text:
    Pierre Meisch, Respondent, v. The Rochester Electric Railway Company, Appellent.

      Negligence — an electric street railway company running over a dog — contributory negligence of the owner.

    If a dog is on the track of an electric street railway, even as a trespasser, the motorman of an approaching car is not justified in running the dog down, if by the exercise of reasonable vigilance he might have discovered the danger of his doing so in time to avert it, but it is his duty, on discovering that there is danger of running the dog down, to slacken the speed of the car.
    It is not negligence, as matter of law, for the superintendent of a cemetery lying on both sides of a highway in which there is an electric railway, where the owners of the cemetery lands own the fee of the highway, subject only to the easement of passage of the public, including the railway company, to make use of the highway for the excursions of his watch dogs in the business of guarding the premises so éxposed to trespassers, even when the railway track is bounded by banks of snow in such a manner as to impede the escape of a dog therefrom.
    In an action brought against the railroad company for the recovery of damages for the death of a dog run over by an electric car and killed while upon the track in so using the highway, the question of whether his owner was guilty of contributory negligence in permitting the dog to be upon the highway is at least a question for the jury.
    Appeal by the defendant, the Rochester Electric Railway Company, from a judgment of the County Court of Monroe county, ■entered in the office of the clerk of that county on the 1st day of May, 1893, upon a verdict in favor of the plaintiff, in an action first tried in the Municipal Court of Rochester, and appealed to the County Court for a new trial; and from an order of the County Court, entered in the office of the clerk of Monroe county on the 1st ■day of May, 1893, denying the defendant’s motion for a new trial made upon the judge’s miniites.

      J. 8. Thompson, for the appellant.

      A. E. Sutherland, for the respondent.
   Dwight, P. J.:

The action was to recover damages for the alleged negligent killing of a valuable young dog. We think the judgment is right and should be affirmed. The facts which the evidence tended to establish and upon which the jury had a right to base their verdict were briefly as follows: The plaintiff was superintendent of the Holy Sepulchre Cemetery, on the Boulevard or Charlotte road, extending north from Rochester, along and upon which the railroad of the defendant was constructed, and its electric cars were run. The plaintiff’s house was near the north end of the cemetery property, which consisted of about 300 acres lying on both sides of the road. The plaintiff, having the charge and oversight of all this property, found it useful to keep one or more watch dogs on the premises, and at the time mentioned in the evidence he had two, one an old dog, which he had trained to patrol the premises several times a day, passing up and down the road for that purpose, and the other, the dog in question. He was a very large and well-bred English mastiff, only eleven months old, and was accustomed to accompany the old dog in his rounds, and was thus, in the most effective way, becoming trained to perform the same duties. On the day of the accident the two dogs were returning together from the southerly portion of the property to the plaintiff’s house and had taken to the railroad track for that purpose. It was in January and there was deep snow on the ground, some of which had been thrown from the track by ■the snow plow and lay piled up to the height of two feet on either side. A water tank stood about 1,000 feet south from the plaintiff’s, house, and at that point there were cross openings through the snow banks, but no others, going north, until the plaintiff’s gate was reached. As the defendant’s car No. 14 passed the water tank, going north on the afternoon in question, the two dogs were plainly to be seen about 325 feet ahead, running on the track between the banks of snow1 towards their home. The car was running at a speed of from ten to twelve miles an hour; the motorman struck his. gong, but made no effort to check the speed of the car; the older dog leaped from the track, but the younger one failed to do so and was run down and killed just as he reached and was on the point of turning through the cut in the snow bank opposite his master’s gate; he had run two-thirds the distance the car had done in the same time, and a very slight reduction in the speéd of the latter at any time down to the last moment of the race, would have enabled him to escape without injury.

Upon these facts, which, as we have said, were so well supported by the evidence that the jury had a right to accept them as the facts of the case, there can be no doubt of the plaintiff’s right to recover so far as the question of the defendant’s negligence was concerned. Even if the dog was a trespasser on the track the motorman ivas not justified in running him down, but it was his duty, on discovering that there was danger of doing so, to slacken the speed of the car; and it was clearly a question for the jury whether, in the exercise of reasonable vigilance, he might have discovered the danger in time to avert it. ( Watkins v. Atlantic Avenue R. R. Co., 20 Hun, 237; Watson v. Broadway & Seventh Avenue R. R. Co., 6 N. Y. St. Repr. 538 ; S. C., 18 id. 1029 ; Swift v. S. I. R. T. Co., 33 id. 604 ; Bernhard v. Rochester Ry. Co., 51 id. 880.)

It is doubtful whether there was any evidence in the case which tended to charge the plaintiff with contributory negligence in permitting the dogs to be at large in the highway. The employer of the plaintiff was the owner of the land on both sides of the highway, and of the fee in the highway itself, subject only to the easement of passage of the public, including the defendant, and his right to make use of the highway for the excursions.of his dogs in the business of guarding the premises so exposed to trespassers can hardly be questioned. But it was at least a question for the jury whether he was guilty of any negligence in respeet to the care of the doga on the occasion in question.

These views, if correct, dispose of the defendant’s exception to the denial of its motions for a nonsuit, and for the direction of a verdict.

The single exception taken by the defendant to any ruling on the admission of evidence is not discussed on the argument here and it seems to be without merit. The same may be said of the defendant’s exception to the refusal of the court to charge that no competent evidence had been given of the market value of the dog. Evidence was given on that subject by the witness Weighell, and was received without objection except on the ground that the witness, not the evidence, was incompetent. But that witness testified that he made a practice of raising and training dogs, exhibiting them at shows, and buying and selling dogs; that he knew their market value in Rochester, and that a mastiff trained to watch was worth from $100 to $200. This evidence was imcontradicted, and the verdict of the jury was for ninety-six dollars and eighty-three cents. The motion for a new trial, therefore, on the ground of excessive damages, in addition to the ground stated in the motion for a nonsuit, was properly denied.

The judgment and order appealed from should be affirmed.

Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    Charles A. Hausauer and Another, Respondents, v. Sarah Dahlman and Others, Appellants.

      Lease — covenant for a renewal on notice— renewed term created by giving the notice — defense to a summary proceeding to dispossess for holding over.

    When a lease contains a covenant to the effect that on giving a specified notice the lease shall continue in force for an additional term, the giving of the notice by the lessee creates the new term without the execution of a new lease by the lessor, and will constitute a defense, in any court, to a proceeding instituted, during such new term, to dispossess the lessee as a tenant holding over after the expiration of his term.
    in an action brought in the Supreme Court to obtain specific performance of an alleged agreement of the defendants to extend a lease which they had given to the plaintiffs, and an injunction restraining, in the meantime, the prosecution of proceedings which the defendants had instituted in the Municipal Court of Buffalo, to summarily remove the plaintiffs from the leased premises as tenants holding over after the expiration of their term, the complaint alleged that the defendants executed to the plaintiffs a lease for one year, which contained a covenant that the plaintiffs might, at their own option, renew the same for four years more at the same rent, on giving three months’ notice of their intention to renew to the defendants, provided that the defendants, themselves, should obtain "an extension of their lease” under which they let to the plaintiffs. The complaint further alleged that the notice of intention to renew was duly given and accepted, and that the plaintiffs continued in possession after the expiration of the original term, paying the rent reserved, and that the defendants, before the expiration of the renewal term, had instituted proceedings in the Municipal Court of Buffalo to summarily dispossess the plaintiffs. An injunction pendente lite, restraining the prosecution of the summary proceedings, was granted.

      Held, on appeal from an order denying a motion to vacate the injunction, that the effect of the notice was, of itself, to create the new term without the execution of a new lease, provided the defendants had procured an extension of their lease, within the meaning of the agreement, which was a fact which remained to be proved by the plaintiffs;
    That this would constitute a complete defense to the summary proceedings to dispossess the plaintiffs, which might be litigated in any court in which the proceedings were taken;
    That as the allegations of the complaint indicated a complete defense to the summary proceedings, of which, if pleaded there, the Municipal Court must take cognizance, equity would not interfere to supplant the jurisdiction of that court already acquired;
    And, hence, that the injunction should be vacated.
    The complaint contained no allegation that the defendants had procured an extension of their own lease, but it appeared that no objection was made to the injunction on that ground, and some proof was made in the defendants’ motion papers that they had procured a new lease, though not on the terms and conditions of their former lease.

      Reid, that whether this was "an extension of their lease,” within the meaning of their agreement with the plaintiffs, was, probably, a question to be tried between the parties.
    Appeal by the defendants, Sarah. Dalilman and others, from an order of tlie Supreme Court, made at. the Erie Special Term and entered in the office of the clerk of Erie county on the 5th day of May, 1893, denying the defendants’ motion to vacate an injunction pendente lite.

      H. J. Swift, for the appellants.

      A. Afoot, for the respondents.
   Dwight, P. J.:

This action was brought to obtain specific performance of an alleged agreement of the defendants to extend a lease of premises on Main street in the city of Buffalo, which they had given the plaintiffs, for the term of one year from May 1, 1890, to cover a term of four years in addition thereto, and the injunction restrained the defendants, in the meantime, from prosecuting summary proceedings begun by them in the Municipal Court of Buffalo to remove the plaintiffs from the premises.

