeal denied; motion to amend decision in such manner as is required to permit an appeal to the Court of Appeals, ana to be there heard, granted.


text:
    Charles Mather, Respondent, v. B. Perley Freelove, Appellant.
   — Motion for leave to appeal to the Court of Appeals denied.


text:
    Micajah W. Jackson v. The City of Rochester.
   —Motion for leave to appeal to the Court of Appeals granted.


text:
    John M. Burkhardt v. James Babcock.
   — Motion for reargument denied.


text:
    James Silvey v. William W. Lindsay and others.
   — Leave to appeal to the Court of Appeals granted.


author: Macomber and Daniels, JJ.

text:
    David Stewart, Respondent, v. Collis P. Huntington, Appellant.
   —Judgment reversed, new trial ordered, costs to abide event Opinions by

Macomber and Daniels, JJ.


text:
    William H. Hussey, Respondent, v. Weeks D. Cornwall, Appellant.
   — Reargument ordered.


author: Per Curiam.

text:
    Mary M. Watson, Appellant, v. John D. Phyfe and another, Respondents.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion

Per Curiam.


text:
    Mary E. Shaw, Appellant, v. George Evans, Respondent. Daniel A. Shaw, Appellant, v. George Evans, Respondent.
   — Order modified by requiring the plaintiffs to serve a hill of particulars stating the nature and character of Mrs. Shaw’s alleged injuries and sickness alleged to have resulted from the dental operation mentioned in the complaint, and as so modified, affirmed without costs to either party.


text:
    Cyrenius G. Fitzgerald, Appellant, v. George Turnbull and another, Respondents.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


author: Potter, J.

text:
    David Levy and another, Appellants, v. Robert Salomon,, Respondent. Lewis Newgrass v. The Same. Julius Beer v. The Same. Feorlan Miranda v. The Same.
   — Order affirmed, with ten dollars costs and disbursements in one case on opinion of

Potter, J.


text:
    Mosher A. Southerland, Respondent, v. George W. Mead, Appellant.
   Orcler affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


author: Mr. Justice Barrett.

text:
    Rosalie Adele Oakley, Respondent, v. Oliver L. Jones and another, as Executors, etc., Appellants.
   — Order affirmed,, with ten dollars costs and disbursements, for the reason slated in the memorandum of

Mr. Justice Barrett.


text:
    Harrison R. Johnston, Respondent, v. Thomas F. Donvan, and another, Appellants.
   — Order affirmed, with ton dollars costs and disbursements. Opinion

Per Curiam.


text:
    Harvey T. Cleveland, Appellant, v. William J. Gessner, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    John Todd, as Assignee, v. Ferdinand A. Marsily, Impleaded, etc.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Joseph Shackleton, Respondent, v. The Wainwright Manufacturing Company, Appellant.
   Order affirmed, with, ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Mark R. Wendell, Appellant, v. Anton Reeves, Respondent.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


author: Van Brunt, P. J.

text:
    Albert P. Stewart, Plaintiff, v. John W. Fleck, and others. Defendants.
   — Order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Catharine Mendel, Respondent, v. Morris Mendel, Appellant.
   — Order reversed, without costs. Opinion

Per Curiam.


text:
    Edmund F. Holbrook, and another, Respondents, v. Cornelia Anthony, and others, Appellants.
   — Judgment affirmed. Opinion

Per Curiam.


text:
    In the Matter of Benjamin H. Kendricks.
   Order affirmed, with costs and disbursements. Opinion

Per Curiam.


text:
    Charles W. Watson, Respondent, v. Broadway and Seventh Avenue Railroad Company, Appellant.
   — Judgment affirmed, with costs. Opinion

Per Curiam.


author: Brady, J.

text:
    Frank L. Tapscott, Respondent, v. Del’Orme Knowlton, and others, Appellants.
   — Order reversed, with ten dollars costs and disburse» ments. Opinion by

Brady, J.


text:
    Silver King Mining Company, Respondent, v. Del’Orme Knowlton, and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    In the Matter of Robert Soutter, Deceased.
   Order affirmed, with costs and disbursements. Opinion

Per Curiam.


text:
    In the Matter of Bernard McKenna, Appellant.
   Order modified by limiting the period of inquiry to five years preceding the date of the entry of the amendatory order appealed from herein, without prejudice to an application on behalf ol’ Mr. Me Kenna for a commission to Ireland, to take testimony as to his state of mind for the period allowed by the order to be entered hereon, and as modified, affirmed without costs.


text:
    West Philadelphia Bank, Appellant, v. Allston Gerry, Respondent, Impleaded, etc.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Farmers’ Loan and Trust Company, Appellant, v. Bankers and Merchants’ Telegraph Company, and others.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Hong Kong and Shanghai Banking Corporation, Respondent, v. William B. Cooper, Appellant.
   — Order modified as directed in opinion, and affirmed as modified, wilhous costs. Opinion

Per Curiam.


text:
    Carl L. Recknagel, Appellant, v. Pedro Le Cocq, Respondent.
   — Judgment reversed, new trial ordered, with costs to appellant, to abide event. Opinion

Per Curiam.


author: Per Cunam.

text:
    James M. Smith, Appellant, v. Elizabeth Van Antwerp, Respondent.
   — Judgment affirmed, with costs. Opinion

Per Cunam.


text:
    Michael Curry, Respondent, v. Michael Redmond, Appellant.
   — Judgment affirmed.


text:
    Rudolph Deimel, Appellant, v. Marshall Field, Respondent.
   — Order reversed, with ten dollars costs and disbursements to appellant, to abide event; and motion remitted to Special Term, to be heard on the merits.


