author: Martin, J.: Merwin, J.

text:
    CHARLES B. BASSETT, Respondent, v. JESSE L. WOOD, Appellant, Impleaded, etc.

      Unrecorded mortgage — notice thereof arising from an occupation of a paHofthemoi'tgaged premises by the mortgagee.

    In an action, brought to have the plaintiff’s mortgage declared to be prior in lien-to a mortgage held by the defendant, and for a foreclosure thereof, it appeared that the plaintiff’s mortgage was subsequent in date, and earlier in date of record to that of the defendant, hut that before the time that either mortgage was given the defendant moved, with his wife and family, into the house on the mortgaged premises, and took possession of a portion of the house, and resided therein with his family, separate and apart from the occupation of the other portions of the-house by his son, the mortgagor, up to the time of the commencement of the-action; and, further, that by the provisions of the mortgage to him the defendant was given the absolute right to such possession during the life of the parties.

      Held, that as the defendant’s possession was actual, open and visible, and not equivocal, occasional or for a special or temporary purpose, that it constituted, constructive notice to the plaintiff of his interest in the premises, and was sufficient to put the plaintiff upon inquiry to ascertain what the rights of the-defendant were in the premises, at least in that portion thereof which was in his actual possession. (Merwin, J., dissenting.)
    Appeal by tbe defendant from all that portion of a decree made- and entered in tbe above-entitled action on tbe 26th day of February, 1889, in tbe office of tbe clerk of tbe county of Delaware, by whichtbe ben, rights and interests of tbe defendant Jesse L. Woodweredeclared and decreed to be subsequent and inferior to tbe rights and mortgage of tbe plaintiff; and whereby tbe rights, lien and interest of tbe defendant Jesse L. Wood were directed to be barred and foreclosed in said action; and whereby tbe proceeds of tbe sale-of said premises were directed to be first appbed to tbe payment of' tbe plaintiff’s mortgage and the costs of this action.
    Tbe action was brought for tbe foreclosure of a mortgage made-by tbe defendant Nathan C. Wood to the plaintiff, and to have tbe same declared to be a lien upon certain property located in tbe village of Walton, N. Y., superior and prior to tbe ben of a mortgage held by tbe defendant Jesse L. Wood, who was tbe father of Nathan C. Wood, each of whom occupied a separate portion of the building upon tbe mortgaged premises. Tbe plaintiff’s mortgage was executed on tbe 10th .day of March, 1881, and recorded-February 18, 1885, in the office of the clerk of the county of Delaware. The defendant Jesse L. Wood’s mortgage was executed February 1, 1872, and recorded in said clerk’s office March 24,1885.

      Marvins & Hanford, for the appellant.

      Fcmoher & Sewell, for the respondent.
   Martin, J.:

We think the possession of the appellant was such as to amount to constructive notice of his interest in and lien upon the premises in question. The learned referee, at the request of the appellant and- upon sufficient evidence, found: “ That in the month of August, 1871, and after said house was ready for occupancy, the defendant Jesse L. Wood (the appellant), moved with his wife and family into ■said house and took possession of the south wing thereof and the .south tier of rooms in the body thereof (except the back bed-room •on the second floor), and the south part of the cellar and use of the back kitchen for washing and use of privy and yards, and took sole and exclusive possession and control thereof and resided therein with his family, separate and apart from the occupants of the other portion of said house, and from that time until the commencement •of this action, and still resides there.”

The appellant held possession of the portion of the premises mentioned under and in pursuance of the provisions of a mortgage given him by the owner in fee. JBy the provisions of such mortgage the appellant was given the absolute right to such possession during the life of the parties. He was thus in possession when the plaintiff’s mortgage was given. That the appellant’s possession was actual, •open and visible, and not equivocal, occasional, or for a special or temporary purpose, is made quite clearly manifest by the evidence in this case. His possession was such as to enable a subsequent ■grantee or mortgagee to go upon the premises and obtain by inquiry there, information of his rights in and lien thereon. (Page v. Waring, 76 N. Y., 463, 470.) It is quite obvious that the plaintiff .and the parties interested in the mortgage sought to be foreclosed must have known, or by propel1 inquiry would have learned, that the premises in question were thus occupied by the appellant.

In Moyer v. Hinman (13 N. Y., 180), the plaintiff was in possession of a farm under a contract of_ purchase, and it was held that that fact was notice to all persons who had subsequently become-interested in the premises of all the plaintiff’s rights under his contract. In Gouverneur v. Lynch (2 Paige Ch., 300) it was held that where a vendee is in possession of lands under a contract to-purchase, a subsequent purchaser or mortgagee has constructive notice of his equitable rights and takes the lands subject to his prior-equity. In De Ruyter v. Trustees of St. Peter’s Church (2 Barb. Ch., 555) it was held that where a person who has an equitable-interest in a building erected upon premises belonging to another, by having advanced money for the erection thereof, is in possession of the premises under an agreement with the owner at the time of' the execution of a mortgage theréon to a third person, and continues-in possession down to the time of the sale of the premises by a. master under a decree obtained in a suit brought to foreclose such mortgage, the complainant in the foreclosure suit and the jiurchaser at the master’s sale are bound to take notice of the equitable rights, of the tenant, if any such exist, such possession being constructive-notice to them of his rights.

In the Bank of Orleans v. Flagg (3 Barb. Ch., 316) it was held that where the purchaser of premises is in the actual possession thereof by his tenant at the time of the giving of a mortgage thereon to others by the vendor, such possession is constructive notice to the mortgagees of the equitable rights óf such purchaser, and they are not entitled to protection as bona fide mortgagees without notice of his rights. In Trustees of Union College v. Wheeler (61 N. Y., 88) it was held that actual occupancy by a purchaser under a contract of sale is constructive notice to a mortgagee of the rights of such purchaser. In Grimstone v. Carter (3 Paige Ch., 421) it was held that if a purchaser of real property knows that a. person other than the vendor is in actual possession thereof at the-time of his purchase, or before he has paid the purchase-money and obtained the legal title, he cannot protect himself as a bona fide purchaser against the equitable rights of the person in possession, of whom he made no inquiry as to the nature of that possession. In Cunningham v. Pattee (99 Mass., 252) it was said: “ The authorities, fully support the doctrine in equity that one who purchases an estate, knowing it to be in the possession of a tenant, is bound to-inquire into the nature of the tenant’s interests, and will be affected with notice of the extent thereof. * * * The general rule is, that notice sufficient to make inquiry a duty is notice of all that by reasonable inquiry would have been ascertained.” Possession by a tenant is also held to be notice of a collateral agreement held by the tenant for the purchase of the property. (Knight v. Bowyer, 23 Beav., 609, 641; Taylor v. Stibbert, 2 Ves., Jr., 437, 440; Kerr v. Day, 14 Penn. St., 112.)

Possession is notice only of the legal or equitable interest in the land of the person in possession. It visits the purchaser with notice •of every fact and circumstance which he might have learned by making inquiry of the occupant.” (Jones on Mortgages, § 601.)

The doctrine of the cases cited, and, indeed, the whole current of the authorities, seem to lead to the conclusion that the -occupancy •of the premises in question by the appellant constituted constructive notice of his interest therein. It was sufficient to put the respondent •upon inquiry that the appellant was in actual possession of a distinct and separate portion of the property, and it was the duty of the respondent to ascertain whether the appellant had any iixtex’est in it, and if so, to what extent, and for this juxx’pose to have some communication with or from him. (Seymour v. McKinstry, 106 N. Y., 238; Spofford v. Manning, 6 Paige Ch., 383.)

The cases of Brown v. Volkening (64 N. Y., 76) and Pope v. Allen (90 id., 298) are not in conflict with this conclusion. In Brown v. Volkening the premises were wholly unoccupied, and hence the case was clearly unlike the case at bar. In Poye v. Allen there was no distinct occupancy of the farm by the defendant. Pope and the defendant occupied the land together. Both were members of the same family, and the occupancy proved was equivocal. Those cases are clearly distinguishable fx’om the case at bax\

In the case at bar the occupation of the premises by the appellant was not a joint one, nor was it equivocal. It is true he did not occupy the whole of the premises, but he had actual and exclusive ■possession of a distinct and separate portion thereof. His possession was both x’eally axid apparently independent and exclusive of any possession of that portion by the mortgagor. Such possession was also inconsistent with an absolute and unqualified title and right of possession in the mortgagoi1.' It indicated that the appellant possessed some right therein.

We are of the opinion that the appellant’s possession was constructive notice to subsequent mortgagees of his interest in the premises, at least of his interest in that portion of the premises which was in his actual possession. If correct in the foregoing conclusion, it follows that the judgment should be reversed.

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

Hardin, P. J., concurred.

Merwin, J.

(dissenting):

The main question in the case is whether the occupancy of Jesse L. Wood was of such a character as to be constructive notice of his rights under his mortgage. In Brown v. Volkening (64 N. Y., 83), the doctrine is laid down that the possession which is .sufficient to put a person upon inquiry, and which will be equivalent to actual notice of rights or equities in persons other than those who have a title upon record “ must be actual, open and visible; it must not be equivocal, occasional, or for a special or temporary purpose; neither must it be consistent with the title of the apparent owner by the record.”

This rule was approved in Pope v. Allen (90 N. Y., 298). In that case the plaintiff claimed title under a deed from N. B. Pope, who derived title under a deed from one Rogers which was on record when plaintiff bought. The defendant claimed that he was the equitable owner; that N. B. Pope, in making the purchase from Rogers, was his agent and wrongfully took title in his own name and without the defendant’s knowledge or consent, and that defendant paid the purchase-money; that defendant erected a dwelling-house on the premises at his own. expense, and occupied it, and was in possession at the time of plaintiff’s purchase. It appeared that prior to the purchase from Rogers, N. B. Pope lived with the defendant as a member of his family, and that after the purchase they moved on to the premises, and Pope lived with the defendant as before. The court said defendant’s possession was equivocal and ■consistent with the record title in Pope, since Pope was also in possession, and there was nothing to indicate that defendant’s possession was not subordinate to his, or to suggest hostility to the record title. Upon this subject it is said, in 2 Pomeroy’s Equity Jurisprudence (§ 620): “ No mere occupation of the premises in common or in connection with a third person, and no mere acts of ownership equivocal in their nature, over the land, will then suffice.”