.The complaint alleged the execution in writing and under seal, by the defendants, of the lease for one year, with the privilege to the plaintiffs, at their option, to renew the same for four years more at the same annual rent and on the same conditions, on giving notice, three months beforehand, of their intention to do so, and provided that the defendants, themselves, should obtain an extension of their lease under which they let to the plaintiffs. The plaintiffs also allege that the defendants put them in possession of the premises on the 1st day of May, 1890, and that they have ever since continued in possession of the same “under said written lease and agreement,” and that the plaintiffs have regularly paid and still pay the monthly rent (at the rate of $2,500 a year) reserved by the said lease, although since the commencement of the summary proceedings referred to, such rent has been paid under a stipulation that it shall not affect such proceedings ; that such proceedings were commenced in November, 1892, under a claim that the plaintiffs are tenants at will or by sufferance, and that the plaintiffs have answered in such proceedings, denying that they are tenants at will or by sufferance, and denying other material allegations of the petition. The complaint also alleges that they did in due time give notice to the defendants that they did elect to renew the lease, as by its terms it was their privilege to do, for the further term of four years, and that one of the defendants, acting for and with the authority of the defendants, agreed to such renewal.

It is a .curious fact that the complaint contains no allegation that the defendants had procured an extension of their own lease, but no objection seems to have been made to the injunction on that ground, and some proof was made in the moving papers of the defendants to the effect that they had procured a new lease, though not on the terms and conditions of their former lease; whether such is “ an extension of their lease,” within the meaning of their agreement with the plaintiffs, is, probably, a question to be tried between the parties.

The injunction was prayed for in the .complaint on the ground that the affirmative defense to the summary proceedings above foreshadowed was an equitable one only, and one of which the plaintiffs could not avail themselves in the Municipal Court. The ¡learned judge at Special Term held to the contrary, and was of opinion, as shown by a memorandum accompanying his decision, that, even under their general answer to the petition, the plaintiffs r could litigate the executory covenant to extend the lease four years, in avoidance of the relief sought by that proceeding ; ” but he denied the motion to dissolve the injunction on the ground that “ the plaintiffs should be given the opportunity to have their right to occupy the demised premises for four years determined in such manner as will bar further proceedings on the part of the defendants to disturb them in the occupation of said premises, in the event that they are able to show that they are entitled to such extension.” "We go with the learned judge so far, at least, as to hold that the defense here indicated might have been, if it was not, and may still be, by an amendment to their answer in the summary proceedings, so stated as to constitute a complete defense to that proceeding which may" be litigated in any court in which the proceeding is taken. Here was not a mere covenant on the part of the lessor to give a new lease on demand and on certain conditions, but a covenant that the lessees might, themselves, at their option, renew the lease for four years by giving the notice required, which notice was duly given and accepted by the defendants, and the plaintiffs continued in possession under such renewal, paying the rent reserved thereby down to the time of. the commencement of the proceedings instituted to remove them summarily as tenants holding over after the expiration of their term. According to the allegations of the complaint, the plaintiffs had done all that was required to be done by either party to effect a renewal of the lease for four years, provided always that the defendants have procured an extension of their lease within the meaning of the agreement, which is a fact which remains to be proved by the plaintiffs. The covenant in this case is, we believe, equivalent to a covenant that on giving the required notice the lease should continue in force for the additional term, and in either case the effect of the notice is, of itself, to create the new term without the execution of a new lease by the lessor. (Thiebaud v. Bank of Vevay, 42 Ind. 212; Dix v. Atkins, 130 Mass. 171; Ranlet v. Cook, 44 N. H. 512.) In Kelso v. Kelly (1 Daly, 419), it was held that where the lease provided for a renewal at the option of the lessee, and there was no provision for notice, his hold-, ing over beyond the term was notice of his election to renew, and! entitled him to hold the premises subject to the rent reserved by the original lease until the lessor performed his covenant by executing a new lease for the additional term.

It seems to us very clear that the allegations of the complaint in this action indicate a complete defense to the summary proceedings in question, of which, if pleaded there, the Municipal Court of Buffalo must take cognizance, and that equity will not interfere to supplant the jurisdiction of that court already acquired in the proceeding.

The order appealed from should be reversed and the motion to dissolve the injunction granted.

Haight, J., concurred; Lewis, J., not sitting.

Order appealed from reversed, with ten dollars costs and disbursements, and motion to vacate injunction granted.


author: Haight, J.:

text:
    Antonina Kowalewska, as Administratrix, etc., of Michael Kowalewska, Deceased, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Negligente of a railroad company — inspection of a coal car v/pon its delivery to another company— liability for an injury to a stranger — change to the jury.

    On the trial of an action brought against the New York, Lake Erie and Western Railroad Company to recover damages for the death of the plaintiff's intestate, the evidence showed that the deceased, while engaged in the employ of a contractor with the Delaware and Hudson Canal Compan3r, in shovelling coal upon one of the defendant’s cars into a pocket on a Delaware and Hudson Canal Company’s trestle, was killed by another of the defendant’s cars running into the one on which he was at work ; that the defendant was engaged in transporting coal over its road consigned to the Delaware and Hudson Canal Company, and delivered the same to that company at the summit of its coal trestle, at which point the cars loaded with coal were taken in charge b3r the employees of the Delaware and Hudson Canal Company, and run by the force of gravity over its trestle to the pocket where they were to be unloaded by its contractor, and were there stopped; that the defendant caused its cars to be inspected before going upon the trestle; that the car which caused the accident in suit was so inspected by an emplo3roe of the defendant, marked all right, and sent upon the trestle, where it was boarded by a Delaware and Hudson Canal Company employee, who, in endeavoring to stop it, found that the brake would not work ; that the car continued, with accelerated speed, down the incline of the trestle, causing the collision by which the deceased was injured; after the accident, it was found that the brake lever of the colliding car was out of its guard; and that this defect was not a hidden one; hut could have been readily seen by looking under the car. The jury rendered a verdict for the plaintiff.

      Held, that if the brake lever was out of the guard at the time of the inspection of the car by the defendant’s inspector, the inspector was negligent in not discovering it, and the defendant’s liability was established; that the question whether the lever was out of place at the time the car was inspected, or was subse- . quently displaced, was a question of fact for the jury, and was settled by the verdict in favor of the plaintiff;
    That the deceased was not a co-employee with the servants of the defendant, and, hence, that the rule that the master is not liable for injuries resulting from the negligent acts of fellow-servants had no application.
    Where an injury occurs by reason of the negligent acts of two railroad corpora- ' tions, their liability is several as well as joint, and an action can be maintained against either one of them.
    The power of the General Term, even though no exceptions have been taken, to reverse a judgment on account of expressions in th,e charge of the trial court tending to prejudice the jurors against the defendant, and to induce them to give extravagant damages, will be exercised only where it is apparent that great injustice has been done.
    . Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Erie county on the 12th day of April, 1893, upon a verdict rendered at the Erie Circuit, and from an order made, upon a case and exceptions, denying the defendant’s motion for a new trial.

      A. P. Boott, for the appellant.

      Leroy Parlcer, for the respondent.
   Haight, J.:

This action was brought to recover the damages sustained by reason of the death of the plaintiff’s intestate.

On May 13, 1889, the plaintiff’s intestate was in the employ of one John Piecliowiak, with others, engaged in shovelling coal on one of the defendant’s cars into a pocket of the Delaware and Hudson Canal Company’s trestle. Whilst so engaged, another ear belonging to the defendant company ran against the car in which he was working, causing him to pitch forward through the hole in the bottom of the car into which he was shovelling the coal, inflicting an injury which caused his death on the following day.

The defendant was engaged in transporting coal over its road, consigned to the Delaware and Hudson Canal Company, and delivered the same to that company upon the summit of its coal trestle, at which point the car loaded with coal was taken in charge hy the employees of the Delaware and Hudson Canal Company, and run by the force of gravity over its trestle to the pocket or place where it was to be unloaded, and there stopped, at which place the same was boarded by John Piechowiak, or those in his employ, who unloaded the same under a contract with the latter company. It appears that there was a contract between the two companies, but the same is not printed in the appeal book, neither was it produced upon the argument. It appears, however, that the defendant company caused its cars to be inspected as they arrived at the foot of the trestle, and if found in good condition they were drawn up to the top of the trestle with power furnished by the defendant, and there taken in charge by the servants of the Delaware and Hudson Canal Company.

On the day in question, the plaintiff’s intestate was engaged as we have described, unloading the car upon the trestle. The car which followed it was inspected at the foot of the trestle by the employees of the defendant, and the brake was found to be out of order, in this: that there was a slack to the chain of the brake ; that thereupon the inspector went under the car and tightened the brake up so as not to let there be too much slack, and finding that there was nothing else the matter with the brake, marked the car as having been inspected and found all right, and sent it on up the incline onto the trestle. As it arrived at the summit of the trestle it was boarded by an employee of the Delaware and Hudson Canal Company, who immediately went to the brake and undertook to operate it, but found that he could not. He thereupon called to another servant in the employ of the latter company, who jumped upon the car, and the two together undertook to turn the brake up, using their best endeavors in this respect. Meantime the car was increasing in speed, running along a slight incline upon the top of the trestle. Other employees of the latter company observing the situation, threw boards under the wheels attempting to stop the car, but were unable to do so, and it proceeded on down the incline colliding with the ear in which the plaintiff’s intestate was at work, causing the • accident already ■ described. After the collision the brake was .examined and it.was then found that the lever was out of its guard.

