text:
    BYRON C. KETCHAM, as Surviving Executor of ABRAM F. KETCHAM, Deceased, v. SPENCER C. KETCHAM and Others, Respondents, Impleaded with ESTHER E. KETCHAM REDMAN and Others, Appellants.

      Will — an unambiguous devise of a life estate not enlarged to a fee by other provisions— nor by charging the devisee with payment of debts and funeral expenses.

    A testator, by bis will, provided as follows: “ I give and bequeath to my four boys (naming them) the residue of my estate, share and share alike, to have and to hold the same so long as they shall live, after paying my debts and funeral expenses.”

      Held, that this provision of the will disclosed, in clear and unambiguous terms, an intent to give life estates only to the sons.
    That such life estates were not enlarged to an estate in fee by the use, in a preceding portion of the same paragraph of the will, of the words “ it is my wish that all my property, both real and personal, shall be divided among my children in the following manner.”
    That the two expressions were not inconsistent, it being possible to give full force and effect to the part of the will preceding the limitation, and also to the limitation.
    That the intent to give a life estate was so plainly expressed that the devise could not be aided by the application of the provisions of the Revised Statutes that the use of the word “ heirs,” or other words of inheritance, are not requisite to create an estate in fee, and that a devise will pass all the estate or interest of the testator, unless the intent to pass a less estate or interest appears by express terms, or is necessarily implied in the terms of the grant.
    That an intent to give more than a life estate could not be inferred from a provision attached to the devise requiring the devisees to pay the testator’s debts and funeral expenses.

      Appeal by the defendants, Esther E. Ketcham Redman, Elora Samoyne and Emma B. Brooks, pursuant to an order of the Supreme Court permitting them to do so, in the name of the plaintiff, from that portion of a judgment of the Supreme Court, entered, at an Equity Term thereof, in the office of the clerk of the county of Monroe, on the 8th day of April, 1892, construing the will of Abram F. Ketcham, deceased, which judgment provided as follows:
    “ That the gift of the residue of said estate to Allen u. Ketcham, Byron C. Ketcham, Spencer O. Ketcham and Richmond A. Ketcham vests in each of the persons named the title to one undivided one-fourth of said residue for the life of such person; that after the death of the life tenant of each share, respectively, such share is to be divided among the next of kin of the testator in the manner provided by law.”

      Henry W. Conklin, for the appellants.

      Daniel Holmes, for the plaintiff.

      John D. Hums, guardian ad litem for infant defendants, respondents.
   Lewis, J.:

This action was brought to procure the construction of the will of Abram E. Ketcham, deceased. The material part of the will is as follows:

“ I give and bequeath to my dear wife, Julia Ann Ketcham, the use and control of fifty acres of my estate, laying on the south side of the road on which we live, so long as she shall remain my widow. After her death, it is my wish that all my property, both real and personal, shall be divided among my children in the following manner, to wit: I give and bequeath to my son, Warren E. Ketcham, aside from what he has had of my estate, four hundred dollars, after the death of my wife. I give to my two grandchildren, Henry Warren Haskell and Mary Louise Haskell, three hundred dollars apiece, after they become of age. I give and bequeath to my daughter, Gertrude Blossom, six hundred dollars, aside from what she has had of my estate, to be paid within two years after the death of my dear wife. I give and bequeath to my four boys, Allen J. ICeteham, Byron O. Ketcham, Spencer C. Ketcham and Richmond A. Ketcham, the residue of my estate, share and share alike, to have and to hold the same so long as they shall live, after paying my debts and funeral expenses. I constitute and appoint my sons, Allen J. Ketcham and Byron C. Ketcham, my sole administrators to settle my estate.”

The will is dated on the 14th of May, 1875. The appellants are Esther E. Ketcham Redman, the widow of Allen J. Ketcham, Flora Samoyne and Emma B. Brooks, daughters of Allen J. Ketcham. Allen J. was one of the sons of the testator and one of the four devisees named in the will. He died after his father’s death. The plaintiff having declined to appeal, the appellants were, by an order of court, permitted to appeal in his name, and they appealed from so much of the judgment as decrees that the four sons take a life estate only. So that the only question presented for our decision is, • whether the four’sons take an estate in fee, or for life only. The trial court held that they took a life estate only. The appellants contend that a consideration of the entire will shows that the testator intended to give to his four sons an estate in fee, and this claim is based mainly upon that clause in which the testator expresses his wish that all his property, both real and personal, shall be divided between his children in the following manner. It is contended that this clause shows an intent to dispose of his entire estate by will, and not leave a residue to go to his heirs by descent, and that the clause “ to have and to hold the same so long as they shall live ” was used by the testator without a full understanding or appreciation of its import and meaning. The will was shown to be in the handwriting of the testator. He was a farmer by occupation. The phraseology of the will furnishes evidence that the testator was not .a lawyer, nor was he accustomed to drawing wills. Tie left an estate worth about eight thousand dollars, consisting mainly of real estate. It is conceded that, in order to pay the money legacies, it will be necessary to sell the land. If it be true, as contended by the appellants, that there is a necessary conflict between the granting and limitation clauses of the will, the court would be justified in rejecting the limitation clause, but we do not so read the will. After giving to his widow the use and control of fifty acres of his estate so long as she shall remain his widow, he says: £‘ It is my wish that all my property, both real and personal, shall be divided among my children in the following manner.”

Full force and effect can be given to the part of the will which jirecedes the limitation clause, and still give full force and effect to that clause. The cases to which we are referred in the appellants’ brief, where it was held that the will granted a fee, notwithstanding the words indicating an intention to devise only a life estate, are cases where the granting clause was plainly and obviously inconsistent with an intent to give an estate less than a fee.

In Byrnes v. Stilwell (103 N. Y., 453) the devise was “ to the lawful child or children of my said daughter, his or their heirs forever.”

In Clarke v. Leupp) (88 N. Y., 228) the testator gave his widow the property, with power to retain and dispose of it for the benefit of herself and children.

In Crain v. Wright (114 N. Y., 307) the will gave fifty acres of land to the widow to have and to hold for her benefit and support.

It was held, in these cases, that the will devised a fee. The language used showed that intent, and there was nothing in the wills indicating a contrary intent. The testator here, in language that is clear and unambiguous, says he gives to his sons the residue of the estate, share and share alike, to have and to hold the same so long as they shall live. This clause has a well-understood meaning, and we are not at liberty to conjecture or surmise that the testator meant something else than what his words clearly import. "While, under the Revised Statutes, the use of the word “ heirs,” or other words of inheritance, are not requisite to create an estate in fee, and the devise will pass all the estate of the testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant, that intent is here expressed, we think, in language so plain that it cannot be misunderstood.

The case of Sutherland v. Sydnor (84 Virginia, 880), was for the construction of a will. One clause of the will was in these words: "I leave my two daughters, Ida E. and Mollie E. Sydnor, my homestead tract, containing 275 acres of land, more or less, during life. In case of Ida Elizabeth’s death without an heir, I wish her portion to revert back to JVIollie E. Sydnor or her living lien- or heirs.”

At the close of the will the testator said, “having disposed of what I have,” etc., and because of this clause it was argued that he evidently intended to dispose of his whole estate, and hence the daughters took a fee. Judge Lewis, speaking for the court, said: “ To this, however, it is sufficient to answer that if he so thought or intended, he has not so said; nor is such an intention a necessary implication from the words used.”

In another part of the opinion it is stated: “ In the construction of wills, effect must be given to the intention of the testator, if that can be discovered, and is consistent with the rules of law. But the intention to dispose of his estate must be manifested with legal certainty, otherwise, the title of the heir or heirs-at-law will prevail; for conjecture cannot be made to supply what the testator has failed to sufficiently indicate on the face of the will.” And the court held that the concluding words of the will did not overcome the effect of the express limitation.

In Loveacres v. Blight (Cowp., 352), Lord Mansfield said that, though the introduction of a will declaring that a man means to make a disposition of all his worldly estate is a strong circumstance connected with words to explain the testator’s intention of enlarging a particular estate, it will not do so alone. (See Mixter v. Woodcock, 147 Mass., 613, and Howland v. Clendenin, 47 N. Y. St. Rep., 751.) (Since preparing this opinion, our attention has been called to a decision of our Court of Appeals, In the Matter of the Will of James McClure, reported in 49 N. Y. St. Rep., 203. It is. authority upon questions in this appeal.) (Couch v. Easthan, 29 West Va., 784.)

The case of Evans Appeal from Probate (51 Conn., 435), is in its facts very like the case at bar. John Evans died without issue, his wife, the appellant, surviving. He left a will which provided: “After all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of to my beloved wife, Ann Evans, for her sole use and benefit, as long as she lives,” naming her as executrix. He left a brother and nephew, subjects of and resident in Great Britain, but no relatives in this country. It was claimed that the testator intended to give a fee to the widow, but the court held that he had added words of qualification and limitation, namely, “for her sole use and benefit as long as she lives,” and added: These aptly and plainly define an use, an estate for life, and bar out any other or greater one. * * * The intention must be found in the will; the will cannot be framed from intentions contrary to expressions.”

Our attention is called to the clause requiring the four sons to pay the testator’s debts and funeral expenses as evidence of an intention on the part of the testator to give them the fee; and it is suggested that the amount of money required to pay the debts might exceed the value of the life estate. There is some force in the suggestion, but when the language of a will is clear and unambiguous, and gives an estate less than a fee, although it charges the devisee personally with the payment of legacies, the payment thereof will not enlarge the estate to an absolute fee. (Nellis v. Nellis, 99 N. Y., 505.)

We think the testator’s intent to pass an estate less than a fee is so clearly expressed that it must be held that the will gave to the four sons a life estate only, and it, therefore, follows that the judgment appealed from should be affirmed, with costs to the respondents to be paid out of the estate.

Dwight, P. J., and Macomber, J., concurred.

Judgment appealed from affirmed, with costs to the respondents payable out of the estate.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    WILLIAM E. P. ANDERSON and Others, as Executors of CRITTENDEN H. C. ANDERSON, Deceased, Appellants, v. THE DUNDEE STATE BANK, Respondent.

      Bank draft issued to a stranger pa/yable to a name given by him as his own — liability of the bank to an innocent purchaser fm• value of the draft indm'sed by the person to whom it was issued— evidence of the signature.

