text:
    Stephen M. Chester, Respondent, v. Francois Henry Jumel and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


source: Caselaw Access Project

author: Van Brunt, P.J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Dennis J. Cullen, Appellant.
   Conviction affirmed.

Opinion by

Van Brunt, P.J.


author: Van Brunt,

text:
    The People of the State of New York ex rel. Francis P. McClory, Appellant, v. J. Hampden Robb and others, Respondents.
   — Writ dismissed without costs.

Opinion by

Van Brunt,


author: Van Brunt, P. J.

text:
    Julius Tuchband, Appellant, v. Chicago and Alton Railroad Company, Respondent.
   Order reversed, with ten dollars costs and disbursements. Motion denied, with ten dollars costs.

Opinion by

Van Brunt, P. J.


author: Daniels, J.

text:
    Damson Consolidated Store Service Company, Respondent, v. John W. Hart, Sheriff, etc., Appellant.
   Order reversed, with ten dollars costs and disbursements, and order entered changing place of trial to the county of Albany, and for the costs of the motion.

Opinion by

Daniels, J.


author: Daniels. J.

text:
    Theodore Seligman and others, Respondents, v. The Franco-American Trading Company, Appellant
   Order reversed, with ten dollars costs and disbursements, and an order entered directing reference.

Opinion by

Daniels. J.


author: Van Brunt, P, J.

text:
    Edward V. Thebaud and others, Respondents, v. The Great Western Insurance Company, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event in Thebaud v. Phoenix Insurance Company.

Opinion by

Van Brunt, P, J.


author: Bartlett, J.

text:
    The National Park Bank of New York v. Emanuel Salomon and another. Gustav Salomon and another v. Same
   Order reversed, so far as it denies the motion to set aside the execution on the confessed judgment, and said execution set aside as to all of the amount mentioned therein, except $566.50.

Opinion by

Bartlett, J.


text:
    Theodore W. Bailey and others, Respondents, v. Ariel A. Prince and others, Appellants.
   Order affirmed, with costs and disbursements.

Opinion by

Bartlett, J.


text:
    Amelia M. Citroen and others, Appellants, v. Thomas Adam, Respondent.
   Judgment reversed and new trial granted, with costs to the appellants to abide the result.

Opinion by

Bartlett, J.


author: Per Curiam.

text:
    Samuel P. Hyman and others, Appellants, v. Jacob Kapp and others, Respondents.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


text:
    Watson A. Fox, Appellant, v. Charles W. Brega, Respondent, Impleaded, etc.
   — Order reversed, with costs and disbursements, and motion granted to extent stated in opinion, so far as relates to defendant Brega.

Opinion by

Bartlett, J.


text:
    The Boston National Bank, Respondent, v. Paul J. Armour and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Bartlett, J.


text:
    Charles G. Martin and others, Respondents, v. Hattie W. Bliss, Appellant.
   Order and judgment reversed, with costs to the appellant to abide event, and an order should be entered setting aside the verdict, on the payment by the defendant of the costs of the trial.

Opinion by

Daniels, J.


text:
    George F. Fitzpatrick, Respondent, v. The New York and Manhattan Beach Railway Company, Appellant.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of Cecilia L. Booth.
   Order so far reversed, with costs to appellant to abide event, as to direct the further trial of the fifth issue, and to deny the motion as to the other issues, which have been answered by the jury.

Opinion by

Daniels, J.


text:
    In the Matter of Cecilia L. Booth.
   Application of Joseph A. Booth dismissed, without costs.

Opinion by

Daniels, J.


text:
    In the Matter of Cecilia L. Booth.
   Motion for judgment denied, without costs.

Opinion by

Daniels, J.


text:
    Polly Bogert, Plaintiff, v. David J. Bogert, Executor, etc., and others, Defendants.
   Order reversed, without costs.

Opinion by

Van Brunt, P. J.


text:
    Benjamin Moore, Trustee, etc., Respondent, v. Francis Higgins, Appellant.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Holmes, Booth & Haydens, Appellants, v. Samuel H. Willard, Respondent.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Baer Rosenberg, Plaintiff, v. Meyer Freeman and others, Defendants.
   — Judgment for plaintiff for $130 and costs.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Last Will and Testament of Daniel R. Lyddy.
   Decree affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    William F. Lennon. Appellant, v. Mary A. Stiles, Respondent.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Ella L. Winton, Respondent, v. William Livey and others. Appellants.
   — Judgment .reversed and new trial ordered, with costs to the appellant to abide event.

Opinion by

Van Brunt, P. J.


text:
    Adam Henderson, as Administrator, etc., Appellant, v. The Knickerbocker Ice Company, Respondent.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    George J. Cohen, Respondent, v. Theodore K. Hazard, Administrator, etc.
   — Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Henry Behrman, Respondent, v. Frederick C. Linde and others, Appellants.
   Judgment and order affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    John M. Masterton, Appellant, v. James Boyce, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Benjamin Richardson, Appellant, v. John Davidson, Respondent.
   Order vacating injunction affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


author: Macomber, J.

text:
    Frederick Reck, Appellant, v. The Phoenix Insurance Company, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.

Opinion by

Macomber, J.


text:
    Alden B. Stockwell. Appellant, v. James Boyce, Respondent.
   Judgment affirmed.

Opinion by

Van Brunt, P. J.


text:
    John Keenan, Respondent, v. John O’Brien and others, Appellants.
   Order reversed, with ten dollars costs and disbursements, and the order for the examination of tbe defendant before trial vacated.

Opinion by

Van Brunt, P. J.


text:
    James H. McVicker, Appellant, v. Italo Campanini, Respondent.
   Order affirmed, -with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


text:
    Frank T. Robinson, Appellant, v. James Boyce, Respondent.
   Judgment affirmed.

Opinion by

Van Brunt, P. J.


text:
    George P. Bangs v. James Boyce.
   — Judgment affirmed.

Opinion by

Van Brunt, P. J.


text:
    Elizabeth Fisher, Respondent, v. William Rankin, Appellant.
   Judgment affirmed, with costs.

Opinion by

Macomber, J.


text:
    Paul Williams, Appellant, v. William Hayes, Respondent.
   Order affirmed, with costs.

Opinion by

Macomber, J.


text:
    Jessie Watson, Appellant, v. E. Frank Coe, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


text:
    Henrietta Schaffer, Appellant, v. Isaac Schaffer and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    William McCreery and another, Appellants, v. Melville C. Day and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Macomber, J.


text:
    Sophie Luhrs, Plaintiff, v. Anna Luhrs, Defendant.
   Exceptions sustained, new trial ordered, costs to appellant to abide event.

