author: O'Biiiem, J.

text:
    John Foley, Jr, et al., Resp’ts, v. The Mutual Life Insurance Co. of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Guardians—Personal property.
    A guardian in socage has no title to or control over the personal property of the ward.
    3. Insurance (life)—Surrender—When children not affected by.
    One F. assigned an endowment policy on his life to his wife and children. The wife died, leaving children, and a will by which she, gave her property to the children and made her husband executor and guardian of the children. He received letters testamentary, but not of guardianship. He thereafter surrendered the policy and received its value as executor and guardian, but retained the same. Held, that such surrender was void.
    8. Same—Ratification.
    A settlement by one of the children, after attaining majority, with the father, which did not include such payment, or mere acquiescence in the surrender without receiving any of the fruits thereof, is not such a ratification as to estop him from maintaining an action to have such surrender adjudged void.
    4. Same.
    Nor will a proceeding brought by him against the father for an accounting as guardian constitute such an estoppel, where it appears that such proceeding was dismissed on the ground that the father was not the guardian. "
    5. Same—Counterclaim.
    In such an action the company cannot counterclaim expenditures made by the father for the benefit of the children.

      Appeal from a final judgment entered in favor of the plaintiffs, on a decision after a trial at special term.

      Julien T. Davies and JSdward Lyman Short, for app’lt; Herbert Green, for resp’ts.
   O'Biiiem, J.

This action was brought to have a surrender of a life insurance policy adjudged void, and the policy declared to be in force in favor of plaintiffs, and delivered up to them on payment of certain back premiums. The policy was an endowment policy on the life of John Foley, and was issued in 1876. It was therein provided that in consideration of the payment of certain premiums at stated times, that defendant would pay to John Foley or his assigns, in 1891, the sum of $10,000, or, if he should die before that time, to pay such sum to his executors, administrators or assigns. In 1879, Foley assigned all his right, title and interest in this policy to his wife and children. Mrs. Foley died in 1879, and one child, Lizzie, in August, 1885, and the plaintiffs are the other children named in the assignment.

By Mrs. Foley’s will she gave and bequeathed all her property to her children, including any unborn child, share and share alike, and also named her husband, John Foley, as the executor of her will, and the guardian of the persons and estate of her children.

Letters testamentary were issued to the husband, but no letters of guardianship on the will or otherwise were issued or applied for by him. The trial court, therefore, accordingly found as a fact that no letters of guardianship were or had been issued to him under said will or otherwise, and, as a conclusion of law, that he was never legally appointed guardian of plaintiffs, or of any or either of them.

In 1888 John Foley took the policy to the defendant and surrendered it as executor and guardian, receiving therefor a check for the sum of $7,229, payable to him as executor and guardian, and for which he receipted as executor and guardian. ■ This check after being endorsed by him as executor and guardian was endorsed underneath in his individual name, and deposited in his individual bank account. All of the plaintiffs at this time were under the age of twenty-one years. John Foley, Jr., became of age May 7, 1888, and Madeline in November, 1889. All the other plaintiffs are still minors.

All the premiums on this policy had been paid up at the time of its surrender, and before the commencement of this action an amount sufficient to pay the premiums accruing since the cancellation of the policy by defendant was tendered and refused.

From the judgment of the special term, holding that the surrender of the policy by John Foley was illegal and void, this appeal is taken, and to secure a reversal the appellant has urged upon our attention several grounds, all of which were ably disposed of by the court below, leaving, however, a question which strikes at the very right of plaintiffs to maintain this action, and which we deem it proper briefly to consider.

It is insisted that upon the death of Mrs. Foley, an estate in land having become vested in the infant children, the guardian ship of these infants, and control of their real and personal estate, with the rights, powers and duties of a guardian in socage, belonged to their father, John Foley, Sr.

If this claim could be maintained, that where in the absence of any testamentary or other guardian, under the Revised Statutes, the father becomes what might be designated as the statutory guardian in socage, and as such guardian has control not only of the lands but also of the personal estate of the infant children, then the right of the father, John Foley, acting in good faith, in surrendering the policy, could not be disturbed. In Tyler on Coverture and Infancy, p. 235, it is said: “ There are two kinds of guadianship, one by common law, the other by statute. Guardianship at common law has fallen into comparative disuse in this country, although many of the principles which have entered into that relation are adopted in guardianship by statute.”

There were four kinds of guardians at common law, but the only one we need discuss here is the guardian in socage. “Guardianship in socage arises only when the infant has land by descent -* * * which takes place when socage lands descend to the infant while under fourteen years of age, and ceases when the infant arrives at the age of fourteen years unless no other guardián is appointed for him.” Tyler id., 237.

Under the common law the right and duty of a guardian in socage were originally exclusively confined to real estate, but by degrees it was seemingly extended so as to embrace personal property. This extension of guardianship in socage at common lawr, though prevalent in England, was not followed in this state, and in the absence of authority or decision, it cannot be said that in this state such guardian ever obtained title to or control over personal property of an infant. It is true that Grover, J., in Torry v. Black, 58 N. Y., 189, says: “A guardian in socage can maintain actions for injuries to the real and personal estate of the ward.”

We take it, however, that a distinction must he made between the right to preserve property, be it real or personal, including the right to maintain an action therefor, and the conferring of title as to infants’ property which will enable the holder thereof to legally dispose of or confer title thereto upon another.

What was said in Wuesthoff v. Germania Life Insurance Company, 107 N. Y, 587; 12 St. Rep., 825, in regard to the policy, is applicable here: “ It expressed in terms what in the absence of express words would be the legal consequence, that an obligation for the payment of money to infants may be discharged by payment to a guardian. The qualification that the guardian must be duly authorized to receive the payment is implied. It would be contrary to the nature and object of the contract to construe it as authorizing payment of a debt due to infants to be made to a person who, although he might in a formal, or even in a legal sense, he a guardian, nevertheless had no authority as such to collect or receive the money or debts due to the ward. We think it cannot be questioned that the contract to pay the guardian of the infant beneficiaries means a guardian legally authorized to receive and discharge the debt, and that a guardian possessing this authority, whether a general or chancery guardian, a testamentary guardian, or a guardian ad litem, is, within the meaning of the policy, a guardian to whom payment could be lawfully made.”

The question in Torry v. Black, supra, related to the power to commit waste by the statutory guardian of an infant, in whom an estate in land becomes vested. Also, in the Matter of Hynes, 105 N. Y., 560; 8 St. Rep., 190, where the father of certain infants died seized of real estate; the court said: “ There can be no doubt of the authority of a guardian in socage to make a contract such as this. By our Revised Statutes, under the facts in this case, the mother became a general guardian, with the rights, powers and duties of a guardian in socage. Such a guardian had a right to the possession of the ward’s lands, and to 'the receipt of the rents and profits thereof, and could maintain ejectment to recover possession of such lands.”

In Emerson v. Spicer, 46 N. Y., 596, many of the provisions of the Revised Statutes are referred to and quoted at length. Guardianship in socage, here, is entirely regulated by statute, * * *. Such guardianship shall belong, first, to the father of the infant; second, if no father, to the mother; third, to others specified. To every such guardian, all statutory provisions that are or shall be enforced relative to guardians in socage shall be deemed to apply. The rights and authority of every guardian shall be superseded in all cases where a testamentary or other guardian shall have been appointed under the provisions of the statute.”

The duties of such guardian are defined by statute, and it will be noticed that they relate to the care, custody and protection of the ward's real estate. To the suggestion, therefore, that the father, as the guardian in socage, succeeded to the control of the personal property of the infant, two answers may be given. The statutory guardian in socage in this state has not been regarded as possessing the same rights and duties as the common law guardian in socage, and we have been referred to no authority or statutory provision which concedes to such guardian the control or title to the personal property of the infant.

Again it must be remembered that it is not the rights, powers and duties of a guardian in socage as they existed at common law that is to determine, but such rights, powers and duties as were conferred by statutory provision prior to the enactment of the Revised Statutes. The latter provide that “ all statutory provisions that are or shall be enforced relative to guardians in socage shall be deemed to apply.”

We have been referred to no statute prior to the Revised Statutes which conferred upon the guardian in socage any right or power over personal property.

Previous to the Revised Statutes a father could not be a guardian in socage of his child, Fonda v. Van Horne, 15 Wend., 631, and plaintiff’s only right to be guardian in socage is created by, and his powers and duties regulated by the Revised Statutes. While, therefore, under the Revised Statutes, a father becomes a so called statutory guardian in socage, the right and authority of every such guardian are superseded in all cases where the testamentary or other guardian has been duly appointed.

In Segelken v. Meyer, 94 N. Y., 473, it was held that “an action to recover money or personal property belonging to an infant may be brought in the name of the infant by his guardian ad litem, although he has a general guardian.”

In discussing the question in that casej though not directly involved, a guardian in socage is thus referred to: “As a guardian in socage has to do only with the real estate of the infant, it has been claimed in some cases that the Revised Statutes empower a general guardian to bring action only in relation to such real estate, and the rents and profits thereof, and,.as to such actions, it has been held that they can be maintained by the general guardian only." ,

We think that sufficient has been said to show that the so-called statutory guardian in socage has never been invested in this state with the title or control of the personal property of the infant, but that his powers related and, were confined to matters growing out of the real estate of the infant. The surrender, therefore, of the policy by the husband cannot be justified upon the theory that, as guardian in socage, he had such right. It is not claimed that outside of his right as guardian in socage he had any power to surrender the policy. Mo letters of guardianship were ever issued to him, and although he was designated in the will of Mrs. Foley, such appointment being made by a wife in favor of a surviving husband was invalid, and even though it could be upheld in the absence of the issuance of letters of guardianship, the husband, by § 7, chap. 206 of the Laws of 1877, had “ no power or authority over the personal estate of the minors for whom he is named as such guardian."

We have examined the testimony for the purpose of determining whether the other position assumed by appellant is supported, that 'the plaintiff John Foley, Jr., is not in any event entitled to any relief, the claim being that after attaining his majority on May 7, 1888, he acquiesced in and adopted the surrender of the policy by John Foley, Sr., as executor and guardian, to the defendant, with full knowledge thereof, and, secondly, by the settlement with his father, John Foley, Sr., after attaining majority, elected not to pursue his remedy against the company, and that such settlement in particular constituted a ratification of his father’s act in receiving the money.