    When a bank issues to an entire stranger, and puts in circulation, a draft or bill of exchange, payable to the order of a name inserted therein, relying simply and only on the word of such stranger that that is his name, and under circumstances calculated to excite in the mind of a cautious banker suspicions as to the bona

      fieles of the transaction, and the person to whom the draft is so issued indorses thereon the name so inserted therein, and negotiates it to an innocent purchaser for value, the bank of issue is liable thereon to such innocent purchaser, and it makes no difference whether the name so indorsed is the true name of the person to whom the draft was issued or an assumed name.
    On the trial of an action against a bank brought to recover the amount of a draft issued by it, payable to the order of “John C. Peck,” and which had been cashed by the plaintiff with the name “John O. Peck” indorsed on it, evidence was given tending to show that a check, purporting to be drawn on another bank, the names of both maker and payee of which were not connected with the suit, but which purported to be indorsed by the payee named therein, followed by the indorsement, “John O. Peck,” had been presented to the defendant bank, nad taken by it in payment for the draft in suit, on the assurance of the person presenting it that he was John O. Peck.
    Thereafter the plaintiff offered in evidence the signature of John O. Peck upon the check, and it was received as an exhibit, thereupon an expert was called, and, without objection, was allowed to testify, after comparing the signature upon the draft in suit with that upon the check, that they were written by the same person, and the draft and its indorsement were offered and received in evidence without objection; thereafter the defendant used the check, as in evidence, for the purpose of proving that the name of the maker and payee thereof were forgeries, but did not offer any evidence to negative the plaintiff’s proof as: to Peck’s signature upon the check and draft.

      Held, that this evidence established the controlling fact that the person to whose order the defendant made the draft in suit payable indorsed it.
    Appeal by the plaintiffs, William E. P. Anderson and others, executors, etc., from an order of the Supreme Court, entered in the office of the clerk of the county of Tates on the 1st day of December, 1891, denying the plaintiffs’ motion for a new trial, on the minutes, after the direction of a verdict for the defendant, at the Tates County Circuit, in an action brought to recover the amount of a bill of exchange made by the defendant.

      John Gillette, for the appellants.

      Briggs & Sunderlin, for the respondent.
   Lewis, J.:

The defendant is a banking association, organized under the laws of the State of New Tork, doing business at the village of Dundee, in the county of Tates. On the 9th day of February, 1885, the d^endant made and delivered to one John C. Peck their bill of exchange in writing, dated on that day, and directed to the Importers and Traders’ National Bank of New York, and thereby required said bank to pay to the order of John O. Peck $300. On the 23d day of February, 1885, the draft was presented at the banking-house of the testator, Anderson, with the indorsement of the name John C. Peck thereon, by a man who represented himself to be James Bell. It was purchased for full value by the banking-house of Anderson, and was thereafter and on the 27th day of February, 1885, presented to the Importers and Traders’ National Bank for payment. Pay ment was demanded, which was refused, and the said draft was then and there duly protested for non-payment, with due notice to the defendant, and this action was thereupon brought to recover the amount of the draft. The defendant defends and says that John O. Peck presented and delivered to it a check purporting to be made and drawn by one Reed, bearing date the 7th day of February, 1885, on the Geneva National Bank, payable to Jones & Ayres, or order, for the sum of $965, which appeared to be indorsed by the payees thereof, and that the defendant paid to said Peck therefor, at his request, the draft in suit and $664 in currency; that the said Peck, to induce defendants to take and accept the same, and to issue the draft therefor, falsely and fraudulently stated and represented to the defendant that the check was genuine, when it was, in fact, with its indorsements, a forgery and of no value.

We assume, in deciding this appeal, that John O. Peck presented the forged check to the defendant, and that the defendant issued the draft in suit to him payable to his order. Both the complaint and answer so state the facts to be. The defendant’s cashier, it is true, testified that he had learned since that the person who presented the forged check was not John O. Peck. How or when or where he got the information he does not state. This evidence cannot avail to contradict the admissions in the pleadings. When Peck presented the forged check to the defendant the signature “ John G. Peck ” was indorsed upon it. Defendant’s cashier so testifies, and he is not contradicted. The draft was presented to the plaintiff by a person who was introduced to him by one of his customers as James Bell. When so presented the name John O. Peck was indorsed upon it, and the person presenting it then and there wrote the name of James Bell upon the draft under the name of Peck, and the plaintiff purchased the same paying full value therefor in due course of business. Tlie indorsement of John C. Peck upon the check and upon the draft, and the name of James Bell written as aforesaid upon the draft were all in the same handwriting, so the expert witness, Hoyt, testified without objection, and he is not contradicted. If we should assume that the person who presented the forged chock to the defendant and obtained the draft did not give his true name to the defendant to be inserted as payee, but directed an assumed name to be inserted and thereafter indorsed that name upon the draft, the draft'when so indorsed became negotiable and would pass by mere delivery to an innocent holder for value. The person who presented the check and procured the draft was a stranger to defendant. He was not required to be identified. The defendant consented to issue and put in circulation the draft, payable to the order of John C, Peck, relying simply and only upon the word of an entire stranger that that was his name, and, under circumstances, as appears from the testimony of the defendant’s cashier, somewhat calculated to excite in the mind of a cautious banker, suspicions as to the honafides of the transaction. It being shown, as we have seen, that the same person wrote all three of the indorsements, a prima facie case was made that the person who obtained the draft was the same person who sold it to the plaintiff. While, under the evidence, we may be left in doubt as to the true name of the person who obtained the draft, it is not disputed that he informed the defendant that his name was John C. Peck,-and that the defendant issued the draft with that name as payee. If it was not his true name it was the name he then assumed, and we are unable to see that it concerns the defendant whether it was his tnie name or an assumed name, if it be shown that he indorsed the name he had chosen upon the draft and negotiated it to an innocent pui chaser for value. (Brown v. Butchers and Drovers' Bank, 6 Hill, 443; David v. Williamsburgh Ins. Co., 83 N. Y., 265; McDuffie v. Clark, 39 Hun, 166.) Parties sometimes adopt and use ficticious names as their own, and when there is a real party in existence who uses a ficticious name as descriptive of and with intent to bind himself, it is the same in law as if it were his real name, and he may be sued by the holder and declared against as having contracted by such adopted name.” (Daniel on Negotiable Instruments [3d ed.j, vol. 1, § 141.) “ When the payee’s name (to a draft) is fictitious the acceptor is not concerned, for the reason that the drawer has directed him to pay the money to the order of that name, and if it be thereon indorsed by the drawer or by the holder, he would fulfill that direction and discharge the debt.” (Id., Yol. 1, § 138.)

In Chalmer on Bills and Notes (by Benjamin), page 144, the text states the doctrine, citing a number of authorities to sustain it, that where B, at the request of X, makes a note payable to C’s order; 0 is a fictitious person, but B does not know this. X indorses the note in C’s name, and it is negotiated to D, a "bonaftde holder for value without notice. D can sue B.

Had Peck paid full value for the draft, and caused to be inserted, as payee, an assumed name, and indorsed such assumed name on the draft, and sold it, under like circumstances, to tho plaintiff, it would not .be contended but that the defendant would be liable upon the draft. This is not a case of a draft payable to a fictitious person to the knowledge of the drawer. In such a case the draft can be treated as payable to bearer. Here, in order to become negotiable, the indorsement of the name designated as payee was requisite; but it was not essential that the name was the one by which the payee was commonly known.' If a payee adopts an assumed name, and indorses such assumed name upon a draft, it is not a writing purporting to be the act of another within the meaning of the provisions of the Penal Code. It is simply a case of using an assumed name without any design of defrauding the payee. But, as we have seen under the pleadings and proof, the draft appears to have been issued by the defendant to John O. Peck, as payee, and if his name was duly indorsed upon it when presented for discount to the plaintiff, the plaintiff, being an innocent purchaser for value, got good title to the draft, and was entitled to recover thereon against the defendant.

The vital and controlling question is, did the person who procured the draft of the defendant indorse the name “John C. Peck ” upon it. There was no direct evidence of the genuineness of the indorsement upon the draft, but if it was proven that the name John C. Peck upon the back of the check was in the handwriting of Peck, so as to justify its use as a standard of comparison, then the testimony of the expert Hoyt proved the genuineness of the indorsement on the draft.

By presenting tlie check, with his name upon it, and stating to the cashier that his name was John O. Peck, he conceded it to be his genuine signature, and was thereby estopped from thereafter claiming that it was a forgery.

The defendant, seeing the check so indorsed, and being assured by the person presenting it that his name was John C. Peck, accepted it and indorsed it to the Geneva National Bank, the drawee, for payment. After this evidence was in, the record states: “ The plaintiff offered in evidence the signature of John O. Peck upon the back of the check of February seventh. Identified by the witness received, marked ‘ Plaintiff’s Exhibit No. 2.’ ” Thereupon'the expert Hoyt was called and was, without objection, allowed to testify, after comparing the signature upon the draft with the signature upon the check, that they were written by the same person ; and the draft, with its indorsement, and the certificate of protest attached, were offered and received in evidence without objection.

The defendant, later in the trial, used the check, as in evidence,, for the purpose of proving that the name of the maker and payee were forgeries, but did not offer any evidence to negative the plaintiff’s proof as to Peck’s signature upon the check and draft.

It must be held that the proof established the controlling fact,, that the person to whose order the defendant made the draft payable indorsed it, and that the plaintiff, in good faith, took it and paid full value for it.

If these views are correct, it follows that it was error to direct a, verdict for the defendant, and the order appealed from should be reversed and the verdict set aside and a new trial granted, with costs to abide the event.

Dwight, P J., and Macomber, J., concurred.

Order appealed from reversed and a new trial granted, with costs to abide the event.


text:
      CHAUNCEY WITCHER, Appellant, v. HOLLAND WATER-WORKS COMPANY, Respondent.

      Water supplied by a stock company to an unincorporated village — pipes and hydrants in streets — rights of an abutting owner to compel their removal.