.: It is contended that the defendant company had fully performed fits duty, and .that if there was any negligence, it was that of the iDeláware and Hudson Canal Company in not inspecting the same ■as it arrived at the summit of the trestle when it was taken in charge ■by the. employees of that company. It may not be worth while to .examine the question of the liability of the latter company, for where injury occurs by reason of the negligent acts of two railroad .'corporations, their liability is several as well as joint, and an action 'can be maintained against either one of them. (Kain v. Smith, 80 N. Y. 458.)

We will, therefore, dismiss the subject by calling attention to the ■fact that the car was inspected by the defendant’s servants at the foot of the incline to the trestle and so marked, thus representing .to the servants of the Delaware and Hudson Canal Company that the car was in good order.

• The question is, therefore, as to whether the servants of the defendant company properly inspected this car. It was inspected as we have seen, with the result described. Was the lever out of its guard ? If so, it was not discovered by the inspectors. The lever could have been readily seen by looking under the car. It was not a secret or hidden defect, and if the lever was then out of its guard, the inspectors were negligent in not discovering it. It is claimed that some of the pockets in the trestle were filled with coal above the tops of the rails, and that the lever might have been knocked out of its place by the coal in some of the pockets over which it passed upon the trestle. There was evidence however, that on the day in question none of the pockets were filled with coal above the rails, and that, consequently, the lever could not have been misplaced in this way. Whether the lever was then out of place at the time the car was inspected, or was subsequently displaced whilst the car was ascending the trestle, was a question of fact for the jury, and a verdict having been awarded in favor of the plaintiff, that issue must be regarded as settled.

■ The plaintiff’s intestate was not a co-employee with the servants of the defendant, and the rule that the master is not liable for injuries resulting from the negligent act of fellow-servants has no application. (Svenson v. The Atlantic Mail Steamship Company, 57 N. Y. 108; Young v. The N. Y. C. R. R. Co., 30 Barb. 229.)

The deceased was, as we have seen, engaged in shovelling coal in company with others, and does not appear to have seen or heard of the approaching car until the collision. ■ There was no evidence tending to show that he was guilty of contributory negligence.

The appellant complains of the charge of the court as containing expressions tending to prejudice the jurors against the defendant and to induce them to render extravagant damages. No exceptions, however, were taken upon the trial to the expressions now complained of. The General Term may reverse even though there'are no exceptions taken. (Roberts v. Tobias, 120 N. Y. 1; Cudahy v. Rhinehart, 133 id. 248-252.)

But this power will only be exercised where it is apparent that ' great injustice has been done. A careful reading of the charge has led us to the conclusion that it was quite fair to the defendant, and the expressions complained of, taken in connection with that which precedes and follows, should not have operated to prejudice the jurors.

Numerous exceptions were taken to the charge as made, and to the requests to charge, that were refused. We have examined them, but find none which we think require a new trial.

The judgment and order appealed from should be affirmed.

Lewis and Bradley, JJ.. concurred.

Judgment and order appealed from affirmed.


author: Hai&ht, J.:

text:
    Charles F. Ackerson, as Supervisor of the Town of Somerset, Respondent, v. The Board of Supervisors of Niagara County and John J. Arnold, as County Treasurer, Appellants.

      Town railroad bonds — enforcement by a town of the application, by the county, of railroad taxes to the payment of town bonds — town of Somerset — chapter 907 of Lams of 1869, section 4, as a/mmded — chapter 286 of Laws of 1880 — repeal of statutes by implication.

    A town, can enforce, through an action instituted by its supervisor, as well as through an action instituted by a town taxpayer on its behalf, the application by its county of the taxes, collected from a railroad in the town, to the satisfaction of bonds issued by the town in aid of the railroad, as prescribed by section 4 of chapter 907 of the Laws of 1869, as amended in 1870 and 1871.
    The supervisor of the town of Somerset in Niagara county, which town in 1880, under the authority conferred upon it by chapter 286 of the laws of that year, issued its bonds to take up bonds which had been theretofore issued by it to aid in the construction of a railroad through the town, may maintain an action against Niagara county for, and recover, by force of the provisions of section 4 of chapter 907 of the Laws of 1869, as amended, the amount of taxes, excepting school and road taxes, collected from the railroad company in the town of Somerset within six years prior to the commencement of the action, which had not been applied by the county treasurer to the purchase of the town’s bonds or invested as a sinking fund for their redemption, as required by the statute of 1869, as amended.
    The fact that in certain years the taxes in question were collected from the railroad company by the town collector of the town of Somerset, who first paid therefrom the' town orders authorized by the county board of supervisors, and then turned the balance, with the orders paid by him, over to the county treasurer, does not change the situation of the town and county in respect to such taxes, or call for the exclusion of such town taxes from the amount of the recovery from the county, on the theory that the town had had the benefit thereof.
    The provisions of section 4 of chapter 907 of the Laws of 1869, as amended, were not repealed by implication, in respect to the town of Somerset, by chapter 286 of the Laws of 1880, entitled “An act for the relief of the town of Somerset, to abolish the office of railroad commissioner of said town, and to enable it to adjust its indebtedness and issue bonds therefor; ” — the latter act not being a revision of the former, nor covering the whole subject-matter thereof, nor containing anything repugnant thereto.
    Appeal by tbe defendants, tbe Board of Supervisors of Niagara county and-John J. Arnold, as county treasurer, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of Niagara county on tbe 26th day of July, 1892, upon a decision rendered by the court after a trial by the court at the Niagara Special Term held for the trial of equity causes.

      John E. Pound, for the appellants.

      Oassius O. Pa/uy, for the respondent.
   Hai&ht, J.:

This action was brought to recover the amount of the taxes collected by the defendants from the Rome, Watertown and Ogdensburgh Railroad Company in the town of Somerset, and is based upon the provisions of section 4, chapter 907 of the Laws of 1869, as amended by chapter 789 of the Laws of 1870, and chapters 283 and 925 of the Laws of 1871.

In the year 1872 the town of Somerset issued bonds to the amount of $90,000, bearing interest at the rate of seven per cent per annum, to aid in the construction of the Lake Ontario Shore railroad then about to be built through the town. These bonds were issued to the railroad company in exchange for the company’s stock, and the proceeds were used in the construction of the road. In 1874 the property of the railroad company was sold under foreclosure, and the purchasers reorganized under the name of the Lake Ontario Railroad Company, which company was, in January, 1875, consolidated with the Rome, Watertown and Ogdensburgh Railroad Company under the latter name. The interest maturing upon the bonds was not paid by the town, and several actions were brought by some of the holders of the bonds, which resulted in judgments against the town for the amount due and unpaid. In 1880 the Legislature, upon the request of the officers of the town, enacted chapter 286 of the laws of that year, whereby the supervisor and justices of the peace of the town made an agreement with the holders of the bonds by which their judgments were settled and their bonds surrendered up and canceled, they receiving therefor new bonds issued by the town bearing interest at five per cent per annum, and payable within thirty-three years from the date thereof. No part of the moneys collected from the railroad company by the county has ever been used by the county treasurer in the purchase of the bonds issued by the town to the railroad company, or has ever been invested as a sinking fund for the redemption of such bonds, as required by the provisions of the statute. The trial court awarded judgment for the amount of such taxes, excepting school and road taxes, collected within- six years prior to the commencement of the action.

It is now contended that the recovery should not have included the town taxes for the reason that the town had had the benefit of the amounts collected for that purpose.

The trial court has found as facts : “ That all of said railroad taxes in each of said years, was, by direction of the defendant, the board of supervisors of, Niagara county, converted and appropriated to the payment of the liabilities of the county of Niagara; that all of such taxes in each of said years, was, by the respective county treasurer’s of said county, immediately after the receipt thereof, mingled with the general funds of the said county of Niagara, and thence paid out upon orders drawn by the respective county treasurers of said ■ county, being thereto authorized and directed by the said board of supervisors, and not otherwise.” It is claimed that these findings .are against the weight of evidence; that in one or two of the years for which a recovery was had the taxes were collected from the railroad company by the town collector, who first paid therefrom the town orders authorized by the board of supervisors, and then turned the balance, with the orders paid by him, over to the county treasurer. Assume that tfiis was done. It does not necessarily show that the findings are erroneous. We do not understand that it changes the situation of the parties. For the town orders turned, in by the collector to the treasurer represented so much cash, and the orders were payable out of the other funds set apart by the board of supervisors for that purpose. If we have the question presented as to whether the town can recover from the county the amount of the town taxes collected from the railroad company, we do not propose to discnss it, for it has already been considered in the Court of Appeals in the case of Clark v. Sheldon (106 N. Y. 104), and again in the same case in 134 N. Y. 333 ; and if this question is to be again opened for discussion it should be in that court. It is true that in that case the question arose in a proceeding instituted by a taxpayer to compel the treasurer to invest ■the moneys received from the railroad company as taxes, but it was for taxes that had been theretofore collected, and the proceeding was instituted on behalf of a taxpayer of the town, and if a taxpayer of the town had the right to have the money collected for ■town purposes invested as a sinking fund, we fail to see why the supervisor acting for the town would not be entitled to the same relief. It is said that the town has had the benefit of the fund. So. it has of the State and county taxes as well; for it was the duty of the town to pay its proportionate part of the State and county taxes, and the amount that the county has collected of the railroad company was a part of the town’s proportion that it was required to pay.