Such examination does not show .that he ever ratified the surrender after he became of age. In the absence of an- express ratification, it must be shown that the infant, after becoming of age, has accepted the fruits of the unauthorized act, or in some way benefited by it. Mere acquiescence is not sufficient, Green v. Green, 69 N. Y., 553, and upon the evidence there -is doubt upon the question even as to whether or not he ever acquiesced. But whether he did or not, as stated, is entirely immaterial, because there is no evidence of any express ratification, nor was it shown that he in any way accepted the fruits of or bene fited by the unauthorized- act. It is insisted further, however that by proceedings in the surrogate’s court, on the basis that the apparent right of his father to act as testamentary guardian was a valid legal right, that Foley, Jr., could not thereafter take the antagonistic and inconsistent position which is involved in the maintenance of this action, namely, that his father was not testamentary guardian.

We are not impressed with the force of this suggestion that such proceeding created an estoppel, by matter in pais, when it is remembered that these very proceedings to compel the father to account as guardian were dismissed upon the ground that he was not the guardian. There might have been much force in the suggestion, had it as a matter of fact appeared that he was guardian or had the son on the theory that he was such guardian, been permitted to proceed in the surrogate’s court and enforce his claim against his father, that so far as he individually was concerned he had elected one of two inconsistent remedies, and was bound by such election. But neither of the proceedings, nor the agreement made between the father and son, and which entrred to the benefit and advantage of all the plaintiffs in this action, present any good reason in law why this action may not be maintained. Had there been, with knowledge of all the facts, an election to pursue the remedy against the father, or had the claim for moneys received been included in the settlement made with the father, then the release which was executed in favor of the father would not only have enured to the benefit of the latter, but we think, with some justice, could have been urged in discharge of any claim that might have been made against the defendant.

The only remaining question for us to consider relates to the refusal to order a reference for the purpose of determining whether or not such sums as may have been paid by the father might not be availed of by the defendant company as an equitable counterclaim. This right, it is claimed, has been recognized in Wuesthoff v. Germania Life Insurance Company, supra, wherein it is said: “ The defendant, on a new trial, may be able to show that the money paid to the guardian has been applied' in whole or in part to the benefit and support of the infants, under circumstances which entitle the defendant to an equitable counterclaim.”

In that case, however, the person to whom the money was paid, and who may have applied some for the benefit of the infants, was not, like the father in this case, under any obligation to support the infant. It is no doubt true that where a person under no legal obligation to support an infant pays moneys for its benefit which may have been received without authority by such person, or where such person out of the infant’s own property, without authority, makes expenditure for the benefit of the infants, that the same may be under some circumstances available as a defense by way of equitable counterclaim in an action brought by or on behaf of the infant to recover such moneys. We have, however, been referred to no case where a father, who is under a legal obligation to support his children, and who, so far as the testimony shows, was amply able to respond to such obligation, obtains -illegally the property of his children, that in an action brought against a person who has unlawfully paid over the same to the father that this entitles such third person to equitably counterclaim any expenditures made by the father for the benefit of the children.

Upon the entire case we find no good ground for disturbing the judgment, and it should be affirmed, with costs.

Yan Brunt, P. J., concurs.


source: Caselaw Access Project

author: Andrews, J. Per Curiam.

license: Public Domain

text:
    In the Matter of Emma L. Greenhalgh, an Infant.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    Infants—Claims against cannot be enforced upon petition.
    The court has ho power, upon petition or motion, to appropriate any part of the estate of an infant to the payment of claims against the infant. The only way in which such claims can be recovered is by action.
    Appeal from order denying application of John McCrone, an attorney, for payment for legal services out of the estate of the infant.
    The following opinions were delivered at special term :
   Andrews, J.

The attorney has a lien upon the judgment which he procured; but, if I understand the matter correctly, he has no lien upon the real estate. He occupies the position which any attorney does who has performed services for which he has not been paid. - His remedy is not by a motion of this character, but by an action against his client.

Andrews, J.—I have carefully re-examined the questions involved in this motion, and after such examination I am satisfied that the petitioner is entirely mistaken as to what his rights and remedies are. In the first place I cannot see that he has any lien. .His statement of the services rendered by him is (first) that he took such proceedings in the surrogate’s court as were necessary to procure the probate of the will; (secondly) that he brought an action for the construction of the will, and succeeded in obtaining a construction that was favorable to his client; (thirdly) that (it having been established by such construction of the will that his client was the owner, and entitled to the possession of a certain house), he assisted her in obtaining such possession. An attorney has a lien upon his client’s papers and upon his cause of action, or counterclaim, and also upon any judgment which he may recover; but where, as in this case, the action was brought for the construction of a will, the fact that the attorney obtains a construction favorable to his client does not give the attorney a lien upon the real estate which may be devised to his client by such will; nor does the fact that he may have rendered valuable services to his client give him a lien upon any personal estate which his client may have. In the second place, if the petitioner had a lien upon such real or personal property, it could not be enforced by a motion of this character. It would be necessary for the petitioner to brjng an action in equity to foreclose his lien, making his client a defendant in such action. In the third place, the petitioner, according to his own statement, is merely a general creditor of the infant, and, if he has a claim, the only method in which such claim can be enforced, so far as I know, is by bringing an action against his client. It may be that when such an action is brought the client will set up the defense of infancy, and he may fail, unless he can prove that his services are to be considered as necessary for his client; but that is a difficulty which always arises in dealing with infants, and in attempting to enforce claims against them. The petitioner seems to think that the fact that an infant is only liable upon a quantum merit lends some support to this application; but in this he is mistaken. In an action brought against an infant to recover for necessaries furnished to such infant, a recovery can be had upon a quantum meruit only; it being held that the contract of the infant as to the price is not binding upon him; but that rule affords no support to a proceeding like this, in which it is sought to summarily compel the infant to pay the amount claimed to be due to the petitioner. It is not necessary for the decision of this motion to determine whether the plaintiff, if he has a just claim, can maintain an action against his client; but if the claim is meritorious, I see no reason why he should not succeed in such action. It was decided many years ago that an attorney who had rendered services to his client in a civil action could not maintain an action to recover compensation for such services. Phelps v. Worcester, 11 N. H., 51. There are decisions, however, to the contrary. Thrall v. Wright, 3d8 Vt., 494; Munson v. Washband, 31 Conn., 303; Barker v. Hibbard, 54 N. H., 539. I think that the true doctrine in relation to cases of this character is correctly stated in Schouler’s Domestic Delations, § 412, as follows : “ On the whole it may be said that legal expenses on behalf of a minor may or may not be regarded as a necessary for him, according to circumstances and the reasonableness of incurring them. And it would appear that the burden of proof is upon an attorney to show that the suit could be viewed in such a light, so as to entitle him to recover for his fees and disbursements.”

The motion must be denied, but such denial will be without costs.

J. Me Crone, for app’lt; J. Fennel, for resp’t

Per Curiam.

We knew of no authority conferred upon this court by which it can appropriate upon petition or motion any part of the estate of an infant to the payment of claims against the infant. There is no way pointed out by which the court in such a proceeding can acquire jurisdiction of the infant. Mo such power is conferred by statute nor is it a part of the general equity jurisdiction of the court. In the case of infants the statute is explicit as to the method in which the court is to acquire jurisdiction, and this is always by the service of process upon the infant, and the appointment of a guardian.

It would therefore appear that the only way in which the appellant can recover his claim against the infant, if it is well founded, is, as was suggested by the court below, by an action. It may be true that, even after judgment, application at the foot of the judgment may be necessary in order that the same should be collected out pf the estate of the infant, but the court having acquired jurisdiction in the action of the infant, and having rendered judgment against it, has the power to enforce its process.

We, therefore, concur in the views expressed by the learned court below in the opinion rendered upon the reargument, and think that the order appealed from should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concur.


author: O’Brien, J.

text:
    Jacob Rauth, Resp’t, v. William B. Davenport et al., Ex’rs, App’lts.

      (Supreme Court, General Term,, First Department,

      Filed April 14, 1892.)

    Executors and administrators—Costs.
    Where the action against an executor or administrator is one to recover unliquidated damages, and the amount is reduced from $3,000 to $300, the refusal of the executor or administrator to pay the claim cannot be held to be unreasonable so as to entitle the plaintiff to costs.
    Appeal from an order allowing costs to the plaintiff, and from the part of the judgment directing the recovery of costs.

      Charles H. Otis, for app’lts ; Alberti. Sire, for resp’t.
   O’Brien, J.

As shown by its title, this is an action against executors, which after a trial resulted in a verdict for plaintiff, for which in addition to costs and an allowance he was permitted to take judgment.

From so much of the judgment as granted costs and allowance this appeal is taken, and inasmuch as the action of the court was based on a stipulation made between the parties, which recites the facts, it is necessary to set forth the same at length.

This stipulation was as follows: “ On or about the 18th day of March, A. D., 1889, the .plaintiff commenced an action against William B. Davenport, as executor of the last will and testament of Samuel Cardwell, Jr., to recover damages occasioned by the rain coming upon the plaintiff’s property as described in the complaint in this action; that the said action was tried, the complaint dismissed, went to the general term, and a new trial ordered by the general term; that the second trial came on in June, 1891, before Hon. Charles H. Truax and a jury, and the complaint was dismissed on the ground that the wrong party had been sued; that the said William B. Davenport and Sophia Cardwell are executors of the last will and testament of Samuel Cardwell, Sr.; that this action was commenced in the month of July, A. D., 1891, to recover the sum of three thousand dollars ($3,000) for the same damages claimed in the prior action against William B. Davenport, as executor of the last will and testament of Samuel Card-well, Jr., and has now resulted in a verdict for the plaintiff for the sum of three hundred dollars ($300) damages; that no claim has ever been presented either to William B. Davenport, as executor of the last will and testament of Samuel Cardwell, Jr., or to William B. Davenport and Sophia Cardwell, executors of the last will and testament of Samuel Cardwell, Sr., or to either of them, except that an oral demand was made, and in so far as a presentation of the said claim was involved in the bringing of the actions above recited; that the defendants in this action or either of them have never offered or refused to refer the claim of the plaintiff as prescribed by law.’’

Sections 1885 and 1836 of the Code prohibit the allowance of costs unless the claim against the estate was duly presented or the payment thereof unreasonably resisted, or the defendant refused to refer as prescribed by law, either of which conditions existing the court may in. its discretion adjudicate costs in favor of the plaintiff. Hopkins, Jr., v. Lott, 20 St Rep., 130.