Opinion by

Van Brunt, P. J.


text:
    William S. Wright, Administrator, etc., Respondent, v. The Third Avenue Railroad Company, Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide event.

Opinion by

Van Brunt, P. J.


text:
    Margaret Foster, Respondent, v. Theodore M. Roche, Trustee, etc., Appellant
   Order affirmed, with costs and disbursements.

Opinion by

Macomber, J.


text:
    Louis Nordlinger, Appellant, v. Adolph Anderson and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Macomber, J.


text:
    Edwin D. Washburne, Administrator, etc., of Emily V. Washburne, Deceased, Respondent, v. Benjamin C. Wetmore, Administrator, etc., Appellant.
   — Judgment affirmed, with costs.

Opinion by

Macomber, J.


text:
    The Staten Island Rapid Transit Railroad Company, Appellant and Respondent, v. The Mayor, etc., of the City of New York, Respondent and Appellant.
   Judgment affirmed without costs.

Opinion by

Van Brunt, P. J.


text:
    Frank Phelps, Appellant, v. Joel E. Erhardt, Receiver, etc., Respondent.
   — Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    William Nelson, Jr., Appellant, v. The Mayor etc., of the City of New York, Respondent.
   Judgment and order affirmed, with costs.

Opinion by

Daniels, J.


text:
    Mannes Baum v. New York Cotton Exchange.
   Motion granted, with ten dollars costs.


text:
    Franz Ristchoff v. Charles P. Heckman.
   Motion-denied.


text:
    In the Matter of Lexington Avenue, etc.
   Motion granted, with ten dollars costs.


text:
    Fritz Grossman v. Supreme Lodge Knights and Ladies of Honor.
   — Motion denied, with ten

dollars costs.


text:
    The People of the State of New York v. American Bell Telephone Company.
   — Motion granted.


text:
    M. Marvine Wood v. Charles E. Simmons and others.
   — Application denied.


text:
    Edward E. Britton v. Horace F. Burroughs
   Motion granted, with ten dollars costs.


text:
    Samuel W. Heymer v. Mary A. Arthur.
   Motion denied upon payment of ten dollars costs.


text:
    Saly J. Mayer, Respondent, v. Garrett L. Hardy, Appellant.
   Motion denied, without costs.


text:
    Henry S. Waugh v. Charles O. Bailey.
   Motion § ranted upon appellant giving undertaking in 5,900.


text:
    Pauline Heckemann v. David B. Young.
   — Order to show cause granted.


text:
    George Munro, Appellant, v. Ormond G. Smith and others, Respondents.
   Motion denied.


text:
    Jerome F. Manning v. Henry Amy.
   Motion granted unless papers served within thirty days.


text:
    Robert F. Minto v. William Austin and others.
   Motion denied.


text:
    William D. Atkinson v. Rudolph Oelsner.
   Motion denied upon payment by appellant of ten dollars.


text:
    Elizabeth R. Coggeshall v. Rudolph Bohm.
   Motion denied.


text:
    Samuel F. Meyers v. Elbert A. Tabor.
   Motion granted, with costs, unless appellant stipulates-to argue at next General Term.


text:
    In the Matter of Widening Fifth Avenue.
   Motion granted.


text:
    Robert J. Howe v. Joseph J. Morehouse.
   Motion denied.


text:
    James Perrow v. David A. Lindsay.
   Order amended as directed in memorandum.


text:
    Gustav Kuhn v. Annie J. Kuhn.
   Motion to dismiss appeal denied,


text:
    In the Matter of Phœbe Smith.
   Motion denied upon payment of ten dollars costs by appellant and stipulation to argue at the next term.


text:
    Catherine Reynolds v. Bertha Rodding.
   Motion denied.


text:
    In the Matter of the Mayor, etc., of the City of New York to Acquire Title, etc., In re Ellis.
   Mem.

Per Curiam.


text:
    Prescott Hall Butler v. Nathaniel Jarvis, Jr. Jr.
   Motion for resettlement denied.


text:
    Prescott H. Butler v. Nathaniel Jarvis, Jr.
   Stay on the judgment on appeal to Court of Appeals ordered and allowed; but not toprevent the collection of any securities deposited for the benefit of the plaintiff.


text:
    In the Matter of George Keller.
   Motion denied. See Mem.


text:
    In the Matter of Augustus A. Levey.
   Order of reference signed.


text:
    In the Matter of Zenobia Hanfield.
   — Reference ordered.


text:
    In the Matter of Mary Ann Hunt.
   Order of reference signed.


text:
    In the Matter of John McQuade.
   Reference ordered; notice of proceedings to be given to Suburban Rapid Transit Company.


text:
    In the Matter of Eleanor Rowland.
   Order of reference signed.


text:
    In the Matter of Julia Huerstel.
   Order of reference to take proof as to title granted.


text:
    In the Matter of Henry Morrison.
   — Notice ordered to be given to owners of equity.


text:
    The People of the State of New York, Respondent, v. Caroline Smith and another, Appellants.
   —Judgment and conviction affirmed and case remitted to the Court of Sessions of Erie county to proceed thereon.


author: Barker, P. J.

text:
    Daniel W. Jones, Respondent, v. William R. Crumb and others, Appellants.
   Judgment reversed-and new trial granted before another referee. Costs of this appeal to abide the event.

Opinion by

Barker, P. J.


author: Barker, P. J.,

text:
    Jonas P. Varnum, Receiver, etc., Respondent, v. E. Kirk Hart and others, Appellants, Impleaded, etc.
   Judgment modified m accordance with opinion of

Barker, P. J.,

and as modified affirmed, with costs.

Ordered to be settled by Barker, P. J.


text:
    In the Matter of the Application of William Spalding, Respondent, v. The County Treasurer of Niagara County, Appellant.
   — Order affirmed.

Opinion by

Barker, P. J.


text:
    George W. Cole, Appellant, v. Sidney B. Roby, Respondent.
   Order affirmed, with costs.


author: Macomber, J.;

text:
    Samuel Bryant, as Administrator, Respondent, v. The Town of Randolph, Appellant.
   — Judgment and order reversed. New trial granted, costs to abide event.

Opinion by

Macomber, J.;

Barker, P. J., not voting.


text:
    Betsy Whitman, Administratrix, etc., Appellant, v. Matthew F. Foley and others, Respondents.
   Case ordered resettled that it may appear whether all the evidence taken by the referee is contained in the record.


text:
    James Coddington, Assignee, Appellant, v. Eunice J. Bowen, Respondent.
   — Judgment modified by striking out the sum of ¿307.47 costs, and as modified, affirmed, without costs to either party.