It is further contended that chapter 286 of the Laws of 1880 covers the entire subject-matter embraced in this action, and by necessary implication repeals the provisions of section 4, chapter 90? of the Laws of 1869, as amended by chapter 283 of the Laws of 1871. The provisions of the act under which this action is brought, are as follows: “ All taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city for which said town, village or city has issued, or shall issue, bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, city or village lies. It shall be the duty of said treasurer,, with the money arising from taxes levied and collected as aforesaid,, which has heretofore been or shall hereafter be paid to him, including interest thereon, to purchase the bonds of said town, issued by said town to aid in the construction of any railroad or railroads, when the same can be purchased at or below par; the bonds so purchased to be immediately canceled by said treasurer and the county judge and deposited with the board of sujiervisors. In case said bonds so issued cannot be purchased at or below the par value thereof,, then it shall be the duty of said treasurer, and he is hereby directed, to invest said money so paid to him as above mentioned, with the accumulated interest thereon, in the bonds of this State, or of any city, county, town or village thereof, issued pursuant to the laws of this State, or in bonds of the United States. The bonds so purchased, with the accumulated interest thereon, shall be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued, or to be issued, by said town, village or city, in aid of the construction of said railroad or railroads.” The section of the statute from which the above is quoted contains other provisions pertaining to the duties of the railroad commissioner in reference to the issuing of bonds, etc. Chapter 286 of the Laws of 1880 is entitled “ An act for the relief of the town of Somerset, to abolish the office of railroad commissioner of said town, and to enable it to adjust its indebtedness and issue bonds therefor.” Section 1 provides : “ The supervisor of the town of Somerset, together with the justices of the peace of said town, or any three of such officers, are hereby authorized to execute under their hands and seal and to issue new bonds, with interest-bearing coupons, in the name of the town ■of Somerset, for the purpose of redeeming, taking up and retiring the bonds issued by George H. Bradley, "William II. Hyde and Stephen Meade, railroad commissioners of said town, in aid of the Lake Ontario Shore Railroad Company, such other bonds to bear interest annually at the rate of five per centum per annum, and be made payable at such times that the principal thereof shall become due and payable in thirty-three annual payments, and such payments substantially equal, and said interest and principal to be payable at .some place that shall be designated in said bonds and coupons. Said new bonds may be issued to the holders of said old bonds or coupons, or the owner of any judgment recovered thereon, in sufficient amount to take up the old bonds, and due or past due coupons and judgments recovered thereon owned by them respectively, or in the discretion •of said supervisor and justices of the peace, they may sell said new bonds at a price not less than par, and "with the proceeds thereof take up said old bonds and due or j>ast due coupons and judgments recovered thereon, but no greater amount of such bonds shall be issued than is sufficient to take up and retire said old bonds and coupons, including judgments thereon which have been recovered against said town, and they shall be used for no other purpose. * * * Said supervisor and justices are hereby authorized to settle and adjust said indebtedness, and nothing herein shall be construed as compelling them to issue said bonds until a satisfactory adjustment is made.” Other provisions of the act require the supervisor to report at each annual session of the board of supervisors the amount of bonds and coupons issued and falling due within the year, and the amount that would be required to pay the same, and it is made the duty of the board of supervisors to assess and collect from the taxable property of the town an amount sufficient to pay the same. Section 5 of the act abolishes the office of railroad commissioners, and the powers and duties devolved upon them are vested and imposed upon the supervisor of the town. There is no clause in the act expressly repealing the provisions of the former act, except that pertaining to railroad commissioners. Is there anything in its provisions which is repugnant to, or which by implication operates to repeal, the provisions of the former act? The subject of the repeal of statutes has been recently considered by us in the case of Reinhardt v. Fritzsche (69 Hun, 565), and the rule, as we there stated, is “ that where there is no repealing clause in a statute, and that and a former one can stand together and both have effect, they will generally both be held to be in force; but where a revising statute covers the whole subject-matter of a prior statute, and such plainly appears to have been the legislative intent, the revised act is deemed to contain the entire law upon the subject, and virtually repeals the former enactment.” (In the Matter of N. Y. Inst. for Deaf & Dumb, 121 N. Y. 234; People v. The Gold & Stock Tel. Co., 98 id. 67-78; Heckmann v. Pinkney, 81 id. 211-215; Ellis v. Paige, 1 Pick. 43; Partlett v. King, 12 Mass. 537.)

It will be observed that there is nothing in the act which purports to be a revision of the former act, nor do we find anything in its provisions that is repugnant thereto. It is entitled as an act for the relief of the town of Somerset, and to enable it to adjust its indebtedness and to issue bonds therefor. If we were to adopt the construction contended for by the appellants it would have been more properly entitled an act to relieve the county of its obligation to the town, and to deprive the town of its cause of action against the county. The purpose of the act is apparent. The town had been bonded to aid the railroad company in building its road. Litigation had followed and several judgments had been obtained against the town. The interest upon the bonds for several years had matured, and the town had been called upon to pay. The bonds that had been issued bore interest at the rate of seven per cent. The officers of the town had discovered that the holders of the bonds were willing to compromise with them and receive new bonds bearing interest at the rate of five per cent. It was under these circumstances that application was made to the Legislature for relief, ■which resulted in the passage of the act in question. As we view it the new bonds were issued to take the place ’ of the old. The new are in effect renewals of the old bonds, and stand in their place. The county treasurer can perforin his duty under the former act by taking the money that is collected as taxes from the railroad company, and with it buy in new bonds of the town if they can be purchased at par, or if not, invest the money as a sinking fund for their redemption when due. The provision requiring the supervisor to report the number of bonds and coupons issued and the amount that will fall due, and that will be required to .be raised by taxes in order to meet the same, is not inconsistent, for he is only to report “ the amount required to pay the same.” If any part has been paid by the treasurer, or if any of the bonds have become due, or any part thereof, so that the fund reserved may be applied in the payment thereof, to that extent it will relieve the town from its annual obligation to pay. The new act does not cover the entire subject embraced in the former act, and it expressly preserves some of its provisions. It abolishes the office of railroad commissioner, but their powers and duties are preserved and cast upon the supervisor of the town.

The judgment should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concurred.

Judgment appealed from affirmed, with costs.


author: Lewis, J.:

text:
    Rochester Distilling Company, Plaintiff, v. Stewart L. Devendorf, Defendant.

      Vendor and vendee — rescission of a contract of sale, for fra/ud — replevin — action for the value of the goods not recovered by replevin — satisfaction of a judgment fon' the price of the goods — presumption of payment.

    A vendor of goods, tlie sale and delivery of which was induced by fraud on the part of the vendee, does not, by an effort to retake the entire property, which is successful in part only, lose the right to pursue the vendee for the value of the unfound portion.
    But the satisfaction, by a vendor, without the intervention of an order of the court, of a judgment obtained against the vendee for the purchase price of goods sold and delivered, is prima facie evidence of payment, and, in the absence of evidence tending to remove such presumption of payment, will preclude the vendor from maintaining an action against the vendee to recover the value of the portion of the goods which the vendor has been unable to find by replevin, on rescinding the contract of sale for fraud.
    Motion by the plaintiff, the Rochester Distilling Company, for a new trial upon a case and exceptions ordered to be heard at the General Term in the first instance, after a nonsuit directed by the court at the Monroe Circuit on the 8th day of February, 1893,

      George D. Reed, for the plaintiff.

      Walter Welch, for the defendant.

      See ante, page 428.

        *See ante, page 428.

   Lewis, J.:

The defendant purchased of the plaintiff on the 2Yth day of January, 1891, a bill of liquors of the value of $251.J3. The plaintiff recovered a judgment in the Supreme Court against the defendant for the purchase price of the goods on the 2lth day of June, 1891. An execution was issued thereon to the sheriff, which was returned unsatisfied in whole. Proceedings supplementary to execution were thereafter instituted against the defendant. The plaintiff having learned that the defendant, before the recovery of said judgment, had sold and transferred the goods to his wife, Mary M. Devendorf, commenced an action against her for the recovery of the possession of the goods.* All of the goods sold were embraced in the complaint and were taken by the sheriff, with the exception of goods amounting in value to eighty dollars, which the sheriff could not find. After the commencement of the said replevin action and before the recovery of judgment therein, the plaintiff, having learned that Devendorf obtained the goods by false and fraudulent representations as to his responsibility, on the 21st of September, 1891, caused the said judgment against Devendorf, obtained as aforesaid for the purchase price of the goods, to be discharged of record by filing with the clerk of the county where the judgment was docketed a certificate in writing executed by the plaintiff, directing the clerk to satisfy the said judgment of record; and the clerk thereupon did satisfy the judgment of record. And thereafter this action was commenced, the plaintiff alleging in its complaint that the defendant obtained said goods from the plaintiff through fraud and deception, with the intent not pay for them, and with the intent to cheat and defraud the plaintiff out of the same, and claimed damages in the sum of eighty dollars, being the value of the goods not obtained in the replevin action. The defendant answered, among other things, setting up as a bar to the action the pendency of the replevin action against Mrs. Devendorf and also the judgment recovered against the defendant for the purchase price of the goods, and alleged that the debt was fully paid, satisfied and discharged. Plaintiff gave evidence tending to establish the allegations of its complaint, that the goods were obtained by fraud, and that it was ignorant of the fraud when the action for the purchase price of the goods was commenced. The pendency of the replevin action and the recovery and docketing of the judgment for the purchase price of the goods and the discharge thereof by the clerk by direction of the plaintiff were duly proven when the plaintiff rested its case, and the trial court thereupon nonsuited the plaintiff and directed the case to be heard in the first instance at the General Term.