text:
    Benjamin Foster, Appellant, v. Indianapolis, Cincinnati and Lafayette Railroad Company.
   Order affirmed, with ten dollars costs and disbursements


text:
    William H. Stallcup, Respondent, v. National Park Bank, Appellant.
   Judgment reversed, new trial ordered, costs to appellant, to abide event. Opinion by

Van Brunt, P. J.


text:
    Matthias Aalholm, v. The People of the State of New York.
   — Motion denied, with leave to renew on compliance with suggestions contained in opinion. Opinion

Per Curiam.


text:
    William H. Ricketts, Appellant, v. Daniel T. Wilson, Respondent.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    Louis Greenhut, Assignee, Respondent, v. Leo Pinner and others, Appellants.
   — Order affirmed, witb ten dollars costs and disbursements.


text:
    William W. Thomas and another, Respondents, v. Mutual Reserve Fund Life Association, Appellant.
   — Order reversed, with costs to abide event, and order made changing place of trial, unless within twenty days after service of notice of order, to be entered hereon, the plaintiffs stipulate that the evidence of such witnesses as the defendant may desire to take in the county of Wyoming shall be so taken before a referee to be selected by the parties, or, if they cannot agree, to be appointed by the court, and that such evidence be read on the trial with the same effect as though the witnesses were present, and in case such stipulation be given, order affirmed, with costs to abide event. Opinion

Per Curiam.


text:
    Wallace P. Birdsall and others, Appellants, v. Wellington B. Searls and another, Respondents.
   — Order modified as directed m opinion, with costs to abide the event. Opinion

Per Curiam.


text:
    George K. Dauchy, Respondent, v. James C. French, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of John B. Page.
   Motion for re-argument denied. Mem.

Per Curiam.


text:
    The People of the State of New York ex rel. John Nugent v. Board of Police Commissioners.
   — Motion to modify order heretofore granted in this proceeding denied, and appeal dismissed unless the case be submitted within ten days.


text:
    In the Matter of Sarah Hart.
   — Motion denied.


text:
    Theodore L. Tomlinson v. Samuel A. Nolan and another.
   — Motion denied, with ten dollars costs.


text:
    Charles A. Zoebisch, v. Elizabeth J. Van Minden.
   — Motion denied, without prejudice to the right to renew.


text:
    Ebenezer P. Johnson, as Executor, etc., v. Ann M. B. Halsey, as Executrix, etc.
   — Order reversed, and order to be entered allowing defendant to serve amended answer containing defense of the statute of limitations within twenty days after service of notice of order, and upon payment of costs since service of original answer and costs of opposing the motion, costs of this appeal to abide event.


text:
    Isaac Untermeyer and another, Respondents, v. Alfred J. Beinhauer, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Virginia Terres, Respondent, v. William H. Hegeman, Appellant.
   — Order affirmed, with liberty to defendant to answer within twenty days after service of copy of order to be entered hereon on payment of costs of demurrer.


text:
    Maria Hallan and another v. Gustavus J. Chirong.
   — Order affirmed, without costs.


author: Lawrence, J.

text:
    George W. Van Siclen v. Charles Rayhen.
   Order affirmed, with ten dollars costs and disbursements, to abide event, on opinion of

Lawrence, J.


text:
    George Worthington, Respondent, v. Daniel H. Dorsett, Appellant
   —Order reversed, with ten dollars costs and disbursements, and the paper purporting to be an attachment vacated.


text:
    Perrin H. Sumner, Respondent, v. George R. Alexander, Appellant.
   — Order reversed and clerk’s taxation affirmed, without costs.


text:
    Cornelius W. H. Elting, Respondent, v. Charles W. Dayton, Appellant.
   Motion for reargument denied.


text:
    Nathaniel Hooper v. C. McC. Beecher and others.
   — Motion for reargumem, granted.


text:
    George C. Genet, Appellant, v. Mary M. Hunt. Respondent.
   — Motion for reargnmont denied,


text:
    Philip Deobold v. Frederick Opperman.
   — Motion granted.


text:
    Martha W. Leach v. James A. Flack.
   — Motion for realignment denied.


text:
    James Scott and others, Respondents, v. Alexander Reed, Appellant.
   — Motion for reargument denied’.


author: Landon, J.

text:
    John Spickerman, Respondent, v. Adam McChesney, Appellant.
   — Judgment affirmed, with costs. Opinion by

Landon, J.


author: Learned, P. J.

text:
    Moses Y. Wells, Appellant, v. Village of Hermon, Respondent.
   — Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    In the Matter of the Will of Clara B. Hopkins, deceased.
   — Decree affirmed, with costs. Opinion by

Landon, J., and by Bockes, J., dissenting.


author: Learned, P. J.;

text:
    Charles Horton, Respondent, v. Frank X. Weireter, Appellant.
   — Judgment and order affirmed, with costs. Opinion oy

Learned, P. J.;

mem. by Landon, J., dissenting.


author: Landon, J.;

text:
    Mark T. Dunning, Appellant, v. Edwin R. Northrup and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Landon, J.;

Bockes, J., not voting


text:
    John Quackenbush, Plaintiff, v. Henry Quackenbush and others, Defendants.
   — Motion to go to the Court of Appeals denied.


text:
    Application of Carlos B. Conant for Removal of Patrick Grogan, Police Magistrate.
   — Charges dismissed. Opinion by

Learned, P. J.


text:
    John M. Bouck, Appellant, v. George M. Gleason, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    William Smith, Respondent, v. John Stewart, Appellant.
   — Judgment of County Court affirmed, with costs.