Opinion by

Macomber, J.


text:
    Theodore H. Coddington, Appellant, v. Eunice J. Bowen, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Macomber, J.


author: Dwight, J.

text:
    Edward P. Stuart, Trustee, etc., Respondent, v. Russell C. Bates and others, Executors, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Dwight, J.


text:
    In the Matter of Hiram P. Abbey, a Supposed Lunatic, Appellant.
   Order affirmed, with costs of this appeal to abide the final award of costs.

Opinion by

Macomber, J.


author: Dwight, J.;

text:
    Charles L. Bingham, Receiver, Respondent, v. John Hyland, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Dwight, J.;

Macomber J. not sitting.


text:
    James S. McKay and others, Superintendents of the Poor, Respondents, v. William Welch, Jr., Overseer of the Poor, etc., Appellant.
   Judgment reversed and new trial granted before another referee.

Opinion by

Macomber, J.


text:
    Jewell M. Burgdorf, Respondent, v. Benjamin F Odell, Appellant.
   — Judgment and order reversed and a new trial granted. &

Opinion by

Dwight, J.


text:
    Bowers H. Leonard, Executor, etc., Respondent, v. James Brown, Appellant.
   — Judgment affirmed.


text:
    Alice Knight, Respondent, v. The Supreme Council of the Order of Chosen Friends, Appellant.
   — Order affirmed and judgment directed for the plaintiff on the verdict.

Opinion by

Macomber, J.


text:
    Albert H. Pickard, President, etc., Appellant, v. John Simson, Respondent.
   — Judgment and order affirmed.

Opinion by

Dwight, J.


text:
    Hiram W. Sibley, Survivor, etc., Plaintiff, v. Chauncey G. Starkweather Defendant.
   Motion for new trial granted, with costs to the plaintiff to abide the event.

Opinion by

Dwight, J.


text:
    Allen J. Hastings v. The Brooklyn Life Insurance Company.
   — Motion for a new trial granted, with costs to the defendant to abide riie event.

Opinion by

Macomber, J.


author: Dwight. J.

text:
    Sidney U. Smith, Respondent, v. Samuel C. Smith, Appellant.
   — Judgment affirmed.

Opinion by

Dwight. J.


text:
    William Richardson and others, Respondents, v. James H. Stevens, Appellant.
   — Judgment of the County Court and of the justice reversed, with costs.

Opinion by

Macomber, J.


text:
    Michael Wolliung, Respondent, v. Jane Akin, Respondent, and Matthew Akin and others, Appellants.
   Order of County Court affirmed, with ten dollars costs and disbursements.

Opinion by

Barker, P. J.


text:
    George C. Buell and others, Appellants, v. Benjamin F. Van Camp (Orleans County National Bank, Respondent).
   Order reversed, with ten dollars costs and disbursements, Opinion by

Macomber, J.


text:
    In the Matter of Thomas S. King, Police Justice of Buffalo.
   — Application for removal denied and petition dismissed, without costs.

Opinion by

Macomber, J.


text:
    Henry L. Fish and others, Respondents, v. Alice M. Colvin, Appellant.
   Judgment reversed and new trial granted, with costs of this appeal to the defendant to abide event.

Opinion by

Dwight, J.


text:
    John Broezel, Jr, and others, Appellants, v. The City of Buffalo, Respondent.
   Judgment affirmed.

Opinion by

Macomber, J.


text:
    William D. Tabor, Appellant, v. The Board of Supervisors of the County of Erie, Respondent.
   Order reversed and motion for new trial granted, with costs of this appeal to abide event.

Opinion by

Dwight, J.;

Barker, P. J., not voting.


text:
    Margaret A. Moore, Respondent, v. William McCartney, Appellant.
   — Judgment affirmed, with costs.


text:
    Morris S. Jackson, Respondent, v. William A. Stace, Appellant, Impleaded, etc.
   — Judgment and order affirmed.


text:
    Christopher Halpin, Respondent, v. Hotchkiss S. Finch, Appellant.
   — Judgment and order affirmed.

Opinion by

Macomber, J.


text:
    M. Delancy Bellows, Superintendent, etc., Plaintiff, v. David Courter, Overseer, etc., Defendant.
   Motion for a new trial denied and judgment ordered for the defendant, dismissing the complaint.

Opinion by

Dwight, J.


text:
    George D. Forsyth and others, Respondents, v. John W. Hannan, Sheriff, etc, Appellant.
   Judgment affirmed on the opinion of Morgan, late county judge.


text:
    William Beary, Appellant, v. John G. Hoster, Respondent.
   —Order reversed, with ten dollars costs and disbursements.

Opinion by

Dwight, J.


text:
    Joseph Irr, Respondent, v. Edward C. W. O’Brien, Appellant.
   — Judgment affirmed.


text:
    Robert Thompson, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.
   — Judgment affirmed.

Dwight, J., not sitting.


author: Dwight, J.,

text:
    Alonzo Wynkoop and others, Administrators, etc., Respondents, v. Mary J. Osborne and others, Appellants.
   — Court declines to consider the appeal for the reasons stated in opinion of

Dwight, J.,

in Palmyra v. Wynkoop, decided at the present term.


text:
    Charles Matthews, Respondent, v. John H. Post, Appellant.
   Judgment affirmed on the opinion of the referee.


text:
    The Seventh Day Baptist Education Society, Appellant, v. Adelbert W. Truman, Administrator, Respondent.
   — Judgment affirmed.


author: Per Curiam,

text:
    In the Matter of the Settlement of Accounts of Jane A. May, Executrix, Appellant.
   — Order affirmed and application denied, with ten dollars costs and disbursements.

Opinion

Per Curiam,

left with

Macomber, J.


text:
    The People of the State of New York, Respondent, v. George F. Mink, Appellant.
   Judgment and conviction affirmed and the case remitted to the Court of Sessions of Monroe county to proceed thereon.

Opinion by

Barker, P. J.


text:
    Sidney S. Cross, Trustee, Respondent, v. The National Eire Insurance Company in the City of New York, Appellant.
   — Order affirmed.

Opinion by

Macomber, J.;

Dwight, J., dissenting,


text:
    Jeremiah Lamberson, Respondent, v. Donald McNaughton, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Linas W. Thayer, Respondent, v. Donald McNaughton, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    The Rome, Watertown and Ogdensburg Railroad Company, Appellant, v. The City of Rochester, Respondent.
   Judgment and order affirmed, with costs.


text:
    Marie Collignor, Appellant, v. Lawrence Miller, Respondent.
   Order of Special Term reversed, with ten dollars costs and disbursements, on the ground that the court had no power to make such order.


text:
    In the Matter of the Widening of Hand Street in the City of Rochester.
   Reargument granted upon the question of the constitutionality of the provision of the charter of the city of Rochester relating to the modification of the award.