The nonsuit was granted upon the ground that the plaintiff having brought an action for the possession of the goods, thereby dis-affirmed the sale and stood upon its rescission, and could not thereafter maintain an action upon the theory that the title to the property passed to the defendant upon the sale, thereby divesting the plaintiff of its title therein. It may well be doubted if the non-suit was put upon the proper ground. The plaintiff had in its action against Mrs. Devendorf recovered only part of the property, and sought by this action to recover the damages sustained by the fraudulent conduct of the defendant in obtaining possession of its property by fraud. The plaintiff simply claimed to recover the damages which it had sustained by the fraud of the defendant, and the damages were the value of the property which it had failed to obtain in its replevin action against Mrs. Devendorf.

Whether such an action under such circumstances can be maintained has been the subject of much discussion in our courts. We see no reason upon principle why it cannot be sustained. It was held in Powers v. Benedict (88 N. Y. 605) that “ a vendor of goods, the sale and delivery of which was induced by fraud on the part of the vendee, does not by an effort to retake the entire property, which is successful in part only, lose the right to pursue the vendee for the value of the unfound portion; nor is the effort a defense to an action to recover possession against one ini whose hands a part is found.” (The Equitable Co-operative Foundry Co. v. Hersee, 103 N. Y. 25 ; Hersey v. Benedict, 15 Hun, 282; Sleeper v. Davis, 64 N. H. 59 ; Farwell v. Meyers, 59 Mich. 119.)

But the plaintiff was properly nonsuited for the reason that the judgment for the purchase price of the goods having been paid became a bar to this cause of action. (Caylus v. The N. Y., K. & S. R. R. Co., 16 N. Y. 609.)

As we have seen, plaintiff recovered a judgment for the entire purchase price of the goods and can recover nothing more in this action. It is not entitled to two judgments against the defendant for the purchase price of the goods. All of the plaintiff’s claims arising out of the sale of the goods presumptively were merged in the judgment it obtained for the purchase price, and the judgment having been satisfied by the direction of the plaintiff without the intervention of an order of the court, it was prima facie evidence that it was paid. All this evidence, as we ■ have seen, was in the case when the plaintiff rested, and there was an entire absence of any evidence tending to remove the presumption of payment. If for any reason the satisfaction of the judgment was voidable an order of the court vacating it should have been obtained. (Crotty v. McKenzie, 12 N. Y. Super. Ct. 201.)

Until set aside, the satisfaction of the judgment was^imo/hcie evidence of a payment. Its legal effect is the extinguishment of the debt. (Kerr's Appeal, 101 Penn. St. 282; 2 Black on Judgments, § 1015.)

The satisfaction of a judgment may be explained or perhaps contradicted by parol evidence. The plaintiff, having failed to introduce any evidence explaining the satisfaction of the judgment, was not entitled to recover.

The motion for a new trial should be denied, and judgment directed for the defendant on the nonsuit.

Dwight, P. J., and Haight, J., concurred.

Plaintiff’s motion for new trial denied, and judgment ordered for the defendant on the nonsuit.


text:
    Heman A. Hibbard, Appellant, v. John H. Randolph, Respondent.

      Offer of judgment— assignment of the plaintiff’s cause of action to his attorney— the defendant’s costs offset against the plaintiff's judgment.

    When an offer of judgment, under section 738 of the Code of Civil Procedure, has not been accepted by the plaintiff, the defendant may serve a second offer for a different amount, before trial.
    When the plaintiff’s attorney, in a pending suit, takes an assignment of the cause of action and of any judgment that may be obtained thereon, he takes it subject to the right of the defendant to offset the costs to which he may be entitled by reason of the plaintiff’s failure to obtain a more favorable judgment than that which the defendant had offered, under section 738 of the Code.
    Appeal by the plaintiff, Heman A. Hibbard, from two orders of the County Court of Chautauqua county, entered in the office of the clerk of that county on the 3d day of April, 1893, one reversing the taxation by the clerk of a full bill of costs in favor of plaintiff, the other order setting off against the plaintiff’s recovery the amount of the defendant’s costs from the date of service of an offer of judgment, and directing the entry of judgment in favor of the plaintiff for the difference.
    ■ The action was brought to recover for the conversion of certain personal property. It was referred, and the referee reported for the plaintiff on the 24th day of January, 1893, for the sum of eighty-five dollars, with interest from the 28th day of January, 1892.
    Oh the 2d day of November, 1892, the defendant made and sei’ved an offer of judgment in'the action for the sum of seventy-five dollars, as provided by section 138 of the Code. It was further claimed by the defendant that on the 14th day of December, 1892, he máde and served a second offer for the sum of ninety dollars. The plaintiff did not accept either offer.
    Upon the trial, which commenced December 30, 1892, it was found that on the 14th day of December, 1892, his claim, with interest, as found by the referee, amounted to eiglity-nine dollars and thirty cents.
    While the case was pending before the referee, the plaintiff executed the following assignment to his attorney: I

      “COUNTY COURT —Chautauqua County.
    “Heman A. Hibbard vs. John H. Randolph.

      “ For value received, I hereby sell, assign, transfer and set over to A. C. Pickard all my right, title and interest in the above cause of action, and any judgment that may be obtained thereon, both damages and costs. Consideration, services and money paid.
    “ Jdnua/ry 21, 1893. HEMAN A. HIBBARD.”

      A. O. Pickard, for the appellant.

      J. ~D. Ourtiss, for the respondent.
   Lewis, J.:

The defendant unquestionably had the right to serve the second offer of judgment. The County Court, upon conflicting affidavits, decided that the defendant did serve a second offer of judgment for the sum of ninety dollars, which was for a greater amount than plaintiff’s recovery, and, therefore, the defendant was entitled to costs accruing after service of that offer.

In taking an assignment of plaintiff’s claim the attorney took it subject to the right of the defendant to offset the costs to which he might be entitled against the plaintiff’s judgment in whosesoever hands it might be. Were the rule otherwise, the provision of the Code providing for offer of judgment would be practically ineffectual and nugatory. ( Warden v. Frost, 35 Hun, 141.)

The orders appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Oi’ders of the County Court of Chautauqua county appealed from affirmed, with ten dollars costs and disbursements.


text:
    Frederick Jeffery, Respondent, v. James T. Walker, Appellant.

      Master and servant — quantum meruit — defen.se based upon a special contract, void under the Statute of Frauds.

    Where a dispute exists in regard to tbe right of an employer to terminate an oral contract, made between him and his employee for tbe services of tbe latter, which is void under the Statute of-Frauds, and it appears that tbe employer gave notice of his decision to terminate the contract which he claimed the right to do under the provisions thereof, and that tbe employee thereupon ceased work and left the employment, it is not improper for the court to charge the jury that the amount that the employee was entitled to recover in an action brought against bis employer for the value of the services, depended upon the determination of the jury as to what the contract was in reference to the amount of wages to be paid.
    Appeal by tbe defendant, James T. Walker, from a judgment of the Wayne County Court, entered in the office of the clerk of the county of Wayne on the 10th day of November, 1892, with notice of an intention to bring up for review upon such appeal an order dated the 7th day of November, 1892, denying a motion made by the defendant for a new trial, after a trial before the court and a Wi-

      ll. H. Durfee, for the appellant.

      Hopkins <& Converse, for the respondent.
   Haight, J.:

This action was originally brought in a Justice’s Court to recover a balance claimed by the plaintiff to be due him for services rendered to the defendant. The complaint was upon a quantum meruit. The defense was that the services were rendered under a special contract, and had been fully paid for except the sum of fourteen dollars and fifty cents, which the defendant had tendered to-the plaintiff before the commencement of this action, and which sum he had brought into court and delivered to the justice of the peace for the plaintiff. The trial before the justice resulted in a verdict for the plaintiff for forty-six dollars and fifty cents. An appeal was taken to the County Court, in which court a new trial was demanded. The trial in that court resulted in a verdict for the plaintiff for-forty-eight dollars and twenty-five cents, being the amount of the recovery before the justice of the peace, with the interest that had accrued thereon. A motion was made by the defendant for a new trial upon the minutes of the County Court, which was denied, and thereupon he took an appeal to this court.

It appears that the plaintiff entered the employment of the defendant the latter part of January, 1891, and continued in his service until the 23d day of January, 1892. On behalf of the plaintiff it is claimed that at the time he entered such employment it was agreed that he should receive for wages five dollars a week until the first day of April; that a few days before the first day of April they further orally agreed that he should continue his services for one year from the first day of April, and that he should receive therefor one dollar per day or seven dollars a week. On behalf of the defendant it is claimed that at the time the plaintiff entered his employment it was agreed that he should be paid five dollars a week for his services until April first, and seven dollars a week from April first to October first, and thereafter five dollars a week dming the winter months, and that either party should be at liberty to terminate the contract upon giving a week’s notice.