The general rule therefore, is, that costs shall not be awarded against executors, and it is only in cases where one of the conditions has been fulfilled by the plaintiff that the court has power to award costs.

The stipulation shows, as luett as the conclusion of the learned trial judge, that two of the three conditions essential to awarding costs were wanting in this case, namely, the presentation of plaintiff’s demand to the executors and the refusal of the executor to refer the claim.

This leaves the third, which was the ground upon which the court based its action, namely, that it appeared that the payment of the claim was unreasonably resisted or neglected by the defendants. To sustain this conclusion it was necessary that the facts should show not only that the claim was presented, but also that the executors unreasonably resisted or neglected its payment

When we consider the fact that the same attorney who appears here also appeared in the former action brought' against the executors of plaintiff’s original lessor, and- that upon such trial the nature, character and extent of the claim were developed, and knowledge thereof brought to these defendants, coupled with the fact that the stipulation itself concedes that an oral demand was made, these together, we think, would have justified the conclusion of the learned court that the claim was presented, it not being absolutely essential, to comply with this condition, that a formal claim should have been presented. Taking, however, the character of the claim itself, it being one for unliquidated damages for injuries to property, caused by water coming through a roof, and the fact that the claim made of $3,000 was reduced by the recovery had to $300, it cannot be claimed that a failure to pay the original amount was unreasonably refused or neglected.

It is to be regretted that in a case presenting the facts such as appeared in this action we cannot find authority to support the conclusion reached by the learned trial judge, for after considering the amount of time and labor, and the action pursued by the same attorney who appears here for the defendants, and who appeared in the former trial for the executor of decedent’s assignor, in withholding knowledge of the real owners of the property, which necessitated the several trials and required the plaintiff, without fault on his part, from want of knowledge as to the real party in interest, to pay costs almost equal in amount to the recovery here; these considerations, were it the question of the exercise of a discretion vested in a judge, would here have been rightly and justly exercised in granting costs and allowance.

We have been referred to some cases wherein it was held that some slight difference in the amount claimed and the amount recovered did not prevent the granting of costs, but we have found none where, as here, the action was one to recover unliquidated damages, and the amount was reduced from $3,000 to $300 as the result of resistance, that such action on the part of the executors in not paying the claim was held to be unreasonable. We regard the law as well settled by a long line of authorities, that when a claim against "the estate of a deceased debtor is materially reduced upon the trial, the resistance made by the executor is not unreasonable. Considering, therefore, the nature of the claim itself, and the material reduction obtained, we are of opinion, as matter of law, that the court was without power to award costs and grant the allowance, and for this reason solely the order and so much of the judgment appealed from should be reversed, without costs.

Yak Brukt, P. J., and Ingraham, J., concur.


text:
    Court of Appeals.
    Filed May 24, 1892.
    Melvin Stephens, Resp’t, v. Robert Lewis Humphries, Impl’d, App’lt. Silas B. Brownell, for resp’t.
   Judgment affirmed by default, with costs and 'ten per cent, damages. All .concur.

Affirming 39 St. Bep., 134.


text:
    Delia Weinckie, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.

      R. A. Parmenter, for app’lt; S. W. Jackson, for resp’t.
   ■Judgment affirmed, with costs, on opinion of general term. All concur.

.Affirming 39 St. Bep., 584.


text:
    John Storm et al., Resp’ts, v. The Phenix Ins. Co., App’lt.

      Watson M. Rogers, for resp’ts; A. R1 Sawyer, for app’lt.
   Judgment affirmed, with costs. All concur, except Andrews, J., not voting.

Affirming 40 St. Bep., 40.


text:
    The Knickerbocker Co., Resp’t, v. Alfred G. Burnham, App’lt.

      Ohas. H. Watts, for resp’t; John Lansing, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Bep., 987.


text:
    Nicholas C. Newerf et al., Resp’ts, v. Thomas A. Jebb et al., App’lts.

      Henry H. Seymour, for resp’ts; Spencer Clinton, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Bep., 988.


text:
    James Falvey, Resp’t, v. Francis J. Bridges, App’lt.

      Wm. H. Arnouw and C. H. Bovee, Jr., for resp’t; Frank Schaeffler, for app’lt.
   Affirming 40 St. Bep., 733.


text:
    Wm. W. Gilmore, Resp’t, v. Edward E. Ham, App’lt.

      T. K. Fuller, for resp’t; John C. Hunt, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 39 St. Bep., 664.


text:
    James F. Malcolm, Resp’t, v. The Manhattan R. Co. et al., App’lts.

      Bsek Cowen, for resp’t; Sidney Smith, for app’lts.
   Judgment reversed, new trial granted, costs to abide event, on authority of Roberts v. Sarnie Def't, 138 N. Y., 455; 40 St. Bep., 454; Boyle v. Same, 138 B. Y., 488; 40 St. Bep., 474; Cray v. Same, 138 N. Y., 499; 40 St. Bep., 478.

All concur, except Gray, J., not voting.

Beversing 40 St. Bep., 983.


text:
    Robert L. Moores, App’lt, v. Wm. H. Glover, Resp’t.

      Horace Craves, for app’lt; Samuel Qreenbaum, for resp’t.
   Appeal dismissed, with costs. All concur.

See 37 St. Bep., 396.


text:
    John F. Becken, Resp’t, v. Wm. J. Weeks, App’lt.

      Geo. F. Stackpolefor resp’t; A. A. Spear, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Bep., 786.


text:
    August C. Klupp, App’lt, v. The United Ice Lines, Resp’t.

      W. Farrington, for app’lt; Geo. Holmes, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 783.


text:
    The People ex rel. George F. Comstock v. The City of Syracuse.
   No papers.

Motion for re-argument denied.

See 40 St. Rep., 977.


text:
    Filed June 7, 1892.
    Sophia Brown, Ex’rx, Resp’t, v. Lafayette J. Finch, App’lt.

      Hoffman Miller, for resp’t; Louis V. Booraem, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 43 St. Rep., 449.


text:
    Thomas Watts, Rec’r, Resp’t, v. Horatio R. Wilcox et al., App’lts.

      W. F. O’Neill, for resp’t; Henry Bacon, for app'lts.
   Order affirmed, with costs. All concur.

Affirming 43 St. Rep., 417.


text:
    David McCosker et al., Resp’ts, v. Emanuel Smith, App’lt.

      Hcvrward Dudley, for resp’ts; Olrnrk L. Jordan, for app’lt.
   Order affirmed, with costs, on opinions helow. All concur.

Affirming 38 St. Rep., 337.


text:
    The Ciancimino’s Towing & Tr. Co., Resp’t, v. Peter Ciancimino, App’lt.

      Henry H. Man, for resp’t; John Jay McKelxey, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 43 St. Rep., 49.


text:
    Charles Sperry, Resp’t, v. Samuel L. Fox et al., App’lts.

      Albert G. McDonald, for resp’t; Arthur B. Bobertson, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 45 St. Rep., 31.


text:
    In the Matter of the Opening of Lexington Avenue, from 97th to 102d Sts., New York. John Schreyer, App’lt.

      D. J. Dean, for resp’t; Jas. A. Deering•, for app’lt.
   Appeal dismissed on the stipulation, without costs.

See 45 St. Rep., 884.


text:
    Chas. G. Landon et al., App’lts, v. Mary N. Townshend et al., Resp’ts.

      E. H. Landon, for app’lts; John Townshend,, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 45 St. Rep., 753.


text:
    Alfred Fatman, Resp’t, v. Solomon J. Fatman, Ex’r, App’lt.

      Wm. J. Hardy, for resp’t; J. A. Bhoudy ", for app’lt.
   Appeal dismissed, with costs. All concur.

See 45 St. Rep., 859.


text:
    John W. Young, App’lt, v. Stephen Young, Impl’d, Resp’t.
   .No papers.

Motion for re-argument denied; ten dollars costs.

See 44 St. Rep., 909.


text:
    Frederick Schneider, Resp’t, v. The Second Ave. R. R. Co., App’lt.
   No papers.

Motion for re-argument denied; ten dollars costs.

See 44 St. Rep., 680.


text:
    Maunsell Van Rensselaer, Resp’t, v. Edward S. Bull et al., App’lts.
   No papers.

Motion for re-argument denied; ten dollars costs.

See 44 St. Rep., 933.


text:
    Barbara Scholl, Resp’t, v. The Broadway R. R. Co. of Brooklyn, App’lt.
   No papers.

Motion to dismiss denied; ten dollars costs.

See 43 St. Rep., 770.


text:
    Filed June 14, 1892.
    Timothy Derrick et al., Adm’rs, Resp’ts, v. Mary Louisa Emmens, Impl’d, App’lt.

      William Sullivan, for resp’ts; Edward F. O'Dwyer, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 481.


text:
    George C. Akersloot, Infant, Resp’t, v. The Second Ave. R. R. Co., App’lt.

      FranMin Bwrtlett, for resp’t; Payson Merrill, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 231.


text:
    Mary P. Wessman et al., Resp’ts, v. The City of Brooklyn, App’lt.

      J. W. & O. W. Bidgway, for resp’ts; Almet F. Jenks, for app’lt.
   Judgment affirmed, with costs All concur.

Affirming 40 St. Rep., 698.


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

      Charles Gibson Bennett, for resp’t; Julien T. Dames and Brainard Tolies, for app’lts.
   Judgment reversed, new trial granted, costs to abide event, on decisions in Roberts v. Same Def’t, 128 N. Y., 455; 40 St. Rep., 454; Doyle v. Same, 128 N. Y„ 488; 40 St. Rep., 474; Gray v. Same, 128 N. Y„, 499; 40 St. Rep., 478. All concur, except Gray, J., not voting.

Reversing 39 St. Rep., 151.


text:
    James C. Duff, Resp’t, v. Lillian Russell, App’lt.

      Henry Thompson, for resp’t; Howe & Hummel, for app’lt.
   Judgment affirmed on opinion of Freedman, J., below, with costs. All concur.

Affirming 39 St. Rep., 266.


text:
    Stacy B. Rittenhouse, App’lt, v. Albert D. Winch, Resp’t.

      Isaac N. Miller, for app’lt; John A. Mopes, for resp’t.
   Judgment affirmed, with costs, on opinion of Daniels, J., below. All concur.