    The laying of pipes by an incorporated stock company, under the provisions of chapter 566 of the Laws of 1890 (chap. 40 of the General Laws), to supply water to an unincorporated village, is, as well as in the case of incorporated villages, for a public use or purpose; and this is so, although no contract may have been made with the public authorities to supply the village with water.
    The streets of a populous unincorporated village are to be deemed urban streets and not ordinary rural highways, in respect to the extent of the easement which the necessities of the public may impose upon them.
    A street in an unincorporated village is subject to use for the purpose of supplying water to-the inhabitants of the village; and the placing of pipes and hydrants therein, under a permit from the town authorities, as provided by sections 80 and 82 of chapter 566 of the Laws of 1890, by an incorporated water-works company, required, under section 81 of that act, to furnish water at reasonable rates to all consumers who may use the same, does not impose an additional burden upon the fee of the street, although the water is not in actual use under any contract with the public authorities, but only by individual residents of the village who have contracted with the company.
    Such a water-works company, not having a contract with the public authorities to supply the village with water, cannot exercise the right of eminent domain (§ 84, chap. 566 of 1890); but its right to use the streets of the village for its pipes is based, not upon its right to condemn property, but upon the doctrine applicable to the use of urban streets for such purposes.
    As no additional burden is imposed upon the fee of the street by such use a private owner of the fee in such a village street, subject to the public easement therein, cannot maintain an action to compel the removal of water pipes and hydrants so placed in the street in front of his premises without his consent.
    Appeal by tbe plaintiff from a judgment dismissing tbe complaint upon tbe merits, entered in the office of the clerk of Erie county on tbe 21st day of March, 1892, upon a verdict rendered by direction of the court after a trial at tbe Erie Circuit, and from an order denying a motion for - a new trial made on a case and exceptions entered in said clerk’s office on tbe 21st day of March, 1892.
    Chapter 737 of tbe Laws of 1873, referred to in tbe opinion as tbe act under which tbe defendant company was organized, is ■entitled “An act in relation to the creation and formation of waterworks companies in towns and villages of the State of New York.” This act is repealed and supplanted by chapter 566 of the Laws of 1890.
    Chapter 566 of the Laws of 1890 is entitled “An act in relation to transportation corporations, excepting railroads, constituting chapter forty of the General Laws.” Article † of this act, which includes sections 80 to 85, inclusive, thereof, covers the subject of water-works corporations organized for the purpose of supplying water to any of the towns or villages, and the inhabitants thereof, in this State, and contains the following provisions, among others:
    § 80. * * * At the time of filing [the certificate of organization] there shall be annexed to the certificate, and as a part thereof, a permit, signed and acknowledged by a majority of the board of trustees of the village, in case an incorporated village is to be supplied with water, and in case a town, or any part thereof, not within an incorporated village, is to be so supplied, by the supervisor, justice of the peace, town clerk and highway commissioners thereof, or a majority of them, authorizing the formation of such corporation for the purpose of supplying such village or town with water.
    § 81. Every such corporation shall supply the authorities or inhabitants of any town or village, where they have organized, with pure and wholesome water, at reasonable rates and cost to all consumers who may use the same, and the board of trustees of any incorporated village of this State shall have the power to contract for the term of one year or more with any such corporation for the delivery by it to the village of water, through hydrants or otherwise, for the extinguishment of fires, and for sanitary and other public purposes. * * *
    § 82. Every such corporation shall have the following additional powers: 1. To lay and maintain their pipes and hydrants for delivering and distributing water in any street, highway or j>ublic place of any town or village in which it has obtained the permit required by section eighty of this article. * * *
    § 84. Any corporation organized under this article shall have the right to acquire real estate, or any interest therein, necessary for the purposes of its incorporation, and the right to lay, relay, repair and maintain conduits and water pipes, with connections and fixtures, in, through, or over the lands of others; * * * if any such corporation, which has made a contract with any town or village to supply it with pure and wholesome water, as authorized by section two of this article [§ 81], shall be unable to agree upon the terms of purchase of any such property or rights, it may acquire the same by condemnation. * * *

      Frank G. laughlin, for tne appellant.

      Wallace Thayer, for the respondent.

       Decided October Term, 1893.

   Lewis, J.:

This is an action of ejectment to recover the possession, subject to the public easement, of a part of the highway in the village of Holland, Erie county, the fee thereto being in the plaintiff, and to compel the removal of certain water pipes and a hydrant from the street.

The defendant is a corporation, organized under chapter 737 of the Laws of 1873, and the acts amendatory thereof, for the purpose of supplying water to the inhabitants of the village and town of Holland for culinary and drinking purposes, and for the extinguishment of fires and other purposes. It is a stock company, the stock being owned by private individuals, Water is brought from springs into the village through pipes laid underground. Hydrants have been placed by the defendant along the principal street of the village, and so located as to be accessible for use in case of fire. The supply and head of water are ample for the purposes mentioned. The village is unincorporated, but has a population of 600, having 174 buildings, exclusive of barns. The buildings are mainly located upon one street within a distance of about three-quarters of a mile. There are streets crossing the main street occupied by dwellings for a distance of about five-eighths of a mile. The average distance between the buildings on the main street is about thirty feet.

Written consent to lay its water pipes in the town of Holland was obtained of the officials of the town, and Was properly filed before laying the pipes. Without the consent of the plaintiff the defendant dug trenches in the street in front of his house, placing three pipes therein, and erected a hydrant in front of his premises. The plaintiff’s premises are upon the main street in the center of the village. He owns the fee of the street. Near to his dwelling are houses, stores and other buildings. Defendant had, at the time of the trial, contracted to furnish water to fifty-two residences and places of business in the village, and had actually supplied eleven houses with water ; it had not entered into any contract with the town authorities to supply the village with water.

The defendant is required by section 81 of chapter 566 of the Daws of 1890, to furnish water at reasonable rates to all consumers who may wish to use the same. If the village to be supplied with water be incorporated, its board of trustees has power to contract with the company for the delivery of water to the village through hydrants or otherwise. No express authority is given by the act to the town authorities to make contracts for supplying water to the inhabitants of the town. The village of Holland, being unincorporated, it must be treated as a part of the town of Holland. Section 82 of the act gives to incorporated water companies the power to lay and maintain their pipes, and place hydrants for delivering and distributing water, in any street, highway or public place of any town or village, when it has obtained the permit to lay its pipes in the highways, as required by section 80 of the act.

The act of 1890 took effect on the 1st day of May, 1891. The pipes were laid in front of the plaintiff’s premises in November, 1891.

A verdict* was directed in defendant’s favor, and was, therefore, in effect, a decision that the plaintiff was not entitled to recover upon any finding warranted by the testimony. (Stone v. Flower, 47 N. Y., 566.)

The plaintiff asked to go to the jury upon the question whether the laying of the pipes a.nd the placing of the hydrant in the street, in front of plaintiff’s premises, was an additional burden on the fee. The motion was denied.

The right of defendant to lay the pipes, etc., without making compensation, is a question of law. Whether the use was a public one, or private property was taken, are judicial questions. Are these pipes, hydrants and water devoted to a public use ? As we have seen, they are not, at present, in actual use under any contract with the authorities of the town, but only by individual residents of the village, who have made contracts with the company. The company is required to furnish water to any of the inhabitants, on the line of its pipes, who desire to rise the water. The hydrants are erected to furnish water for fire purposes. At the time of the fire, there was no hose, or fire apparatus, nor fire company, in the town, but the hydrants were so placed that they could be used advantageously for extinguishing fires. And it appeared, from the testimony, that the inhabitants were at liberty to use them for such purpose.

Holland, though not incorporated, is a large and populous village. The inhabitants thereof have all the requirements and necessities for the use of pure and wholesome water that they would have were the village incorporated.

The streets of a populous village or city are subject to greater burdens and to a greater variety of uses than a rural highway. The extent of an easement in a street is to be measured somewhat by the necessities of the public. (Johnson v. Thomson-Houston Electric Co., 54 Hun, 470.) The use of pure and wholesome water may be said to have become a necessity of modern life.

In Lahr v. Metropolitan Elevated Railway Company (104 N. Y., 292), Huger, Oh. J., said: “ Statutes relating to public streets, which attempt to authorize their use for additional street uses, are obviously within the power of the legislature to enact.”

The act of 1890 confers the power upon water companies, after having obtained the consent of the proper authorities, to use the streets and highways for the distribution of water to the public.

If Holland were an incorporated village, and the defendant had entered into a contract with the trustees to supply the village with water for fire or other purposes, the right of the defendant to use the streets with its pipes without compensation to the owners of the fee would not be questioned. The village being unincorporated such a contract could not be made,' but the necessities of the people for water are the same as they would be if the village was incorporated. Six hundred people have their homes in the village, and the evidence tends to show that many of them desire to avail themselves of the use of the water furnished by the defendant, That being so, is not the defendant furnishing water for the use of the public ?

It was said by Mr. Justice Haight, speaking for the Court of Appeals in the case of Poccmtico Water- Works Company v. Bird (130 N. Y., 249, 258), “the question of public use is a judicial one and must be determined by the courts. It is not affected by the agency employed, for it may be' vested in private persons, who may be actuated solely by motives of private gain, if the use to be made thereof is for the benefit of the public.” * * * “ It is, doubtless, true that in order to make the use public a duty must devolve upon the persons or corporation holding the property to furnish the public with the use intended. The term implies ‘ the use of many,’ or ‘ by the public,’ but it may be limited to the inhabitants of a small or restricted locality, but the use must be in common and not for a particular individual.”

It was decided in St. Helena Water Company v. Forbes (62 Cal., 182), that the supplying of the inhabitants of a town with pure, fresh water is for a public use. To supply a city or town with water is a public purpose for a public benefit. (Olmstead v. Morris Aqueduct, 46 N. J. Law, 495, 499; Bloomfield Natural Gas-Light Company v. Richardson, 63 Barb., 437.) The use of water by each particular individual is- private. But in a larger and broader sense it may be said that the use of it by all, or a large part of the residents in a populous village, is for the public benefit.

It must be held, we think, that the laying of pipes for the supplying of water to cities and villages is for a public use or purpose even where no contract has been made with the municipality to supply it with the water. Assuming, then, that the supply of this water was for a public use, did the laying of the pipes and the erection of the hydrant in front of plaintiffs premises constitute a taking of his property right in the soil, and amount to an additional burden upon the fee ? There are many authorities holding that such use of a street in incorporated villages does not impose an additional burden upon the fee. This street in question must be held, we think, to be an urban street, and not an ordinary rural highway.

This case is distinguishable from the cases which hold that the appropriation of a rural highway for the conveying of water to another town or village, the inhabitants along the line of the pipes not being entitled to the use of the water, is imposing an additional burden, for that is the taking of one’s property for the use of others, he having no right to the use thereof.