It was conceded that the plaintiff had been paid in full to October 3, 1891, and that thereafter he had been paid the sum of sixty-five dollars and fifty cents. If the agreement was that he was to be paid but five dollars per week after the first of October, the balance his due would be the sum of fourteen dollars and fifty cents, the amount tendered and paid into court. If the agreement was that he was to receive seven dollars per week, then the amount his due would be the sum of forty-six dollars and fifty cents, the amount of the verdict, with the interest accrued thereon.

Upon the trial the court in substance charged the jury that the amount that the plaintiff was entitled to recover depended upon their determination as to what the contract was in reference to the amount of wages to be paid. The defendant complains of this charge, and it presents the only question requiring special attention.

We have stated that the employment was terminated on the 23d day of January, 1892. Under the contract, as testified to by the defendant, either party could terminate the contract upon giving a eek’s notice. Under the agreement, as testified to by the plaintiff. the employment was for the term of one year, commencing on the 1st day of April, 1891, and continuing until the 1st day of April, 1892. If such was the agreement it was not to be executed within one year from the time it was made, and was, therefore, void under the Statute of Frauds. But whether the agreement was to run for a year, or was to run until the parties terminated the same by giving a week’s notice, is unimportant, for it is conceded in the testimony of both of the parties that it was terminated on the 23d day of January, 3892, by . the defendant giving the plaintiff such a notice, and the plaintiff accepting the same and quitting thereunder. The plaintiff testified that the defendant gave him a week’s notice, and that he replied thereto, “ I am perfectly willing.” The defendant testified that he said to the plaintiff, “ Now, Fred, you must not talk in that kind of a way to me. You recollect if there was any dissatisfaction we were to give each other notice. Now, if that is the way you are going to talk to me when I simply asked you if you had not made a mistake -in your figures, I will do just as we agreed and now give you your notice, and he said,£ All right, sir,’ and off he marched.’ It thus appears that the employment was terminated at that time by the mutual consent of the parties.

"We have no means of knowing what the determination of the jury was as to the provisions of the contract in this respect. The jury evidently found that the agreement was that the defendant should pay the plaintiff seven dollars per week during the continuance of the employment. Whether they found that the employ' ment was to continue a year from the first day of April, or was to continue until terminated by one of the parties giving the notice mentioned, we have no means of ascertaining. It is conceded that the parties terminated the agreement under a notice, thus, in a measure, tending to corroborate the defendant in this regard. Under the evidence the jury was at liberty to find that the employment, was to be terminated by notice. But whether it was so found or not, it appears that the contract was terminated, both parties con-| senting thereto. And under the circumstances in this case it appearsj to us that their situation is the same as it would have been had th contract been fully executed by continuing the services until the endl of the year. Under the agreement the plaintiff was to be pal weekly. At the end of each week he was entitled to his wages a¡ agreed upon, either seven or five dollars, whichever it was. In this respect it was an executed agreement at the end of each week, and their contract fixed the value of the services. When, therefore, the parties mutually terminated the contract of employment the agreement became fully executed.

The case is distinguishable from those where the agreement was to pay a gross sum at the end of the term, such as Shute v. Dorr (5 Wend. 204), for in such a case where a party ceases work before the expiration of the term, he has not fully earned the sum agreed upon, and the services contracted to be rendered, not performed, may be of greater value to the employer than the services rendered. A child sixteen years of age may not be able to earn much during the first two or three years, but the fourth or fifth year, when nineteen or twenty years of age, he may earn a considerable amount. In such a case an agreement to pay a gross sum when the child arrives at the age of twenty-one years, would afford us no evidence as to the value of the services rendered during the first year of his employment. (Galvin v. Prentice, 45 N. Y. 162.)

In Lisk v. Sherman (25 Barb. 433-438), Wells, J., in delivering the opinion of the court, says: “ It is. the value of the services or property which the party receiving agreed to pay for them. In such cases it is said the contract furnishes the measure of damages; and it makes no difference that the contract is declared void by the statute, provided it might be enforced, except for the statute. In Abbott v. Draper (4 Den. 51), Judge Bronson says : t Although the statute declares a parol contract for the sale of lands void, it does not make it illegal. It is not a corrupt or wicked agreement nor does it violate any principle of public policy.’ And I confess I can see no reason for any distinction between such a contract and pne which is binding upon the parties in respect to the propriety of resorting to it for the. purpose of fixing the measure of damages. In lieither case is the contract sought to be enforced according to its terms. In the case of a contract void though not illegal, it cannot le enforced and of course no action can be maintained upon it. In I case where the plaintiff is at liberty to rescind a valid contract, laid brings his action for services or property rendered or delivered Inder it, such action is no more upon the contract than in the other lase. In both the contract is laid out of view for the purpose of sustaining the action, and in each it may be resorted to in order to determine the value of the services rendered or property delivered or conveyed as estimated by the parties themselves.”

In Clark v. Gilbert (32 Barb. 576-584), Allen, J., refers to the case of Disk v. Sherman and says in reference thereto that “ the contract of services had been fully performed by the plaintiff, but the agreement as to compensation was void by the Statute of Frauds. It is well settled, however, that in such cases the contract may be resorted to as evidence of the value of the services and to control the recovery.”

In Day v. N. Y. C. R. R. Co. (52 N. Y. 583-590), Earl, J., says: “ If one pays money or renders service, or delivers property upon an agreement condemned by the Statute of Frauds, he may recover the money paid in an action for money had and received, and he may recover the value of his services and of his property upon an implied assumpsit to pay, provided he can show that he has been ready and willing to perform the agreement and the other party has repudiated or refused to perform it. * * * While the law in such case will not sustain an action based upon the agreement, it still recognizes its existence and t/reats it as morally binding, and for that reason will not give relief against a party not in j default nor in favor of a party who is in default in his performance of the agreement.” (Burlingame v. Burlingame, 7 Cow. 92; Fort v. Gooding, 9 Barb. 371; Thomas v. Dickinson, 2 Kern. 364; Van Valkenburg v. Croffut, 15 Hun, 147; Fells v. Vestmali, 2 Keyes, 152; King v. Brown, 2 Hill, 485; Ludlow v. Dole, 62 N. Y. 617.)

The judgment should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment and order appealed from affirmed, with costs.


text:
    John J. P. Read, Appellant, v. Charles N. Brayton, Respondent.

      Deposit of securities with the clerk of the court by its order — action of replevin for their recovery, enjoined,.

    During tlie pendency of an action brought for the recovery of certain moneys deposited in a bank, the court ordered that certain certificates of deposit, which were issued by the bank at the time the deposit was made, be delivered by a third party in whose possession such certificates were to the clerk of the court. Thereafter, during the pendency of the first-mentioned action, the clerk of the court was sued in replevin by the plaintifE in the action, and the certificates demanded from him under process in such action by the sheriff.

      Held, that the clerk of the court was entitled to an injunction absolutely restraining the prosecution of the action in replevin.
    Appeal by tlie plaintiff, John J. P. Read, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the Ith day of April, 1893, which restrained and enjoined the plaintiff, his attorneys, agents and servants from prosecuting the above-entitled action, and the sheriff of Erie county from enforcing or compelling the delivery to him, by the defendant in the action, of certain certificates of deposit described in the affidavit of the plaintifE made in said action (for the recovery of which certificates the action was brought) until the executor or executors of the will, or administrator or administrators of the goods and chattels which were of Elizabeth A. S. Rockwell, deceased, were made parties to said action ; also until the executor or executors of the will, or the administrator or administrators of the goods, chattels and credits which were of George W. Rockwell, deceased, were made parties defendant to said action, etc.

      O, 0. Oottle, for the appellant.

      Jno. Ouneen, for the respondent.
   Haight, J.:

It appears that the plaintiff deposited with the Marine Bank a sum of money for which it issued to him two certificates of deposit, and that he subsequently brought action against the bank to recover the amount thereof. Upon the trial, one Rockwell was summoned by a subpoena duces tecum to produce the certificates. He appeared, and upon order of the court, produced them, but claimed that they belonged to the estate of Elizabeth A. S. Rockwell, deceased, and that he held them as her personal representative. The court thereupon made an order that they be delivered to the clerk of the court, and that he retain them in his possession, subject to its further order. Charles A. Orr was at that time the county clerk, and as such, the clerk of the court. He took possession of the certificates, pursuant to the order, and upon the termination of his term of office, turned them over to his successor, the defendant in this action. Upon the trial of the action against the bank, the court ordered judgment in favor of the plaintiff, which judgment has been reversed by the Court of Appeals, aud sent the cause back for a new trial. (Read v. Marine Bank, 136 N. Y. 454.)

The plaintiff then moved at the Special Term for an order directing the clerk to deliver the certificates to him, which order was denied, but without prejudice to a renewal thereof upon notice to Rockwell, or the personal representatives of Elizabeth A. S. Rockwell, deceased. Thereupon, this action was brought, and papers in replevin placed in the hands of the sheriff, who demanded from the defendant the certificates in question.

"We do not understand how this action can be maintained. The defendant is the clerk of the court and the custodian of the certificates, made such -by the express order of the court. He is, therefore,* an officer of the court, represents it, and his possession is that of the court.