In the present case it appears that the house was quite a large one, that it was arranged and built for occupation by twq families living entirely separate. There was no garden ; the yard was occupied in common, as were also certain other privileges in connection with the house. The outside appearance of the house is not' shown. It was built by the son, he first moving in, and afterwards the father. The son was in business, the father apparently not. In the house the families lived separate. This cpntinued from 1871 to 1885, the record all the time showing the son to be the owner, and no claim thereto hy the father. With considerable force may it be said that such an occupancy by the father was equivocal and not inconsistent with the record title of the son. There was a common use to a certain extent, and the fact that the families lived in the house separate would not materially change the situation. It would be a case where apparently the father was living with the son in the son’s house.

The principle adopted and applied in the Pope Case substantially applies here. Within that it must, I think, be held that the possession of Jesse L. Wood was not such as to amount to constructive notice. No actual notice is shown.

The plaintiff is in the position of a purchaser for a valuable consideration within the recording act. At the time he took the mortgage he surrendered obligations upon which not only the mortgagor but others were liable, and he also gave time. (Cary v. White, 52 N. Y., 138.) There was a new and substituted contract.

It is argued by the defendant that the provision in the mortgage giving the mortgagee the permission or right to occupy certain rooms with certain privileges was, in fact, a lease for life, and that the provisions of the recording act do not apply to it, and that, therefore, it is good, as against plaintiff, without recording. The provisions of the recording act do not extend to leases for life or lives or for years ” in the counties of Delaware and certain others. (§ 42 of chap. 3, pt. 2 of R. S.; 1K. S , 763; 4 id. [8th ed.], 2476.) This provision is taken from chapter 263 of the Laws of 1823. The mortgage in question is not a lease within the meaning of that act. The father advanced certain moneys upon the agreement by the son to secure them by said mortgage. When the mortgage came to be given the payment of the interest was provided for in a certain way. The father did not become the tenant of the son. No rent was reserved. The son agreed that the interest should be paid in that way, and for any default in that agreement the father was given a remedy by foreclosure. Such is not a characteristic of a lease.

It follows that the judgment should be affirmed.

Judgment reversed on the exceptions and a new trial ordered before another referee, with costs to abide the event.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    DAN H. DAVIS, Respondent, v. JOHN W. GALLAGHER and KATE M. PRICE, as Administrators of JAMES L. PRICE, Deceased, Appellants.

      Services rendered by a member of the family — evidence which justifies a recovery therefor —presumption arising from the giving óf a note — evidence as to personal transactions with a decedent — competency of an admission by an administrator.

    In an action for services performed by the plaintiff and bis wife, and for bay and use of horse and pasturage furnished to the defendant's intestate, it appeared that the plaintiff was the 'step-son and a member of the family of the intestate at the time. ■

      Held, that, in order to justify a recovery, it was not necessary for the plaintiff to prove an express and definite contract; but that, in the absence of such proof, it was incumbent upon him to prove such facts and circumstances as would show an understanding or expectation on the part of the decedent to pay, and of the plaintiff to receive, the value of such services and property.
    The giving of a promissory note is prima facie evidence of an accounting and settlement of all demands between the parties, and of the fact that the maker of the note was indebted to the payee upon such settlement in the amount thereof; but this presumption is liable to' be explained or repelled by proof of the actual consideration of the note, and of the occasion for, and circumstances attending, the giving of the same.
    Evidence that a note was given for money received by the maker from the payee, that the payee stated that be did not want the note, but that the maker insisted, upon giving it because it would be useful when they came to settle, completely repels the presumption of a settlement, or that the maker was indebted to the payee of the note to the amount thereof.

      Wliere, in an action against the legal representatives of a deceased party, the legal representatives make the adverse party a witness in tlieir behalf, and prove by him that he has had property of the decedent, it is competent for such adverse party in explanation thereof, and for the purpose of narrating the whole transaction, to state under what arrangement with the decedent he received such property.
    Tlie admissions of an administrator are competent, if made while he is engaged in the performance of some act relating to the estate of his intestate, such as negotiations relating to the adjustment and settlement of a claim made against the estate.
    Appeal by tlie defendants from a judgment, entered in the office of tlie clerk of tlie county of Oswego on tlie 14th day of December, 1888, after a trial befdre a referee, avIio found that tlie defendants, as administrators of the estate of James L. Price, deceased, Avere justly indebted to the .plaintiff in the sum of $902.30, over and above all payments and offsets, together with interest.
    The action was brought to recover for services of the plaintiff and his wife rendered, and for property furnished, to the defendants’ intestate.

      J. W. Shea, for the appellants.

      G. G. Brown, for the respondent
   Martin, J.:

One of the questions presented on this appeal is, whether the evidence was sufficient to sustain the judgment awarded. The plaintiff recovered for services performed by himself and wife, and for hay, use of horse and pasturage furnished to the defendants’ intestate. That the services were rendered and the property furnished and were of the value found was abundantly established by the evidence. The appellants, however, contend that, as the plaintiff was the step-son of the defendants’ intestate and a member of his family at the time, he was not entitled to recover, as there was no evidence of an express promise by the decedent to pay therefor.

We do not think it was necessary to entitle the plaintiff to recover that he should prove an express and definite contract; but that, in the absence of such an agreement, it was incumbent upon him to prove such facts and circumstances as would show an understanding or expectation on the part of the decedent to pay, and of the plaintiff to receive, the value of such services and property. The authorities are to that effect. ( Wilcox v. Wilcox, 48 Barb., 329; Conger v. Van Aernum, 43 id., 602, 607; Dye v. Kerr, 15 id., 445; Williams v. Hutchinson, 3 N. Y., 312, 317; Lynn v. Smith, 35 Hun, 276; Robinson v. Raynor, 28 N. Y., 496; Markey v. Brewster, 10 Hun, 16; affirmed 70 N. Y., 607; Shakespeare v. Markham, 10 Hun, 322; Green v. Roberts, 47 Barb., 521.)

The evidence tended to show that the defendants’ testator was paid for the support, education and maintenance of the plaintiff during his minority by the use or interest on certain moneys belonging to him ; that plaintiff worked for decedent during such time and until he was about twenty-three years of age, when a settlement between them was had and the decedent conveyed to the -plaintiff certain land for the consideration, as stated in the deed, of $1,000, in payment of the money had by the decedent which belonged to and was due the plaintiff, and amounted to about $470, and for his services up to that time that in 18S2, and subsequent to that time, the decedent at various times made statements which were to the effect that he was indebted to the plaintiff for his work and upon matters existing between them, and tended to show that it was intended by both parties that he should be paid therefor. Without attempting to state the evidence in further detail, we think it was sufficient to justify the referee in concluding that there was an understanding or expectation by both parties that the plaintiff should be paid the value of the services rendered and property furnished, and, therefore, that his finding that there ivas an implied promise to pay therefor should be upheld.

In 1879 the plaintiff gave the decedent a note for $160 for money received by plaintiff of. the decedent. This note was held by the plaintiff’s intestate until 1881, when it was destroyed. When the note was given the decedent said he did not want it, but jfiaintiff stated that he wanted him to have it, as it might be of use when they came to settle. The appellant insists that the giving of this note was prima facie evidence of a settlement of all claims and demands between the parties up to that time, and was controlling evidence that there was no agreement beween them that plaintiff was to have pay for his services.

The giving of a promissory note is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker was indebted to the payee upon such settlement to the amount of the note. This presumption is, however, only prwna faoie, and is liable to be explained or repelled by proof of the consideration of the note and of the occasion for and circumstances attending the giving of the same. (Lake v. Tysen, 6 N. Y., 461; Dutcher v. Porter, 63 Barb., 20; Sherman v. McIntyre, 7 Hun, 593.) We think the appellant’s claim, that the giving of such note was controlling evidence that there was no agreement or understanding that plaintiff should be paid for his services, cannot be sustained. The evidence that the note was given for money had by the plaintiff of the decedent, that the decedent stated that he did not want a note, but plaintiff insisted upon giving it because it would be useful when they came to settle, we think completely repelled the presumption of settlement, or that the plaintiff was indebted to the decedent to the amount of the note.

It is claimed that, the referee erred in permitting Mrs. Price, the plaintiff’s mother and the widow of the decedent, to testify to the conversations between herself and the defendants’ intestate, on the ground that such evidence was prohibited by the provisions of section 829 of the Code of-Civil Procedure. We do not think the exception to this evidence well taken. This ruling is, we think, sustained by the doctrine of the case of Carpenter v. Soule (88 N. Y., 251). Although Mrs. Price was a nominal party to the action, still she was not called to testify in her own behalf o,r interest. Her testimony was against her interest. “The fact that the witness is a party on the record is no longer controlling.” ( Whitehead v. Smith, 81 N. Y., 152.)

It is also claimed that the provisions of section 829 were violated, by permitting the plaintiff to testify to the arrangement, made by him with the decedent about certain logs. The appellant, made the plaintiff his witness and proved by him that he had had logs, of the decedent, and that he. used a horse belonging to the decedent-in drawing them to the mill. After this evidence was given, in explanation thereof, and for the purpose of giving the whole transaction relating to the subject, the plaintiff was asked to state under what arrangement with Mr. Price he drew such logs.- This evidence was admitted under the defendant’s objection and exception. The defendant proved by the plaintiff that he had had logs of the decedent for the purpose of charging him with their value. A transaction between the plaintiff and the decedent was thus shown' by the defendant’s examination. When this was done, the whole transaction was open, and the plaintiff was entitled to testify in his own behalf in relation thereto. Section 829 was not intended to abrogate the rule of evidence that where a party calls a witness and examines him as to a particular part of a transaction or communication, the other party may call out the whole of the transaction or communication bearing upon or tending to qualify the’ particular part to which the examination of the other was directed. (Merritt v. Campbell, 79 N. Y., 625; Nay v. Curley, 113 id., 575.) We think this evidence was admissible and properly received by the referee.

On the trial the referee permitted the plaintiff to prove what was said and done by the plaintiff and defendants when all were present and endeavoring to settle plaintiff’s claim, with the aid of two neighbors who were chosen by the parties to assist them in adjusting the matters in difference between them. This evidence was admitted under the defendant’s exception. The sole 'purpose of the evidence was to show the admissions of the defendants. When the plaintiff, the administratrix and administrator were all present, the defendants were expressly requested to state their objections or dissent to any claim or matter that should be made or stated by the plaintiff.