Macomber, J., not sitting.


text:
    In the Matter of the Accounting of Job Sayre, as Executor, etc.
   Motion for reargument granted.


text:
    Charles Blood, Respondent, v. Sarah S. Kane, Appellant.
   — Motion for reargument denied; leave to appeal to the Court of Appeals granted.


text:
    Patrick Langan, Appellant, v. Morris S. Jackson, Respondent.
   Motion denied.


text:
    The People of the State of New York, Respondent, v. Olney Dean, Appellant.
   — Default opened and appeal restored.


text:
    In the Matter of the Probate of the Will of Thomas Keegan, Deceased.
   Ordered (1), that William Keegan, John Keegan, and Thomas and Michael Keegan, sons of Michael Keegan, and devisees under the will, be brought in as parties to this appeal, by service of notice of appeal, as in the cases of citations issued out or the Surrogate’s Court on presentation of a will for probate; (2), that, on the due appearance of such persons as parties to this appeal, they have leave to apply to this court for an order directing the resettlement of the case herein.


author: Barnard, P. J.

text:
    Elbert W. Hauxhurst, Respondent, v. Thomas J. Ritch, Jr., Sole Administrator, etc., Appellant.
   — Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


author: Pratt, J.

text:
    Christian Kummel, Respondent, v. The Germania Savings Bank, Kings County, Appellant.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    Asa W. Parker, Respondent, v. Theresa B. Collins and others, Appellants.
   — Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Ellen Hanson, Respondent, v. Walter M. Aikman, Appellant.
   — Judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulate to reduce judgment to $500 damages. If such stipulation be given, then judgment for $500 and costs affirmed, without costs of appeal.

Opinion by

Pratt, J.


author: Dykman, J.;

text:
    Frederick Miles, Respondent, v. The Dover Furnace Iron Company and another, Appellants.
   Judgment affirmed, without costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John De Witt Walsh v. William C. Brown, Assignee, etc.
   — Motion denied.

Opinion by

Pratt, J.


text:
    In the Matter of the Accounting of Philip R. Underhill.
   Order affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Charles S. Higgins and another, Appellants, v. James D. Bell, Commissioner, etc., Respondent.
   — Order refusing to continue injunction and vacating temporary injunction affirmed, with costs.

Opinion by

Pratt, J.


text:
    James C. Brevoort v. Elizabeth A. Brevoort.
   Order affirmed, with costs.


text:
    Charles W. Cook v. The Lalance & Grosjean Manufacturing Company.
   — Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Charles E. Storms, Appellant, v. John Besson, Supervisor, Respondent.
   Judgment refusing mandamus affirmed, with fifty dollars costs.

Opinion by

Barnard, P. J.


author: Barnard, P. J.:

text:
    Frederick Van Bermouth v. Stephen C. Sutton.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.:

Dykman, J., not sitting.


author: Pratt and Dykman, JJ.;

text:
    The New York Rubber Company, Appellant, v. John Rothery and another, Respondents.
   Order affirmed, with costs and disbursements.

Opinions by

Pratt and Dykman, JJ.;

Barnard, P. J., not sitting.


text:
    Isaac C. Simonson, Respondent, v. Anna Krollpfeiffer, Appellant.
   — Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    Robert Gedney, Appellant, v. Julia C. Prall, Respondent.
   Judgment affirmed, with costs-.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Pratt, J.;

text:
    Edward S. Riley, Appellant, v. Thomas H. Skidmore and others, Respondents.
   — Judgment affirmed, with costs.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Peter Smith, Respondent, v. John O’Brien, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


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

text:
    Charles F. Johnson, Respondent, v. The Brooklyn and Seventh Avenue Railroad Company, Appellant.
   — Judgment affirmed,"with costs.

Opinion by

Barnard, P. J., and Pratt J.


author: Dykman, J.

text:
    James Cochrane, Respondent, v. Cacilie Bauer, Appellant.
   —Judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    Oscar Purdy, Respondent, v. John Dinkel, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    Henry L. Butler, Respondent, v. The Village of Edgewater, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Anna M. Andariese, Respondent, v. The Village of Edgewater, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Conrad Lobhardt, Respondent, v. Annie Gilbert, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    Eugenia A. Penfield, Respondent, v. The New York and Mount Vernon Water Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Black v. The City of Brooklyn.
   Motion denied, with ten dollars costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    George B. Abbott, as Administrator, etc., Appellant, v. Margaret J. Thomas, as Executrix, etc., and others, Respondents.
   Order affirmed, with costs and disbursements and motion denied, with ten dollars costs.

Opinion by

Barnard, P. J.


text:
    In the Matter of the Application of Brooklyn Cable Company to Condemn Lands.
   — Order affirmed, with costs.

Opinion by

Pratt, J.


text:
    John Oelerich, by Guardian, Respondent, v. The New York Condensed Milk Company, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Cornelius D. Guyon and another, Appellant, v. John Rooney, Respondent.
   Appeal improperly dismissed and stay given to enable appellant to obtain proper certificate.

Opinion by

Pratt, J.


text:
    Jane Montgomery, Appellant, v. The Long Island Railroad Company, Respondent.
   — Order setting aside verdict reversed and judgment for plaintiff upon the verdict, with costs of appeal.

Opinion by

Barnard, P. J.


author: Barnard, P. J.;

text:
    Miles W. Olmsted, Appellant, v. Asa Dolan, Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    In the Matter of the Petition of Edward B. Underhill and others, for the Drainage of Swamp Lands, etc.
   Order affirming report of drainage commissioners affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    The Nyack and Warren Gas-Light Company, Respondent, v. The Tappan Zee Hotel Company, Appellant.
   — Order reversed, without costs, upon condition that no action he brought on the undertaking of respondent.

Opinion by

Pratt, J.


text:
    Ludlow W. Valentine, an Infant, etc., Respondent, v. Matilda A. Richardt, Appellant.
   Order appointing receiver affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Ludlow W. Valentine, an Infant, etc., v. Hermann T. Richardt, Respondent.
   Order vacating order of arrest reversed, with ten dollars costs and disbursements.

Opinion by

Dykman, J.


text:
    James Monaghan, Respondent, v. George T. Woolsey, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    Matter of Petition of New York and New Haven Railroad Company for Commissioners to Condemn Land.
   Order appointing commissioners affirmed, with costs and disbursements.

Opinion by

Pratt, J.;

Dykman, J., not sitting,


text:
    In the Matter of the Final Accounting of Benjamin Laramie, Administrator.
   — Decree modified in accordance with opinion, without costs of appeal.