Mayham, J., not acting.


text:
    The People of the State of New York, v. Michael Kurtz.
   — Motion for reargument denied. Opinion by

Learned, P. J.


text:
    Robert Boocock, Appellant, v. William Cochran, Respondent.
   — Judgment affirmed, with costs.


text:
    Joseph Engleman, Plaintiff, v. Adolph Langhorst, Defendant.
   — Judgmentordered on verdict for plaintiff, with costs. Opinion by

Learned, P. J.


text:
    John E. Van Etten, Plaintiff, v. Jonathan Hasbrouck, Defendant.
   — Motion for reargument denied. Mem. by

Learned, P. J.


text:
    In the Matter of County Treasurers and Companies.
   — Order that secretaries and treasurers, who have not filed reports, as required by section 753 of Code and rules 69 and 70, do so forthwith or show cause March 8, 1887, at adjourned General Term, why they should not be punished.


author: Dykman, J.

text:
    Joseph Upper, Appellant, v. Calvin Scripture, Respondent.
   — Judgmentaffirmed, with costs. Opinion by

Dykman, J.


author: Pratt, J.

text:
    John A. McGillivray, Appellant, v. The Standard Oil Company, Respondents.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


author: Dykman, J.;

text:
    Augustus R. Griffin, Receiver, etc., Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, -with costs. Opinion by

Dykman, J.;

Barnard, P, J. not sitting.


author: Dykman, J,

text:
    Joseph Upper, Appellant, v. Calvin Scripture, Respondent.
   — Order refusing motion to set aside report affirmed, with costs. Opinion by

Dykman, J,


text:
    Alfred C. Cheeney, v. Henry J. Gortsckins.
   Appeal withdrawn.


author: Barnard, P. J.

text:
    Matter of application of Staten Island Rapid Transit Company, R. R. Co.
   — Order confirmingreport of commissioners affirmed, with costs ana disbursements. Opinion by

Barnard, P. J.


text:
    National City Bank of Brooklyn, Respondent, v. Robert L. Wescott, President etc., Appellant.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.


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

text:
    Patrick McDonald, Respondent, v. The Long Island Railroad Company, Appellant.
   — Judgment affirmed, with costs. Opinions by

Barnard, P J., and Pratt, J.


text:
    Mary Dillon, Appellant, v. Michael McMahon and others, Respondents.
   — Judgment dismissing complaint reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Merritt E. Sawyer, Appellant, v. Thomas J. Wayne and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Pratt, J.;

text:
    Emma Aldrich, Appellant, v. Frederick Schrader, Jr., and another, Respondents.
   — Judgment ana order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Stephen B. Alley, Respondent, v. Emily Conover and others, appellants.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    William L. Post, Respondent, v. George G. Horning and others, Appellants.
   — Order sustaining complaint on demurrer and judgment thereon affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Michael S. Shanley, Appellant, v. The Village of Port Chester, Respondent.
   — Order gi anting new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    William O. Jackson, Plaintiff, v. Albert Daggett, Defendant.
   — Motion denied, with ten dollars costs. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. The Church of the Holy Communion v. Assessors, etc., of Greenburgh.
   — Motion to dismiss writ of 'certiorari granted, with ten dollars costs. Opinion by

Dykman, J.


text:
    Patrick Reilly, Appellant, v. John E. Murray and others, Respondents.
   Order dismissing appeal and refusing amendments affirmed, with costs. Opinion by

Pratt, J.


author: Barnard, P, J.;

text:
    Robert W. Darrow, Plaintiff, v. Isaac O. Horton, Defendant.
   — Order reversed and motion ranted, with costs and disbursements. Opinion y

Barnard, P, J.;

Pratt, J., not Sitting


author: Barnard, P. J.;

text:
    Joseph D. Bennett, Respondent, v. Hepzibah W. Churchill, Appellant.
   — Order affirmed, with costs. 0 pinion by

Barnard, P. J.;

Dykman,J., dissenting.


text:
    Julia A. Barlow, Appellant, v. The First National Bank of Sing Sing, Respondent.
   — Order reversed, with costs and disbursements, and motion denied. Opinion by

Barnard, P. J.;

Dykman, J'., not sitting.


author: Barnard, P J.

text:
    The People of the State of New York ex rel. Bradish v Assessors of Flushing.
   Motion to appeal to Court of Appeals granted. Opinion by

Barnard, P J.


text:
    The Chester Rolling Mills, Appellant, v. The Vessels, The Hopatcong and Musconetcong, their Tackle, Apparel, etc., Respondents.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    William O. Fausten, Respondent, v. Augusta E. Weishar, Appellant.
   — Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Elizabeth J. Osborne, Respondent, v. The New York Mutual Insurance Company, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


author: Dykrnan, J.;

text:
    Rozell and others v. Eliza Andrews.
   Restitution with ten dollars costs. Opinion by

Dykrnan, J.;

Barnard, P. J., not sitting.


text:
    The People of the State of New York ex rel. James W. Slaight v. Jefferson Patten, Appellant.
   — Order reversed, with costs and disbursements, and motion denied. Opinion by

Barnard, P. J.;

Pratt, J., dissenting.


text:
    Warren R. Dix, Administrator, etc., Appellant, v. James W. Hozier, Respondent.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykrnan, J.

text:
    W. W. Rope and others, Respondents, v. Eva Hess, Appellant, Impleaded, etc.
   — Judgment affirmed,, with costs. Opinion by

Dykrnan, J.


author: Pratt, J.*

text:
    Clara Phillips, Respondent, v. The Town of Fishkill Appellant.
   Judgment and order denying n w trial affirmed, with costs. Opinion by

Pratt, J.*

Barnard, P. J., not sitting.


text:
    Aaron H. Detjen, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   —Judgment and order denyingnew trial. affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    Aaron H. Detjen, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   — Order denying new trial for newly discovered evidence and for misconduct of the jury, affirmed with costs. Opinion by