'The admissions of an administrator are competent if made while engaged in the performance' of some act relating to the estate. The act should be such as called for and made the declaration pertinent, and the declaration should accompany such act so as to constitute a part of the res gestee. (Church v. Howard, 79 N. Y., 419.) In Whiton v. Snyder (88 N. Y., 299, 307) where an administrator in a proceeding before a surrogate testified that he had certain personal property in his possession, and his testimony was afterwards offered in evidence, in an action to recover such property it was held that it was admissible, that as he was resisting a claim to take away the property of the estate represented by him, his admissions were competent and a part of the res gestee. The principle of the cases cited would seem to justify the ruling complained of. Here the administrator and administratrix were engaged in trying to adjust and settle a claim made by the plaintiff against the estate, which was an act relating to the estate represented by them, and the admissions were pertinent to and a part of such act. We think, under the doctrine of the cases cited, it should be held that the evidence of what occurred at that time was admissible.

The appellant in his brief states that no costs should have been allowed by the order of confirmation granted herein. The order shows that it was based on affidavits, none of which are set out in the appeal book. Under these circumstances, it is clearly our duty to affirm the order.

"We have examined.the other exceptions in the case, but have found none disclosing error or that require special consideration. We think the evidence was sufficient to sustain the findings of the referee, and that no errors were committed in the rejection or admission of evidence which would justify a reversal of the judgment.

The judgment and order should be affirmed, with costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


text:
    MARY A. HOOK, Appellant, v. DELOS M. KENYON and NANCY M. KENYON, Respondents.

      Husband and wife — when jointly entitled to recover for board and lodging furnished— what evidence is sufficient as to the wife’s competency to testify as to their value.

    In an action brought to recover upon a promissory note made by the defendants, •svbo were husband and wife, for money due by the husband, the defendants interposed a counter-claim for board, lodging and use of room, which were supplied and furnished to the plaintiff by the defendant^ jointly. The evidence showed that the defendants resided in a house rented or owned by the wife; that the plaintiff applied to them for board and use of room, and it was agreed that the wife 'should furnish the use of the house and room, and the husband should furnish the provisions for the table, and that the two should share jointly and equally in the compensation to be paid therefor by the plaintiff.
    It was claimed by the plaintiff that the agreement between the defendants to jointly furnish board and a room to the plaintiff, and to share equally in the amount paid therefor, created an indebtedness to the husband alone.
    Held, that as the wife was the lessee or owner of the house, and. therefore, not only performed services in furnishing board to the plaintiff, but also in contributing tbe use of ber separate property, that she was justly entitled to share in the money to be received for such board and the use of her house, and that the defendants could legally make a contract by which the wife would receive a share of the moneys paid for such board and use of room.
    The evidence disclosed the fact that the wife had been a housekeeper for thirty years; that she performed the services necessary in furnishing the board to the plaintiff, and that she herself rented the house where they lived when the plaintiff commenced boarding with the defendants, and afterwards owned the house in which the plaintiff boarded.

      Held, that the wife was a competent witness to testify as to what the board and occupation of the room were worth during the time that the plaintiff was there.
    Appeal by tlie plaintiff from a judgment, entered in tbe office of tbe clerk of tbe county of Herkimer on the 20th day of December, 1888, after a trial at tbe Herkimer Circuit before tbe court and a jury, by which latter a verdict was rendered in favor of tbe defendants for fifteen dollars and ninety-one cents ;• and also from an order denying a motion on tbe part of tbe plaintiff for a new trial, made upon tbe-minutes of tbe court, which was entered in tbe office of the clerk of tbe county of Herkimer on tbe 2d' day of January, 1889.

      C. JD. Thomas, for tbe appellant.

      Geo. O. liasbach, for tbe respondents.
   Martin, J.:

This action was upon a promissory note made by the defendants, who were husband and wife. It was given for money bad by tbe defendant Delos M. Kenyon. The defendants set up as a counter-claim in this action a demand against tbe plaintiff for board, lodging and use of room, which were supplied and furnished to tbe plaintiff by tbe defendants jointly.

Tbe evidence given by tbe defendants tended to show that tbe defendant Nancy M. Kenyon rented or owned tbe bouse in which, she and her husband resided; that, while they lived in a rented bouse, Nancy M. Kenyon paid tbe rent out of her own separate property; that afterwards they occupied a bouse which belonged to her and was a part of her separate estate ; that tbe plaintiff applied to them for board and use of room; that tbe negotiations for such board and room were bad by and between tbe plaintiff and both defendants, and that it was then and there agreed between tbe parties that tbe defendants should jointly furnish tbe plaintiff such board and room and receive therefor a reasonable compensation; that it was further stated and agreed that the defendant Nancy M. Kenyon should furnish the use of the house and room and the defendant Delos M. Kenyon should furnish the provisions for the table, and the defendants should share jointly and equally in the proceeds. The jury found the facts as claimed by the defendants.

One of the questions presented on this appeal is, whether the plaintiff was indebted to the defendants jointly for such board and room so that plaintiff’s indebtedness would constitute a proper counter-claim in this action. The plaintiff contends that the agreement between the defendants to jointly furnish her with board and room, and to share equally in the proceeds, was invalid because between husband and wife, and that the indebtedness set up in the defendants’ answer was to the husband alone, and not a proper counter-claim to the note on which this action was brought.

It must be admitted that the services of a wife while in the discharge of her domestic duties still belongs to the husband. (Brooks v. Schwerin, 54 N. Y., 348.) It has also been held that where boarders are taken by the husband, and his wife takes charge of his establishment, and thus aids him in carrying on his business, in the absence of special proof, her services and earnings' belong to her husband. But even under such circumstances the husband might covenant and agree that his wife should receive pay for her services on her own account. (Reynolds v. Robinson, 64 N. Y., 593.) “ A married woman owes no duty to her husband * * * to

carry on any business in his house or elsewhere for the purpose of earning money for him.” (Coleman v. Burr, 93 N. Y., 30.) When she labors for another her service no longer belongs to her husband, and whatever she earns in such service belongs to her, as if she were a feme sole. (Brooks v. Schwerin, supra; see Matter of Kinmer, 14 N. Y. S. Rep., 618.) The use of her separate property belonged to the wife.”

Thus it is seen that a husband and wife have power to agree that the wife shall receive pay for her services in a case like this. In this case the wife was also the lesee or owner of the house in which the plaintiff had a room and was boarded, and, therefore, not only performed services in furnishing board to the plaintiff, but also contributed the use of her separate property. That under such circumstances she was justly and equitably entitled to share in the money to be received for sncli board and use of ber bouse there can be but little doubt. But it is said that as the defendants were bus-band and wife they were incapable of making a contract between themselves to divide the amount received for such board and use of room, as such a contract made them partners and was invalid. We do not deem it necessary to a determination of this case that we decide the question whether the relation of partners may exist between husband and wife. W e think, under the circumstances disclosed, the defendants had a right and could legally make a contract by which the wife should receive a share of the proceeds of such board and use of room for the use of her house and for her services, and that such contract having been made, and the plaintiff having promised to pay the defendants jointly for such board and use of room, with full knowledge of the agreement between the defendants, she cannot now insist that her debt was to the husband alone, and thus defeat the defendants’ counter-claim.

On the trial the witness Nancy M. Kenyon was asked the following question: “ How much was the board and occupation of the room worth during the time plaintiff was there? Objected to as incompetent, immaterial and improper. That it cannot be an offset under the answer. "Witness not shown qualified to speak.” These objections were overruled, and the plaintiff excepted. The witness answered, “ It was worth four dollars.” It is now claimed that this was error because the witness was not shown competent. The evidence discloses that the witness had been a housekeeper for thirty years; that she performed the services necessary in furnishing such board, and that she herself rented the house where they lived when the plaintiff commenced boarding with them, and afterwards owned the house in which she boarded. We think the witness was competent and the exception was not well taken. (Mercer v. Vose, 67 N. Y., 58.)

We have examined the other exceptions in the case without finding any that would justify us in disturbing the judgment herein, or that would seem to require special discussion, and the judgment and order must be affirmed, with costs.

HÁjrdiN, P. J., and MeewiN, J., concurred.

Judgment and order affirmed, with costs.


author: Barker, P. J.

text:
    Decisions Filed December 30, 1889.
    Harrold P. Brewster, Respondent, v. Benjamin F. Van Camp, Appellant.
   — Order reversed and motion granted, with ten dollars costs and disbursements.

Opinion by

Barker, P. J.


text:
    Sarah F. Galusha, Appellant, v. Norman H. Galusha, Respondent.
   —Appeal dismissed on recent decision of court of Appeals in this case, without costs to either party.


text:
    George Wing, Respondent, v. Annie L. Dliss, Appellant.
   — Judgment modified in accordance with opinion of Barker, P. J., and as so modified affirmed, with costs.

Opinion by

Barker, P. J.


text:
    Leander Fitts, Receiver, etc., Respondent, v. Nelson Beardsley, Appellant, Impleaded etc.
   judgment modified as indicated in opinion of Barker, P. J., and as so modified affirmed, with costs.

Opinion by

Barker, P. J.


text:
    Same v. Same.
   Judgmentmodified as indicated in opinion of Barker, P. J.. and as so modified affirmed, with costs.

Opinion by

Barker, P. J.


text:
    In the Matter of the Petition of James T. Hurd, Trustee, etc., Appellant.
   — Order affirmed, with ten dollars costs and disbursements on the opinion of Daniels, J., at Special Term.


author: Barker, P. J.;

text:
    Corinne A. Baird, Respondent, v. Alonzo T. Slaight and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Barker, P. J.;

Macomber, J., not sitting.


text:
    Alexander Minor, Appellant, v. Naomi Clark and others. Respondents.
   — J udgment reversed and new trial granted, with costs to abide event.

Opinion by

Barker, P. J.


text:
    Charlotte S. Tiffany, Respondent, v. The N. Y., L. E and W. R. R. Co, Appellant.
   —Judgment affirmed, with costs.


author: Rumsey, J.,

text:
    Emma Da Lee, Respondent, v. Sarah Fulton and others, Appellants.
   —Interlocutory judgment affirmed on opinion of

Rumsey, J.,

at Special Term.


text:
    Mortimer F. Reynolds, Respondent, v. Arthur W. Lawton, Appellant, Impleaded, etc.
   Judgment reversed, with costs. Opinion by

Barker, P. J.


text:
    Leander Fitts, Receiver, etc., Respondent, v. Nelson Beardsley, Appellant, Impleaded, etc. Two cases.
   — Order denying motion to correct jndgment in each case affirmed, without costs.


text:
    Same v. Same.
   Order in each case affirmed, with ten doll irs costs and disbursements.


text:
    August Spors, Respondent, v. Sette Schultheis, Appellant.
   —Order affirmed, with ten dollars costs and disbursements. Opmion by Macomber. J.


text:
    In the Matter of the Probate of Alleged Will of John Springsted, Deceased.
   — Decree reversed; the issues raised by contestants’ answer to be tried by a jury at the Chautauqua Circuit upon issues to be settled by Macomber, J. Costs of this appeal to abide the result of subsequent in the Court.