In the case at bar the plaintiff is entitled, in common with all the other inhabitants of the village, to the use of the -water. The health and comfort gf the people are promoted by the use of wholesome,, pure water. The buildings and property of the village are, to a. great extent, protected from fires. This street must be held, we think, to be subject to use for the purpose of supplying water to the. inhabitants of the village, and that the placing the pipes in it by defendant did not impose an additional burden upon the fee.

Defendant not having a contract with the authorities of a village to supply it with water, cannot exprcise the right of eminent domain.. But its right to use the streets of this village for its pipes is based,, not upon its right to condemn property, but upon the doctrine applicable to the use of urban streets for such purposes.

The plaintiff failed to make a case entitling him to a verdict. The judgment and order appealed from should be affirmed.

Dwight, P. J., and Haoombeb, J., concurred.

Judgment and order appealed from affirmed.


text:
    Hannah E. Boardman, Plaintiff, v. Metropolitan Elevated Railway Company, Defendant.
   — Motion denied, with ten dollars costs.


text:
    In the Matter of the Petition of Anita Ferrer de Ainz.
   Motion granted, with ten dollars costs.


author: O’Brien, J.

text:
    The People of the State of New York, Respondent, v. George Z. Bartholf, Appellant.
   Judgment affirmed. Opinion by

O’Brien, J.


text:
    The People of the State of New York, Respondent, v. Charles C. Hearne, Appellant.
   Judgment affirmed. Opinion by

O’Brien, J.


author: O’Brien, J., and Van Brunt, P. J.

text:
    The People of the State of New York, Respondent, v. Frank Zounek, Appellant.
   Judgment affirmed. Opinions by

O’Brien, J., and Van Brunt, P. J.


author: O'Brien, J.

text:
    In the Matter of the Application of the Metropolitan Elevated Railway Company (In re Jones et al).
   — Order affirmed, with costs.

Opinion by

O'Brien, J.


text:
    The People of the State of New York, Respondent, v. Frank W. Clark, Appellant.
   Judgment affirmed.

Opinion by

O’Brien, J.


author: Lawrence, J.

text:
    David S. Brown and others, Appellants, v. John H. Doscher, Respondent.
   — Judgment affirmed. with costs and disbursements. Opinion by

Lawrence, J.


text:
    The People of the State of New York ex rel. James Bohen v. Henry D. Purroy and others, Fire Commissioners, etc.
   — Writ dismissed and judgment of the commissioners affirmed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    Melvin Stephens, Respondent, v. Robert L. Humphreys, Appellant, Impleaded, etc.
   — Order affirmed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    Augustus Cruikshank, as Trustee, etc., Plaintiff, v. Lorenzo Goodwin and others, Defendants.
   Order affirmed, with costs and disbursements. Opinion by

Lawrence, J.


author: Van Brunt, P. J.

text:
    Richard D. Alliger, Respondent, v. The Mail Printing Association, Appellant.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Per Curiam.

text:
    The China Mutual Insurance Company and another, Respondents, v. William M. Force and others. Appellants.
   Judgment affirmed upon opinion of the court below, with costs and disbursements. Opinion

Per Curiam.


text:
    James C. Matthews, Respondent, v Marvelle W. Cooper and others, Respondents, Albert P. Sturtevant, Appellant.
   Order affirmed, with ten dollars costs and disbursements to each of the respondents appearing. Opinion by

Van Brunt, P. J.


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

text:
    James C. Matthews, Plaintiff, v. Marvelle W. Cooper and others, Defendants.
   Order modified as directed in opinion, and, as modified, affirmed, without costs. Opinions by

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


text:
    Thomas Crooks, Appellant, v. The Second Avenue Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, P. J

text:
    Henry C. Sherburne, Appellant, v. Edward A. Taft and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J


text:
    Paul Williams, Appellant, v. William Hays, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Taylor Iron and Steel Company, Appellant, v. Cecil C. Higgins, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    James H. Havens, Plaintiff, v. The West Side Electric Light and Power Company and others, Defendants.
   Judgment modified as directed in opinion, and, as modified, affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Ephraim C. Gates and others, Appellants, v. James C. De La Mare, Respondent.
   Judgment affirmed, with costs and disbursements, with leave on payment of costs to withdraw demurrer. Opinion by

Lawrence, J.


text:
    Herbert Cecil Pelly, Respondent, v. William M. Onderdonk, Appellant, Impleaded, etc.
   Judgment and order affirmed, with costs and disbursements. Opinion by

Lawrence, J.


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

text:
    Henry L. Herbert and others, Appellants, v. Edward Uhl. Respondent.
   Judgment reversed and new trial ordered, with costs and disbursements to appellants. Opinions by

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


text:
    Herbert Cecil Pelly, Respondent, v. Andrew J. Robinson, Appellant, Impleaded, etc.
   Judgment afiirmed. with costs and disbursements. Opinion by

Lawrence, J.


text:
    Herbert Cecil Pelly, Respondent, v. Frances S. Naylor and others, Executors, etc., Appellants.
   Judgment and order affirmed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    Sarah M. Mygatt and others, Appellants, v. George S. Coe, Respondent
   Judgment affirmed with costs and disbursements. Opinions by

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


text:
    Lucius Willard Sawyer, Respondent, v. James Gordon Bennett, Appellant.
   —Orders affirmed’, with costs and disbursements. Opinion

Per Curiam.


text:
    The National Park Bank, Respondent, v. Leopold Haas and others, Appellants.
   Order and judgment of Special Term overruling the demurrer affirmed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    Marie Schuler, Respondent, v. George H Roberts, Jr., and others, Appellants.
   Judgment and order affiimed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    The New Central Coal Company, Respondent, v. Joseph Cummings, Appellant.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


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

text:
    Leopold Wise and others, Respondents, v Hugh J. Grant, as Sheriff, Appellant.
   Judgment affirmed, with costs. Opinions by

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


text:
    Adelbert H. Steele, etc., and others, Appellants, v. Thomas H. Wells and others, Respondents
   Judgment modified as directed in opinion, and, as modified, affirmed, without costs on this appeal. Opinion

Per Curiam.


text:
    In the Matter of Robert W. Taylor and others, Executors, cte.
   The part of decree appealed from affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Sarah Gunning, Respondent, v. Catherine Gunning and others, Appellants.
   — Judgment reversed and new trial ordered, with costs to appellants to abide event. Opinion by Van Brunt, P. J.


author: by O’Brien, J.

text:
    Alvy W. Momeyer, Respondent, v. New Jersey Sheep and Wool Company, Appellant.
   Judgment affirmed, with costs. Opinion

by O’Brien, J.


author: Barrett, J.

text:
    Abraham Loewenstein, Appellant, v. Theodore W. Myers, as Comptroller, etc., Respondent.
   Order affirmed, with ten dollars costs and the disbursements of the appeal. Opinion by

Barrett, J.


text:
    Charles Smith and others, Respondents, v. Seattle, Lake Shore and Eastern Railway Company, Appellant.
   Order reversed, with costs ana disbursements and granting the motion, with ten dollars costs, with leave to renew upon payment of the costs of appeal and costs of motion below. Opinion

Per Curiam.


author: Van Brunt. P. J.

text:
    In the Matter of Calvin C. Bowen, Respondent, v. Allen Lee Smidt, Appellant.
   Order reversed and. the proceedings dismissed, with ten dollars costs and disbursements of the appeal. Opinion by

Van Brunt. P. J.


text:
    The Hecla Consolidated Gold Mining Company v. William Lane O’Neill.
   Motion granted. Opinion

Per Curiam.


text:
    Annette B. W. Wetmore, Respondent v. William B. Wetmore, Appellant.
   The defendant being clearly in default in not serving his printed papers, motion granted, with ten dollars costs.


text:
    The First National Bank of Sing Sing, Respondent, v. Caleb B. Knevals and others, Appellants —
   Motion denied.


text:
    Albert Glaser, Appellant, v. Daniel Carroll and others, Respondents.
   Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    West Side Bank, Respondent, v. Frank C. Meehan, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    Louise Meise, Respondent, v. John H. Doscher and others, Appellants.
   Motion denied, without costs.


text:
    Morris Rubens and others v. Ludgate Hill Steamship Company (Limited).
   —No proof of service of notice of motion.


text:
    Francis Eggleston, Plaintiff, v. George W. Rumble, Defendant.
   Judgment for defendant, with costs. Opinion by

Barrett, J.


text:
    John Dobson and another, Appellants, v. August Kuhnla, Respondent.
   Exceptions overruled and judgment ordered for defendant, with costs. Opinion by

Barrett, J.


text:
    Matilda M. Adams, Appellant, v. Samuel M. Adams, Respondent.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Samuel G. Metcalf, as Executor, etc., Appellant, v. Jose A. del Valle, Respondent, Impleaded, etc.
   Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    Julia A. Shaw, Respondent, v. Agnes C. Bryant and others, Appellants.
   — Order modified as directed in opinion, and, as modified, affirmed, without costs. Opinions by

Van Brunt, P. J., and O’Brien and Lawrence, JJ.


text:
    Robert G. Ingersoll, Appellant. v. Amzi C. Dixon, Respondent
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


author: O’Brien. J., and Van Brunt, P. J.

text:
    Ann Sharp, as Administratrix, etc., Respondent, v. George L. Rose, Appellant.
   Judgment affirmed, with costs and disbursements. Opinions by

O’Brien. J., and Van Brunt, P. J.


author: by O’Brien. J.

text:
    American Bank Note Company, Respondent, v. The Manhattan Railway Company and others, Appellants.
   Order affirmed, with costs. Opinion

by O’Brien. J.


text:
    Minna Winterfield, Appellant, v. The Second Avenue Railroad Company, Respondent.
   Judgment affirmed, witli costs. Opinion by

O’Brien, J.


text:
    Thomas F. Burke, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Application of the Southern Boulevard Railroad Company, etc.
   Order affirmed, with costs and disbursements. Opinions by

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


text:
    National Park Bank of New York, Appellant, v. Warren N. Goddard and others,Respondents.
   Order affirmed, with costs and disbursements. Opinion

Per Curiam.


text:
    The Kings County Bank, Respondent, v. Edward J. Dougherty, Appellant.
   Order reversed, with ten dollars costs and disbursements, and upon the settlement of the order counsel will be afforded an opportunity of presenting their views as to the extent of the examination. Opinion

Per Curiam.