Barnard, P. J.


text:
    The People of the State of New York, Respondent, v. Charles T. Seaman, Appellant.
   — Conviction and judgment affirmed. Opinion by

Pratt, J.;

Dykrnan, J., dissenting.


text:
    Russell Wight, Respondent, v. James G. Bennett, Appellant.
   — Order refusing to set aside judgment affirmed, with costs. Opinion by

Dykrnan, J.;

Barnard, P. J., dissenting.


text:
    Alice R Symons, Plaintiff, v. William Symons, Defendant.
   — Order refusing to vacate attachment affirmed, with ten dollars costs and disbursements. Opinion by

Dykrnan, J.


text:
    John H. Smith, Respondent, v. John Satterlee and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykrnan, J.


author: Barnard, P. J ;

text:
    Hugh Webster, Appellant, v. Hugo Hirsch, Respondent.
   — Judgment and order denying new trial affirmed, with costs. Opinion hy

Barnard, P. J ;

Pratt, J., not sitting.


text:
    Theodore H. Vetterlein, Appellant, v. Demas Barnes, Respondent.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., dissenting.


text:
    Trustees of the Town of Brookhaven, Appellants, v. Egbert T. Smith and others, Respondents.
   Judgment affirmed, with costs Opinion by

Barnard, P. J.


text:
    John Klinck, Respondent, v. Stephen J. Burrows, Appellant.
   — Judgment of County Court affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Ira T Curtis, Appellant, v. Manning F. Crane, Respondent.
   — Judgment and order denying new trial affirmed, with costs. Opinion hy

Dykrnan, J.


author: Pratt., J.

text:
    Thomas Fay, Respondent, v. Thomas W. Willets, Appellant.
   — Judgment of County Court affirmed, with costs. Opinion by

Pratt., J.


text:
    Louise Zimmerman and others, Appellants, v. George Kinkel and others, Respondents.
   Order sustaining demurrer to complaint and judgment thereon and order denying reargument reversed, and demurrer overruled, with costs, with leave to defendant to answer. Opinion by

Barnard, P. J.


text:
    Emma Sprout, Appellant, v Franklin Newman, Jr., Respondent.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


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

text:
    Frederick Ingraham, as Receiver, Appellant, v. The East River Gas-Light Company, Respondent.
   — Judgment modified by deducting $1.-135.31 as of date of its entry, and affirmed as modified, without costs of appeal. Opinions by

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


author: Barnard P. J.;

text:
    Maria L. Hood, Plaintiff, v. Frederick Hood, Defendant.
   Order sustaining demurrer to complaint and judgment thereon reversed, and demurrer overruled, with costs; defendant to have leave to answer in twenty days. Opinion by

Barnard P. J.;

Dykrnan, J., not sitting.


text:
    The People of the State of New York, Respondent, v. Samuel G. Storm, Appellant.
   Reargument ordered.


text:
    John L. Collyer, Respondent, v. George B. Collyer, Executor, etc , Appellant.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykrnan, J., not sitting.


text:
    Anton Schwarz, Appellant, v. Louise Weber, Administratrix, etc., Respondent.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Henry Segelke, Appellant, v. Robert Finan, Respondent.
   Judgment of County Court reversed, and new trial granted in County Court, costs to abide event. Opiniou by

Dykrnan, J.


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

text:
    William Biggs, Respondent, v. Thomas J. Brosnan and another, Appellants.
   — Judgment and order denying new trial affirmed, with costs. Opinions by

Barnard, P. J, and Pratt, J.


text:
    John W. Masury, Appellant, v. William H. Whiton, Executor, etc., Respondent.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., writing opinion for a modification of judgment.


text:
    James S. Baker, Respondent, v. William H. Secor, Appellant.
   — Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Dykrnan, J.;

Barnard, P. J., not sitting.


text:
    William H. Brown, Respondent, v. The Atlantic Avenue Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Dykrnan, J., dissenting.


author: Justice Dykrnan;

text:
    Ernest G. W. Woerz, Respondent, v. Richard Radermacher, Appellant.
   — Judgment affirmed, with costs Opinion by

Justice Dykrnan;

Barnard, P. J., not sitting.


text:
    Mary E. Jones, Appellant, v. Lillian L. Jones and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Dykrnan, J.


text:
    Karl Oberle, Respondent, v. Bushwick Avenue Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Dykrnan, J., dissenting.


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

text:
    Sarah J. Hamill, Respondent. v. Lewis Roberts and others, Appellants and Respondents.
   Judgment affirmed, with costs. Opinions by

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

Dykrnan, J.,not sitting.


text:
    Russell Brusie, Appellant, v. Peck Brothers & Co., Respondents.
   — Order affirmed, with costs and disbursements. Opinion by

Dykrnan, J.


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

text:
    Thomas Theall and others, Appellants, v. William C. Cowper and others, Respondents.
   Judgment affirmed, with costs. Opinions by

Barnard P. J., and Dykrnan, J.


author: Pratt, J.

text:
    Ann Barnes and others, Respondents, v. Arthur O’Leary, Appellant.
   — Judgment ana order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Cornelia C. Lent, Plaintiff, v. Isaac T. Montross, Defendant.
   — Order appointing receiver affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    William A. Owens, Plaintiff, v. Anthony Kling, Defendant.
   — Judgment reversed, and new trial granted, costs to abide event. Opinion by

Pratt, J.


text:
    Alfred B. Leckenby, Appellant, v Hiram Sibley and others. Respondents.
   — Judgment modified by striking out the words “on the merits,* and as so modified, affirmed without costs of this appeal to either party. Held that there was no co-partnership between the parties shown, and that the plaintiff’s remedy, if any is by action at law.