Order to be settled by Barnard, P. J.

Opinion by

Barnard, P. J.


text:
    The People of the State of New York v. Charles D. Sutton.
   Conviction and judgment affirmed.

Opinion by

Pratt, J.


text:
    Walter M. McKinney, an Infant, etc., Respondent, v. The Long Island Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    Josephine McQuade, as Administratrix, Respondent, v. William Adams, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Mary Deegan, Administratrix, Appellant, v. William Cappel, Respondent.
   — Judgment and order denying new trial reversed and new trial granted, costs to abide event.

Opinion by

Dykman, J.


text:
    Katharine A. Anderson, Individually, etc.. Respondent, v. Weeks W. Culver and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    William P. Fiero, Appellant, v. James P. Paulding and another, Respondents.
   Order reversed, with costs and disbursements.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting


text:
    Richard D. Alliger, Respondent, v. The Brooklyn Daily Eagle, Appellant.
   — Judgment and order denying hew trial affirmed, with costs.

Opinion by

Pratt, J.;

Dykman, J., dissenting.


text:
    Hattie S. Crowell v. Henry E. Wells.
   — Order confirming referee’s report affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Elizabeth J. Osborne, Respondent, v. The New York Mutual Insurance Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    Charles Welde, Appellant, v. Sarah H. Henderson and another, Respondents, and three other cases.
   Judgment in each of these cases reversed and a new trial granted, costs to abide event.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Ida L. Tooker, Respondent, v. John S. Ackerly, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Benjamin Tuthill, Appellant, v. Josiah Felter, Respondent, Impleaded, etc.
   Order changing place of trial affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    Charles Raht, Executor, etc., Plaintiff, v. Henry Y. Attrill and others, Defendants.
   Order affirmed, with costs and disbursements.

Opinion by

Dykman, J.


text:
    John M. Anderson, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Rudolph C. Dalzell, Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


author: Pratt. J.;

text:
    John W. Foulks, Respondent, v. Charles H. Foulks and others, Appellants.
   — Interlocutory judgment affirmed, with costs.

Opinion by

Pratt. J.;

Barnard, P. J., not sitting.


text:
    Emmeline Gallup, Respondent, v. James Henderson and others. Appellants.
   Judgment and order denying new trial and order denying new trial on ground ‘of newly-discovered evidence affirmed, with costs.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Henry Grauel v. Mary Soeller.
   Motion denied.


text:
    Jean Hirsch, Respondent, v. New York and Greenwood Lake Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.


text:
    The Village of Port Jervis, Respondent, v. Ernest M. Close, Appellant.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    John R. Hinz, Administrator, Respondent, v. John H. Starin, Appellant.
    order to be settled by Judge Dykman.
   Order modified in accordance with opinion;

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Jesse L. Ward and another, Respondents, v. De Witt C. Littlejohn, Individually and as Executor, etc., and others, Appellants.
   Order affirmed, with costs and disbursements.

Opinion by

Pratt, J.


text:
    Louisa C. Hoffkins, Respondent, v. The Manhattan Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.


author: Justice Pratt.

text:
    Phoebe A. Cousins, Respondent, v. The Third Avenue Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Justice Pratt.


text:
    James E. Hamel, Respondent, v. The Brooklyn and New York Ferry Company, Appellant.
   Judgment and order new trial with costs.

Opinion by

Pratt, J.


text:
    Alanson R. Simonson, Respondent, v. Alfred L. Simonson, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Mary F. Stouter, Respondent, v. The Manhattan Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.


text:
    Ambrose Lee and another, Respondents, v. John T. Briggs, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    The Fulton Bank of Brooklyn, Appellant, v. Herbert Chase and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    Stephen A. Perkins, Appellant, v. George D, Eighmie, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    The People of the State of New York ex rel. Denis Meehan, Appellant, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order reversed, with ten dollars costs and disbursements.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    In the Matter of Probate of George R. Jacott’s Will.
   —Judgment and decree reversed andnew trial granted, with costs to appellant on appeal; question of costs otherwise reserved until after trial.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Jerome B. Waas, Respondent, v. Benjamin F. Stephens, Appellant.
   — Judgment affirmed,with costs.

Opinion by

Barnard, P. J.


text:
    In the Matter of Probate of Charlotte Bennett’s Will.
   — Decree of surrogate affirmed, with costs.

Opinion by

Dykman, J.


text:
    Thomas W. Ludlow and another, as Executors, Appellants, v. John D. Gierhon, Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    Henry C. Brown, Respondent, v. The German-American Insurance Company, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    The Chester Rolling Mills, Appellant, v. The Vessels Hopatcong and Musconetcong, their Tackel, etc., Respondent.
   — Judgment reversed and new trial granted, costs to abide event.

Opinion by

Dykman, J.


text:
    The Phoenix Iron Company, Appellant, v. Same Vessels, Respondent.
   Judgment reversed and new trial granted, costs to abide event.

Opinion by

Dykman, J.


text:
    Josiah M. Favill, Respondent, v. C. Lawrence Perkins, Appellant.
   Order granting new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Charles McKeown and others, Respondents, v. John Officer, as Executor, etc., Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Mary A. Bolen, Respondent, v. George F. Bolen, Appellant.
   — Judgment affirmed,» with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John Good, Respondent, v. William S. Deland and another, Appellants.
   Judgment overruling demurrer to complaint affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    John D. Gierhon, Appellant, v. Thomas W. Ludlow, Respondent.
   — Exceptions sustained, order dismissing complaint reversed and new trial granted, costs to abide event.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Dykman J.

text:
    Alfred Roe and another, Appellants, v. Caroline A. Strong and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Dykman J.


author: Landon, J.

text:
    In the Matter of Clarissa Cook, a Lunatic.
   Orders modified by striking out finding as to the lunacy prior to date of inquisition, as so modified affirmed, without costs.

Opinion by

Landon, J.


author: Ingalls, J.

text:
    James Cook, Respondent, v. The Village of Waterford, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Ingalls, J.


author: Learned, P. J.

text:
    Charlotte Peek, Appellant, v. The Fonda, Johnstown and Gloversville Railroad Company, Respondent.
   Order modified so that the verdict is set aside and new trial granted on payment by defendant to plaintiff of costs and disbursements of former trial and of motion. As modified affirmed, without costs of this court.

Opinion by

Learned, P. J.


text:
    The People of the State of New York, Appellant, v. Albert Dubois, Respondent.
   Judgment of Court of Sessions affirmed.

Opinion by

Ingalls, J.


author: Learned P. J.;

text:
    Robert Hans, Respondent, v. Troy and Sandlake Turnpike Company, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event.