Affirming 32 St. Rep.; 506.


text:
    James F. Pendleton, App’lt, v. Alexander Johnston, Resp’t.

      James F. Pendleton, for app’lt; David Leventritt, for resp’t.
   Judgment affirmed, with costs. A.ll concur.

Affirming 39 St. Rep., 173.


text:
    Beulah Rouse, Infant, App’lt, v. The Catskill & New York Steamboat Co. (Limited), Resp’t.
   J. Bider Cady, for app’lt; Emory A. Chase, for resp’t.

Judgment affirmed on opinion below, with costs. All concur except Finch, J., not.voting.

Affirming 40 St. Rep., 985.


text:
    Robert McCulloch, App’lt, v. John Dobson et al., Resp’ts.
   No papers.

Remittitur amended so as to read, “Judgment affirmed, with costs, and appeals from orders dismissed, without costs.”

See 44 St. Rep., 89.


text:
    Alex. S. Turner, Resp’t, v. Wm. M. Weston, App’lt.
   No papers.

Motion for re argument denied.

See 45 St. Rep., 301.


text:
    The People ex rel. The Seth Thomas Clock Co., App’lt, v. Edward Wemple, Comptroller, Resp’t.
   No papers.

Motion to amend remittitur granted.

See 45 St. Rep., 234.


text:
    Byron Pond, Resp’t, v. Caroline S. Harwood, Impl’d, App’lt.
   No papers.

Motion to serve notice of appeal and file undertaking nunc pro tune granted on payment of ten dollars costs.

See 36 St. Rep., 1018.


text:
    Filed June 17, 1892.
    Oscar G. Brian, Resp’t, v. Solomon Mead, App’lt.

      Abram J. Miller, for resp't; Charles Haines, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 921.


text:
    The People ex rel. James O’Toole et al., App’lts, v. The Board of Excise of Brooklyn, Resp't.

      Losiah T. Marean, for app’lts; F. A. McCloskey, for resp’t.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 42 St. Rep., 39.


text:
    Edward Dexter, App’lt, v. The Riverside & Oswego Mills, Resp’t.
    J). P. Lester, for app’lt; H. B. Nichols, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 933.


text:
    William Johnston, App’lt, v. Mary E. Theall, Resp’t.
    " Horace B. Leming, for app’lt; Benjamin, W. Downing, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 954.


text:
    Jeronemus S. Underhill, Resp’t, v. Samuel Collins, App’lt.

      Chandes M. Demand, for resp’t; P. Q. Bckerson, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 36 St. Rep., 795.


text:
    Joseph Perry, App’lt, v. Euphemia W. Bedell et al., Resp’ts.

      B. C. Neil, for app’lt; D. W. Trams, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 231.


text:
    Horace P. Hoyt et al., Resp’ts, v. John H. Cline, App’lt.

      C. H. Walts, for resp’ts; Wayland F. Ford, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 39 St. Rep., 937.


text:
    Mary Pratt, Resp’t, v. Sidney G. Poole et al., App’lts.

      Bdward 8. Peek, for resp’t; Alfred B. Page, for appl’ts.
   Judgment affirmed, with costs, on opinion below. All concur.

• Affirming 39 St. Rep., 924.


text:
    John B. Newland et al., App’lts, v. The Hudson River Water Power & Pater Co., Resp’t.

      B. A. Pa/rmenter, for app’lts; Bsek Cowen, for resp’t.
   Judgment affirmed, with costs, on opinions below. All concur.

Affirming 42 St. Rep., 45.


text:
    John A. McNab, App’lt, v. The McNab & Harlin Mfg. Co. et al., Resp’ts.

      Arternus B. Smith, for app’lt; Frederic B. Coudmd, for resp’ts.
   Judgment affirmed, with costs, on opinion below, All concur.

Affirming 41 St. Rep., 906.


text:
    Charles C. Bauer, Resp’t, v. The Consumers Ice Co., App’lt.

      Samson Lachman, for resp't; Hamilton Odell, for app’lt. " .
   Judgment affirmed, with costs. All concur. • ¡

Affirming 40 St. Rep., 992. .- ..


text:
    Edward Leach, App’lt, v. The Brooklyn, Bushwick & Queens Co. R. R. Co., Resp’t.

      M. L. Towns, for app’lt; 3. D. Donnelly, for resp’t.
   Judgment affirmed, with costs. All concur, except O’Brien, J., dissenting, and Maynard, J., not voting.

Affirming 42 St. Rep., 954.


text:
    Clarence R. Conger, App’lt, v. Samuel D. Kinney, Resp’t.

      Irving Brown, for app’lt; Geo. W. Weiant, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 906.


text:
    The People, Resp’ts, v. The Ulster Co. Savings Inst’n. In the Matter of Lewis A. Mitchell, App’lt.

      A. Schoomnaker and Simon W. Bosendale, for resp’ts; A. J. Simpson, for app’lt.
   Order affirmed, with costs, on opinion of Fursman, J., below. All concur, except Maynard, J., not sitting.

Affirming 45 St. Rep., 938.


text:
    In the Matter of James V. Lawrence et al., Resp’ts, v. Jos. A. Harrington et al. (to punish for contempt, etc.), App’lts.

      Jamies M. Hunt, for resp’ts; Geo. B. Wellington, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 43 St. Rep., 413.


text:
    Watson Van Benthuysen, Resp’t, v. The Central New England & Western R. R. Co., App’lt.
   No papers.

Appeal dismissed. All concur.

See 45 St. Rep., 16.


text:
    In the Matter of The New York El. R. R. Co., to acquire real estate. In re Clarkson et al.

      Henry G. Atwater, for app'lt; Theo. F. <7. Demarest, for resp’t.
   Order affirmed, with costs, on opinion below. All concur.

Affirming 43 St. Rep., 651.


text:
    Stephen Sanford et al., Resp’ts, v. John Claflin et al., App’lts.

      W. L Van Denberg, for resp’ts; L. McH. Garrison, for app’lts.
   Order affirmed, with costs, on opinion below. All concur.

Affirming 44 St. Rep., 346.


text:
    The People v. The North River Bank. In re George Manley et al., App’lts, v. Francis Higgins, Rec’r, Resp’t.

      Helson 8. Spencer, for app’lts; Peter A. Hendrick, for resp’t.
   Order affirmed, with costs, on prevailing opinions below. All concur, except Gray. -J., not voting.

Affirming 43 St. Rep., 43.


text:
    Edward C. Allen et al., Resp’ts, v. Robert H. Ingersoll et al., App’lts.
   Edwar.d Hassett, for resp’ts; Henry B. Kinglwrn, for app’lts.

Appeal dismissed, with costs. All concur.

See 45 St. Rep., 942.


text:
    In the Matter of Thomas C. Martin, Resp’t, v. The W. J. Johnston Co. (Limited), App’lt.

      Arthur H. Masteri, for resp’t; Mason F. Prosser, for app’lt.
   Order affirmed, with costs, on opinion of Daniels, J., below. All concur. Affirming 42 St. Rep., 409.


text:
    In the Matter of the Petition of Charles E. Morris, as Trustee.

      Henry W- Gonklin, for app’lt; George F. Danforth, for resp’t.
   "Order affirmed on opinion below, without costs to either party. All concur. Affirming 45 St. Rep., 716.


text:
    Washington H. Taylor, App’lt, v. Catharine Taylor et al., Resp’ts.

      Malcolm B. Lawrence, for app’lt; Benjamin Scharps and William Fullerton,. for resp’ts. "
   Judgment affirmed on the opinions below, with costs. All concur. Affirming 43 St. Rep., 485.


text:
    In the Matter of The Chester Rolling Mills, Resp’t, v. The Vessels "Hopatcong" and “Musconetcong,” etc., App’lts.

      Harvey Weed, for resp’t; Henry Sehmitt, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 41 St. Rep., 473.


text:
    The People v. The Bushwick Chemical Works.

      O. Bairibridge Smith, for app'lts; Charles F.Wells, for resp’t.
   Order affirmed, with costs, on opinion below. All concur.

Affirming 45 St. Rep., 339.


text:
    In the Matter of the Petition of The Pocantico Water Works Co. for Appointment of Com’rs, etc.

      Arthur H. Hasten, for app’lt; B. T. Lomtt, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 44 St. Rep., 935.


text:
    The City of Schenectady, App’lt, v. Robert Furman, Resp’t.

      ■S. W. Jackson, for app’lt; Robert J. Landon, for resp’t.
   Appeal dismissed on argument, with costs.

See 39 St. Rep., 975.


text:
    Filed May 31, 1892.
    Ignatz Dlabola, Resp’t, v. The Manhattan R. Co., App’lt.

      Alfred Sleekier, for resp’t; Samuel Blythe Rogers, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 149.


text:
    James Connolly, Resp’t, v. Devine M. Munger, App’lt.

      Frank Brundage, for resp’t; 8. B. Bentley, for app’lt.
   Judgment affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting.

Affirming 30 St. Rep., 1033.


text:
    Carlos C. Buck, App’lt, v. The Manhattan R. Co., Resp’t.

      John W. Weed, for app’lt; Joseph H. Adams, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 61.


text:
    John Arthur, App’lt, v. The City of Cohoes, Resp’t.

      Boyle & Fitts, for app’lt; P. B. Niver, for resp’t.
   Judgment affirmed, with costs. All concur, except Landon, J., not sitting.

Affirming 39 St. Rep., 473.


text:
    Henry L. Butler, Resp’t, v. The Village of Edgewater, App’lt.

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

Affirming 35 St. Rep., 315.


text:
    Annie M. Andariese, Resp’t, v. The Village of Edgewater, App’lt.

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

Affirming 35 St. Rep., 1035.


text:
    Hiram D. Hurd et al., Resp’ts, v. Lorenzo J. Bovee et al., App’lts.

      Norris Morey, for resp’ts; L. N Bangs, for app’lts.
   Judgment affirmed, with costs, on opinion of the general term. All concur.

Affirming 36 St. Rep., 834.


text:
    Lorenzo J. Bovee et al., App’lts, v. Hiram D. Hurd et al., Resp’ts.

      L. N Bangs, for app’lts; Norris Morey, for resp’ts.
   Judgment affirmed, with costs, on opinion of the general term. All concur.