text:
    Reuben L Radney, Respondent, v. Garry M. Hutchinson, Appellant.
   Order reversed with the usual costs and disbursements, and the motion to change the place of trial to Cayuga county granted with costs. Opinion

Per Curiam.


text:
    William Gillespie and others, Respondents, v. The Davidge Fertilizer Company, Appellant.
   Order reversed, with ten dollars costs and the disbursements of the appeal and the motion for judgment denied with costs. Opinion

Per Curiam.


text:
    Edwin Gomez and others, Respondents, v. Horatio Gomez, Appellant.
   Order affirmed, with ten dollars costs and disbursements of this appeal. Opinion by

Barrett, J.


text:
    Mary M. Ketcham, Appellant, v. William E. Elliott, Respondent.
   Order modified as directed in opinion and as modified affirmed, with ten dollars costs and the disbursements of this appeal. Opinion

Per Curiam.


author: Putnam, J.

text:
    Dudley S. Bartlett, as superintendent, etc., appellant, v. Levi Ackerman, as overseer, etc., Respondent.
   — Judgment affirmed, with costs. Opinion by

Putnam, J.


author: Herrick, J.

text:
    Joseph Cook, as Surviving Administrator of William H. Cook, deceased, Respondent, v. Elmer S. Shattuck, Appellant.
   — Judgment affirmed, with costs. Opinion by

Herrick, J.


text:
    Elsie S. Morrison, as Executrix, etc., Respondent, v. Thomas H. B. Crane, etc., and others. Appellants.
   — Order reversed, with costs and printing, and motion for a reference denied, with costs. Opinion by

Putnam, J.


text:
    St. Lawrence Wholesale Grocery Company, Appellant, v. Howard H. Hobson, Respondent.
   Order affirmed, with costs. Mem. by

Herrick, J.


author: Mayham, P. J.;

text:
    Sylvester McChesney, Respondent, v. Panama Railroad Company, Appellant.
   Order affirmed, with costs. Opinion by

Mayham, P. J.;

Putnam, J., concurred; Herrick, J., not acting.


text:
    Sarah E. Lockwood, Appellant, v. The Salmon River Paper Company, F. D. Kilbourn, Trustee, and others, Respondents.
   Allowance reduced to $200 to be divided equally between respondents, with ten dollars costs, and printing and other disbursements, to the appellant. Opinion by

Herrick, J.


author: Mayham, P. J.

text:
    The City of Gloversville, Respondent, v. The Johnstown, Gloversville and Kingsboro Horse Railroad Company, Appellant, Impleaded, etc.
   Order for preliminary injunction affirmed, with costs. Opinion by

Mayham, P. J.


text:
    Sarah E. Lockwood, Appellant, v. The Salmon River Paper Company and F. D. Kilburn, as Trustee, etc., and others, Respondents.
   Order reversed, with costs and printing disbursements, and motion for retaxation in each case granted, with costs. Opinion by

Putnam, J.


text:
    William T. Hart and others, Respondents, v. The Ogdensburg and Lake Champlain Railroad Company and another, Appellants.
   Order affirmed, with ten dollars costs and printing and other disbursements. Opinion by

Herrick, J.


author: Mayham, P. J

text:
    Horace J. Allen, Respondent, v. George C. Clark, Appellant.
   Judgment affirmed, with costs. Opinion by

Mayham, P. J


text:
    Hiland H. Chapin, Respondent, v. A. V. Pratt, Appellant.
   Judgment affirmed, with costs. Opinion by

Putnam, J.


text:
    The Second Methodist Episcopal Church, in Greenwich, Respondent, v. Sarah Humphrey, Appellant
   —Judgment affirmed, with costs. Mem. by

Herrick, J.


text:
    John D. Spicer and others, Appellants, v. Edward Snyder, Respondent.
   —Judgment reversed, new trial ordered, costs to abide event. Opinion by

Mayham, P. J.


text:
    John Baker, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed. Opinion by

Herrick, J.


text:
    Matilda A. Powers, an Infant, Respondent, v. The Village of Champlain. Appellant.
   Judgment affirmed,with costs. Opinion by

Mayham, P. J.


text:
    Moses T. Sayles, Appellant, v. Tristram C. Best and Jeremiah I Best, Respondents.
   Judgment affirmed, with costs. Opinon by

Herrick, J.


author: Putnam, J.;

text:
    Abel A. Crosby, Charles Reynolds and Grove Webster. Survivors of Artemas Sahler, Deceased, Respondents, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Putnam, J.;

Mayham, P. J., not acting.


text:
    Charles E. Bullard and Charles O. Howe, Appellants, v. Mary C. Harris and another, Respondents.
   Order of the Special Term affirmed, with ten dollars costs and printing and other disbursements. Opinion by

Herrick, J.


text:
    Charles E. Bullard and Charles O. Howe, Appellants, v. James H. Kenyon and Ellen M. Kenyon and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Herrick, J.


author: by Putnam, J.

text:
    Charles A. Smith, Appellant, v. Andrew D. Simmons, Respondent.
   Judgment affirmed, with costs. Opinion

by Putnam, J.


text:
    Augusta M. Fake, Respondent, v. Dayton S. Kellogg, Appellant.
   Judgment affirmed, with costs. Mem. by

Herrick, J.


author: Her rick, J.

text:
    Fanny Leopold, Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Her rick, J.


text:
    Eugene S. Clark, Appellant, v. Charles W. Lude, Respondent.
   Order of the county judge granting a new trial reversed, with costs. Mem. by

Putnam, J.


text:
    Annie I. Dawson, as Trustee of Burret S. Dawson, George Dawson and Charles Dawson, Respondents, v. John D. Parsons, Appellant, Nancy M. Dawson and Caroline E. Ten Eyck, as Executors of the Last Will and Testament of Philip Ten Eyck, Deceased.
   Order affirmed on opinion of Special Term. Mem. by

Mayham, P. J.;

Herrick, J., not acting.


author: Putnam, J ;

text:
    John Redmond, Respondent, v. Peter H. Buckley, Appellant.
   Order affirmed, with costs. Opinion by

Putnam, J ;

Herrick, J., not acting.


text:
    In the Matter of the Application of Daniel Hyzer, Sole Trustee of School District No. 3 of the Town of Hardenburgh for a Writ of Mandamus, Respondent, v. The Board of Supervisors of the County of Ulster, Appellant. In the Matter of the Application of Sturgis Bulkley, Sole Trustee of School District No. 10 of the Town of Hardenburgh for a Writ of Mandamus, Respondent, v. The Board of Supervisors of the County of Ulster, Appellant. In the Matter of the Application of Colonel Sprague, Sole Trustee of School District No. 5-of the Town of Hardenburgh for a Writ of Mandamus, Respondent, v. The Board of Supervisors of the County of Ulster, Appellant.
   Order in each case affirmed, with costs. Opinion by

Herrick, J.


text:
    John E. Harrington, Appellant, v. The Franklin Fire Insurance Company of Philadelphia, Respondent.
   Judgment reversed, new trial granted, costs to abide the event. Opinion by

Herrick, J.


author: Mayham, P.J.;

text:
    Emma Moussette, Respondent, v. Charles G. Bacon, Appellant.
   Judgment affirmed, with costs. Opinion by

Mayham, P.J.;

Putnam, J., not acting.


text:
    William H. Flack, Appellant, v. George Karr and George W. Wannamaker, Respondents.
   Judgment affirmed. Mem. by

Putnam, J.


text:
    In the Matter of the Application of John W Flynn and Charles Travis to Open the Decree made by the Saratoga County Surrogate March 25, 1890, on the Final Settlement of the Account of Charles Leach, as a Guardian of Lettie Leach Brown.
   Order of the surrogate affirmed, with costs. Opinion by

Herrick, J.


text:
    Charles H. Fort, as Assignee of John Benoit, for the Benefit of Creditors, Respondent, v. James Milligan, Appellant.
   -Judgment affirmed, with costs. Mem. by

Herrick, J.


text:
    Charles J. Webb and Harry E. Lincoln, Appellants, v. J. Melvin Thomas, William T. Pettengill and William J. Kline, Respondents.
   Judgment affirmed,with costs. Opinion by

Putnam, J.


text:
    Peter Rice, Respondent, v. Patrick Daley and others, Appellants.
   Judgment reversed, new trial granted, costs to abide the event. Opinion by

Putnam, J.


text:
    Mary E. Stephens, Appellant, v. The Hudson Valley Knitting Company, Respondent.
   Older appealed from reversed, with costs and printing disbursements. Opinion by

Herrick, J.


text:
    John N. Moore, Appellant, v. Laura M. Nye, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Mayham, P. J.


text:
    Homedas Riendean, Respondent, v. Roselle Bullock and others, Appellants.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Putnam, J.


text:
    Isaac G. Hathaway, Appellant, v. The Fitchburgh Railroad Company, Respondent.
   Judgment of the County Court so modified as to grant a new trial in the Justice’s Court, costs to abide the event. Mem. by

Herrick, J.


text:
    The People of the State of New York ex rel. Mason Springsted, Respondent, v. The Board of Trustees of the Village of Cobleskill, Appellants.
   Order reversed,with costs and printing, and the motion denied, with costs. Opinion by

Putnam, J.;

Mayham, P. J., not acting.


text:
    Thomas G. Birdsall, Respondent, v. Charles B. Keyes, Appellant.
   Judgment affirmed. Opinion by

Mayham, P. J.;

Putnam, J., concurred; Herrick, J., concurred in the result.


text:
    Frank McGuirk and others. Respondents, v. Mutual Benefit Life Company of Hartford, Connecticut, Appellant.
   Judgment affirmed, with costs. Opinion by

Herrick, J.


text:
    Stephen L. Constable, Respondent, v. Rufus Lefever and Cornelius I. Lefever, Appellants.
   Judgment affirmed, with costs. Opinion by

Putnam, J.


text:
    The People of the State of New York, Respondent, v. Philip W. Frederick, Appellant.
   Judgmeht of conviction reversed. Opinion by

Herrick, J.


author: Putnam, J., and Mayham, P. J.

text:
    John H. Sheehan, as Surviving Partner, Respondent, v. Daniel W. Fleetham and others, Appellants.
   Judgment reversed, new trial granted, costs to abide event. Opinions by

Putnam, J., and Mayham, P. J.


text:
    Decisions Handed down, Dec. 8, 1892.
    John M. Haskell, Appellant, v. The Northern Adirondack Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Mayham, P. J.;

Putnam, J., not acting.