In the case of Noe v. Gibson (7 Paige Ch. 513), the chancellor says: It is well settled that after a receiver is appointed, and has taken the rightful possession of the property, it is a contempt of court for a third person to attempt to deprive him of that possession by force, or even by a suit or other proceeding against him, without the permission of the court by whom the receiver was appointed. * * * The same principles are applicable to every other interference with the possession of a receiver, sequestrator, committee or cxostodee who holds the property as the officer of this court, as his possession is in law the possession of the .court itself.” (See, also, Albany City Bank v. Schermerhorn, 10 Paige Ch. 263; Walling v. Miller, 108 N. Y. 173-178; Higgins v. Wright, 43 Barb. 461-468.)

It will thus be observed that the defendant, as the custodian of the certificates, is placed under the same protection as a receiver.

"When an action has been commenced against a receiver without leave, the court may stay the proceedings, or punish the plaintiff for contempt, or both. (James v. James Cement Company, 8 N. Y. St. Repr. 490; De Groot v. Jay, 30 Barb. 483 ; Taylor v. Baldwin, 14 Abb. Pr. 166.)

It may be said that the court improperly took the certificates of deposit from the possession of Rockwell and impounded them with, the clerk, but Rockwell is not here complaining. The order still remains in force and unreversed. If improvidently granted it may be corrected on motion.

The order appealed from contains a provision to the effect that the stay should continue until the personal representatives of Mr. and Mrs. Rockwell are brought in as parties to the action, and that then the clerk he permitted to turn the certificates over to the county treasurer. ¥e see no reason for changing the custodian of the certificates, or in continuing this action until other parties are brought in. The defendant is entitled to have the prosecution of it absolutely restrained.

The order appealed from should be modified by striking out all after the word “ brought ” in the second line of the 55th folio of the printed case, and as so modified affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Lewis and Bbadley, JJ., concurred.

Order appealed from modified as indicated in the opinion, and as so modified affirmed, with ten dollars costs and disbursements.


text:
    First Department,
    October Term, 1893.
    The First National Bank of Plainfield, Appellant, v. Augustus B. Carrington and Others, Respondents.
   — Judgment reversed and new trial ordered, with costs to the appellant to abide event. Opinion by Van Brunt, P. J. (Opinion not published by direction of the court.)


text:
    Gerhard Wessels and Others, Appellants, v. Gustavus A. Boeltcher, Defendant; George W. McKenzie; Respondent.
   Order affirmed, without opinion, with ten dollars costs and disbursements.


text:
    Gustavus Wolfers, Plaintiff, v. John J. Duffield, Impleaded, etc., Respondent; Mary T. Hayes, Impleaded, Appellant.
   Order affirmed, without opinion, with ten dollars costs and disbursements.


text:
    Wade B. Davis, Appellant, v. Julius C. Schlachter, Respondent, Impleaded, etc.
   — Order affirmed, with costs. No opinion.


text:
    Selig Maas and Others, Appellants, v. Abraham Falk and Others, Respondents.
   — Judgment affirmed,with costs, on opinion, of court below.


text:
    The Mayor, etc., of the City of New York, Respondent, v. The Manhattan Railway Company, Appellant.
   — Judgment affirmed, with coste, on opiuion of court below.


text:
    The Breckenridge Company, Limited, Respondent, v. James D. Perkins and Others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Paul C. Grening, Appellant, v. George Malcon, Respondent
   — Order affirmed, with ten dollars costs and printing disbursements.


author: Per Oüriam :

text:
    Maurice Jacobs, Respondent, v. Water Overflow Preventive Company, Appellant.
    Order reversed and motion granted in accordance with directions in opinion, with ten dollars costs and disbursements of appeal, and ten dollars costs of motion.—
    Appeal by the defendant, the Water Overflow Preventive Company, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on June 30, 1893, denying defendant’s motion for a hill or particulars of the plaintiff’s claim.
   Per Oüriam :

This is an action for the recovery of damages for the publication of matter alleged to be defamatory. It is alleged in the complaint that, by reason of the publication; the plaintiff has been greatly injured in his reputation and business. The following is the allegation of special damages sought to be recovered: “ That by reason of the sending of said circulars,. many persons, firms and corporations were intimidated and canceled contracts already made with him (said plaintiff), and declined and refused to enter into contracts with him, for the lease or sale to them of said patent or invention, whereby this plaintiff was put to serious pecuniary loss and injury, to his damage ten thousand dollars.” It has been several times held that when special damages are sought to be recovered, the particulars relating to those damages must be given. (N. Y. Infant Asylum v. Roosevelt, 35 Hun, 501; Dwight v. Germania Life Ins. Co., 84 N. Y. 492; Kraft v. Dingee, 38 Hun, 345; Childs v. Tuttle, 48 id. 228; Peabody v. Cortado, 18 N. Y. Supp. 622.) The plaintiff should state the names and addresses of the persons, firms and corporations who were intimidated and canceled contracts entered into with him, and who refused to contract with him, by reason of the publication set out in the complaint. The order should be reversed and the motion granted in accordance with this opinion, with ten dollars costs and disbursements of appeal, and ten dollars costs of motion.


text:
    George H. Barnes, Respondent, v. Louis W. Schroder, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. No-opinion.


text:
    Albert G. Voight, Appellant, v. William E. Widgeley, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    The Bangor Central Slate Company, Respondent v. The Bangor Southern Slate Company, Limited, Appellant.
   — Judgment affirmed, with costs, and with leave to answer over upon payment of costs of appeal and of the court below.


text:
    Edward L. Milhau, Individually, etc., Appellant, v. Louis John and Others, Respondents.
   Order affirmed.


text:
    Catherine Willoughby, Respondent, v. Julius. Ehrmann, Appellant.
   Order reversed and motion granted.


text:
    Annie Weed, Respondent, v. Robert M. Weed, Appellant.
   Judgment affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. Alexander Meakim and Others, Appellants.
   Judgment affirmed on opinion of Ingraham, J., in court below.


text:
    Henry A. Siebrecht and Another, Appellants, v. Thomas J. Gilroy and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements, on opinion of court below.


text:
    The People of the State of New York ex rel. James J. Raymond, Appellant, v. Thomas F. Gilroy and Others, Respondents.
   Order affirmed, with disbursements, on opinion of court below.


text:
    The People of the State of New York ex rel. John H. Young, Appellant, v. Thomas F. Gilroy and Others, Respondents.
   Order affirmed, with disbursements, on opinion of court below.


author: Per Curiam:

text:
    Gustavus Wolfers v. John J. Duffield and Others.
    Order affirmed, with costs.—
    Appeal by Mary J. Vaughan, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 15th day of July, 1893, denying the motion of the said Mary J. Vaughan, that the proceedings in the above-entitled action for the distribution of surplus moneys be stayed.
   Per Curiam:

As in the surplus proceedings all questions as to the fraudulent character of the conveyances can be tested, there seems to be no reason why these proceedings should be stayed until the revival and trial of an action commenced sixteen years ago. The appellant in that action would have no right to a trial by jury, if it is an action to set aside a conveyance as fraudulent. If the appellant's action is for the recovery of damages for fraud and deceit, a recovery in the action would in no way establish any lien upon the surplus moneys in the proceeding. The order appealed from should be affirmed, with costs.


text:
    The People of the State of New York ex rel. Louis L. Lorillard, Respondent, v. Edward P. Barker and Others, Commissioners, etc., Appellants.
    Order modified by reversing that part of the same which awards costs, and as modified affirmed, without costs.
    Appeal by the respondents, Edward P. Barker and others, individually and as commissioners of taxes and assessments, from so much of an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 21st day of July, 1893, as orders that the relator above named have $113.10 costs of this proceeding against the respondents *
   Per Curiam:

There being no evidence that the appellants acted with gross negligence, in bad faith or with malice, the court below should not have awarded costs. Order appealed from modified by reversing that part of the same which awards costs, and as modified affirmed, without costs.


text:
    New York Breweries Company, Limited, Appellant, v. Edward P. Nichols and Others, Respondents.
    Order modified as directed in opinion, and as modified affirmed, without costs.—
   Per Curiam:

An extra allowance to parties defendant cannot exceed five per cent on amount involved. If such defendants appear by separate attorneys, an extra allowance equal to fire per cent may be apportioned between them, but cannot be allowed to each. (La le v. Kenedy, 63 How. Pr. 237.) On this motion for leave to discontinue, the court determined that there should be allowed to each party appearing an extra allowance of five per cent. This was error, and the order should be so modified as to provide for an extra allowance of $125 to each defendant or set of defendants separately appearing, without costs.


text:
    The People of the State of New York ex rel. Thurber-Whyland Company, Appellant, v. Edward P. Barker and Others, Respondents.
    Order affirmed, with ten dollars costs and •disbursements.—
   Per Curiam:

It does not seem to be necessary to decide the question as to whether, when an assessment is levied under section 1. of chapter 37 of the Laws of 1855, which provides tor the levying of assessments on all sums invested in any manner in business by all persons and associations doing business in the State of New York, the general indebtedness of such person or association should be considered, because if debts are to be deducted from the sums invested in any manner in said business, .then certainly outstanding credits must be considered. For, in order to determine' what debts are chargeable to capital, the moneys to be received and properly applicable to the payment of debts in the ordinary course of business must be taken into account. Adopting this rule it follows that the assessment is correct. .The order should be affirmed, with ten dollars costs and disbursements.