Opinion by

Barker, P. J.


author: Dwight, J.

text:
    In the Matter of the Judicial Settlement of Accounts of Albert S Taft and others, Executors, etc.
   Decree affirmed, with costs to the contestants, payable out of the estate.

Opinion by

Dwight, J.


author: Macomber, J,

text:
    The People of the State of New York ex rel. Edwin A. Nash, Surrogate, Respondent, v. Lester B. Faulkner, Executor etc., Appellant
   Judgment and order denying motion for new trial reversed and new trial granted, with costs to abide event —

The order appealed from affirmed.

Opinion by

Macomber, J,


text:
    The People of the State of New York ex rel. Linus Jones Peck and others, Survivors, etc., Respondents, v. The Board of Managers of the Buffalo State Asylum, etc., Appellant.
   — Judg-

ment modified by striking out the provision thereof relating to interest on the claims bf the relators, and. as so modified, affirmed, without costs.

Opinion by

Dwight, J.


text:
    In the Matter of the Judicial Settlement of the Accounts of Mortimer F. Reynolds, as Executor, etc.
   Decree affirmed, with costs.


text:
    In the Matter of the Application of the New York Central and Hudson River Railroad Company, Appellant, to Acquire Lands of the Charlotte Iron Works, Respondent.
   Order reversed; motion for the appointment of commissioners granted, and proceedings remitted to Monroe Special Term to name such commissioners on the customary notice.

Opinion by

Dwight, J.


author: Per Curiam;

text:
    Samuel G. Beach, Appellant, v. Amos M. Kidder and others, Respondents.
   Judgment affirmed.

Opinion

Per Curiam;

Macomber, J., not sitting.


author: Macomber. J.

text:
    George W. Crouch, Jr., Respondent, v. Leo Moll, Appellant.
   Judgment affirmed, with costs.

Opinion by

Macomber. J.


text:
    In the Matter of the Probate of the Alleged Will of Thomas Keegan, Deceased.
   Appeal dismissed fer the reason that Michael Keegan, devisee of the life estate, and who was a party to the proceeding below, was not made a party to the appeal. (Code of Civ. Pro., § 2753; Patterson v. Hamilton, 26 Hun, 665.)


author: Macomber, J.

text:
    Ella A. Sabin, Appellant, v. The Ancient Order of United Workmen and Andrew S. Phinney, Respondents.
   —Judgment affirmed, without costs to either party.

Opinion by

Macomber, J.


text:
    Eliza Gates, Respondent, v. Sarah C. Hanes, Appellant.
   Judgments of County Court and the Justice’s Court reversed, with costs.

Opinion by

Dwight, J.


author: Dwight, J.,

text:
    Flora D. Gates, Respondent, v. Same, Appellant.
   — Judgments of county Court and .iustice’s Court reversed on opinion of

Dwight, J.,

in last case.


text:
    In the Matter of the Proof of the Will of Jane K. Apgar, Deceased.
   Decree affirmed, without costs to either party, and $100 allowed to the guardian a<l litem of the infant legatee, appointed by this court, to be paid out of the estate.


text:
    John L. Otis and others, Trustees, etc., Appellants, v. Moses B. Shautz, Respondent
   —Interlocutory judgment reversed; demurrer to answer sustained and jndgment ordered for the plaintiffs for the relief demanded in the complaint.

Opinion by

Dwight, J.


text:
    The Trustees of the Village of Geneva v. The Brush Electric Company of Cleveland, Ohio.
   Motion for new trial denied, and judgment ordered for the defendant on the verdict.

Opinion by

Macomber, J.


text:
    Wesley Mandeville, Receiver, etc., Appellant, v. Edward H. Avery, Respondent, Impleaded, etc.
   Reargument ordered.

Dwight. J., not sitting.


text:
    John A. Getty, Respondent, v. The Towns of Hamlin and Kendall, Appellants.
   Judgment and order appealed from affirmed.

Opinion by

Macomber, J.


text:
    Rudolph Hoffeld Appellant, v. The City of Buffalo, Respondent.
   — Judgment affirmed on opinion of Lewis, J., at Special Term, and on O'Reilly v. City of Kingston (114 N. Y., 440), without costs.


text:
    Nancy Ann Hilliard v. W. Martin Jones, Executor, Appellant, and others, Respondents.
   — Order affirmed on opinion of

Rumsey, J.,

at Special Term, with ten dollars costsanddisbursements.


text:
    Charles W. Clark, Respondent, v. Sarah E. Sullivan, Appellant.
   Order reversed and motion denied, with ten dollars costs and disbursements.

Opinion by

Barker, P. J.


text:
    George C. Buell and others, Respondents, v. Benjamin F. Van Camp, Appellant.
   — Order affirmed, with ton dollars costs and disbursements.

Opinion by

Macomber, J.


text:
    George Mackey, Respondent, v. The Town of Locke, Appellant.
   Order affirmed, with costs, and judgment ordered for the plaintiff on the verdict.

Opinion by

Macomber, J.

Dwight, J., not sitting.


text:
    Louis Griesheimer, assignee, etc., Appellant, v. Moses Tanenbaum and others, Respondents.
   Judgment affirmed.

Opinion by

Barker, P. J.


author: Dwight, J,

text:
    The People of The State of New York ex rel. Orson T. Cook, Appellant, v. Samuel Smith, Respondent.
   Order appealed from reversed and the relator discharged.

Opinion by

Dwight, J,


text:
    Eli White, Appellant, v. Merrick Sheldon, Respondent.
   Judgment affirmed.

Opinion by

Macomber, J.


text:
    Bartholomew Fetes, Respondent, v. Adelaide Volmer and others, Appellants
   —Interlocutory judgment and order appealed from reversed, with costs to appellants to abide the final award of costs.

Opinion by

Dwight, J.


author: Macomber J.

text:
    Spencer Kellogg and others, Respondents, v. George Farquhar and others, Appellants.
   .Judgment affirmed.

Opinion by

Macomber J.


text:
    Albert E. Ogley, Appellant, v. William E. Miles and others, Respondents.
   Motion for new trial granted, with costs to abide event.

Opinion by

Dwight, J.


text:
    Albert L. Adams, Appellant, v. Asael B. Adams and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Macomber, J.


text:
    In the Matter of the Drainage of Swamp Lands in the Town of Yates.
   Order and judgment

appealed from reversed, with costs to the appellant to be imid out of any funds in the hands of the commissioners applicable thereto.

Opinion by

Macomber, J.


text:
    Finney P. Sturdevant, Respondent, v. Patrick Riley, Appellant.
   Judgment of the County Court ana of the Justice reversed, with costs.

Opinion by

Dwight, J.


text:
    Sophia Boor, Appellant, v. Frederick Moschell, Respondent, Impleaded, etc.
   Judgment reversed and new trial granted, with costs to abide the event.

Opinion by

Barker, P. J.;

Macomber, J., not sitting.


text:
    Frederick Zimmer, Appellant v. George Bantel and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Dwight, J.


author: Macomber, J.:

text:
    C. Frank Pitcher, Plaintiff, v. The Lake Shore and Michigan, Southern Railroad Company, Defendant.
   Motion for a new trial granted, with costs to abide event.

Opinion by

Macomber, J.:

Dwight, J., not voting.


text:
    In the Matter of the Final Accounting of Le Roy Parker, Assignee, etc., Appellant.
   — Decree or judgment of County Court modified by deducting the sum of $1,500 fiom the amount with which the assignee is charged as remaining in his hands, and as so modified affirmed, without costs of this appeal to either party.

Opinion by

Dwight, J.


author: Hon. James C. Smith,

text:
    Mary Culross, Appellant, v. Arthur J. Gibbons and others, Respondents.
   Judgment affirmed on the opinion of

Hon. James C. Smith,

referee, with costs to the respondent Gibbons, to be paid by the present trustee out of any funds m his hands applicable to that purpose.

Macomber, J., not voting.


text:
    In the Matter of the petition of John P. Bennett, Respondent v. Andrew F. Sheldon, County Treasurer of Wayne county, Appellant.
   — Order appealed from modified by striking out the provision as to costs, and as so modified affirmed, without costs to either party on opinion of

Dwight, J.,

in last case. (Matter of the Petition of Francis A. Hill, Respondent v. Same Appellant.)


text:
    Michael Rehler, Respondent, v. The Western, New York and Pennsylvania Railroad Company, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dwight, J.


text:
    Mary Kiefer, Administratrix, etc., Respondent, v. The Grand Trunk Railway Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Macomber, J.


text:
    Christina T. Davis, Appellant, v. Roxy A. Burrows and others, Respondents.
   Judgment affirmed.

Opinion by

Dwight, J.


text:
    Ladwick H. Carter, Appellant, v. William Stevens, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements.

Opinion by

Macomber, J.


author: Macomber, J.;

text:
    In the Matter of the Revocation of Letters of Administration issued to John Gillingham.
   Decree reversed, with costs, and the prayer of the petition granted.

Opinion by

Macomber, J.;

order ito be settled by Macomber, J.


text:
    Ellen P. Howard, Respondent, v. The Masonic Guild and Mutual Benefit Association, Appellant.
   Appeal not considered for the reason that the appeal book contains no certificate of the clerk of Cattaraugus county that the same contains a copy of the case, exceptions, judgment-roll or other papers filed in his office.


text:
    William M. Reigner, Respondent v. James Bryan, Appellant.
   — Judgment and order appealed from affirmed, with costs.

Opinion by

Macomber, J.


text:
    Charles H. Spaulding, Appellant, v. J. Wilson Cleghorn, Respondent.
   — Judgment and order reversed and new trial granted, with costs to abide the event.

Opinion by

Dwight, J.


text:
    The Kokomo Straw Board Company, Respondent, v. Louis Sachs, Appellant.
   Judgment affirmed on the opinion of the referee.


text:
    Hannah L. Chadwick, Appellant, v. Franklin Warren, Respondent.
   — Judgment and order affirmed.


text:
    Louisa Doolittle, Respondent, v. Anna Stone, Administratrix, etc., Appellant.
   — Judgment reversed and new trial granted before another referee, with costs to the appellant to abide the final award of costs.