Affirming 36 St. Rep., 834.


text:
    John Moore et al., Resp’ts, v. Lewis C. King et al., App’lts.

      Thomas Hogan, lor resp’ts; L. A. Gould, for app’lts.
   Judgment affirmed, with costs, on opinion of the general term. All concur.

Affirming 32 St. Rep., 808.


text:
    Thomas MacKellar, Resp’t, v. Thomas Farrell et al., App’lts.

      George M. MacKellar, for resp’t; B. J. Myers, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 29 St. Rep., 350.


text:
    William K. Clarkson, Resp’t, v. Emma Young et al., App’lts.

      Dana & Clm'Tcson, for resp’t; Horace Graves, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 579.


text:
    Amelia Vredenburgh, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Irving Brown, for resp’t; Calvin Frost, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 34 St. Rep., 953.


text:
    Filed June 7, 1892.
    James Morton, App’lt, v. Henry A. Richardson, Resp’t.

      John A. Gm'ter, for app’lt; Arnold & Greene, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 1132.


text:
    Thomas Quinn, Resp’t, v. The Atlantic Ave. R. R. Co., App’lt.

      Isaac M. Kapper, for resp’t; Charles J. Patterson, lor app’lt.
   Judgment affirmed, with costs. All concur, except Follett, Oh. J., and Landon, J., dissenting.

Affirming 34 St. Rep., 801.


text:
    James J. McComb, Resp’t, v. The Madrid Apartment Ass’n, Impl’d, App’lt. James J. McComb, Resp’t, v. The Cordova Apartment Ass’n, Impl’d, App’lt. James J. McComb, Resp’t, v. The Lisbon Apartment Ass’n, Impl’d, App’lt.
   Affirmed on opinion in McComb v. Barcelona Apartment Ass’n, 45 St. Rep., 784:

Affirming 31 St. Rep., 334.


text:
    Filed June 14, 1892.
    Henry Oberlies, App’lt, v. Balthasar Bulinger, Resp’t.

      Walter S. Hubbell, for motion; Abraham Benedict, opposed.
   Motion for re-argument denied, with ten dollars costs.

See 44 St. Rep., 851.


text:
    The State of New York Nat. Bank, App’lt, v. Samuel D. Coykendall, Impl’d, Resp’t.

      F. L. Westbrooh, for motion; A. T. Clearwater, opposed.
   Motion for re-argument denied, with ten dollars costs.

See 44 St. Rep., 934.


text:
    John H. Smith, Resp’t, v. David C. Reid, App’lt.
   Ho papers.

Motion for re-argument granted, without costs.

See 43 St. Rep., 490.


text:
    Francis B. Delehanty, Adm’r, App’lt, v. The St. Vincent’s Orphan Asylum Society, Impl’d, Resp’t.

      James F. Tracey, for app’lt; John T. McDonough, for resp’t.
   Judgment affirmed, with costs to both parties payable out of the surplus, if any, over and above the amount by which the widow’s annuity is secured. - All concur, except Landon, J., not sitting.

Affirming 29 St. Rep., 324.


text:
    Kate Noyes, Adm’rx, App’lt, v. Adam W. Kline et al., Resp’ts.

      B. F. Bullard, for app’lt; Bdward P. White, for resp’ts.
   Appeal dismissed, with costs. AH concur, except Landon, J., not sitting. See 31 St. Rep., 608.


text:
    Benjamin B. Johnston, Resp’t, v. The Manhattan R. Co. et al., App’lts.

      Henry G. Atwater, for resp’t; Samuel Blythe-Rogers, for app’lts.
   Appeal dismissed, without costs to either party.

See 32 St. Rep., 685.


text:
    Filed June 16, 1892.
    The Barrow Steamship Co. (Limited), Resp’t, v. The Mexican Central R. Co. (Limited), App’lt.
   Ho papers.

Motion for re-argument denied, with ten dollars costs.

See 45 St. Rep., 379.


text:
    Diedrich Werfelman et al., Resp’ts, v. The Manhattan R. Co. et al., App’lts.

      Henry G. Atwater, for resp’ts; Samuel Blythe Rogers, for app’lts.
   Judgment reversed, new trial granted, costs to abide event, on authority of .Roberts v. Metropolitan R. Go., 128 H. Y., 455; 40 St. Rep,, 454, and Malcolm w. Some, ante, 929.

Reversing 32 St. Rep., 682.


text:
    James Boyle, Resp’t, v. William Youmans, App’lt.

      M D. Wagner, for resp’t; William Youmans, for app’lt.
   -Judgment affirmed, with costs. All concur.

.Affirming 29 St. Rep., 888.


text:
    Supreme Court—General Term—First Department.
    Filed March 31, 1892.
    Sarah E. Mellen v. William C. Banning, Ex’r, et al.

   It would seem that the proper course would he to review the decision of the ■general term by an appeal from the judgment entered after a trial.


text:
    Daniel E. Donovan, Resp’t, v. Heman Clark, App’lt.
   Judgment affirmed.


text:
    The Campbell Printing Press & Mfg. Co. v. Thos. B. Sidebotham, Jr.
   Upon payment by appellant of ten dollars costs, motion denied.


text:
    In the Matter of Proving the Last Will and Testament of John Henry Fricke, Deceased.
   Motion denied.


text:
    Lorenz Reich v. William F. Cochran.
   Motion granted, with ten dollars costs.


text:
    Rudolph A. Breidenbach, App’lt, v. The Importers & Traders’ Nat. Bank, Resp’t.
   Motion granted, with ten dollars costs.


text:
    In the Matter of the Application of The Counsel to the Corporation in Behalf of the Mayor, etc. In re Riverside Park.
   Motion granted, with ten dollars costs.


text:
    Charles Schlesinger et al., Resp’ts, v. Wm. A. Christian et al., App’lts.
   Motion to dismiss appeal granted, with ten dollars costs.


text:
    In the Matter of the Probate of the Last Will and Testament of Mary A. Edson, Deceased. Marmont B. Edson, App’lt.
   Motion denied.


text:
    Lena Finelite v. Alexander Finelite.
   Motion granted, without costs.


text:
    Ambrose J. Agate v. Caroline E. House, Individually and as Ex’rx.
   Application denied, with ten dollars costs.


text:
    Lucius W. Sawyer, Resp’t, v. James Gordon Bennett, App’lt.
   Motion denied, with ten dollars costs.


text:
    In the Matter of the Petition of Paul Gantert, a Creditor.
   Motion denied.

Isaac Pincus, an Infant, App’lt, ®. The D. D., E. B. & B. R. R. Co., Resp’t.. Motion to dismiss appeal granted, with ten dollars costs.


text:
    William B. Perry et al. v. Albert D. Boomhower.
   Motion for re-argument denied, with ten dollars costs.


text:
    Charles F. Gall, App’lt, v. Amelia Gall, Adm’rx, et al., Resp’ts.
   Re-argument ordered.


text:
    William Foerster et al. v. Joseph Gallinger et al.

   Motion denied.


text:
    The People ex rel. Samuel P. Lynch v. Henry D. Purroy et al.

   Motion denied.


text:
    The People ex rel. George J. Maguire v. Henry D. Purroy et al.

   Motion denied, upon payment by relator, of ten dollars costs and stipulating to argue at néxt term.


text:
    Isabel S. Tripler v. The Mayor.
   Motion denied.


text:
    Julia M. C. Hofner v. Albertina Jacobs.
   Motion denied.


text:
    The American Bank Note Co. v. The Manhattan R. Co.
   "Motion dismissed.


text:
    Benajah M. Martin, Resp’t, v. The Manhattan R. Co. et al., App’lts.
   Motion granted.


author: Per Curiam.

text:
    Joseph Strouse et al., Resp’ts, v. The New York El. R. Co. et al., App’lts.
    Appeal from judgment entered on the report of a referee.

      B. Tolies, for app’lts; O. A. B. Pratt, Jr., for resp’ts.
   Per Curiam.

We think the sums fixed by the referee as past damages and as the value of the plaintiffs’ easements are not excessive, and are supported by the evidence.

The other questions presented arise in consequence of exceptions to the admission and exclusion of testimony. We think that all of the questions have been passed upon by prior adjudications of this court in favor of the respondents and that no error was committed by the referee that requires us to reverse the judgment.

The judgment should be affirmed, with costs.


text:
    Isaac K. Cohn, Ex’r, et al., Resp’ts, v. The Metropolitan El. R. Co. et al., App’lt.
    Appeal from judgment of special term.

      J. B. Lord, for app’lts; J. A. Murray, for resp’ts.
   Per Curiam.

The questions presented on this appeal have been decided adversely to the defendants on the determination of former appeals.

It is not necessary, therefore, that there should be any further discussion thereon, and the judgment should be affirmed, with costs.


text:
    Filed April 14, 1892.
    The People ex rel. George Le Boutillier, App’lt, v. Thomas F, Gilroy, Com’r, Resp’t.
   Order modified as to moveables within street lines and affirmed as to stoop and area.


text:
    In the Matter of the Application of The Mayor, etc., in respect to land between 34th and 35th Streets.
   Order affirmed.


text:
    In the Matter of the Application of The Mayor in respect to land between 35th and 36th Streets.
   Order affirmed.


text:
    In the Matter of Catherine R. Smiley et al.

   Re-argument ordered.


text:
    Bernard Schwerin, App’lt, v. The New York El. R. R. Co. et al., Resp’ts.
   Order reversed, with ten dollars costs and disbursements.


text:
    General Term—Third Department.
    Filed June 1, 1892.
    The People v. The Ulster County Savings Institution.
   Order affirmed proforma.


text:
    Mary Toomey v. Stephen Baumis, Adm’r.
   Appeal dismissed, with costs.


text:
    The State of New York Nat. Bank v. Samuel Coykendall. The Dutchess Co. Mutual Ins. Co. v. Frederick C. Van Wagonen et al.

   Order on remittitur in each case making judgment of' court of appeals the judgment of this court.


text:
    The People v. The Fitchburgh R. R. Co.
   Order on remittitur making the judgment of the court of appeals the judgment of this court.


text:
    John Eisenlord, App’lt, v. David H. Clum, Catherine L. Eisenlord et al., Resp’ts.
   Appeal dismissed.


text:
    General Term—Fourth Department.
    Filed May 13, 1892.
    Emma F. Roberts v. The Johnstown Bank et al.