Opinion by

Learned P. J.;

Ingalls, J., not voting.


text:
    Charles Kerr, Appellant, v. West Shore Railroad Company, Respondent.
   Judgment affirmed, with costs on opinion below.


author: Learned. P. J.

text:
    George Hotis, Respondent, v. The New York Central and Hudson River Railroad, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event.

Opinion by

Learned. P. J.


text:
    Mary R. Stoddard, Respondent, v. Charles S. Weston and others, Appellants.
   — Judgment reversed, new trial granted. Costs to abide event.

Opinion by

Learned, P. J.


text:
    Luke Cox, Appellant, v. The Albany Brewing Company, Respondent.
   — Judgment reversed, new trial granted, costs to abide event.

Opinion by

Landon, J.


author: Ingalls. J.

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

Opinion by

Ingalls. J.


text:
    Augusta J. Currier, Respondent, v. The Ogdensburgh and Lake Champlain Railroad Company, Appellant.
   — Judgment and order affirmed, with costs.

Opinion by

Ingalls, J.


text:
    Rawley Williams, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   — Judgment and order reversed. new trial granted, costs to abide event.

Opinion by

Learned, P. J.


text:
    Catharine McGovern, as Administratrix, etc., Appellant, v. The Central Vermont Railroad Company, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Landon, J.


text:
    In the Matter of the Final Accounting of Cornelius Swart and others, Executors.
   — Decree affirmed, with costs.

Opinion by

Ingalls, J.


text:
    Zacheus E. Ladd, Respondent, v. Sylvester French, Appellant.
   Judgment affirmed, with costs.

Opinion by

Learned, P. J.


text:
    Crown Point Iron Company, Respondent, v. Boatman’s Fire and Marine Insurance Company, Appellant. Same v. Pennsylvania Insurance Company of Pittsburg, Appellant. Same v. Hamburg-Bremen Fire Insurance Company, Appellant. Same v. The Lancashire Insurance Company, Appellant Same v. The People’s Insurance Company, Appellant.
   — Judgments reversed, new trials granted, referee discharged, costs to abide event in each action.

Opinion by

Learned, P. J.


text:
    See case of
    Crown Point Insurance Company, Respondent, v. Ætna Insurance Company, Appellant.
   Decided with the above five cases and reported, ante, page 820.


author: Brady, J.

text:
    The People of the State of New York v. Michael Brien.
   Judgment reversed and new trial ordered.

Opinion by

Brady, J.


author: Van Brunt, P. J.

text:
    William H. Kennagh, Appellant, v. Elizabeth McColgan, as Executrix, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


author: Van Brunt P. J.

text:
    Sophia Lochner, Respondent, v. Elizabeth Maas and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt P. J.


author: Van Brunt. P. J.

text:
    William H. Wiltshire v. Jerome F. Manning
   Order reversed and order of substitution granted, without costs.

Opinion by

Van Brunt. P. J.


text:
    Henry Amy v. Jerome F. Manning.
   Order reversed and order of substitution granted, without costs.

Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York ex rel Patrick McAleer v Stephen B. French and others.
   Writ dismissed, without costs.

Opinion by

Van Brunt, P. J.


author: Daniels J.

text:
    The People of the State of New York, Respondent, v. The North River Sugar Refining Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels J.


author: Opinion by Daniels, J.

text:
    The First National Bank of Marietta, Pa., Respondent, v. Brunswick Chemical Works and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by Daniels, J.


author: Daniels, J.

text:
    In the Matter of the Application of Charles James Phalen, etc.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    John D. Elwell v. Cyprien Fabre.
   — Motion for reargument denied, witn costs.


text:
    In the Matter of the Petition of Alfred Weber.
   Order affirmed, without costs.

Opinion by

Daniels, J.


text:
    In the Matter of the Petition of John D. Wendell.
   — Order affirmed,with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    In the Matter of the Petition of William Fitzpatrick.
   Order affirmed, without costs.

Opinion by

Daniels, J.


text:
    In the Matter of the Petition of Frederick Schloman.
   Order affirmed, without costs.

Opinion by

Daniels, J.


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

text:
    Adella L. Hardy, Respondent, v. Frank Hardy, Appellant.
   Order modified by reducing monthly payment to $100, and as so modified affirmed, without costs of the appeal.

Opinions by

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


text:
    John L. Macaulay, as Surviving Partner, etc., Appellant, v. Joseph R. Palmer and another, Respondents.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    George Munro, Appellant, v. Ormond G. Smith and others, Respondents.
   — Case sent back for further consideration of the application for an allowance.

Opinion by

Brady, J.


text:
    William H. Mollenbrock, as Executor, etc., Appellant, v. Adam Meinhard, Respondent.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Pauline Heckeman v. David B. Young.
   — Motion granted.


text:
    Dorinda Armstrong and others, Plaintiffs, v. Ascher Weinstein, Defendant.
   — The purchaser should be released from his purchase, and should have judgment for his $500 and interest, without costs.

Opinion by

Van Brunt, P. J.


text:
    The Leather Manufacturers’ Bank, Appellant, v. Laura P. Halsted, Respondent, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Benjamin Knower and others, Appellants, v. The Central National Bank, Respondent, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Robert A. Cheseborough, Respondent, v. Charles H. Kimberly, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Brady, J.


text:
    Joseph Ferber, Respondent, v. Joseph H. Lester, Jr., and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Brady, J.


text:
    Joseph Ferber, Respondent, v. William Smith and others, Appellants.
   — Judgment affirmed, with costs.

Opinion by

Brady, J.


author: Van Brunt, P. J.;

text:
    George C. Winchester, Respondent, v. T. Quincy Browne, Appellant.
   Order affirmed, without costs.

Opinion by

Van Brunt, P. J.;

dissenting opinion by Daniels, J.


text:
    George C. Winchester, Respondent, v. T. Quincy Browne, Appellant.
   — Order reversed, with ten dollars costs and disbursements.


text:
    Stephen M. Chester, Respondent, v. Francois Henry Jumel and others, Appellants.
   Motion denied, with ten dollars costs and disbursements.


text:
    Bertha E. Martin, as Administratrix, etc., v. Spencer C. Platt and others.
   — Motion denied.


text:
    Lewis S. Chase, Respondent, v. Herbert Foote Beecher, Appellant, Impleaded, etc.
   Order reversed with ten dollars costs and disbursements.