Opinion by

Barker, P. J.


author: Barnard, P. J.

text:
    Decisions Handed down December 9, 1889.
    Helena Flint and others v. Richard George and others
   —Order affirmed, with costs.

Opinion by

Barnard, P. J.

Dykman, J., not sitting.


author: Pratt and Dykman, JJ.

text:
    Jane T. Rogers, Respondent, v. Henry Edmonds and another, Appellants.
   Order affirmed, with costs and disbursements.

Opinions by

Pratt and Dykman, JJ.


author: Pratt, J.;

text:
    Michael F. Maloy, Appellant, v. The Associated Lace Makers’ Company and others, Respondents.
   — Order affirmed, without costs.

Opinion •by

Pratt, J.;

Dykman, J., not sitting.


author: Pratt, J.

text:
    John M. Canda and another, Respondents, v. Thomas H. Robbins, Appellant.
   Order referring action affirmed, with costs.

Opinion by

Pratt, J.


text:
    John M. Canda and another, Respondents, v. Thomas H. Robbins, Appellant.
   Order denying motion to vacate attachment affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    Alfred L. Simonson v. Edward L. Schenck.
   Affirmed for non-submission of papers according to order.


text:
    Thomas A. Fitzsimons, Respondent, v. James McConnell and another, Appellant.
   — Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Julia A. Riley, Administratrix, Respondent, v. Henry Gitterman and another, Appellants.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    #Julia A. Riley, Administratrix, Respondent, v. Henry Gitterman and another, Appellants.—
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text: Matter of Application of Rosanna F. Anable. Case A.


text: Matter of Application of Rosanna F. Anable. Case B.


text: Matter of Application of Eliphalet N. Anable.


text: Matter of Application of Trustees of Union College.


author: Barnard, P. J.;

text:
    Matter of Application of James D. McMann.
   Above five appeals abide result of Matter of Application of Elower, and each of the orders are reversed, with costs and disbursements and motion denied.

Opinion by

Barnard, P. J.;

Dykman, J.. not sitting.


text:
    Pauline Webber, Respondent, v. Edward C. Hoag, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    The Diamond Brick Company, Respondent, v. The New York Central, etc., Railroad Company, Appellant.
   Judgment reversed and new trial granted, costs to abide event.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Clarence R. Conger, Respondent, v. John Treadway, Appellant.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Clarence R. Conger, Appellant, v. Woolsey T. Weyant, Respondent.
   Judgment for affirmance.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Dykman, J.;

text:
    Elizabeth Greenleaf and another, Respondents, v. The Brooklyn, Flatbush, etc., R. R. Co., Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., dissenting.


text:
    Frederic Dolle, Respondent, v. Clark D. Rhinehart, Sheriff, and others, Appellants.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Abijah Weston and another, Respondents, v. Lorenz Reich, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Charles L. Jessup, Respondent, v. John McGarry, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Matter of Will of John W. Gillies, Deceased.
   Order affirmed, with costs.

Opinion hy

Barnard, P. J.


text:
    John Brown and another, Respondents, v. Ann Chubb and others, Appellants.
   Judgment modified, without costs of appeal. Order to be settled by Pratt, J.

Opinion by

Pratt, J.


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

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    D. W. Tallmadge, Respondent, v. The Press Publishing Co., Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Pratt, J.


text:
    Martha A. Guion, Respondent, v. David T. Williams and others, Executors, Appellants.
   Judgment, affirmed, with costs. Order granting allowance affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Adelia Cocks, Appellant, v. Daniel E. Haviland and others, Respondents.
   Motion to dismiss appeal denied, with ten dollars costs. Part ot decree which reduces annuity reversed, with costs to appellant out of the estate.

Opinion by

Barnard, P. J.


text:
    Benjamin Estes, Respondent, v. The St. Paul, etc, Railroad Company, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Mary Beadleston, Appellant, v. John B. Alley and another. Appellant; United States Trust Co., Respondent
   Order reversed, with costs and disbursements.

Opinion by

Pratt, J.;

Barnard, P. J., dissenting.


text:
    The People of the State of New York, Appellant, v. Alfred L Simonson and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


author: Dykman, J.

text:
    Evelina Banker, Appellant, v. James A. Fisher and others, Respondents.
   Order refusing to allow exceptions and judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    Peter M. Wilson, Respondent, v. Annie F. Darragh and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    Annie F. Darragh, Respondent, v. Reuben Ross, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Alice Bartholomew, an Infant, etc., Respondent, v. The Poughkeepsie and Highland Ferry Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opimou by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John Ganley, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Michael Hellwig, Respondent, v. John H. Blumenberg and another, Appellants.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    Valeria P. Taylor, Respondent, v. Francis A. Taylor, Appellant.
   — Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    Stephen B. M. Stokes, Respondent, v. Eleanor Ammerman and others, Appellants.
   — Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Louis Cordes, Respondent, v. Rosanna Kinney and others, Appellants.
   Judgment affirmed, with costs.

Opinion hy

Pratt, J.


text:
    Emma L. Greenhalgh, an Infant, etc., Respondent, v. Franz Marggraff, Apellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    The People of the State of New York ex rel. Thomas M. King, Respondent, v. Reon Barnes, Appellant.
   Order and interlocutory orders affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J.,notsitting.


text:
    The People of the State of New York ex rel. Thomas M. King, Respondent, v. Reon Barnes, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Wilhelmina Sterger, Appellant, v. J. Wyckoff Van Siclen, Respondent.
   Judgment dismissing complaint affirmed, with costs.

Opinion by

Pratt, J.


text:
    The People of the State of New York, Respondent, v. William Fitzgerald, Appellant.
   Conviction and judgment reversed.

Opinion hy

Barnard, P. J.


text:
    Theodore F. Jackson and others, Executors, Respondents, v. Peter Kinsey, Executor, and others, Appellants.
   Judgment and order affirmed, with costs.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Lewis L. Fosdick and another, Executors, etc., Respondents, v. The Town of Hempstead, Appellant, and others, Respondents.
   — Rcargument ordered.


text:
    Matter of Estate of George Mapes, Deceased.
   Judgment affirmed, with costs to respondents out of estate.

Opinion hy

Barnard, P. J.


text:
    Harriet S. Rumsey and others, Respondents, v. The New York and New England Railroad Company, Appellant.
   Judgment affirmed, with costs.

Barnard, P. J., not sitting.


text:
    The Walden National Bank, Respondent, v. Caleb Birch and another, Appellants.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J,;

text:
    Theodore S. Jenkins, Respondent, v. William E. Dean, Appellant.
   Judgment and order denying new trial affirmed, with costs,

Opinion by

Barnard, P. J,;

Dykman, J., not sitting.


text:
    Thomas Wheeler, Appellant, v. William Emmeluth, Respondent.
   Order refusing to vacate discharge affirmed, with costs and disbursements.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Edward Kelly, Appellant, v. James C. Brown, Respondent.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Mary L Morgan, Respondent, v. New York and Massachusetts Railway Company, Appellant.
   Judgment affirmed, wi h costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John R. Price, Appellant, v. Thomas A. Mapes, Assignee, etc., and another, Respondents
   Judgment modified by striking out costs and allowance, and as modified affirmed, without costs of appeal.

Opinion by

Pratt, J.;

Barnard P. J., not sitting.


text:
    Catharine P. Daniels, Administratrix, Respondent, v. The Staten Island Rapid Transit Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.


text:
    Cornelius D. Guyon and another, Appellants, v. John Rooney, Respondent.
   Judgment reversed and new trial ordered in the City Court.

Opinion by

Pratt, J.


text:
    Charles A. T. Rodrian, Administrator, Respondent, v. The New York, New Haven, and Hartford Railroad Company, Appellant
   —J uügment and order denying new trial affirmed with costs.

Opinion by

Pratt, J.;

Barnard, P J.,not sitting.


text:
    Roxanna Kelley, Appellant, v. Ann Augusta Foster and another, Administrators, Respondent.
   Reargument ordered.


author: Cullen, J.

text:
    The People of The State of New York ex rel. Sinnott, v. Trustees of Brooklyn Bridge.
   Order affirmed, writh costs.

Opinion by

Cullen, J.


text:
    The Greenwood Lake and Port Jervis Railroad Company, Appellant, v. The New York and Greenwood Lake Railroad Company, Respondent.
   — Judgment affirmed, wúth costs.

Opinion by

Dykman, J.;

Cullen, J.. dissenting.


text:
    Henry Bacon, Respondent, v. Harrison W. Nanny and others, Appellants.
   Order continuing injunction affirmed, with costs.

Opinion by

Cullen, J.


text:
    John J. Quinlan, Respondent, v. Emily A. Stratton and another, Appellants.
   — Judgment affirmed, with costs.

Opinion hy

Dykman, J.


text:
    Hannah C. Brink, Respondent, v. Guaranty Mutual Accident Association, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    Decisions handed down December 20, 1889.
    Matter of the Petition of William Van Amee.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


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

text:
    Otto Schmidt, Appellant, v. Steinway and Hunter’s Point Railroad Company, Respondent.
   — Judgment reversed and new' trial gr.mted, costs to abide event.

Opinion by

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


author: Van Brunt, P. J.

text:
    Decisions handed down December 2, 1889.
    The People of The State of New York, Respondent, v. Lawrence Massett, Appellant.
   — Judgment reversed and new trial- ordered.

Opinion by

Van Brunt, P. J.


author: Daniels, J.

text:
    Elizabeth Fisher, Respondent, v. William Rankin, Appellant
   — Judgment and order reversed and a new trial ordered, wúth costs to the aptó abide the event.

Opinion by

Daniels, J.


author: Barrett, J.

text:
    In the Matter of the Probate of the Will of John Connor, Deceased.
   Decree affirmed,wúth costs.

Opinion by

Barrett, J.


text:
    The Barber Asphalt Paving Company, Respondent, v. James Brand and others, Appellants, Impleaded, etc.
   — The interlocutory judgments affirmed, with costs against each of the parties demurring.

Opinion by

Barrett, J.


text:
    Robert J. Howe, Respondent, v. Joseph J. Morehouse and others, Appellants.
   — Judgment affirmed, wúth costs.

Opinion by

Barrett, J.


text:
    Charles H. Pendergast, as Receiver of the Produce Bank, Respondent, v. Ernest Greenfield, as Trustee, Appellant.
   — The judgment and all the orders appealed from affirmed, with costs.

Opinion by

Barrett, J.


text:
    The People of the State of New York, Respondent, v. James Smith, Appellant.
   — Judgment reversed and new trial ordered.