   Motion for re-argument denied.


text:
    Edward O’Connor, Resp’t, v. Willis Sherman, App’lt.
   Motion granted dismissing the appeal, with ten dollars costs.


text:
    The Village of Stamford, App’lt, v. John H. Fisher, Resp’t.
   Motion for leave to appeal to the court of appeals granted, as the case involves a question of law that ought to be reviewed by that court.


text:
    Henry F. Bowler, Resp’t, v. Frank E. Wilcox, App’lt.
   Order reversed, with ten dollars costs and disbursements.


text:
    The People ex rel. H. Corydon Brown, App’lt, v. The Board of Trustees of the Village of Owego, Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Last Will and Testament of Esther Thompson, Deceased. Allen W. Reynolds et al., App’lts, v. Harriet S. Thompson, Executrix, Resp’t.
   Decree of the surrogate’s court affirmed, with costs.


text:
    John J. Ahearn, Resp’t, v. Revillo H. Molyneaux, App’lt.
   Judgment reversed and a new trial ordered, with costs to abide event. Held, (1) that the claim of sale of goods is not entirely satisfactorily proved; (2) that the claim for overtime is unsupported by the evidence.


text:
    Norris Winslow, Trustee, App’lt, v. The Carthage, Sacketts Harbor & Western R. R. Co. et al., Resp’ts.
   Order reversed, with ten dollars costs and disbursements. Held, (1) that an order on motion of one of several defendants directing a discontinuance of an action based upon conflicting affidavits is irregular; (2) whether the tender was good and effectual should not be determined upon conflicting affidavits.


text:
    Aaron Mogg, Resp’t, v. John Young, Impl’d, App’lt.
   Judgment affirmed, with costs.


text:
    The Town of Salina, Resp’t, v. Cornelius E. Stephens, App’lt.
   Judgment reversed on the facts and a new trial ordered, with costs to abide the event.


text:
    Joseph A. Vega et al., Resp’ts, v. Thomas Wheeler, Sheriff of Oneida County, App’lt.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that it was error to charge the jury “ that if,, at the time of the purchase, Sherwood & Hemmens were insolvent and knew that the plaintiff relied upon their solvency that was a fraud, and the sales were void.” See llotchlcin, v. Third Nat. Bk., 127 N. Y., 329; 38 St. Rep., 754.


text:
    Samuel Silverman, Resp’t, v. The Supreme Council of the Society of Select Guardians, App’lt.
   Judgment and order affirmed, with costs.


text:
    Malinda Hall, Resp’t, v. The London Assurance Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    M. Ella Sheperd, Adm’rx, App’lt, v. Hiram Hardin, Resp’t.
   Judgment of the county court reversed and the judgment of the justice’s-court affirmed, with costs.


text:
    Hiram L. Wait, App’lt, v. Alfred P. Roth et al., Resp’ts.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Andrew J. Feek, Resp’t, v. John Manley, App’lt.
   Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. Held, (1) that whether there was a conversion/ of the sulky by the defendant should have been submitted to the jury; (2) it was error to exclude the opinion of the witness Sanwald as to the value of the sulky.


text:
    Ralph S. Lombard, Resp’t, v. Phineas M. Miller, App’lt.
   Judgment affirmed, with costs.


text:
    Daniel H. Smith, App’lt, v. Joseph Dresser, Resp’t.
   Judgment of the county court affirmed, with costs.


text:
    Solomon Hess, Resp’t, v. The United Life & Accident Ins. Ass’n, App’lt.
   Judgment and order affirmed, with costs.


text:
    Eliza A. Martin, App’lt, v. The Manufacturers’ Accident Indemnity Co., Resp’t.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    John R. Young et al., App’lts, v. Winfield S. Stone, Sheriff, Resp’t.
   Order reversed, with ten dollars costs and disbursements.


text:
    Ellen Kennedy, Resp’t, v. Thomas McNamara, App’lt.
   Judgment affirmed, with costs.


text:
    Nathaniel T. Bacon, Resp’t, v. Margaret T. Rood, App’lt.
   Judgment and order affirmed, with costs.


text:
    James Long, Resp’t, v. Charles Herring, App’lt.
   Judgment affirmed, with costs.


text:
    John Sheldon, App’lt, v. Martin Barney, Resp’t.
   Judgment and order affirmed, with costs.

See Gillespie v. Brown et al., 16 Neb., 457.


text:
    Cornelia Brown, Adm’rx, Resp’t, v. Frank Herrick, Impl’d, App’lt.
   Judgment affirmed, with costs.


text:
    James Gallup, Resp’t, v. Selah M. Bronson, App’lt.
   Judgment and order affirmed, with costs.


text:
    General Term—Fifth Department.
    Filed April 13, 1892.
    George W. Bennett et al., Resp’ts, v. Austin R. Knapp et al., App’lts.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    W. Cleveland Allen v. Margaret G. Allen and Edward L. Parker, Trustees, App’lts, Impl’d with Allen Bailey et al., Resp’ts.
   Judgment appealed from affirmed, without costs of this appeal to either party, on opinion of Daniels, J., at special term.


text:
    Jacob Jockle, Adm’r, Resp’t, v. The Buffalo, Rochester & Pittsburg R. Co., App’lt.
   Judgment and order appealed from reversed and a new trial granted, with costs to abide the event, on the authority of Berrigan v. The JY. Y., L. E. <6 W. B. B. Go., 42 St. Rep., 868.


text:
    Louis Goodman, App’lt, v. John C. Lighthouse, Resp’t.
   Order granting a new trial appealed from affirmed, with costs of this appeal to the respondent to abide the event.


text:
    Louisa Doolittle, Resp’t, v. Anna Stone, Adm’rx, App’lt.
   Judgment appealed from affirmed, with costs, on the opinion of James C. Smith, referee.


text:
    Helen M. Collier, Resp’t, v. Harriet Rutledge, Ex’rx, App’lt.
   Judgment appealed from affirmed, with costs.


text:
    In the Matter of the Application of The City of Rochester to Acquire Certain Water Rights, etc.
   Order appealed from affirmed, with costs, on the opinion of Edward Harris, referee.


text:
    Lemuel Lyon, Resp’t, v. Henry P. Ricker, App’lt.
   Judgment appealed from affirmed, with costs.


text:
    Susan Ehlein, App’lt, v. Samuel N. Brayton, Resp’t.
   Order setting aside verdict and granting a new trial affirmed, with costs. Lewis, J., not sitting.


text:
    Hiram W. Sibley et al., Ex’rs, Resp’ts, v. Llanah Fitch et al., Impl’d, App’lts.
   Judgment appealed from affirmed, without costs of this appeal to either party.


text:
    Phoebe J. Hogan, App’lt, v. Daniel Kavanaugh et al., Resp’ts.
   Judgment appealed from affirmed, with costs.


text:
    Nancy E. Pickard, App’lt, v. James Carr et al., Resp’ts.
   Judgment appealed from affirmed.


text:
    Daniel Engel, Adm’r, v. The Eureka Club.
   Plaintiff’s motion for a new trial granted on the authority of the former decision of this court in this case reported in 59 Hun, 593; 37 St. Rep., 527.


text:
    Holmes B. Stevens, Resp’t, v. The American Fire Ins. Co. et al., App’lts.
   Interlocutory judgment appealed from affirmed, with costs, with leave to answer within twenty days on payment of costs of the demurrer .and of this appeal.


text:
    The Star Palace Laundry, App’lt, v. Almond H. Plumb, Resp’t.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    David A. Lamming, Resp’t, v. Norman H. Galusha et al., App’lts.
   Certificate under subd. 4 of § 190 of the Code of Civil Procedure granted.


text:
    John T. Cunningham, Resp’t, v. John M. Fitzgerald, App’lt.
   Motion for re-argument denied.


text:
    George W. Wells, Resp’t, v. Rufus A. Sibley et al., App’lts.
   Motion for leave to appeal to the court of appeals granted.


text:
    New York Common Pleas—General Term.
    Filed March 7, 1892.
    John Standfast, Resp’t, v. Samuel H. Hurd, Rec’r, App’lt,
   Motion for re-argument. Re-argument allowed. No costs.


text:
    Filed April 27, 1892.
    Thomas Kirkland, Resp’t, v. James Dyer, App’lt.
   Appeal from judgment of the eleventh district court.

Judgment reversed, with costs.


text:
    Alexander Hadden, Resp’t, v. Michael McGuire, App’lt.
   Appeal from judgment of the seventh district court.

Judgment affirmed, with costs.


text:
    John Wierzbicki, App’lt, v. William Sullivan, Resp’t.
   Appeal from fifth district court.

Ordered that the judgment he affirmed, with costs.


text:
    Filed April 28, 1892.
    Michael Reilly, Resp’t, v. Edward Reynolds, App’lt.
   Appeal from seventh district court.

Ordered that the judgment be affirmed, with costs.


text:
    Dick Little, App’lt, v. Harvey Kernell, Resp’t.
   Appeal from judgment of the third district court.

Ordered that the judgment he affirmed, without costs.


text:
    The U. S. Electric Light & Power Co., App’lt, v. Brewster Mavernick, Resp’t.
   Appeal from judgment of the first district court.

Ordered that the judgment he affirmed, with costs.


text:
    Abraham R. Hopkins, Resp't, v. David Katz, App’lt.
   Appeal from judgment of the eleventh district court.

Ordered that the judgment be affirmed, with costs.


text:
    Charles Wissman, Resp't, v. The Peoples’ Cold Storage Co., App’lt.
   Appeal from judgment of the seventh district court.

Ordered that the judgment he reversed, new trial ordered, costs to appellant to abide the event.


text:
    Guertara De Motta, Resp’t, v. Carlo La Marito, App’lt.
   ' Appeal from judgment of district court.

Ordered that judgment be affirmed, with costs.


text:
    Daniel Shanahan, Resp’t, v. John Mahony, App’lt.
   Appeal from judgment of the first district court.

Ordered that the judgment he affirmed, with costs.


text:
    Filed May 2, 1892.
    The People ex rel. James Conklin v. Henry D. Purroy et al.

   Writ of eertiormi dismissed, and judgment dismissing relator from the police force affirmed.


text:
    Paul Zunz, Resp’t, v. William W. Heroy, App’lt.
    Motion to dismiss appeal.

      Otto Horwitz, for motion; W. W. Niles, opposed.
   Per Curiam.