author: Herrick, J.;

text:
    William Clark, Respondent, v. Ellsworth McDuffie, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Herrick, J.;

Mayham, P, J., and Putnam, J., concurred in result.


text:
    The People of the State of New York, Respondent, v. Caleb W. Mitchell, Appellant.
   Judgment reversed. Opinion by

Mayham, P. J.;

Putnam and Herrick, JJ., concurred.


text:
    The People of the State of New York ex rel The Harlan & Hollingsworth Company v. Frank Campbell, Comptroller of the State of New York.
   Decision of the comptroller affirmed, certiorate dismissed, with costs and printing and other disbursements.


text:
    August Schwemmer, Respondent, v. Peter Stratton, Appellant.
   Order reversed, with ten dollars costs, printing and other disbursements, and motion granted, with ton dollars costs.


text:
    William S. Hackett, as Assignee, etc., Appellant, v. Thomas O. Crehan, Respondent.
   Order affirmed, without costs to either party upon respondent’s deducting four dollars from the hill of costs taxed and the judgment thereon.


text:
    Carrie Wilsey. Respondent, v. Peter Callanan, Appellant.
   Order affirmed, with ten dollars costs and printing and other disbursements. Mem. by

Herrick, J.;

Mayham, P. J., and Putnam, J., concurred.


text:
    In the Matter of the Application of Henry Bradley to compel the delivery of books, papers, etc., by William H. Sullivan.
   Affirmed on opinion of Special Term, with ten dollars costs and printing and other disbursements.


text:
    James M. Smith, as Executor, etc.. Respondent, v. Frank Pelott and others, Appellants.
   Order affirmed, with ten dollars costs and printing and other disbursements.


author: Per Curian.

text:
    Andrew A. Davis, Respondent, v. The Town of Rochester, Appellant.
   Judgment reversed, new trial ordered, costs to abide the event. Mem.

Per Curian.


text:
    Helen E. Porter and another, Respondents, v. Jabez M. Lyle and another, Appellants.
   Order reversed, with ten dollars costs of motion, ten dollars costs of this appeal and printing and other disbursements. Mem. by

Herrick, J.;

Putnam J., concurred; Maybam, P J., not sitting.


text:
    Carlisle H. Coonley, Respondent, v. Allen Martin and others, Appellants.
   Judgment affirmed, with costs, appellant not appearing.


author: Herrick, J.,

text:
    Emma Kelly, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Order affirmed, with ten dollars costs and printing and other disbursements. Opinion by

Herrick, J.,

Mayham, P. J., and Putnam, J., concurred.


text:
    Hiland H. Chapin, Respondent, v. A. V. Pratt, Appellant.
   Motion for leave to go to the Court of Appeals denied, with ten dollars costs.


text:
    Charles E. Bullard, Appellant, v. Mary C. Harris, Respondent.
   Motion for leave to go to the Court of Appeals denied, with ten dollars costs.


text:
    Thomas G. Birdsall, Respondent, v. Charles E. Keyes, Appellant.
   Motion for leave to goto the Court of Appeals denied, with ten dollars costs.


author: Merwin, J.

text:
    Daniel Crouse and others, Respondents, v. Walter Whittlesey, Appellant.
   Order reversed, with ten dollars costs and disbursements,and motion granted, with ten dollars costs. Opinion by

Merwin, J.


author: Martin. J.

text:
    Daniel E. Hayden, as Executor of the Estate of Samuel P. Hayden, Deceased, Respondent, v. Wheeler & Tappan Co., Appellant.
   Judgment and order affirmed, with costs. Opinion by

Martin. J.


text:
    Whitmore Dusenbury and others, Administrators of George Dusenbury, Deceased, Appellants, v. Aubert D. Hoadley, Respondent.
   Judgment affirmed, with costs. Opinion by

Merwin, J.


author: Hardm. P. J.

text:
    Ira W. Perry, Appellant, v. Thomas R. Perry and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Hardm. P. J.


author: Martin, J.

text:
    William A. Sweet, Appellant, v. The City of Syracuse and others, Respondents
   Order of September 24, 1891, reversed, with ten dollars costs and disbursements of this appeal to the defendant. Motion to vacate the judgment entered August 28,1891, granted, and judgment entered July 27, 1891, amended so as to award the costs therein to all of the defendants, instead of the defendants comprising the Syracuse Water Board. Opinion by

Martin, J.


author: Martin. J

text:
    William A. Sweet, Appellant, v Henry J. Mowry and others, Respondents.
   Order of May 10, 1892, modified hy directing the judgment entered January 26, 1892, to he amended by awarding the costs therein to all of the defendants, instead of the defendants constituting the Syracuse Water Board, and hy striking out the costs of the motion awarded to the defendants, and, as modified, affirmed, without costs to either party. Opinion by

Martin. J


author: Hardin, P. J.

text:
    The People of the State of New York, Respondents, v. A. Edwin Benedict, Appellant.
   Conviction, order and judgment of the Court of Sessions of Otsego county reversed and a new trial ordered, and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this court to the Court of Sessions of Otsego comity, pursuant to sections 547 and 548 of the Code of Criminal Procedure. Opinion by

Hardin, P. J.


text:
    Robert Kerr, Appellant, v. Merritt F. Joslin, Respondent.
   Judgment affirmed, with costs. Opinion by

Martin, J.


text:
    John McGoldrick, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Merwin, J.


text:
    Clinton R. Keeler, by Dorcas A. Stalker, his Guardian, Ad Litem, Respondent, v. The New York State Mutual Benefit Association, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Merwin, J.


author: Hardin. P. J.

text:
    Frank Dilts, Respondent, v. Anthony W. Sweet, Appellant.
   Judgment affirmed, with costs. Opinion by

Hardin. P. J.


text:
    James T. Outterson, Respondent, v. Fonda Lake Paper Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Merwin, J.


text:
    Jennie R. Sherman, Respondent, v. The Village of Oneonta, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Dan S Richards, Respondent, v. Levi Crocker and Jessie Robinson, Appellants.
   Judgment affirmed, with costs. Opinion by

Martin, J.


author: Parker, J.,

text:
    Alvah S. Miller, Appellant, v. Samuel George, Respondent.
   Judgment affirmed, with costs, upon the opinion of

Parker, J.,

delivered at Special Term.


text:
    James T. Outterson, as Administrator, etc. Respondent, v. Frank Dilts, Appellant.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Opinion by

Hardin, P. J.


text:
    William Sterling, Appellant, v. Emeline Hill, Respondent.
   Motion granted, with ten dollars costs, unless the appellant shall, within twenty days from service of order, print and serve copies of the bill of costs and judgment-roll, in which event the motion is denied, without costs.


text:
    Frank Moulton, Respondent, v. Denis O’Sullivan, Appellant.
   Motion to dismiss appeal granted, with ten dollars costs.


text:
    The Trustees of the Village of Skaneateras, Appellant, v. The City of Syracuse and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Final Judicial Settlement of Accounts of Franklin C. Cornell, as Sole Administrator of the Estate or Ezra Cornell, Deceased.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Susan B. Yerkes, Respondent, v. Charles McFadden, Sr., and others, Appellants.
   Order denying motion to vacate attachment affirmed, with ten dollars costs and disbursements.


text:
    Susan B. Yerkes, Respondent, v. Charles McFadden, Sr., and others, Appellants.
   Order for the sale of attached property reversed, with ten dollars costs and disbursements.


text:
    Daniel Perry, Respondent, v. Ira W. Perry, Appellant.
   Appeal dismissed, with costs, held, as the judgment was taken by default, no appeal lies therefrom. (Code of Civ. Pro., § 1294: Flake v. Van Wagen, 54 N. Y., 25.)


text:
    Phoebe Turner, Respondent, v. Orrin Turner, Appellant.
   Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide event.


text:
    The Mutual Life Insurance Company of New York, Appellant, v. John O’Donnell and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The Glenside Woolen Mill, Appellant, v. The City of Syracuse and others, Respondents.
   Order affirmed, without costs.


text:
    Charles G. Thompson and others, Respondents, v. Susan Y. Thompson and others, Appellants.
   Order reversed, without costs, and a stay of proceedings granted as against Richard Skinner, until efforts to collect a judgment from the other parties against whom it is rendered shall be exhausted, when an application may be made at Special Term for leave to collect of Richard Skinner the same, or any part thereof, remaining unpaid.


text:
    The People of The State of New York, Respondent, v. Henry J. Coggeshall, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Betsy Revoir, Respondent, v. Florence A. Barton and others, Appellants.
   Order reversed, with ten dollars costs and disbursements.


text:
    Erastus K. Burnham, Respondent, v. Cape Vincent Seed Company, Limited, Appellant.
   Judgment and order affirmed, with costs.


text:
    Geneva A. Medler, Appellant, v. Hiram D. Burdick, Impleaded, Respondent.
   — Judgment affirmed. with costs.


text:
    Rosa Williams, Respondent, v. Uriah Williams and Palmer G. Williams, Appellants.
   Judgment and order affirmed, with costs.


text:
    Harry Ross, Respondent, v. Ira T. Hoose, Appellant.
   Judgment and order affirmed, with costs.


text:
    George L. Rood, Respondent, v. Rollin L. Weaver, Appellant.
   Motion for new trial dismissed for want of jurisdiction. (See Johnsons. N. T,., O. and W. R. R. Co., 30 Hun, 166.)


text:
    Leonard P. Mosher, as Administrator, etc , Respondent, v. James S. Baker, Appellant.
   Judgment affirmed, with costs.


text:
    Rush S. Watson, Respondent, v. Oswego Street Railway Company, Appellant.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Order refusing a new trial on the ground of surprise reversed, without costs to either party.


text:
    Charles M. Smith, as Executor, etc., Respondent, v. George B. Northrup, Appellant.
   Judgment and order reversed on the exceptions and a new trial ordered with costs to abide the event. Held, that the evidence as to taking mortgages subsequent to the 22d of March, 1890, was properly received.


text:
    Eugene J. Wildrick, Respondent, v. John Moor and others, Appellants.
   Judgment and ord¿ reversed on the exceptions and a new trial ordered, with costs to abide the event. Held (1): That the evidence as to the defendants being insured against loss by injuries to their employees, and the comments thereon by the counsel to the jury were improper (2.) The evidence does not sustain the alleged ground of negligence submitted to the jury.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Nicholas N. Betsinger, Appellant.
   Conviction, judgment and order reversed and a new trial ordered, and the clerk of Onondaga county directed to enter judgment and remit a Certified copy thereof, with the return and decision of this court, to the Court of Sessions of Onondaga county, pursuant to sections 547 and 548 or the Code of Criminal Procedure. Mem.