Opinion by

Brady, J.


text:
    In the Matter of Freeman, J. Fithian, Deceased.
   Decree affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Charles G. Stevens and others, Trustees, etc., Respondents, v. John L. Melcher and others, Executors, etc, Appellants.
   —Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    Hiram B. Aylsworth, Respondent, v. James Gallagher, Appellant.
   — Motion denied.


text:
    Ormond G. Smith and others, Appellants, v. John S. Ogilvie, Respondent.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Mary McCabe, as Administratrix, Respondent, v. The Manhattan Railway Company, Appellant.
   — Judgment affirmed, with costs.


author: Brady. J.

text:
    Glen Cove Manufacturing Company, Appellant, v. Leopold Sutro, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Brady. J.


author: Bartlett, J.

text:
    Alice M. Barrowcliffe, Respondent, v. Henry Cummins and others, Appellants.
   Order affirmed, with costs and disbursements.

Opinion by

Bartlett, J.


author: Barrett, J.

text:
    John E. Risley, Respondent, v. James C. Jewett, Appellant.
   Order affirmed, with ten dollars costs and disbursements of the appeal.

Opinion by

Barrett, J.


text:
    S. Skiddy Cochran and others, Appellants, v. William A. Wiechers, Impleaded, etc., Respondent.
   Order reversed, with ten dollars

costs and disbursements, and an order entered reviving the action as against the personal representatives of the deceased defendant.

Opinion by

Van Brunt, P. J.


text:
    James Chaskel, Appellant, v. The Metropolitan Elevated Railway Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


text:
    The United States Life Insurance Company, Respondent, v. George W. Poillon, Appellant, impleaded, etc.
   Order reversed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


text:
    Robert F. Minto and others, Respondents, v. August Baur and others, Appellants.
   Order modified as directed in opinion, without costs of this appeal.

Opinion by

Barrett, J.


text:
    In the Matter of the Petition of George W. McClean, Receiver of Taxes, etc.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


author: Per Curiam.

text:
    In the Matter of the Probate of the Last Will and Testament of William Darling, Deceased. Amelia Delacroix, Respondent, v. Catherine Lefferts, Appellant.
   — Decree affirmed, with costs.

Opinion

Per Curiam.


text:
    Fannie Fruhauf, Respondent, v. Henry M. Bendheim, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Bartlett, J.


text:
    Martin V. B. Smith, Respondent, v. Elizabeth J. Clarendon and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Bartlett, J.


text:
    Martin V. B. Smith, Respondent, v. Matthew E. Clarendon and others, Appellants.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


text:
    William W. Averell, Respondent, v. Amzi L. Barber and others, Appellants.
   The interlocutory judgment should be affirmed as to all the appellants, except the Barber Asphalt Paving Company, and so far as that corporation is concerned should be reversed, 'with costs.

Opinion by

Bartlett, J.


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

text:
    Samuel McElroy, Respondent, v. The Continental Railway Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinions by

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


text:
    Mary R. Van Campen, Appellant, v. John B. Ford, Individually, and as Executor, etc., Respondent.
   — Judgment affirmed, with costs.

Opinion by

Barrett, J.


text:
    Kate F. Brown, Respondent, v. J. Warren Lawton, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Barrett, J.


author: Barrett J.

text:
    Robert J. Hoguet and others, Respondents, v. Joseph Berkman and others, Appellants.
   Judgment and order reversed and new trial granted, with costs to the appellants to abide event.

Opinion by

Barrett J.


text:
    The Importers and Traders’ National Bank, Respondent, v. Henry S. Burger and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Barrett, J.


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

text:
    Samuel Jacoby, Respondent, v. Stephenson Silver Mining Company, Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Opinions by

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


text:
    Irene Pinto de Carrillo, Respondent, v. Enrique Carrillo, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    Mary Williams, Respondent, v. Cornelius Williams, Appellant.
   Judgment modified as specified in opinion, and as modified affirmed, without costs of this appeal.

Opinions by

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


text:
    Lorenzo D. Blanchard, Appellant, v. Hoboken Land and Improvement Company, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Christian Tobias and others, Appellants, v. Lazaraus Lissberger, Respondent.
   Judgment reversed and new trial ordered, .with costs to the appellants to abide event. Opinion by

Daniels, J.


text:
    Farmers’ Loan and Trust Company, Respondent, v. The Bankers and Merchants’ Telegraph Company and others, Appellants (In the Matter of Roebling).
   Order affirmed, with costs.

Opinion

Per Curiam.


text:
    In the Matter of the Claim of Sarah Bertholf, Appellant, v. Alfred Carr, Executor, etc., Respondent.
   Order affirmed.

Opinion

Per Curiam.


author: Bartlett, J.;

text:
    Mary Fiske Paget, Appellant, v. Sarah Theresa Pease and others, Respondents.
   Order affirmed, with costs.

Opinion by

Bartlett, J.;

Macomber, J., dissents.


text:
    Foo Long, Respondent, v. Chu Fong, Appellant
   — Judgment reversed and new trial granted, with costs to appellant to abide event.

Opinion by

Bartlett, J.


text:
    The People of the State of New York ex rel. John Irving v. Stephen B. French and others, Commissioners, etc.
   The proceedings affirmed and writ of certiorari dismissed, with costs.

Opinion by

Bartlett, J.


text:
    Julius J. Frank, Respondent, v. Edward A. Davis, Appellant.
   — Judgment directing the foreclosure and sale of the property affirmed, with costs.

Opinion by

Bartlett, J.


text:
    Catherine McIntyre, Appellant, v. Patrick Costello and others, Respondents.
   Judgment reversed and new trial granted, with costs to appellant to abide event.

Opinion by

Bartlett, J.


author: Opinion by Cullen, J.

text:
    Polly Bogert v. David J. Bogert.
   — Motion for reargument denied, with costs.

Opinion by Cullen, J.


author: Cullen, J.

text:
    Henry Clews and others, Appellants, v. Cornelius Rielly, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Cullen, J.


text:
    David Miller, Respondent, v. Sarah F. Mead, Appellant.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


author: Van Brunt, P. J.

text:
    Annie Konba, Respondent, v. Maria Horacek, Appellant.
   — Judgment reversed and new trial ordered, with costs to the appellants to abide event.

Opinion by

Van Brunt, P. J.


text:
    Frances H. Duclos and others, Appellants, v. Mary S. Benner, Individually and as Executrix, etc., Respondent.
   — Order reversed and petition dismissed, without costs.

Opinion by

Van Brunt, P. J.


author: Daniels and Brady, JJ.

text:
    James A. Webb, Respondent, v. John S. Pryer, Appellant, Impleaded, etc.
   — Judgment affirmed.

Opinions by

Daniels and Brady, JJ.


text:
    John G. Farnsworth, Receiver, etc., Respondent v. The Western Union Telegraph Company Appellant.
   — Judgment and order reversed and new trial ordered, with costs to the defendant to abide event.