Opinion by

Barrett, J.


text:
    Samuel F. Myers and another, Appellant, v. Elbert A. Taber, Respondent
   — Ji:dgmcnt and order affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Ricot J. Dovale, Respondent, v. Bernard L. Ackermann, Appellant.
   —Order reversed and reference ordered as stated in opinion; costs of this appeal should not be awarded to either party.

Opinion by

Van Brunt, P. J.


text:
    Thomas Makin v. Frederick A. Blossom.
   — Motion denied.


text:
    Richardson & Boynton Company, Appellant, v. Richardson & Morgan Company, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


author: Per Curiam.

text:
    In the Matter of the New York Institution for the Deaf and Dumb.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    Brayton Ives and others, Respondents, v. Elijah Smith and others, Appellants.
   — Order ¡tffirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    The United States Life Insurance Company, Appellant, v. George W. Poillon and others, Respondents.
   — Order appealed from affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of Jesse A. Marshall
   —Order affirmed, wúth ten dollars costs and disbursements

Opinion by

Van Brunt, P. J.


text:
    In the Matter of Francis Ferris.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


text:
    Joseph J. O’Donohue and others, Appellants, v. Francis H. Leggett and others, Respondents.
   — Judgment affirmed, with costs.

Opinion

Per Curiam.


text:
    Alexander J. Cameron. Respondent, v. The Tribune Association, Appellant.
   Judgment reversed and new trial ordered.

Opinions by

Brady J., Macomber, J., and Van Brunt, P. J.


text:
    Frederic P. Olcott, Receiver, etc., Appellant, v. John W. Kohlsaat, Respondent.
   Order affirmed, with ten dollars costs and also the disbursements.

Opinion by

Daniels, J.


text:
    Frederic P. Olcott, Receiver, etc., Appellant, v. John W. Kohlsaat and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Daniels, J.


text:
    Andrew Beiser, Jr., Respondent, v. Charles W. Beiser and others, Appellants.
   — Judgment affirmed, with costs.

Opinion by

Daniels, J.


text:
    In the Matter of the Application of the Department of Public Parks, etc. (In re Margaret F. Redmond).

   — Matter referred back to commissioners that they may revise their valuation- and receive the evidence which was improperly excluded. (Mem.)


text:
    In the Matter of the Application of the Department of Public Parks, etc. (In re Maria O'Brien).
   Report sent back to commissioners for revision.


text:
    In the Matter of the Application of the Department of Public Parks, etc. (In re bills of Rhines and others).

   — We cannot direct payment of these bills without proof of their necessity and reasonableness.


author: Landon J.

text:
    Decisions handed down December 28, 1889.
    James F. Mason, Respondent v. George Y. Smith, Appellant.
   Judgment affirmed, with costs.

Opinion by

Landon J.


author: Landon, J.

text:
    William Bushaw, Respondent v. Women’s Mutual Insurance and Accident Company of America, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Landon, J.


author: Ingalls, J.

text:
    Louis Lang, Respondent v. Matthias J. Severance, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Ingalls, J.


author: Landon, J,

text:
    In Matter of Will of John Card, Deceased.
   Decree affirmed, with costs against appellant.

Opinion by

Landon, J,


author: Learned, P. J.;

text:
    Darius Allen, Appellant v. John Sanford and others, Respondents.
   — Order affirmed, with ten dollars costs and printing disbursements.

Opinion by

Learned, P. J.;

Ingalls J., not acting.


text:
    Henry C. Adams, Appellant v. Oliver M. Arkenburgh and others, Respondents.
   Order affirmed, with ten dollars * costs and printing disbursements.

(No opinion written.)


author: Learned, P. J,

text:
    The People of the State of New York, Appellant, v. Daniel I. McNiel, Jr., Respondent.
   — Judgment and order reversed, new trial granted on payment of costs to defendant.

Opinion by

Learned, P. J,


author: Daniels. J.

text:
    Decisions handed down January 10, 1890
    Dutre Wilcox and others, Respondents, v. William H. Payne, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Daniels. J.


text:
    The People of the State of New York, Respondent, v. Cornelius E. Ryan, Appellant.
   — Judgment affirmed.

Opinion by

Daniels, J.


text:
    The People of the state of New York ex rel Augustus Little v. J. Hampden Robb and others Commissioners, etc., Respondents.
   Order, dismissing relator affirmed.

Opinion by

Daniels, J.


text:
    Garfield National Bank, Respondent, v. Frank W. Colwell, Appellant.
   — Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.

Opinion by

Daniels, J.


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

text:
    In the Matter of the Petition of Sigmund Feust, to Vacate an Assessment, etc.
   — Order affirmed, without costs.

Opinions by

Van Brunt, P. J., and Barrett, J.


text:
    Winston Jones, as Assignee, etc, Respondent, v. The Merchants’ National Bank of New York, Appellant
   — Appeal from order dismissed, without costs.

Opinion by

Van Brunt, P. J.


author: Daniels and Barrett, JJ.

text:
    Elizabeth W. Aldrich, Plaintiff, v. Mary E. Bailey, Defendant.
   —Judgment for the defendant.

Opinions by

Daniels and Barrett, JJ.


text:
    John H. Cheever v. Avery T. Brown, Assignee, etc., and others.
   — Motion denied.


text:
    In the Matter of the Probate of Last Will and Testament of Rachel Berrian, deceased.
   Motion denied.


text:
    Kate P. Lutz, Respondent, v. Alexander Lutz, Appellant.
   — Motion denied upon appellant’s stipulating to argue at February Term and paying ten dollars 'costs of this motion.


text:
    Mary L. Butterfield, Respondent, v. James Gordon Bennett, Appellant.
   — Upon appellant stipulating to argue in February, 3890, motion denied.


text:
    George W. Martin, Appellant, v. The Women’s Mutual Insurance and Accident Co., Respondent.
   — Upon appellant stipulating to argue appeal at February Term and paying ten dollars costs of motion, this motion will be denied.


author: Brady, J.

text:
    Thomas Dollard, Respondent, v. Edward Roberts, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Brady, J.


text:
    Henry R. Pierson, Receiver, Appellant, v. Justine M. Cronk, Administratrix, Respondent.
   Motion denied, with ten dollars costs.


text:
    Marx Block, an Infant, etc., Appellant, v. The Harlem Bridge, Morrisania and Fordham Railway Company, Respondent.
   — Judgment reversed and new trial ordered, with costs to appellant to abide event.

Opinion by

Brady, J.


author: Brady. J.

text:
    Mary Ryder, Plaintiff, v. Fernando Wood, Defendant.
   —Judgment for defendant, with costs.

Opinion by

Brady. J.


text:
    Bertha E. Martin, Administratrix, etc, v. Spencer C. Platt and others.
   — Upon appellant’s stipulating to argue at the February Term, this motion will be denied. (Mem.)


text:
    In the Matter of a Paper Propounded as Last Will and Testament of John Frederick Eilers, Deceased.
   —Decree of surrogate affirmed, with costs.

Opinion by

Brady, J.


text:
    Isaac B. Newcombe and others, Respondents, v. Chicago and Northwestern Railway Company and others, Appellants.
   — Judgment reversed and new trial ordered, with costs to appellants to abide the event, and with liberty to the plaintiff to amend his complaint upon payment of costs.

Opinion by

Brady, J.


text:
    George W. Morrison, Respondent, v. The Broadway and Seventh Avenue Railroad Company, Appellant.
   --Judgment and order affirmed.

Opinion by

Daniels, J.


text:
    Stephen L. Bartlett v. Edward Sutorious.
   Order reversed and the order of arrest vacated, without costs.

Opinion

Per Curiam.


text:
    Christian T. Christensen, Respondent, v. Edward A. Quintard, Appellant, Impleaded, etc.
   Judgment reversed, with costs.

Opinion by

Daniels, J.


text:
    Decisions handed down January 24, 1890.
    William M. Owen, Plaintiff, v. John C. Calhoun, Defendant.
   Exceptions overruled and judgment ordered for defendant, with costs.

Opinion by

Van Brunt, P. J.


text:
    Matthias Merscheim, Respondent, v. The Musical Mutual Protective Union, Appellant.
   — Order and judgment affirmed.

Opinion by

Daniels, J.


text:
    Carl Schrader, Respondent, v. The Musical Mutual Protective Union, Appellant.
   Judgment and order affirmed.

Opinion by

Daniels, J.


text:
    Oswald Sasse, Respondent, v. The Musical Mutual Protective Union, Appellant.
   Judgment and order affirmed.

Opinion by

Daniels, J.


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

text:
    Ellen Munn, Appellant, v. Joseph M. Cook and others, Respondents.
   Judgment reversed and new trial ordered, with costs to plaintiff to abide the event.

Opinion by

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


text:
    Walter Weston and others, Respondents, v. James R. Watts, Appellant.
   Order affirmed, with ten dollars costs and disbursements of the appeal.

Opinion by

Brady, J.


author: Brady, J.;

text:
    Cassius H. Read, Respondent, v. Elizabeth Patterson and others. Appellants.
   Judgment reversed and now trial ordered, with costs to appellants to abide event.

Opinion by

Brady, J.;

Van Brunt, P. J., dissents.


author: Van Brunt, P. J.

text:
    In the Matter of the Application of Mary B. Wood for the Revocation of Letters Testamentary issued to Edward T. Schenck under Will of Samuel Wood, Deceased.
   Order affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Patrick O’Neill, Administrator, etc., Respondent, v. Charles Kinken, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Arthur Furber, Appellant, v. Alexander L. McCarthy and others, Respondents.
   Motion denied, wilh/ten dollars costs.


text:
    The People of the State of New York v. The American Bell Telephone Company.
   Motion dismissed. (Mem.)


text:
    In the Matter of the Arbitration between William O. Callender and others, Appellants, and Henry C. Parsons, Respondent.
   Motion denied.


text:
    Mary Ann Mulvihill, Sole Surviving Executrix, etc., v. Arthur J. Donnelly, Testamentary Guardian, etc.
   — Motion denied on appellant’s stipulating to argue in February.


text:
    Ruth Torbett, Respondent, v. Sherburne B. Eaton, Appellant.
   — Motion to dismiss denied. (Mem)


text:
    Traders National Bank of San Antonio, Respondent, v. Charles T. Parker, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Brady, J.


text:
    The People of the State of New York, Respondent. v. The New York, New Haven and Hartford Railroad Company, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Brady, J.


author: Daniels, J.

text:
    Charles T. Russell and others, Respondents, v. Samuel W. Allerton, Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide event.