Smith, P. J., not voting.


author: Smith, P. J.;

text:
    Cornelia R. Ganiard, Respondent, v. The Rochester City and Brighton Railroad Company, Appellant.
   — Judgment reversed and new trial ordered, costs to abide event. Opinion by

Smith, P. J.;

Barker, J., dissenting ; Haight, J., not voting


author: Smithy P. J

text:
    Lewis Sanders, Respondent, v. Agnes R. Rheubottom, Appellant.
   — Orders appealed from, affirmed with ten dollars costs of one appeal only, and disbursements in each Opinion by

Smithy P. J


text:
    Peter Miller and another, Appellants, v. Charles Richardson, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.


author: Barker, J.

text:
    William F Wait and others, Survivors, etc., Respondents, v John E. Borne and others, Appellants
   — Judgment and order reversed and new° trial ordered, costs to abide event. Opinion by

Barker, J.


text:
    George W Church, Respondent, v. Della Church, Appellant
   —Judgment reversed and new trial ordered before another referee, costs to abide the final award of costs. Opinion by

Haight, J., Bradley, J., not voting.


author: Bradley, J.

text:
    John York, Jr., Appellant, v. Lyman Briggs, Respondent
   — Judgment affirmed, with costs Opinion by

Bradley, J.


author: Smith, P. J.

text:
    Heman A. Newton, Plaintiff, v Lydia A. Southworth and others, Defendants.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


author: Barker, J , not voting.

text:
    In the Matter of the Application of the Niagara Falls and Whirlpool Railway Company, Respondent, to Acquire Lands of Jane S. Townsend.
   — Order affirmed, with ten dollars costs and disbursements, to be paid by the appellant,

Barker, J , not voting.


text:
    Ignatz Thalheimer v. Ferdinand Hays and another. Yette Thalheimer v Same. Salie Frankel v Same. Susselia Hays v. Same.
   — Order modified so as to reserve in the bank a fund sufficient to pay the judgments of Salie Frankel and Yette Thalheimer, to wit, $2,069.91, and interest thereon, from December 2, 1885, and $5,449.07 and interest thereon, from November 13, 1885, until the appeals in those cases now pending in the Court or Apueals, from the orders vacating attachments, are finally disposed of That the order, as so modified, be affirmed, unless the defendant, Jacob Thalheimer. shall within twenty days, give an undertaking, con forming to the provisions of section 1327 of the Code, except that it may be .conditioned to rthe balance of the judgment recovered Susselia Hays, after applying the money applicable thereto, heretofore paid into court and now on deposit in the Monroe County Savings Bank, in case the appeal is affirmed or dismissed, and if the sureties are excepted to. they shall justify in accordance with section 1335 of the Code.


author: Haight, J.

text:
    Edward Garrett, Respondent, v. The City of Buffalo, Appellant.
   — Judgment and order affirmed. Opinion by

Haight, J.


text:
    Edwin S. Connors, Respondent, v. Charles A. Bullis and another. Appellants.
   — Judgment and order affirmed Opinion by

Haight, J.


author: Barker, J

text:
    Henry W. Chamberlain and others, Respondents, v. George Van Campen and others, Appellants.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by

Barker, J


text:
    Samuel C. Hamilton, Plaintiff, v. The Acme Oil Company, Defendant.
   — Motion for new trial denied and judgment ordered for the plaintiff on the verdict.


text:
    Margaret Murphy, Appellant, v. Lewis P. Ross, Respondent.
   — Judgment affirmed with costs. Opinion by

Haight, J.


text:
    Adelle E. Tracy, Plaintiff, v. William S. Seamens, Defendant.
   — Motion for new trial denied and judgment ordered for the plaintiff upon the verdict. ■ Opinion by

Haight, J.


text:
    William R. Hart, Respondent, v. George M. Bowman and others, Appellants.
   Order af firmed with disbursements.


text:
    Elizabeth W. Greenwood, Respondent, Impleaded, etc., v. Percy L. Marvin and others, Appellants, Impleaded, etc.
   — Order reversed without [costs,- with leave to renew motion if the appellant neglects to bring the motion for new trial to argument at the next General Term of this court.


text:
    William S. Pierce, Respondent, v John Sheldon and another, Appellants.
   — Order affirmed, without costs to either party.


author: naight, J,, not sitting.

text:
    Lott Farnsworth, Plaintiff, v Harrison N. Webster, defendant.
   — Order affirmed without costs,

naight, J,, not sitting.


text:
    Salie Frankel, Plaintiff, v. Ferdinand Hays, Defendant Yette Thalheimer, Plaintiff, v. Ferdinand Hays, Defendant.
   — Motion for rcargnment in each case granted.


author: Daniels, J.

text:
    The People of the State of New York, Plaintiff, v. Charles F. Myers, Defendant.
   — Judgment affirmed. Opinion by

Daniels, J.


author: Van Brunt, J.

text:
    Ferdinand Redlein, Administrator, etc., Appellant, v. The Long Island Railroad Company, Respondent.
   — Order reversed with costs. Opinion by

Van Brunt, J.


author: Brady, J.

text:
    In the Matter of Priscilla C. Drinker.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


author: Van Brunt, P. J.

text:
    Isabella B. Clute, Appellant, v. Adam Emmerich, Respondent
   — Order affirmed with costs. Opinion by

Van Brunt, P. J.


text:
    Isabella B. Clute, Appellant, v. Jacob Knies, Respondent, Impleaded, etc.
   — Order modified, as directed in opinion, and affirmed as modified, without costs. Opinion by

Van Brunt, J.