The motion to dismiss the appeal in this action is granted, with ten dollars costs, unless the appellant by or before six o’clock p. m. of the seventh day of May, 1892, print and serve upon the respondent’s attorney all of the exhibits required by the case as filed, in full, with proper distinctions as to the color of the checkmarks upon the same, and, also, the referee’s opinion, and in every other respect make the case conform to the said case as settled now on file in this court; and if this direction is complied with, then, and then only, will the case be set down for argument on the 12th inst.


text:
    Filed May 3, 1892.
    Heim, Resp’t,. v. Roy, App’lt.
   Motion to dismiss appeal; motion granted and appeal dismissed, with costs.


text:
    Filed May 4, 1892.
    In the Matter of the Application of Henry L. Sprague, Resp’t, v. Dudley R. Horton (an attorney), App’lt. 2 cases.
   Appeal from judgment of the city court. On motion of E. J. Tinsdale, for respondent,

Ordered, that the appeal in each of the above cases be dismissed, with costs, in each case. See 46 St. Rep., 17.


text:
    Henrietta May, Resp’t, v. Edwin Schonfeldt, App’lt.
   Motion to dismiss appeal for non-service of printed papers. Motion granted.


text:
    Filed May 5, 1892.
    Robert Grimshaw, Resp’t, v. Ferd. H. Woolfall et al., App’lts.
   Appeal from judgment of this court.

Judgment affirmed, with costs.


text:
    Filed May 6, 1892.
    Edward C. Allen et al., Resp’ts, v. Robert H. Ingersoll, App’lt.
   Appeal from order of the court of common pleas.

Order affirmed, with costs.


text:
    Cath. Bradley, Resp’t, v. The Manhattan R. Co., App’lt.
   Appeal from judgment of the court of common pleas.

Judgment affirmed, with costs.


text:
    David Conover, Resp’t, v. W. F. Lennon, App’lt.
   Appeal from judgment of the city court.

Judgment affirmed, with costs.

Affirming 46 St. Rep., 18.


text:
    Margaret D. Brennan, App’lt, v. Percival D. Griffiths, Resp’t.
   Appeal from order of the city court. On motion of Guggenheimer & Untermeyer, appeal dismissed, with ten dollars costs and disbursements.

See 46 St. Rep., 16.


text:
    Ellwood S. Hand, Resp’t, v. The Society for Savings in the City of Cleveland, App’lt.
   Appeal from judgment of the city court.

Judgment affirmed, with costs.

Affirming 44 St. Rep., 785.


text:
    Amelia Spengeman, Resp’t, v. Henry Alter, App’lt.
   Appeal from judgment.

Judgment reversed, new trial ordered, costs to abide the event.


text:
    Samuel J. Lanahan v. Edwin Drew.
   Motion to dismiss appeal.

Motion granted, with costs.


text:
    Wm. A. A. Matthie, Resp’t, v. George A. Dowden, App’lt.
   Appeal from judgment.

Judgment affirmed, with costs.


author: Per Curiam:.

text:
    John J. Levy, Resp’t, v. Stanley Cohen, App’lt.
    Appeal from order overruling demurrer from the city court.

      F. E. Smith, for resp’t; Eoadley, Lcmuterbaeh & Johnson, for app’lt.
   Per Curiam:.

You were bound to make the demand at the principal office. In order to recover you must prove that you did make your demand at that. office; but you have not alleged in your complaint that you made the demand at that office. Under the statute it is also necessary for you to show that you made the demand during business hours. You could not recover unless you proved that and it being necessary for you to prove it, it was necessary for you to allege it.

These actions are to recover a penalty and the pleadings are to be construed with the same strictness that an indictment is; consequently, your complaint is, in our judgment, fatally defective in these two particulars. What you do not allege you cannot prove. In actions upon a statute for the recovery of a penalty, the pleadings are more strongly construed than in actions upon contracts. In the first class of actions everything which it is necessary to prove must be alleged in the pleading.

We think this judgment should be reversed; but you should have leave to amend the complaint upon paying the costs of the court below and upon this appeal within six days after service of the order of reversal upon plaintiff’s attorney.

Order overruling demurrer reversed with leave to amend upon payment of costs.


text:
    Filed May 12, 1892.
    The People ex rel. Alexander Murphy v. Henry D. Purroy et al., Com’rs.

      Oertiora/ri to review the judgment of the board of police commissioners dismissing relator from the police force.

      L. J. Grant, for relator; Wm. H. Gla/rk, for com’rs.
   Per Curiam.

We do not think there is any irregularity on the part of the commissioners shown in this case.

It was tried in the ordinary way before one commissioner, who reported it to the full board and the full board acted upon that report. We do not think there was any rule of law violated on the trial of the relator; no injustice was done to him upon that trial. The evidence in the case abundantly supports the finding of the police commissioners, to wit; that the relator was under the influence of liquor at the time and unfit for duty; and we think that although there is evidence which might have justified the commissioners in arriving at a different conclusion from that which they did arrive at; yet that there was quite sufficient to sustain the finding that they did and that it is not in the interest of the public service that the judgment of the commissioners should be interfered with lightly.

In our opinion there is no such preponderance of evidence as would warrant us in reversing the finding of fact which they made.

Ordered that the writ be dismissed and judgment of the board affirmed, with costs.


text:
    Sylvester McCarthy, App’lt, v. Henry MacGregor, Resp’t.
   Appeal from judgment of this court.

Judgment affirmed, with costs.


text:
    Fanny Hyman, App’lt, v. Betti Friedman, Resp’t.
   Motion to re-settle case on appeal denied, with ten dollars costs.


text:
    In the Application of The American Surety Co. of New York.
   Motion granted.


text:
    The People v. Samuel Samuels.
   Motion to vacate judgment entered on a forfeited recognizance granted,


text:
    Henry G. Harris, App’lt, v. S. Morris Pryor, Resp’t.
   Motion for re-argument denied, with ten dollars costs.


text:
    Isaac Boehm v. Edward Miller.
   Motion to re-settle order of general term denied, with ten dollars costs.


text:
    The People v. Henry D. Purroy et al.

   Motion for re-argument denied, with ten dollars costs.


text:
    Alex. McSorley v. Jas. A. Faulkner.
   Motion for re-argument or leave to appeal to the court of appeals denied, With ten dollars costs.


text:
    Minnie Powell, Resp’t, v. Victor S. Flechter, App’lt.
   Motion for leave to go to the court of appeals denied, with ten dollars costs.


text:
    John W. Young, Pl’ff, v. Sophia Young, Def’t.
   Motion to dismiss appeal denied, without costs, and with liberty to renew at next general term.


text:
    The People v. William A. Garner.
   Motion to vacate judgment entered on a forfeited recognizance granted.


text:
    No. 121 Madison Avenue, App’lt, v. John C. Osgood, Resp’t.
   Motion for re-argument, or for leave to appeal to the court of appeals, denied, with ten dollars costs.


text:
    Patrick Malony v. Edward J. Brady.
   Motion to go to the court of appeals denied, with ten dollars costs.


text:
    Alexander Hadden, Resp’t, v. Michael McGuire, App’lt.
   Motion for re-argument denied, with ten dollars costs.


text:
    Thomas Kirkland, Resp’t, v. James Dyer, App’lt.
   Motion for leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    Robert W. Drummond v. Frank L. Fisher.
   Motion for leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    David Conover, Resp’t, v. W. F. Lennon, App’lt.
   Motion for leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    Frances E. Grissen, Resp’t, v. Ruth L. Southworth, Ex’rx, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Depositions—Commission—Waiver.
    A failure to take the testimony under an open commission by question and answer, word for word, is an irregularity only, and may be waived by the parties by proceeding before the officer in a different manner than that provided by the commission.
    Appeal by the defendant, Euth L. Southworth, executrix of the last will of Mortimer M. Southworth, deceased, from an order of the special term of the supreme court, held in Niagara county on the 22d day of April, 1892, suppressing the deposition of Mary Lyon, a witness for the defendant, taken under a commission which was issued at the instance of the defendant.

      Charles Hickey, for app’lt; W. H. Hanson, for resp’t.
   Per Curiam.

A motion in behalf of the defendant was made and granted for the examination of the witness named at Ovid, in the State of Michigan, upon oral questions to be administered under the direction of Byron Y. Soule, a counsellor at law, as commissioner. Such examination was had, and the testimony of the witness was properly returned by the commissioner, and filed with the county clerk of Niagara county on the 30th day of March, 1892. On the 13th day of April, 1892, the plaintiff served a notice of motion for the 22d day of that month to suppress such commission, upon the ground that the testimony of the witness was not taken by question and answer, word for word, as is permitted by § 900 of the Code of Civil Procedure, and as was directed by the commission itself.

This section of the Code directs, among other things, that the commissioner must “ take down, or cause to be taken down, etc., the substance of the witness’ testimony, unless he is directed in the commission, or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word.” The direction in this instance, as contained in the commission, was that the testimony of this witness be taken by question and answer, word. for word. In respect to a considerable portion of the testimony of the witness this direction was not observed ; and, consequently, this motion to suppress the commission, being made within a reasonable time ’ after the same was filed with the clerk, was properly granted, unless the irregularity was waived by the parties. It appears that at the taking of the deposition the plaintiff and defendant were respectively represented by counsel who conducted the examination. The counsel for the plaintiff is shown to have been employed not only for this special occasion, but that he was her general counsel regularly employed. He, with knowledge of the manner in which the commissioner wrote the testimony, made no objection thereto, and hence presumably the commissioner acted with the consent and concurrence of both parties. We are accordingly of the opinion that the omission to object to the course pursued by the commissioner was a waiver of the direction contained in the commission. In the absence of such direction or request made at the taking of the deposition, the usual course to be pursued by the commissioner, contemplated by the statute, was to take the testimony in a narrative form. A failure to take it by question and answer, word for word, is an irregularity only, and may be waived by the parties by proceeding before the officer in a different manner than that provided by the commission.

It follows that the order appealed from should be reversed, and the motion denied, with costs.

Order appealed from reversed, with ten dollars costs and disbursements of appeal, and the motion denied, with ten dollars costs.