Opinion by

Daniels, J.


text:
    Mary Ellen Gueli and others, Appellants, v. Catherine Lenihan and others, Respondents.
   Order affirmed, with ten dollars costs and the disbursements on the appeal.

Opinion by

Daniels, J.


text:
    Grace Wygant, as Executrix, etc., v. Joseph M. Brown.
   — Motion denied, with costs. (Mem.)


text:
    John B. Miley, Respondent, v. The Broadway and Seventh Avenue Railroad Company, Appellants.
   Judgment and order reversed and new trial ordered, with. costs to the appellant to abide event.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Application of George Ackerman, as General Guardian, etc., Respondent, v. August P. Wagener, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. Herman H. Koenig, v. Stephen B. French and others, Respondents.
   Proceedings affirmed and writ dismissed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Jane McKenzie, as Executrix, etc., Respondent, v. Denis Fox and another, Appellants.
   Order reversed, with ten dollars costs and disbursement's, and the motion granted to the extent stated in opinion.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Petition of the New York Elevated Railroad Company, etc. (In re Sobel and others.)

   Order affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    David Mayer, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment and order affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    The First National Bank of Jersey City, Respondent, v. John Lindenmeyr, Appellant, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements, and the order for examination vacated.

Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York ex rel. Henry Woltman, Respondent, v. Theodore W. Myers, Comptroller of the City of New York, Respondent and Appellant.
   Order- affirmed, with ten dollars, costs and disbursements to the relator.

Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. Donald McQuien, Appellant, v. The Theatrical Mechanical Association, Respondent.
   — Order reversed, with ten dollars costs and disbursements and the motion for mandamus granted.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Revocation of Probate of Will of Ann Voorhis, Deceased.
   — We see no reason for the granting of this order to show cause.


text:
    James E. Taylor, Respondent, v. Andrew K. Smith and others, Appellants.
   — Order and judgment reversed, with costs to the appellants to abide result of action.

Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. David O’Callahan v. Stephen B. French and others, Respondents.
   — Proceedings affirmed and writ dismissed.

Opinion by

Daniels, J.


text:
    Bertha Koehler, Executrix, etc., Respondent, v. Samuel D. Sewards, Appellant.
   — Order reversed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    George Fuller and others, Appellants, v. William I. Negus and others, Respondents.
   — Judgment reversed and new trial ordered, with costs to the plaintiffs to abide event.

Opinions by

Daniels, J.


text:
    Magnolia Anti-friction Metal Company, Respondent v. Samuel Singley and others Appellants
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    S. Otis Livingston, Appellant, v. William I. Negus and others, Respondents.
   — Judgment affirmed, with costs.

Opinion by

Daniels, J.


text:
    The Mechanics and Traders’ Bank, Appellant, v. James Loucheim, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    In the Matter of the Taxation of Estate of David F. Hall.
   Order reversed, with, ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    The Continental Insurance Company, Respondent, v. The Phœnix Insurance Company, Appellant.
   — Order reversed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    The People of The State of New York ex rel. Hugh McCormack v. John McClave and others, Commissioners, etc., Respondents.
   Proceedings affirmed and writ dismissed.

Opinion

Per Curiam.


text:
    William F. Kuntz, Respondent, v. The C. C. White Company, Appellant.
   — Order reversed, with ten dollars costs and disbursements and the injunction dissolved.

Opinion

Per Curiam.


text:
    S. Skiddy Cochran and others, Respondents, v. The American Opera Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    John Claflin and others, Respondents, v. Joseph Silberg, Appellant.
   — Order reversed, with ten dollars costs and disbursements and the attachment vacated.

Opinion

Per Curiam.


text:
    The People of The State of New York ex rel. Frederick Heffernan v. John McClave and others, Commissioners.
   Proceedings affirmed and writ dismissed.

Opinion

Per Curiam.


text:
    The People of The State of New York ex rel. Myron Allen, Relator, v. James J. Martin and others, Police Commissioners, Respondents.
   Proceedings of respondents affirmed and writ dismissed.

Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York ex rel. D. Lowber Smith, v. George C. Barrett, one of the Justices, etc.
   — Writ of certioraH dismissed, with costs.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of Sarah Bartholf v. Alfred Carr, Executor, etc.
   — Motion for reargument granted.


text:
    The People of The State of New York ex rel. Walsh v. Charles F. MacLean and others, Commissioners.
   — Proceeding of commissioners reversed and the relator restored.

Opinion by

Brady, J.;

dissenting opinion by Daniels, J.


text:
    Herman Stein and others, Respondents, v. Charles F. Levy and others, Appellants.
   — Order reversed and injunction vacated, without costs, but with disbursements to respondents.

Opinion

Per Curiam.


text:
    Robert F. Murto and others, Respondents, v. August Baur and others, Appellants.
   — Judg-

ment heretofore rendered by the General Term is so far modified as to affirm the order appealed from as to the attorney’s right to proceed for his agreed compensation, without costs.

Opinion

Per Curiam.


text:
    Samuel D. Lux, Appellant, v. Alexander V. Davidson, Sheriff, etc., Respondent.
   — Application denied.


text:
    Douglas Campbell, as Executor, etc., Respondent, v. Jacob A. Sherman and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Brady, J.


author: Macomber, J.

text:
    The People of the State of New York, Respondent, v. John Most, Appellant.
   — Judgment affirmed.

Opinion by

Macomber, J.


text:
    Alexander T. Compton, Plaintiff, v. “The Chelsea” and others, Defendants.
   The verdict of the jury set aside, with costs to the plaintiff, and a new trial ordered.

Opinion by

Daniels, J.


author: Per Curiam

text:
    Decisions handed down January 24, 1890.
    In the Matter of the Application of the City of Rochester to Acquire Certain Water Rights.
   Order appealed from reversed, and order confirming referee’s report opened and leave granted to the appellant to file his claim with the county clerk on payment of the costs and disbursements of the motion at Special Term within twenty days; in default of such payment order affirmed, with costs. If the conditions are complied with, the proceeding is referred to a referee to be appointed by a Special Term to be held in Monroe county to take proofs in regard to the claim of the appellant and report the same with his opinion thereon.

Opinion

Per Curiam

left with the clerk.


text:
    Alexander M. Holden, Appellant, v. William Hamilton, Respondent.
   — Judgment modified by striking oat the provision dismissing the complaint on the merits, and substituting a provision dismissing the complaint without prejudice to the plaintiff’s right to bring auother action, if so advised, on payment of costs, and as so amended affirmed, without costs of this appeal to either party.


author: Dwight, P. J.,

text:
    John D. Foley, Respondent, v. The Women’s Mutual Insurance and Accident Company of America, Appellant.
   — Judgment affirmed.

Opinions by

Dwight, P. J.,

Macomber and Corlett, JJ.


text:
    In the Matter of the Account of Byron H. Daggett, Committee, etc, Appellant.
   — Order affirmed, with ten dollars costs and disbursements to be paid by the committee personally.


text:
    Theodore Kirsch and others, by Guardian, Respondents, v. Lester H. Tozier and others, John B. Clement, Appellant.
   — Order affirmed, with ten dollars costs and disbursements to be paid by the appellant, John B. Clement.

Corlett, J., not sitting.


text:
    William F. Peck, etc., Respondent, v. The City of Rochester, Impleaded, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    The Village of Palmyra, Appellant, v. Alonzo Wynkoop and others, Administrators, etc, Respondents.
   — Order modified by striking out the provision vacating and setting aside the interlocutory judgment and inserting aprovision for payment by defendant of the costs of the demurrer as condition of leave to answer over, and as so modified affirmed, without costs of this appeal to either party.

Macomber, J., not sitting.


text:
    Motions.
    James Coddington, Assignee, Appellant, v. Eunice J. Bowen, Respondent.
   — Motion denied.


text:
    Francis B. Brewer, Appellant, v. James E. Ford, Respondent.
   — Motion for reargument denied.


text:
    Abbie E. French, Respondent, v. Charles H. Pratt, Appellant.
   — Motion for reargument denied.


text:
    Fred P. Wilcox v. The City of Rochester.
   Decision corrected so as to read, ‘‘judgment affirmed, with costs.”


text:
    The City of Rochester v. John H. Campbell, Executors, etc.
   — Motion for certificate to the Court of Appeals granted.


text:
    William F. Peck v. George Belknap, Impleaded, etc.
   — Motion for reargument denied.


text:
    In the Matter of the Application of the Buffalo Loan, Trust and Safe Deposit Company.
   Application granted.


text:
    Henry Gates v. Levi G. Hendrick.
   — Motion for reargument denied.


author: Dykman, J.;

text:
    Helen J. Hooker, Respondent, v. Alfred Terpening, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J.;

text:
    Michael F. Maloy, Respondent, v. The Associated Lace Makers’ Association and others, Appellants.
   — Judgment affirmed, with costs.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    James W. Chase, Respondent, v. Sarah C. McLean and another, Appellants
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Matthew MacTaggart, Respondent, v. Putnam Corset Company, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Pratt, J.;

text:
    John Q. Maynard, Appellant, v. William W. Chase, Respondent.
   Order affirmed, with costs and disbursements.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    Matter of Application of William Vanamee, Receiver.
   Order denying warrant affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    The Greenwood Lake Improvement Company, Appellant, v. The New York and Greenwood Lake Railroad Company, Respondent.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Motion of certiorari of Augustus F. Soer.
   Order reversed, with costs,

opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Matter of Laying out Highway at Bay Shore.
   Order of County Court affirmed.

Opinion by

Dykman, J.


text:
    Cleveland D. Fisher and others, Plaintiffs, v. Mary C. Fisher and others, Defendants.
   — Judgment affirmed, with costs, striking out tenth finding.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Richard Piggott, v. Lynn H. Hanchett.
   — Judgment ana order denying new trial affirmed, with costs.

Opinion by

Dykman, J.


text:
    James H. Hickey, Plaintiff, v. Doris E. Petersen, Defendant.
   — Judgment for defendant on submitted case, that plaintiff take the title.

Opinion by

Barnard, P. J.


text:
    Matter of Application of New York, New Haven and Hartford Railroad Company to Condemn Lands of Margaret Franz
   — Order appointing commissioners affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J..not sitting.


text:
    Ruth H. Smith, Respondent, v. Caroline A. Smith, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Dykman, J.


text:
    Matter of Revocation of Probate of Will of Michael McMahon.
   — Decree of surrogate affirmed, with costs.