text:
    The People of the State of New York ex rel. Walter J. Bradley v. Stephen B. French and others, Respondents.
   — Writ dismissed. Opinion by

Brady, J.


text:
    Thomas H. Harton, Respondent, v. Abraham H. Carrick and others, Appellants.
   — Order reversed, with costs. Opinion by

Brady, J.


text:
    Attorney General v. Continental Life Insurance Company.
   Motion for reargument denied, •mth costs. Opinion by

Daniels, J.


text:
    In the Matter of J. Hooker Hammersley.
   --Order affirmed. Opinion by

Brady, J.


text:
    Edward M. Tyler, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
   Judgment affirmed, Opin ion by

Daniels, J.


text:
    James Bigler, Respondent, v. Edward Atkins, Appellant.
   — Judgment and order affirmed Opinion by

Daniels, J.


text:
    Henry Colton, Appellant, v. Zachariah E. Simmons, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    James A Keene, Respondent, v. Elmore A. Kent, Appellant.
   —Motion denied, with costs. Opinion by

Daniels, J.


text:
    Adolph Ladenberg and others, Respondents, v. The Old Dominion Copper Company and another, Appellants.
   — Order affirmed, Avithout costs. Opinion by

Brady, J.


author: Daniels, J

text:
    John S Stubbs and another, Appellants, v. Jane Stubbs and others, Respondents.
   — Order af finned, with ten dollars costs and disbursements. Opinion by

Daniels, J


text:
    Michael Shaugnessy, Respondent, v George K. Chase, Appellant.
   — Order reversed, with ten dollars costs and disbursements, and order entered setting aside order of arrest. Opinion by

Daniels, J.


text:
    Annie K. Fox, Appellant, v Richard K. Fox, Respondent.
   — Judgment affirmed, without costs. Opinions by

Daniels, J,, and by Brady, J., dissenting.


text:
    Mary Schmittler, Respondent, v. Adam Simon, Appellant.
   — Judgment and order affirmed, without costs. Opinion by

Daniels, J.


author: Van Brunt, P J.

text:
    John C. Beatty, Respondent, v. Daniel Soman and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P J.


author: Daniels. J

text:
    In the Matter of Jacob H. Conklin and another
   Order reversed, with ten dollars costs and disbursements, as to part of the property men tioned in opinion, and affirmed as to the residue. Opinion by

Daniels. J


author: Per Curiam.

text:
    Zachariah E. Simmons, Appellant, v Sarah M. Henry, Respondent.
   — Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    In the Matter of Louisa S. Mapes, Respondent, v Charles E. Fleming, Appellant.
   — Order reversed, with, ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


author: Bartlett, J.

text:
    Lazrarus S. Murad, Respondent, v. Ellis R. Thomas, Appellant, Impleaded, etc.
   — Order reversed, without costs; case remitted to Special Term. Opinion by

Bartlett, J.


text:
    John E. Calrow, Respondent, v. Henri O. Watson, Appellant.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    David W. Bruce and others, Trustees, etc., Respondents, v. Uriah Welch, Appellant.
   Judgment reversed, new trial ordered, with costs to abide event. Opinion by

Daniels, J.


text:
    John O. Halloran, Appellant, v Frederick W. Brampton, Respondent.
   — Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Brady, J.


text:
    Otto L. Oppe, Respondent, v. Henry Webendorfer, Appellant.
   — Case sent back to the referee, as directed in opinion, without costs. Opinion by

Brady, J.


author: Brady,' J.

text:
    James G. Johnson and another, Appellants, v. Joseph L. Haberstro, Respondent, Impleaded, etc.
   — Judgment affirmed, with costs. Opinion by

Brady,' J.


text:
    Fannie Bean, Appellant, v. George W. Carleton and others, Respondents.
   — Judgment reversed, new trial ordered, with costs to abide event. Opinion by

Bartlett, J.


text:
    Peter A. Welch and others, Respondents, v. Minnie Tobias and others, Appellants.
   — Judgment modified as directed in opinion, and affirmed as modified, without costs of appeal to either party. Opinion by

Daniels, J.


text:
    Jane H. Scobie, as Trustee, etc., Appellant, v. Stephen V. R. Hoes, as Surviving Executor, etc., Respondent.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    People ex rel. Elizabeth S. Francis, Respondent, v. George W. Van Siclen and others, as Trustees, etc., Appellants
   —Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    William Williams, Appellant, v. Robert W Freeman, Respondent.
   — Judgment reversed, new trial ordered, and costs to abide event Opinion by

Daniels, J.


text:
    In the Matter of the Manhattan Dispensary
   Order reversed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    New York Life Insurance and Trust Company, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
   —Order reversed and motion granted, with ten dollars costs and disbursements to abide the final event. Opinion

Per Curiam.


text:
    Fall Brook Coal Company, Respondent, v. Richard Hecksher, Jr., and others, Appellants. Same v. Same.
   — Order reversed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    The Central Trust Company, Appellant, v. The New York City and Northern Railroad Company and others, Respondents.
   — Order modified as directed in opinion, and affirmed as modified, without costs. Opinion

Per Curiam.


text:
    Ann Mallach, Appellant, v. Edward A. Ridley and others, Respondents.
   — Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion

Per Curiam.


text:
    Fleming S. Philips, Appellant, v. The Germania Mills, Respondent.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Moses Brown and others, Respondents, v. Peter Bowe, Appellant.
   — Motion denied on appellant stipulating to be ready for the next term; with ten dollars costs of motion to plaintiff, to abide the event of the appeal.


text:
    Leonard Lowisohn, Respondent, v. Alfred Apple, Appellant.
   — Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Ethelbert T. Swezey and another, Appellants, v. Henry Solomon and another, Respondents.
   Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Van Brunt, J.