text:
    The Mercantile Deposit Company, Appellant, v. Charles L. Dimon, as Administrator, etc., Respondent.
    Order reversed and motion for continuing injunction granted, with ten dollars costs and disbursements of this appeal, and ten dollars costs of motion in court below to abide final event of action.—
   Per Curiam:

It satisfactorily appears to us that the Mercantile Safe Deposit Company cannot with safety to itself deliver the property, the subject-matter of this action, to either of the claimants. Therefore, it has a right to maintain this action of interpleader and be protected from other claimr ana litigations in respect to this property. The order appealed from should be reversed and the motion for continuing the injunction granted, with ten dollars costs and disbursements oí this appeal, and ten dollars costs of tlie motion m the court below, to abide the final event of the action. *


author: Follett, J.:

text:
    In the Matter of the Application of the Metropolitan Elevated R. R. Co., Respondent, to Acquire Title, etc., to 694 Sixth Avenue, etc., Owned by Hyman Israel, Appellant.
    Award and order affirmed^ with costs.
   Follett, J.:

This proceeding was begun September 16, 1889, and July 7, 1890, an amended petition was filed. December 2, 1890, the appellant filed an answer, and March 12, 1891, an order was granted appointing commissioners to appraise the compensation which the respondent should pay to the appellant for the property taken, from which order no appeal has been taken. On March 21,1891, the date fixed in the order for the first meeting of the commissioners, they met and took thé oath prescribed by tlie statute, at which meeting the appellant was represented by counsel. The hearing of this and other like proceedings was adjourned to March 26,1891, with the understanding that the commissioners would hear the proceedings in numerical order, and that when they were ready to proceed with the respondent’s case, both sides should have notice. September 28,1892, the commissioners gave the attorneys for the respective parties notice that they would hear the appellant’s case October 3, 1892. On that date the commissioners met and the counsel for the respondent attended, but the counsel for the appellant did not attend, but sent a note requesting the adjournment until December. The commissioners adjourned the proceedings until the next day and one of them notified the appellant’s counsel, who agreed to be present, but he did not appeal*. The respondent appeared by counsel. The commissioners then adjourned until October fifth, when the counsel for the respondent appeared, but no one appeared in behalf of the appellant. It was then stated that an agreement had been made between the counsel that the matter should be adjourned until October eleventh, to which date an adjournment-was had, on which day counsel for the respondent appeared, but there was no appearance for the appellant. The hearing was then adjourned to October thirteenth. When the commissioners met, counsel for the respondent appeared, but there was no appearance by the appellant. The matter was then adjourned until the afternoon of that day. It was then proved before the commissioners that in the morning of that day the counsel for the respondent gave the counsel for the appellant notice that the matter had been adjourned until half-past one of that day, and that the railroad would then proceed with its proof, and that the counsel for the appellant made no reply. On that date the commissioners took the evidence and on the 18th of October. 1892, signed an award that the appellant was entitled to receive six cents. Thereafter, a motion was made for the confirmation of the report. On the hearing of this motion counsel for the appellant appeared and asked to have hjs default opened and that he be permitted to try the case before the commissioners. The Special Term refused to open the default and confirm the award. On looking over the record we are unable to find any valid excuse i for the appellant’s numerous defaults, and! we think that he made no case for being allowed to open his default and try the case before the commissioners. Unusual facilities were offered by the commissioners to thej landowner to present his evidence, if he hadl any, but this he refused to do. We think thel Special Term correctly held that the land-1 . owner had not excused his default. There is no evidence in the record which shows that the appellant sustained more damages than were awarded. The award and order should he affirmed, with costs.

O’Brien and Follett, JJ., concurred.


author: Parker, J.:

text:
    Charles A. Breck, Appellant, v. Frederick A. Ringler, Respondent.
    Judgment affirmed, with costs.—
   Parker, J.:

The appellant presents for review a judgment entered on a dismissal of the complaint at the close of plaintiff’s case. This determination of the court seems to have been required by tbe decision of the Court of Appeals in this action on review of a former judgment rendered in favor of the plaintiff (129 N. Y. 656). The plaintiff has produced five additional witnesses on this trial, and proved several facts notin evidence on the former hearing, but the matters now for the first proven, are not of such a character as entitle the plaintiff to go to the jury under the construction which has been given to the contract. The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concurred.


text:
    Louis Bauer, Appellant, v. James S. Thurston, Impleaded, etc., Respondent.
   Interlocutory judgment sustaining the demurrer reversed, with costs, and the demurrer overruled, with leave to answer within twenty days on payment of twenty dollars costs.


text:
    John B. Solley, Respondent, v. John B. McGeorge, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Fifth Department,
    October Term, 1893.
    Osceola Goodelle and Another, Respondents, v. Emerson J. Eddy, Appellant.
   Judgment and order appealed from affirmed.


text:
    Henry Dale and Others, Respondents, v. Frank T. Gilbert, as Sheriff, etc., Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements. Lewis, J., not sitting.


text:
    In the Matter of the Judicial Settlement of the Accounts of Hiram Thornton, as Trustee under the Will of Mary Morgan, Deceased.
   Decree of the Surrogate’s Court of Cayuga county affirmed, with costs.


text:
    Judith M. Traver, Appellant, v. Thomas O. Purdy, Impleaded, etc., Respondent.
   Judgment appealed from affirmed, with costs, upon the reasons stated in the opinion of Rmnsey, X, at Special Term.


text:
    Jonas Garter, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from affirmed on the authority of Garter v. Same (138 N. Y. 672). Lewis, J., not sitting.


text:
    William A. Hetzler, Appellant, v. Thomas C. Hodgson, as Sheriff, etc., Respondent.
   Judgment and order appealed from affirmed.


text:
    Joseph C. Wilson, Appellant, v. Margaret A. Marion and Others, Respondents.
   Judgment appealed from affirmed, with costs, on the opinion of tlie referee.


text:
    William F. Peck, Respondent, v. Josias W. Jones and Lovina L. Jones, Appellants.
   Judgment appealed from affirmed, with costs.


text:
    Willard C. Tyler, as Administrator, etc., Respondent, v. Edward L. Parker, as Assignee, etc., and Others, Appellants.
   Judgment appealed from modified by striking out the clause awarding execution, and, as so modified, affirmed, with costs.


text:
    Eulalia H. Meads, as Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order appealed from affirmed.


text:
    Richard P. McBride, Respondent, v. Frank O. Chamberlain and Charles B. Lapham, as Administrators, etc., Appellants.
   Judgment . appealed from affirmed.


text:
    Edwin W. Montgomery, Respondent, v. William S. Gubelmann and Alice B. V. Field, Appellants.
   Judgment appealed from affirmed.


text:
    Farley W. Gray, as Administrator, etc., Respondent, v. The Town of Caneadea, Appellant.
   Interlocutory judgment appealed from affirmed, with costs, but with leave to withdraw demurrer and answer over within twenty days on payment of the costs of tlie .. demurrer and ot this appeal.


text:
    The Village of Nunda, Plaintiff, v. Frank J. McNeal, as Sheriff, etc., Defendant.
   Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    Charles B. Lapham, Respondent, v. Richard P. McBride, Appellant.
   Judgment and order appealed from affirmed.


text:
    Anna Ryan, Appellant, v. Frank E. Smith, Respondent.
   judgment appealed from affirmed on the authority of Comstock v. Hopkins (61 Hun, 189).


text:
    Madge M. Harter, Respondent, v. The Town of Moravia, Appellant.
   Order appealed from affirmed, with costs.


text:
    Motions.
    Timothy Sheehan v. Albert H. Pierce.—
   Motion for reargument denied. Motion for leave to appeal to the Court of Appeals granted, on the ground that a question of law is involved which ought to be reviewed by that court.


text:
    Ann Lee, Administratrix, etc., Appellant, v. John Van Voorhis and Others, Respondents.
   Motion to dismiss appeal granted, unless appellant, within twenty days, restores to the depository the amount of money withdrawn byher therefrom. If such amount isrestored, the motion is denied.


text:
    William Miller and Others, Respondents, v. Elijah Boyer, Appellant.
   Motion to dismiss appeal denied and case struck from the calendar.


text:
    Hugh Merancy Murphy v. James W. Whitney.
   Motion for reargumeitt denied and leave to appeal to the Court of Appeals granted, on the ground that in our opinion the questions arising therein are of sufficient importance to render a decision of that court desirable before proceeding farther.


text:
    Martin Mahoney v. Julia A. Mahoney.
   Motion for reargument denied.


text:
    Alexander McAndrew, Respondent, v. The Lake Shore and Michigan Southern Railroad Company, Appellant.
   Motion for reargument denied, with ten dollars costs.


text:
    Allegany Lumber Company, Limited, Appellant, v. William Hoyt and Another, as Surviving Partners, Respondents.
   Motion for judgment denied and case struck from the calendar.


text:
    Richard Foran v. The New York Central and Hudson River Railroad Company.
   Judgment modified in accordance with the stipulation of the attorneys.


text:
    Sophia Quigley v. The City of Rochester.
   Motion to dismiss appeal denied.


text:
    Joseph Van Camp v. Edward P. Searle and Others.
   Motion to dismiss appeal, etc., denied.