Per Curiam.


text:
    The People of the State of New York, Respondent, v. Lucius E. Holden, Appellant.
   Conviction, judgment and order reversed and a new trial ordered, and the clerk of Onondaga county directed to enter judgment and remit a certified copy thereof, with the return and decision of this court, to the Court of Sessions of Tompkins county, pursuant to sections 647 and 548 of the Code of Criminal Procedure.


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


text:
    Syracuse Savings Bank, Respondent, v. Florence A. Barton and another, Appellants, Impleaded, etc.
   Order striking out answer as frivolous reversed. Judgment reversed, with one bill of costs to appellants, to be paid by respondent. Other order appealed from vacated.


text:
    Porter Holden, Respondent, v. Daniel Staring and others, Appellants.
   Judgment and order reversed and a new trial ordered, with costs to-abide the event. Mem.

Per Curiam.


text:
    Eve Jenkins, Appellant, v. Henry O. Gardner, Respondent.
   Judgment affirmed, with costs.


text:
    Nathan Walrath, Appellant, v. Addis Weaver, Respondent.
   —Judgment affirmed, with costs.


text:
    James M. Hazelwood, Appellant, v. Daniel Staring and others, Respondents.
   Judgment, and order affirmed, with costs.


text:
    In the Matter of the Proving the Last Will and Testament of Peter Ingison, Deceased.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Harvey Linsley, Respondent. v. Philander Spaulding, Appellant.
   Judgment and order affirmed, with costs.


text:
    Austin Howe, Appellant, v. James O. Coy, Respondent.
   Judgment of County Court, affirmed, with costs.


text:
    Joseph H. Davis, Appellant, v. George W. Bogart, Respondent.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Held (1): That the court erred in receiving evidence of the declarations of the witness Buskey. (2.) That there was no evidence that the plaintiff’s mortgage-was fraudulent, as against Busky’s creditors, and the court improperly refused to charge the jury to that effect. (3.) The court improperly refused to charge that the price agreed upon between defendant and Buskey for keeping the: mule was conclusive upon the defendant, and he could not claim a lien upon the mule for any greater sum for such keeping.


text:
    Jesse E. Sisson, Respondent, v. Jeremiah Bauder, Appellant.
   Judgment affirmed, with costs.


text:
    Susan B. Yerkes, Respondent, v. Charles McFadden, Sr., and another, Appellants, Impleaded, etc.
   Order of Special Term reversed, with ten dollars costs and disbursements, and the attachment vacated as to appellants only.


text:
    Edward J. Hingston and others, Respondents, v. Ezra B. Knapp and others, Appellants.
   Injunction order modified so as not to prevent the defendants from pursuing any legal remedies they have, and not to authorize the plaintiffs to wrongfully obstruct or wrongfully interfere with the streets and parks of the village of Skancateles, and, as modified, affirmed, with ton dollars costs and disbursements to the appellants.


text:
    The People of the State of New York v. The Binghamton Trust Company.
   Motion granted on the ground that a question of law is involved in the case, which ought to be reviewed by the Court of Appeals. — (Order filed with the clerk.)


text:
    George N. Crouse and another, Appellants, v. Hector B. Johnson, as Sheriff, and Philander Wilson, Respondents.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    William M. Bell, Respondent, v. W. Ward Spencer, Appellant.
   Judgment of the County Court affirmed, with costs.


author: Barnard, P. J.;

text:
    Joseph Hubert, Respondent, v. Sarah E. Bedell, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


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

text:
    Henry Henken, Appellant, v. Alice Monaghan and others, Respondents.
   Judgment reversed and new trial granted, costs to abide event. Opinions by

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

Dykman, J., not sitting^


author: Barnard, P. J.

text:
    Matter of Accounting of Thomas Lamb’s Executors.
   Part of decree appealed from affirmed, with costs. Opinion by

Barnard, P. J.


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

text:
    Mary S. Martin and others, Respondents, v. George Hillen, Appellant.
   Judgment affirmed, with costs. Opinions by

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


text:
    William N. Dickinson, Respondent, v. James H. Hart, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    George Meurer v. Marie Von Krorner.
   Judgment affirmed for non-submission of papers under stipulation.


author: Pratt, J.;

text:
    Harrison A. Tucker and others, Appellants, v. Alexander McLean and others, Respondents.
   Judgment affirmed, with costs, Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Dykman, J.

text:
    James O’Neill, Respondent, v. John Nolan, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Cornelius McLean, Appellant, v. George McLean and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Barnard P. J.; Dykman, J., not sitting.


text:
    Owen Feeney, Appellant, v The Minisceongo Towing Company, Respondent.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


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

text:
    Mary Clemans, Respondent, v. Supreme Assembly, etc., Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinions by

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

Dykman, J., not sitting.


text:
    Excelsior Brick Company, Plaintiff, v. Village of Haverstraw, Defendant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Dency J. Young and others, Executors, etc., Appellants, v. Hallock F. Luce, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J., Barnard,

text:
    Harriett S. Rumsey and others, Appellants, v. The New York and New England Railroad Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Dykman, J., Barnard,

Barnard, P. J., not sitting,


author: Barnard, P. J.,

text:
    Mathushek Piano Manufacturing Company, Respondent, v. James Pearce, Appellant.
   Order denying motion for further hill of particulars reversed, with costs and disbursements, and motion granted that the plaintiff give bill of particulars of all pianos delivered and. not delivered, and all payments and date thereof, with ten dollars costs to abide event. Opinion by

Barnard, P. J.,

Dykman, J., not sitting.


text:
    Mathushek Piano Manufacturing Company, Respondent, v. James Pearce, Appellant.
   Order denying motion to vacate order of arrest affirmed, wiih costs and disbursements. Opinion by

Barnard, P. J.,

Dykman, J., not sitting.


text:
    George V. Brower, Receiver, etc , Appellant, v. William A. Husted and others, Respondents.
   Parts of judgment appealed from by receiver, affirmed. Judgment appealed from by Bonans & Voyes affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Dykman, J.;

text:
    Mortimer Mansfield, Respondent, v. Wilhelmina Raab, Executrix, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Cornelius H. Von Wagoner, v. Wiliam B. Royce and others, Executors.
   Motion for reargument denied, with ten dollars costs and disbursements. Opinion by

Dykman, J.


text:
    John D. Ferguson, Respondent, v. Thomas C. Arnow, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., dissenting.


author: Barnard. P. J.

text:
    In the Matter of Esek C. Carpenter.
   The respondent Esek C. Carpenter is removed from office of justice of the peace of Orange county. Opinion by

Barnard. P. J.


text:
    George M. Martin and others, Respondents, v. Samuel C. Freed, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


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

Dykman, J.;

Barnard, P J., not sitting.


text:
    Austin P. Gibbons and others, Respondents, v. James L. Lowrey, Executor, etc., Appellant.
   Order denying leave to answer affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Austin P. Gibbons and another Respondents, v. James P. Campbell, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J.,not sitting.


author: Pratt, J.

text:
    Matter of Petition of the Long Island Railroad Company to acquire lands of Charles Moran and others
   — Order appointing commissioners affirmed, with costs. Opinion by

Pratt, J.


text:
    The Village of Jamaica, Appellant, v. The Long Island Railroad Company, Respondent.
   Order denying injunction affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Abbot L. Dow, Trustee, v. Margaret H. Dow and others.
   Part of decree appealed from affirmed, without costs of reargument. Opinion by

Dykman, J.


text:
    Matter of Settlement of Anna Seebeck, Executrix.
   Decree of surrogate affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., dissenting.


text:
    Mary L. Van Slooten, Appellant, v Charles H. Wheeler, Executor, etc., Respondent.
   Judgment reversed and new trial granted, with costs to abide event. Opinion by

Barnard, P. J.


text:
    Albert D. Genung, Respondent, v. The New York and New England Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Henry C. Ditmas, Respondent, v. Berend Baas, Executor, etc., Appellant.
   Judgment affirmed, without costs. Opinion by

Pratt, J.;

Dykman, J. not sitting.


text:
    Elizabeth Alsop, Respondent, v. The Southold Savings Bank, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Michael Brennan, Respondent, v. Patrick Brennan, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Theodore Maurer, Respondent, v. Armond Wolf and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    John T. Barnard, Administrator, Appellant, v. John T. Gantz and others, Respondents.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Ferdinand R. Minrath, Respondent, v. The Teachers' Land and Improvement Company, Appellant.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    United States Trust Company of New York, Appellant, v. Philip V. R. Stanton and others, Respondents.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


author: Barnard, P J.;

text:
    Ruth A. Johnstone, Respondent, v. Eugene F. O’Connor, Appellant.
   Order overruling demurrer to complaint and judgment therein affirmed, with costs. Opinion by

Barnard, P J.;

Pratt, J., not sitting.


text:
    T. Ella Carpenter, Respondent, v. Edgar Knapp, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Philira R. Pitcher, Plaintiff, v. James Robertson and others, Defendants.
   Order affirmed, with costs. Opinion by

Pratt, J.


text:
    Matter of Probate of Last Will of Henry Gagan.
   Decree admitting will to probate affirmed, with costs. Opinion by

Barnard, P. J.


author: Barnard, P. J.:

text:
    Henry Helmke, Respondent, v. The New Jersey and New York Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.:

Pratt, J., not sitting.


text:
    Dennis Moxley, Respondent, v. New Jersey and New York Railroad Company, Appellant.
   Judgment affirmed, with costs Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Matter of Petition for Disbarment of George G. Titus as an Attorney.
   Application to disbar George G. Titus as an attorney of this court granted. Opinion by

Dykman, J.


text:
    James B. Horton, Respondent, v. William H. S. Wood, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Thomas H. Robbins, Appellant, v. Edwin Beers and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    John R. Drake, Appellant, v. The New York Iron Mine and others, Respondents.
   Order overruling plaintiff’s demurrer to fourth defense and judgment thus modified and affirmed, as modified, without costs. Order to be settled by Barnard, P. J. Opinion by

Barnard, P. J.


text:
    Charles D. Henshaw, Appellant, v. The Pond’s Extract Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard. P. J., not Rifting.