text:
    Martha J. Quin, Appellant, v. The Manhattan Railway Company, Respondent.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Van Brunt, P J.


text:
    William Hovey, etc., Appellant, v. Melinda R. Purdy and others, Respondents.
   — Case stricken from calendar. Opinion

Per Curiam.


text:
    In the Matter of Sarah Hart, Deceased.
   — Order affirmed, without costs. Opinion

Per Curiam.


text:
    The People of the State of New York ex rel. John Nugent, Respondent, v. The Board of Police Commissioners, etc., Appellant.
   — Judgment affirmed, with costs, on opinion of

Brady, J.


author: Van Brunt, P. J., and Lawrence. J.

text:
    The People of the State of New York ex rel. Henry D. Nicoll, Appellant, v. New York Infant Asylum, Respondent.
   — Judgment af firmed, with costs. Opinions by

Van Brunt, P. J., and Lawrence. J.


text:
    Courtland L. Parker, Respondent, v. The Commercial Telegram Company and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


author: Macomber, J.

text:
    George F. Hecker and another, Executors, etc., Appellants, v. William J Sexton and others.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


author: Daniels, J,

text:
    Marietta Sanford, as Executrix, etc., Respondent, v. Joseph Crocheron, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J,


author: Van Brunt, P J-

text:
    Charlotte B. Miller, Respondent, v. The Ocean Steamship Company of Savannah, Appellant.—
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P J-


author: Van Brunt, P J

text:
    Simon Goldsmith, Respondent, v. Charles Glatz, Appellant
   -Judgment affirmed, with costs. Opinion by

Van Brunt, P J


author: Brady and Daniels, JJ.

text:
    George B. Vanderpoel, etc., Appellant, v. Frederick W. Loew, etc., and others, Respondents.
   — judgment affirmed, costs of all parties to be paid out of the estate. Opinions by-

Brady and Daniels, JJ.


text:
    Emily P. Delafield, Plaintiff, v. Emily A. White and others, Defendants,
   Order reversed, with ten dollars costs and disbursements, and case remitted to Special Term as directed in opinion. Opinion by

Macomber, J.


text:
    John H. Riker and others, Respondents, v. John H. Cromwell and others, Appellants.
   — Judgment affirmed, with costs to respondents out of the funds, and without costs to appellants. Opinion by

Brady, J.


text:
    In the Matter of Nathaniel Gilman, deceased.
   Order modified as directed in opinion, and as modified affirmed, with cost against the appellant, Anna K. Gilman.


text:
    Lewis H. Meyer, Appellant, v. The Staten Island Railway Company and another,Respondents.
   Judgment reversed, with liberty to defendant to answer on payment of costs. Opinion by

Brady, J.


text:
    The Francklyn Land and Cattle Company, Appellant, v. August Kountze and others, Impleaded, etc., Respondents.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, J.


author: Van Brunt, P.J.

text:
    The Jersey City Insurance Company, Respondent, v. Charles S. Archer, Appellant.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P.J.


author: Learned, P. J.:

text:
    MARY K. VADNEY, Appellant, v. DAVID A. THOMPSON and LEWIS W. VADNEY, as Executors, etc., of JOSEPH H. VADNEY, Deceased, and Others, Respondents.

      Action for dower — a general, rnrdiet for or against the plaintiff should he rendered therein.

    In this action, brought by the plaintiff to recover dower in the lands of her deceased husband, some of the defendants admitted the marriage and the death of the testator, and denied all the other allegations of the complaint, while others, in addition thereto, averred ownership in themselves, severally, of the premises in which the dower was claimed. Upon the trial the principal question in dispute was as to the ownership of the premises by the testator during the marriage, and the only question submitted to the jury was whether certain deeds, in which the testator was named as grantee, were delivered to him unconditionally, to which the jury answered, “yes.”

      Held, that as this was neither a general nor a special verdict, and as it did not, when taken in connection with the facts admitted by the pleading, establish that the plaintiff was entitled to dower, it should be set aside.
    Appeal from an'-order, made at the Albany Circuit, setting aside a verdict, as against the weight of evidence, and awarding a new trial on a motion made upon the minutes of the justice presiding at the trial.

      Alden Chester, for the appellant.

      Eugene Burlingame, for the respondents.
   Learned, P. J.:

This is is an appeal from an order setting aside a verdict as against the evidence. Whatever the merits of the case, we do not think this verdict can stand. This is an action for dower; therefore triable by a jury, unless a jury trial be waived. (Code, § 968.) Such trial was not waived, and the case was tried before a jury.

The answer of some defendants admits the marriage and the death of the testator, and. denies all other allegations. That of other defendants, in addition, avers ownership in themselves .severally of the premises in which dower is claimed. Thus the principal dispute was as to the ownership by the testator of the premises during the marriage.

The only question submitted to the jury was, whether certain ■deeds, in which the testator was grantee, were delivered to him unconditionally; To this they answered, “Yes.” This was neither :a general, nor a special, verdict. (Code, § 1186.) They did not find .that the plaintiff was- entitled to dower; nor did they find that the ■testator was seized of an estate of inheritance in the premises •during the marriage. They passed only upon one fact, which bore upon the issue, and which probably was controlling. But if we take the facts admitted in the pleadings, and add to those facts the fact found by the jury, we cannot, from these alone, decide whether plaintiff is entitled to dower or not. Nothing is said in the pleadings about these deeds. There should have been a general vex’dic't Tor or against the plaintiff. Or if, as it would seem, no fact but the .testatox-’s ownex-slxip was in issue, then, perhaps, there might have been a finding that the testator was, or was not, seized of an estate ■of inheritance in the premises during the marriage. The case seems to have been submitted to the jury as if the case wex-e triable by the ■court, and the court were afterwards to make such other findings as might be necessary. (Code, § 971.) But on that verdict it would not appear that the plaintiff was entitled to dower. (Code, § 1607.)