Opinion by

Barnard, P. J.


author: Pratt, J.

text:
    The People of the State of New York ex rel. Robert J. Robinson, v. James D. Bell, Commissioner.
   Conviction of relator affirmed, with costs.

Opinion by

Pratt, J.


text:
    Andrew J. Shiels and others, Respondents, v. Sigismund B. Wortmann and another, Appellants.
   — Order reversed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. The Peerless Manufacturing Company, Respondent, v. P. J. Gleason, Mayor, etc., Appellant
   Order granting peremptory mandamw affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting


text:
    In the Matter of Francis W. Lasak, Deceased.
   Order on appeal of Ives and Chowvet, affirmed, with costs and disbursements.

Opinion by

Pratt, J.


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

text:
    Mary L. Egan, Appellant, v. Emma A. Egan, Respondent.
   — Judgment reversed and new trial granted, costs to abide event.

Opinion by

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

Dykman, J., not sitting.


text:
    Matter of Petition of Antoinette L. Schermerhorn.
   — Order reversed, with costs and disbursements to appellant out of estate.

Opinion by

Pratt, J.


text:
    Juliette Wight, Administratrix, etc., Respondent, v. James Gordon Bennett, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Pratt, J

text:
    Grant B. Taylor, Appellant, v. Frank Wynne, and another, Respondents.
   — Order affirmed, with ten dollars costs and disbursements.’

Opinion by

Pratt, J


text:
    John B. Smith, Plaintiff, v. Jacob B. Smith and others, Defendants.
   Order affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Justine O. Fowler, Respondent, v. The Third Avenue Railroad Company, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text: Irving Wright, Respondent, v. Harriet E. Roberts and another, Appellants.


text:
    Sarah J. Hamill, Respondent, v. Lewis Roberts, Appellant.
   — Orders in each of these cases affirmed, with costs and disbursements.

Opinion by

Pratt, J.


text:
    The People of the State of New York, Appellant, v. Seth Bird and others, Respondents
   —Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Nathan Bensky, Respondent, v. Charles Banks, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


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

text:
    Harry A. Richardson and another, Appellants, v. Western Home Insurance Company, Respondent.
   Order affirmed, with costs and disbursements.

Opinions by

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


text:
    Francis Dent, Respondent, v. Stephen Vincent Ryan, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    United States Trust Company, Respondent, v. Philip V. R. Stanton and another, Appellants.
   Judgment reversed and new trial granted, costs to abide event.

Opinion by

Pratt, J.


text:
    Harrison Mills, Respondent, v. James M. Mills and another, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Alfred Manahan, an Infant, Respondent, v. The Steinway and Hunter’s Point Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Emily F. Dingley, Appellant, v. Isidore M. Bon, Respondent.
   Judgment affirmed, with costs.

'Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Jacob P. Stockdale, Respondent, v. Walter G. Schuyler, Survivor, Appellant.
   — Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Alfred Lawrence v. Nicholas H. Freeland and others.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    John E. Reynolds, Respondent, v. John E. Roosevelt, Appellant.
   Judgment and order denying new trial reversed, with costs.

Opinion by

Pratt, J.


author: Barnard. P. J.

text:
    The Long Island Railroad Company, Appellant, v. The City of Brooklyn, Respondent.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard. P. J.


author: Barnard, P. J,;

text:
    George J. Axt and others, Appellants, v. John F. Shankey, Respondent.
   Order reversed, with costs and disbursements.

Opinion by

Barnard, P. J,;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. James Ryan, Respondent, v. Frederick W. Bleckwenn, Treasurer, etc., Appellant.
   Order for peremptory writ of mandamus affirmed, with ten dollars costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., dissenting


text:
    William S. Forbes, Appellant, v. Theodore Chichester, Executor, etc., Respondent
   Order confirming referee’s report and judgment thereon affirmed, with costs.

Opinion by

Pratt, J.


text:
    Bridget Flanagan, Administratrix, Respondent, v. The New York, New Haven and Hartford, Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Pratt, J., dissenting.


text:
    William A. Hopkins, Respondent, v. Leon C. Riggs, Appellant, Impleaded.
   — Judgment and. order denying' new trial affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Edward J. Hall, Jr., Respondent, v. Cornelius R. Colyer, Appellant.
   — Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    The People of The State of New York ex rel. George Wren v. Adolph Goetting, Police Justice.
   — Order denying application for writ of mandamus affirmed, with costs.

Opinion bv

Pratt, J.


text:
    Matter of Application of the Union Elevated Railroad Company, Respondent, to Condemn Lands of James C. Jewett, Appellant.
   — Award of commissioners and order confirming the same affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Barbara Stimmel, Appellant, v. Charles Watts and another, Respondents.
   Judgment affirmed, with costs

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Harmon C. Schultz, Respondent, v. George W. Mead, Appellant.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    Matter of Application of Alfred M. Merrill, Trustee, etc.
   — Order reversed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    Theodore Westlake, Respondent, v. Rosina Koch and another, Appellants.
   — Judgment and modified judgment affirmed, with costs.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Russell W. Ostrander, Appellant, v. Joseph Hart, Executor, etc., Respondent.
   — Judgment affirmed, with costs.

Opinion by

Barnard. P. J.


author: Dykman. J.

text:
    The People of The State of New York ex rel. George W. Smith, Appellant, v. The Board of Commissioners of Police for the County of Richmond, etc., Respondent.
   — Order overruling demurrer to return and judgment thereon affirmed, with costs. No costs on appeal from order.

Opinion by

Dykman. J.


text:
    Mary A. Dale, Respondent, v. Peter A. H. Jackson, Appellant
   —Judgment affirmed, with costs.

Opinion by

Dykman, J.


author: Pratt, J ;

text:
    Daniel Mapes, Jr., and others, Executors, Appellants, v. Walter Charles and others, Respondents.
   — Judgment affirmed, with costs.

Opinion by

Pratt, J ;

Dykman, J., not sitting.


text:
    Jane Montgomery, Respondent, v. The Long Island Railroad Company, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Matter of Arbitration of Michael Bennett.
   Award and order confirming same affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Julius A. Kohn, Appellant, v. Malcolm Henderson, Respondent.
   — Judgment affirmed, with costs.

Op nion by

Dykman, J.


text:
    Frederic N. Smith, Receiver, etc., Appellant, v. Rosalie Hahn and another, Respondents.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Thomas C. Arnow and others, Respondents, v. John D. Ferguson, Appellant, Impleaded.
   Order affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J.,not sitting.


text:
    Matter of Judicial Settlement of Henry Huss, Executor, etc
   — Part of surrogate’s decree appealed from affirmed, with costs.

Opinion by

Pratt, J.


text:
    Henry C. Martine, Respondent, v. Martha M. Huyler, Appellant.
   — Judgment and order denying new trial reversed and new trial granted, costs to abide event.

Opinion by

Dykman, J.


text:
    Alice M Allan, Respondent, v. The State Steamship Company (Limited), Appellant.
   — Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Patrick Brennan, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   —Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    Milly Ann Ryerson, Respondent, v Edmond F. Ryerson, Appellant
   — Judgment affirmed,with costs.

Opinion by

Pratt, J.


text:
    Lewis E. Waterman and another, Appellants, v. Edward L. Shipman and another, Respondents.
   — J udgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    James C. Bell, Respondent, v. Daniel J. Weir and others. Appellants.
   — Interlocutory judgment affirmed, with costs.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Matter of Peter M. Baum.
   —Application to disbar respondent as an attorney of the Supreme Court, granted.

Opinion by

Dykman, J.


text:
    Roxana Kelley, Plaintiff, v. Ann Augusta Foster and others, Defendants.
   —Judgment affirmed, with costs.

Opinion by

Barnard, P. J.;

Cullen, J., dissenting.


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

text:
    Lewis L. Fosdick, Plaintiff, v. Town of Hempstead and others Defendants.
   — Judgment modified in accordance with opinion of Cullen, J.

Opinions by

Barnard, P. J., and Cullen. J.

Order to be settled by Justice Cullen;

Dykman, J., dissenting.


text:
    James Singleton, Respondent, v. Home Insurance Company of New York, Appellant, Impleaded, etc.
   Judgment affirmed ; order affirmed, with ten dollars costs and disbursements.


author: Hardin, P. J.

text:
    The People of the State of New York, Appellant, v. Alfred M. Crotty, Respondent.
   Order and judgment reversed, and demurrer overruled, with liberty to the defendant to plead, and the clerk directed to enter judgment and remit a certified copy thereof with tne return and decision of this court to the Court of Oyer and Terminer of Oswego county, pursuant to sections 547 and 548 or the Code of Criminal Procedure.

Opinion by

Hardin, P. J.


text:
    In the Matter of the Judicial Settlement of Daniel Falls, as Administrator, etc., Respondent, v. Scott G. Falls, Appellant.
   — Case sent back for such action and proceeding as counsel may •deem advisable.

Opinion by

Hardin, P. J.


text:
    Christian Wiel, Respondent, v. Edward C. Wright, as Administrator, Appellant.
   Judgment and order the County Court of Onondaga county affirmed, with costs.

Opinion by

Hardin, P. J.


author: Merwin, J.

text:
    Elizabeth Nary, as Administratrix, Respondent, v. New York Ontario and Western Railway Company, Appellant.
   — Judgment and order affirmed^ with costs

Opinion by

Merwin, J.


text:
    Cora M. Walters, Respondent, v. Mortimer M. Mayhew, as Executor, etc., Appellant.
   Judgment and order affirmed, with costs to respondent.

Opinion by

Hardin, P. J.


author: Vann, J.,

text:
    Forest G. Weeks, Appellant, v. John E. Waller, Respondent.
   — Judgment affirmed, with costs, on the opinion of

Vann, J.,

delivered at Special Term.


text:
    Michael Dillon, Respondent, v. the City of Syracuse, Appellant.
   — Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.

Opinion by

Merwin, J.


author: Martin, J.

text:
    Clara L. Doty, Respondent, v. The New York State Mutual Benefit Association of Syracuse, New York Appellant.
   — Judgment and order affirmed, with costs.

Opinion by

Martin, J.


text:
    Maud Webber, Respondent v. Dorliska B. Vincent and another, Appellants.
   Judgment and order affirmed, with costs.

Opinion by

Merwin, J.


text:
    Jeremiah Callaghan, as Administrator, etc., Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   — Judgment and order affirmed, with costs.


text:
    Herman Berry, Respondent, v. The American Central Insurance Company of St. Louis, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    James Boyle, Respondent, v. William Youmans, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Martin, J.