text:
    Walter Farrington, Executor, etc.. Respondent, v. The Farmers’ Loan and Trust Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Prate, J.;

text:
    Edwin A. Witham, Appellant, v. William C. Thomas and another, Respondents.
   Judgment affirmed,with costs. Opinion by

Prate, J.;

Barnard, P. J., not sitting.


text:
    George H. Kendall, Appellant, v. James W. Monk and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    James H. Watson and another, Appellants, v. Gardner T. Cone and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Henry A. Coster and another, Respondents, v. Julia De L. Coster, Respondent, and Cornelia P. Coster, Appellant.
   Decree for a sale in partition affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    In the Matter of Frank L. Ackerly, an Attorney.
   Order that a copy of the charges be served on respondent, and that he answer the same at the next term of this court. Opinion by

Dykman, J.


text:
    Edward Everett, Appellant, v. Georgie L. Morrison, Respondent.
   Order vacating judgment reversed, with costs and disbursements, and motion denied, with costs. Opinion by

Barnard, P. J.


text:
    In the Matter of the Claim of Mary L. Van Slooten, v. Charles H. Wheeler, as Executor, etc.
   Judgment reversed and judgment ordered for the plaintiff and claimant for the full amount of the claim, interest and costs. Opinion by

Dykman, J.


text:
    Charles B. Pitt and others, Respondents, v. Samuel C. Freed, Appellant.
   Order reversed, with costs and disbursements, and motion granted, with costs. Opinion by

Barnard, P. J.


text:
    Richard Gibbs, Respondent, v. The Dutchess County Mutual Insurance Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Addie V. Tuthill, Respondent, v. United Life Insurance Association, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Matter of Revocation of Last Will of Homer A. Nelson.
   Order refusing application to revoke probate affirmed, with costs. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. William A. Toohey and another v. The Board of Supervisors of Orange County.
   Judgment for defendant upon return to writ of certiorari, with costs Opinion by

Pratt, J.


text:
    The People of the State of New York ex rel. William A. Toohey and another v. Board of Supervisors of Orange County.
   Order denying motion for further return affirmed, with ten dollars costs. Opinion by

Pratt, J.


text:
    Josiah J. White, Appellant, v. George C. Wood and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Abraham D. Covert, Respondent, v. David H. Valentine and another, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J.. not sitting.


text:
    Viola Pierce, Plaintiff, v. George Pierce, Defendant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Jerry McCue, Respondent, v. The National Starch Manufacturing Company Appellant.
   Judgment and order denying new trial affirmed, with, costs. Opinion by

Pratt, J.;

Barnard, P J., not sitting.


text:
    William Sutton, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and order denying new trial, affirmed, with costs. Opinions by

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


text:
    William F. Lawrence and another, Plaintiffs, v. Frederick L. Pease, Defendant
   —Order of May 28,1892, affirmed, with ten dollars costs and disbursements. Order of 25th of June, 1892, affirmed, with costs aud disbursements. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    John McDonough, Appellant, v Peter H. Walsh, Respondent
   —Exceptions overruled and judgment for defendant upon the nonsuit, with costs. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. Frank Hasbrouck v. The Board of Supervisors of the County of Dutchess, sitting as a Board of Canvassers of the votes cast.
   Motion denied, with ten dollars costs.

Barnard, P. J., not sitting.


text:
    Mattie Lydecker, Plaintiff, v. Samuel Gilchrist, Defendant
   Motion granted, with ten dollars costs to respondent to abide event. Opinion by

Dykman, J.


text:
    James B. Wright, Plaintiff, v. Gillanine A. Rensens, defendant.
   Motion denied.


text:
    James B. Wright, Plaintiff, v. Gillanine A. Rensens, Defendant.
   Judgment reversed, with ten dollars costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    The Mission of the Immaculate Virgin, etc., Respondent, v. Michael Cronin, Appellant.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.;

Cullen, J., dissenting.


text:
    Annie J. Parshell, Administratrix, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., dissenting.


text:
    James Stott, Plaintiff, v. The New York, Lake Erie and Westen Railroad Company, Defendant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., dissenting.


text:
    Matter of Settlement of Accounts of Sara N. Worthington, Executrix of Henry R. Worthington, Deceased.
   Motion denied, without costs.


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

text:
    Jane R. Griffing, Respondent, v. William E. Diller and another, Appellants.
   Judgment and order reversed ana new trial ordered, with costs to appellant to abide event. Opinions by

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


author: O’Brien, J.

text:
    Cornelius N. Bliss and others, Respondents, v. Daniel E. Sickles, Sheriff, etc., Appellant.
   Judgment affirmed, with costs ana disbursements. Opinion by

O’Brien, J.


author: Lawrence, J.

text:
    Ernest de Bavier and others, Respondents, v. Hugo Funke, Appellant.
   Judgment and order affirmed, with costs and disbursements. Opinion by

Lawrence, J.


author: Van Brunt, P. J.

text:
    The Metropolitan Savings Bank, Respondent, v. The New York Elevated Railway Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Emilie Riendeau, Respondent, v. Henry A.Vieu, as Executor, etc., Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide event. Opinion by

Van Brunt, P. J.


text:
    Amelia White, Respondent, v. Antonio Rasines and others, Respondents.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    The Roosevelt Hospital, Respondent, v. The New York Elevated Railroad Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    In the Matter of the Orient Mutual Insurance Company.
   Order moditled as directed in opinion, and, as modified, affirmed, with costs of this appeal. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York, Respondent, v. The New York City Central Underground Railway Company and others, Appellants.
   Judgment reversed, with leave to defendants to answer upon payment of the costs of the court below and of this appeal. Opinion by

Van Brunt, P. J.


text:
    Martin R. Cook and others, Respondents, v. George Berrott and another, Appellants.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    John Nelson, Appellant, v. Laura Nelson and others, Respondents.
   Order affirmed, with costs. Opinion by

O’Brien, J.


text:
    Adolfo Hegewisch, as Receiver, etc., Respondent, v. John S. Silver, Appellant
   Order reversed. with costs. Opinion by

Van Brunt, P. J.


text:
    Angel K. Jorgensen, Respondent, v. Flavius S. Squire and others, Appellants.
   Exceptions sustained and new trial ordered, with costs to the defendant to abide the event. Opinion by

Van Brunt, P. J.


author: Barrett, J.;

text:
    Robert Ernst, Appellant, v. Darius G. Crosby, Respondent.
   Judgment affirmed, with costs. Opinion by

Barrett, J.;

dissenting opinion by Van Brunt, P. J.


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

text:
    Pittsfield National Bank, Respondent, v. William H Bayne and others, Appellants.
   Order reversed, with ten dollars costs and disbursements, payable by the plaintiff, but not by the receiver; and motion to punish for contempt denied, with ten dollars costs. Opinions by

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


text:
    Herman Gernau, as Administrator, etc., Respondent, v. The Oceanic Steam Navigation Company, Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide the event. Opinion by

Van Brunt, P. J.


text:
    Catherine O'Callaghan, Respondent, v. John J. Barrett and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Leon Blum and others, Appellants, v. Herman Munzesheimer, Respondent.
   Judgment and order reversed and a new trial granted, with costs to the appellants to abide the event. Opinions by

Barrett and O’Brien, JJ.;

dissenting opinion by

Van Brunt, P. J.


text:
    The City of Philadelphia, Respondent, v. Postal Telegraph Cable Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


author: Barrett, J.

text:
    Christopher Lochman, Appellant, v. Ellen Meehan, Respondent.
   Judgment affirmed, with costs. Opinion by

Barrett, J.


text:
    Mary Montieth, as Administratrix, etc., Respondent, v. John Finkbeiner, Appellant.
   Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    John E. Blackman, Appellant, v. Ellsworth L. Striker and others, Respondents.
   Exceptions overruled and judgment ordered for defendants, with costs. Opinion by

Van Brunt, P. J.


text:
    Erwin Strickland, Respondent, v. Richard L. Leggett, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Barrett, J.


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

text:
    Charles H. Hyde, as Administrator, etc.. Appellant, v. George H. Kitchen and others, as Executors, etc., Respondents.
   Order modified as directed in opinion, and, as modified, affirmed, without costs of this appeal to either party. Opinions by

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


author: Barrett. J.

text:
    In the Matter of Grove M. Harwood and others.
   Order reversed, with the usual costs and disbursements, and the motion denied, with costs. Opinion by

Barrett. J.


text:
    Louise Meise, Respondent, v. John H. Doscher and others, Appellants.
   Judgment reversed and new trial ordered, with costs to abide the event, and the case should be stricken from the special circuit calendar and such new trial had at the ordinary circuit. Opinion by

Barrett, J.


author: Per Curiam.

text:
    George H. Adams and another, as Executors, etc., Respondents, v. Stephen H. Olin and another, as Executors, etc., Appellants.
   Judgment affirmed, with costs. Opinion

Per Curiam.


author: Banett, J.

text:
    Lorenz Reich, Respondent, v. The Colwell Lead Company, Appellant.
   Judgment reversed and new trial ordered before another referee to be appointed by this court, with costs to the appellant to abide the event. Opinion by

Banett, J.


text:
    Nathan Cohen, Respondent, v. John Simmons, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Morris Rubens v. The Ludgate Hill Steamship Company (Limited).
   Application granted.


text:
    Dueber Watch Case Manufacturing Company, Respondent, v. Keystone Watch Case Company, Appellant, Impleaded, etc.
   Order affirmed, with costs and usual disbursements. Opinion by

Barrett, J.


text:
    In the Matter of the Application of the Board of Rapid Transit Commissioners, etc.
   An allowance of $3.000 made to each commissioner. Opinion

Per Curiam.


text:
    The People of the State of New York ex rel. The St. Nicholas and Cross-Town Railroad Company, Appellant, v. Hugh J. Grant, etc., Respondent.
   Order affirmed, with costs. Opinion

Per Curiam.


text:
    Julius F. Chesebrough, Respondent, v. Daniel D. Conover, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Julius F. Chesebrough, Respondent, v. Daniel D. Conover, Appellant.
   Order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Moses K. Glines, Respondent, v. The Supreme Sitting of the Order of the Iron Hall, Appellant.
   Order affirmed, with costs. Opinion by

Barrett, J.


text:
    The Harlem Bridge, Morrisania and Fordham Railway Company, Respondent, v. The Town Board of the Town of Westchester and others, Appellants.
   —Reargument ordered.