Dwight, P. J., Macohber and Lewis, JJ., concur.


author: Macomber, J.

text:
    Benjamin B. Conable, Resp’t, v. Edgar K. Smith, Survivor, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Appeal—New trial.
    After an appeal has been taken from a judgment and the judgment has been affirmed, it is not permitted to the party aggrieved to go back to special term and move for a new trial on a case and. exceptions and then appeal from the order denying such motion, and thus obtain a second hearing in the appellate court.
    2. New trial—Newly discovered evidence—Affidavit.
    An affidavit of a proposed witness as to his belief or understanding of the facts, without stating them positively, is not sufficient for the_ court to act upon on a motion for a new trial on the ground of newly discovered evidence.
    3. Same.
    The proposed witness was in court at the time of the trial, to the knowledge of. the moving party, but was not called because it -was not known what he would testify to. Meld, that it is not permissible for parties to thus experiment with the court, and afterwards claim the privilege of anew trial under pretense that the evidence is newly discovered.
    Appeal by Edgar K. Smith, surviving defendant, impleaded with Charles K. Brown, now deceased, from an order of the special term of the supreme court in Wyoming county, dated the 27th day of April, 1891, and entered in that county September 15, 1891, denying his motion for a new trial made on a case and exceptions, and also upon the ground of newly discovered evidence.

      L. W. Thayer, for app’lt; Byron Healy, for resp’t.
   Macomber, J.

Judgment was entered against the defendants, Edgar K. Smith and Charles K. Brown, on the 15th day of June, 1878, upon a verdict at the circuit The notice of appeal from such judgment was served October 30, 1890, and the same was pending on appeal in the general term at the time that the motion herein was made. The case upon the former appeal was submitted to this court in June, 1891, and was decided in favor of the respondent in October, 1891.

This motion was noticed for the 27th day of April, 1891, and was subsequently heard at the special term and was denied, from which order this appeal is taken.

The opinion of this court upon the former appeal is reported in 40 St. Rep., 577.

This action was brought upon a promissory note executed by one Henry Gfarretsee in the sum of $2,000, dated February 1, 1871, payable to the defendant, Charles K. Brown, at the "Wyoming County National Bank, at Warsaw, N. Y., with interest after the first day of March thereafter. It was endorsed, before delivery to the plaintiff, and before maturity, by the defendants Brown and Smith. The bona fides of the plaintiff were not disputed upon the trial, and the only defense urged was that the note had been altered in a material respect after the endorsement was made, and before the same was negotiated. Such, change, it was alleged, consisted in inserting the following words: “ and interest after the first day of March next” This defense was, upon the trial at the circuit, sustained by testimony given in behalf of the defendants and by a so-called expert. It appeared, however, that subsequently to the delivery of the note to the

Elaintiff bankruptcy proceedings were instituted against the ma-er of the note, Henry Garretsee, which were subsequently discontinued on payment by him of twenty-five per cent of his indebtedness, including this outstanding note. Both of the defendants, Smith and Brown, united in an agreement to the effect that on payment by the maker of twenty-five per cent of the whole, he might be released from further liability thereon, and such release should not in any respect vary or modify the obligation of the endorsers. The other facts appear in the opinion above alluded to, and they need not here be again rehearsed.

We have before us upon this branch of the case the same argument that was addressed to us upon the appeal from the judgment, in addition to the points applicable to that part of the motion pertaining to the newly discovered evidence. There is no practice with which we are acquainted which enables parties thus to get a second hearing in the appellate court. After an appeal has been taken from the judgment, and the judgment has been affirmed, it is not permitted to the party aggrieved to go back to the special term and make a motion for a new trial on a case and exceptions, as was done in this action, and then appeal from the order denying such motion, and accordingly we must affirm that part of the order appealed from, and adhere to our former decision upon the case as it was made at the circuit.

There is, therefore, no question which we ought to entertain for a moment upon this appeal, except that part of the motion made at the special term for a new trial upon the ground of newly discovered evidence. There are many fatal objections to this part of the case also, one of which is, that the motion was not made within the time limited for an appeal to be taken from the judgment as is provided for by § 1002 of the Cede. But there are other grounds of objection which I proceed to state.

The principal affidavit upon which a new trial upon the ground of newly discovered evidence was based, consists of that of Henry Garretsee, the maker and writer of the note. In his affidavit, bearing date the 30th day of March, 1891, he says that when the note was drawn and signed by him, and at the time it was endorsed by Brown and Smith, “ it was in the words and figures following,” “as deponent verily believes;” thence follows a copy of the note with the words, “ with interest after the 1st day of March, next,” left out. The affiant then proceeds as follows: “ Deponent says he verily believes, and he has no doubt he wrote the words, 1 and interest after the 1st day of March next,’ in said note, as last above set out: that said Brown and said Smith had. endorsed the same,” and he further says that this was done without notice to said endorsers and without their knowledge. This affidavit is extremely inconclusive and ambiguous. It is inconclusive in that the only thing the affiant has sworn to relates to his belief. He does not seem to have any knowledge or recollection in regard to the matter. An affidavit of mere belief, without stating facts, is not an assertion of any facts upon which courts can safely act; and for this reason, also, the affidavit was insufficient even to call upon the other side for counter affidavits. But the same person made another affidavit on the 13th day of April, 1891, in which he stated “ that he understood it (the note) to be endorsed in blank and be had a legal right to insert the words and interest after the 1st of March next.’ ” The second affidavit is as inconclusive as the first one, and neither of them contains a positive or unqualified assertion of a matter of fact which necessarily was within the knowledge of the affiant. In the first affidavit, he merely asserted his belief. In the second one, he says he “ understood,” which is another form o'f asserting a belief. These affidavits, therefore, must be thrown out of the case as entirely worthless.

There is still another reason why this motion was properly denied at the special term. It appears that upon the trial of the action the maker of the note, Henry Garretsee, was present in court and heard the testimony of the two defendants to the effect that this alteration has been made in the note. But he was not called as a witness on either side. The fact that he was in the court was known to the defendants, for one of them, upon this motion, makes an affidavit to the effect that he knew he was present in court. He further says, however, that he did not know what this witness would testify to and hence did not call him. But under the well established rules governing motions for new trials upon the ground of newly-discovered evidence, it is not permissible for parties at the trial thus to experiment with the court, and afterwards claim the privilege of another trial under the pretense that their evidence is newly discovered.

It has often been decided by the courts, and stated by elementary writers, that the requisites for a successful motion for a new-trial upon the grounds of newly discovered evidence are these: (1) It must appear that the evidence has been discovered since the trial; (2) that it could not have been obtained upon the former trial by the exercise of due diligence; (3) that it is not cumulative; (4) that in its character it is so decisive that there is a reasonable certainty that on another trial it would change the result; (5) that the motion has not been unreasonably delayed. An inspection of the moving papers on this appeal shows clearly that not one of these reasonable rules has been observed in this instance.

The order appealed from should be affirmed.

Order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


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    Benjamin B. Conable, Resp’t, v. Matison Keeney, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Appeal by the defendant, Matison Keeney, from an order made at the Wyoming special term, on the 27th day of April, 1891, and entered on the 15th day of September, 1891, denying his motion for a new trial made upon a case and exceptions and upon affidavits.

      Augustus Harrington, for app’lt, Johnson & Childs and Byron Healy, for resp’t.
   Per Curiam.

This appeal is, in all material respects, the same as that of Benjamin B. Conable, respondent, v. Edgar K. Smith, appellant, the decision in which is handed down herewith.

The note in this case bears date January 1,1871, and -was made by the same Henry Oarretsee as maker and endorsed by the defendant, Matison Keeney, and one Norris Gray, and was in the sum of $2,000, payable thirteen months thereafter, at the Wyoming County National Bank, Warsaw, N. Y., “with interest after the first day of March next”

The proceedings in this case have been the same as in that of Conable v. Smith. The decision of the general term upon the appeal from the judgment is reported in 40 St. Rep., 939. The affidavit of Grarretsee in this instance is the same as that used in the other case, save only in the names of the parties and in other slight immaterial matters. Our views as expressed in the other case apply equally to this appeal, and lead to an affirmance of the order.

Order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


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    Romine O. Bush, Resp’t, v. Humphrey Folks, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Counterclaim—Breach of warranty on sale of seed.
    In an action against him defendant counterclaimed for damages sustained by reason of certain tobacco seed, alleged to have been purchased of plaintiff by him and represented to be of a particular variety, turning out to be of inferior quality. The evidence showed that defendant purchased said seed of one G., who purchased of plaintiff, and who did not claim to be buying for defendant. Held, that as there was no purchase by defendant of plaintiff, either personally or by G. as agent, no right of action accrued to defendant and his counterclaim could not be sustained.
    Appeal by the defendant, Humphrey Folks, from a judgment of the county court of Cayuga county, entered September 23, 1890, affirming a judgment of a justice of the peace, dated August 20, 1889, which was given in favor of the plaintiff against the defendant for the sum of two dollars and costs.

      James Wright, for app’lt; A. W S hurtleff, for resp’t.
   Macomber, J.

The complaint before the justice of the peace-was for an indebtedness of the defendant to the plaintiff in the sum of two dollars for the use of a drill.

The answer was a general denial; and secondly, a counterclaim to the effect that in the spring of 1884 or 1885 the plaintiff sold and delivered to the defendant certain tobacco seed and represented such seed as “ Wilson Hybrid,” a superior kind of tobacco, and the same turned out to be inferior quality and not “Wilson Hybrid,” to the damage, as was claimed, to the defendant, of $150. Waiving the tort, the answer demanded judgment upon the counterclaim in the sum of $150, besides costs.

The only question upon this appeal relates to the counterclaim interposed by the defendant in his answer. The tobacco seed mentioned in the answer, it is shown by the defendant’s own evidence, was bought not by him of the plaintiff, but by him of one Grant who, in turn, obtained the same from the plaintiff. Grant-testified in substance that he bought the seed from the plaintiff; and that the plaintiff said it was “ Wilson Hybrid.” He did not tell the plaintiff that he was buying the seed for the defendant. But he did state to him, that certain other seed which he bought of the plaintiff at the same time was for one Smith. The testimony of the witness Grant is not altogether harmonious in its parts upon the question here presented, but we think on the whole that the justice was justified in taking the view above expressed, as he must have done in rendering the judgment appealed from. As there was no purchase of this seed by the defendant of the plaintiff, either personally or by the means of Grant as his agent, it follows that no right of action here set up by way of counterclaim in the answer accrued to the defendant. It follows, therefore, that the judgment appealed from should be affirmed.

Judgment of the county court of Cayuga county appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.