Neither party seems to have objected to the course which was taken. We think it best, therefore, simply to affirm the order, without costs to either party on the appeal.

L andón and Math am, JJ., concurred.

•Order affirmed,' without costs to either party on appeal.


text:
    JOSEPHINE DECATUR, as Executrix, etc., of ROBERT W. DECATUR, Deceased, Appellant, v. JOHN E. GOODRICH, Respondent.

      Action to recover money received by an agent —an airier of arrest cannot be granted unless he receievdit in a fiduciary capacity — Code of Oivil Procedure, see. 549, as amended by chapter G72 of 1886.
    In tlie complaint in this action the plaintiff alleged that her testator, during his •lifetime, intrusted to the defendant, as his agent, large sums of money to be used by the defendant for the purpose of buying and selling stocks, bonds, etc., for the testator; that, as such agent, the defendant received, collected, or became otherwise possessed of, a large sum of money belonging to the testator; that after deducting all credits and commissions there remained due to the plaintiff, as executor, on account of all the matters alleged, the sum of $2,100, which the defendant refused to pay after the same had been demanded.

      Held, that the facts stated did not show that the action was brought to recover money received “by a factor, agent, broker or other person in a fiduciary capacity,” within the meaning of these terms as used in section 549 of the Code of Civil Procedure.
    That the words, “in a fiduciary capacity,” qualify all the persons described in the section.
    Appeal from an order, made at the Ulster County Special Term, denying a motion to vacate an order of arrest.
    After the entry of a judgment herein, upon the defendant’s failure to appear or answer, he was arrested under an order procured by the plaintiff.
    The complaint alleged, among other things: First. That heretofore, at the city of Kingston, N. Y., and between about the 16th day of November, 1885, and the 5th day of August, 1886, on!e Robert W. Decatur, in his lifetime, intrusted to the defendant, as his agent, large sums of money to be used by the defendant for the purpose of buying and selling stocks, bonds, provisions, grain, etc., for him, the said Robert W. Decatur. Second. That the said defendant, as such agent, between the dates above mentioned, received, collected, or became otherwise possessed of, a large sum of money belonging to the said Robert W. Decatur. * * * Sixth. That after deducting all credits and commissions due the defendant there still remains due and owing to this plaintiff, as executrix, as aforesaid, from the said defendant, on account of the matters hereinbefore alleged, the sum of $2,100. Seventh. That the said moneys are due and payable from the defendant to the plaintiff. Eighth. That the plaintiff has since the same became due and payable, and since she qualified as executrix of the said Robert W. Decatur as aforesaid, frequently demanded payment of the said moneys from the defendant. Ninth. That the defendant refuses to pay over the said moneys and retains the same, and has wrongfully converted the same to his own use. Wherefore the plaintiff brings this action and demands judgment in her favor against the defendant for the said sum of $2,100, with interest thereon from the 5th day of August, 1886, besides costs of this action.

      William Lounsbery, for the appellant.

      A. T. Clearwater, for the respondent.
   Learned, P. J.:

The Code of Civil Procedure (§ 549 as now amended, Laws 1886, chap. 672) says a defendant may be arrested where an action is brought to recover for money received where it is alleged in the complaint that the money was received “by a factor, agent, broker, or other person in a fiduciary capacity.” Plainly the words “ in a fiduciary capacity” qualify all the persons described. A factor might borrow money. He would not be liable for arrest .for not paying it. It is for money received in a fiduciary capacity that the defendant may be arrested. Section 550 now contains nothing on this point. If this complaint contains any cause of action for which the defendant cannot be arrested the order cannot stand. (Madge v. Puig, 71 N. Y., 608.)

The second allegation is that the defendant, as agent of the testator, became possessed of a large sum of money belonging to said testator. Then follows an allegation that after deducting all credits and commissions there remains due to plaintiff, as executor, on account of' all the matters alleged, the sum of $2,100, which defendant refuses to pay, after the same has been demanded. Is the statement that defendant, as agent of the testator, became possessed of a siim of money sufficient under section 549 ? As that section gives a right to arrest “ for money received ” without requiring próof 'Of embezzlement or fraudulent application, it seems necessary to understand that the money ’must have been received upon some trust or duty in some fiduciary capacity — more than is implied by the word agent. A man sometimes carries on a business as the agent for another, buying and selling as freely as if the matter was his own. We cannot think that every such case of agency renders the agent liable to arrest for all moneys received. (See Walter v. Bennett, 16 N. Y., 250; Greentree v. Rosenstock, 61 N. Y., 583.) In this latter case the allegations of the complaint were much stronger than those we have cited from the present complaint. There must, then, be shown some violation of the trust; some wrong doing on the part of the defendant, more than the mere non-payment of money received, even though it was received by an agent.

In the case of Stoll v. King (8 How., 298) a clear distinction is drawn. The judge says, “ I think the criterion in every such case is to determine whether the specific moneys received ought, in good faith, to have been kept and paid over to the employer; or whether the defendant, upon receiving such moneys, had the right to use them as his. own, holding himself accountable to his principal for the debt thus created.” We think, therefore, that this part of the complaint was not enough to authorize an arrest, while we will not say that the „first allegation might not have been sufficient if it had stood alone.

Without passing upon the other questions, we are of opinion that the order appealed from should be reversed and the order of arrest vacated, but without costs.

Landón and Mayiiam, JJ., concurred.

Order reversed, and motion to vacate order of arrest granted, but without costs.