Opinion by

Daniels, J.


text:
    Leopold Loeb, Appellant, v. Augustus T. Chur and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    James A. Waddell, Respondent, v. Abraham Greenhall and another, Appellants.
   Judgment reversed, and new trial ordered, with costs to the appellant to abide event.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Accountings of Executors and Executrix of Paran Stevens, Deceased.
   Decree modified as directed in opinion, without costs to either party, and, as modified, affirmed.

Opinion by

Daniels, J.


text:
    In the Matter of the Accountings of Executors and Executrix of Paran Stevens, Deceased.
   Appeal from order dismissed, without costs.

Opinion by

Daniels, J.


text:
    In the Matter of the Accountings of Executors and Executrix of Paran Stevens, Deceased.
   Order reversed and decree modified so as to exclude the items from it upon which the referee has made and declared his decision, without costs to either party.

Opinion by

Daniels, J.


author: Ingraham, J.

text:
    Samuel W. Nash, Jr., Respondent, v. The Silver Lake Ice Company, Appellant.
   — Order affirmed, with ten dollars costs and disbursements,

on opinion of

Ingraham, J.


text:
    The Mayor, etc., of the City of New York, Respondent, v. George Law and others, Appellants.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


text:
    William H. Hussey, Respondent, v. Weeks W. Culver and another, Appellants.
   — Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    James W. Hill, Respondent, v. Margaret Haberkorn, Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide event.

Opinion by

Bartlett, J.


text:
    Charles Hauselt, Appellant, v. David Bonner, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    Joshua Hendricks and others, Plaintiffs, v. Amos Morrill and others, Defendants.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


author: Per Curiam,

text:
    Charles E. Simmons, Appellant, v. John Bigelow and others, Respondents.
   — Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam,


text:
    Charles Hauselt, Appellant, v. David Bonner, Respondent, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements, and motion to vacate taxation granted, without costs and without prejudice to the application suggested in opinion.

Opinion

Per Curiam.


text:
    Henry Degener, Appellant, v. Mary S. Stiles, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    Hermann Koehler, Appellant, v. The Farmers and Traders’ National Bank, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


text:
    Ichabod T. Williams and others, Plaintiffs, v. Charles C. Colby and others, Defendants.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.


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

text:
    Lucy F. Wyman, Appellant, v. The Phoenix Mutual Life Insurance Company, Respondent.
   Judgment reversed, new trial ordered, costs to appellant to abide event.

Opinions by

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


text:
    Henry W. Gray, Respondent, v. George T. Green, Appellant.
   Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


author: Yan Brunt, P. J.

text:
    James Lyle, Respondent, v. The Manhattan Railway Company, Appellant.
   — Judgment affirmed,, with costs.

Opinion by

Yan Brunt, P. J.


text:
    Alicia F. Goodwin and others, Respondents, v. Thomas O’Brien, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Van Brunt, P. J.


text:
    Gerritt Smith, Respondent, v. Cornelius J. Dumond, Appellant.
   Judgment reversed, new trial ordered, costs to appellant to abide event.

Opinion by

Van Brunt, P. J.


text:
    In the Matter of George Hoffman.
   — Order affirmed.

Opinion by

Bartlett, J.


text:
    In the Matter of Max Weil.
   Order affirmed.

Opinion by

Bartlett, J.


text:
    In the Matter of the Application of Robert C. Reeves, Sole Executor, etc., of Abraham Denike, Deceased.
   — Decree reversed, so far as-it directs the payment of $2,000 apiece to the residuary legatees; that portion thereof which fixes the referee’s fees at $132.79 also reversed and the matter of the referee’s fees remitted to surrogate for retaxation; in other respects decree affirmed, but the executor should be allowed his costs and disbursements on this-appeal to be paid out of the estate.

Opinion by

Bartlett, J.


text:
    Elizabeth Fislier, Respondent, v. William Rankin, Appellant.
   Motion for reargument granted.


text:
    John Hanson, Appellant, v. Burton G. Winton, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Bartlett, J.


text:
    Henry J. Burchell, Plaintiff, v. Susannah Osborne and others, Defendants.
   Order of Special Term affirmed, so far as it awards the payment of the Fay mortgage, and in other respects-reversed as directed in opinion.

Opinion by

Bartlett, J.


text:
    Julius Leszynsky, Respondent, v. Samuel H. Leszynsky, Appellant.
   — Judgment affirmed,, with costs.

Opinion by Bartlett, J.


text:
    Fritz Grossman, Respondent, v. Supreme Lodge, etc., Knights of Honor, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Bartlett, J.


text:
    The Bowery National Bank, Plaintiff, v. Catharine Sniffen, Defendant.
   — Reargument ordered.


text:
    William D. Shipman and others, Respondents, v. The Bank of the State of New York, Appellant.
   — Order affirmed, with ten dollars costs- and disbursements.

Opinion by

Cullen, J.


text:
    James M. Horton, Respondent, v. William H. Childs, Appellant.
   — Reargument ordered.


text:
    Lewis J. Powers, Respondent, v. Henry D. Clarke, Appellant.
   — Judgment reversed and new trial ordered, with costs to the appellant to abide-event.

Opinion by

Van Brunt, P. J.


text:
    Stephen L. Bartlett, Respondent, v. Edward Sutorius, Appellant.
   — Judgment reversed. and new trial ordered, with costs to appellant to abide event.

Opinion by

Van Brunt, P. J.


text:
    Milton P. Palmer, Respondent, v. Mary A. Dunham and others, Appellants.
   Decree modified as to require a bona m the penal sum of $50,000 instead of $25,000, and as thus modified affirmed, with costs.

Opinion by

Bartlett, J.


text:
    The People of the State of New York ex rel. Michael Monaghan v. Stephen B. French and others.
   Proceedings affirmed and writ quashed, with costs.

Opinion by

Van Brunt, P. J.


author: Macomber, J.

text:
    Charles Wood, Appellant, v. William Mitchell, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Macomber, J.


text:
    Louis Zimmer, Respondent, v. The Brooklyn Sub-railway Company, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event.

Opinion by

Van Brunt, P. J.


text:
    Eugene Kelly, Respondent, v. Jay Gould and others, Appellants.
   — Interlocutory judgment affirmed, with costs, upon opinion of court below, with leave to defendants to withdraw their demurrer and answer within twenty days-on payment of the costs of the appeal and of the court below.

Opinion

Per Curiam.


text:
    John V. Lewis, Respondent, v. Wallace C. Andrews, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Bartlett, J.


text:
    Jacob Scholle and others, Individually and as Executors, Respondents, v. The Mayor, etc., Appellant.
   — Judgment affirmed, -with costs

Opinion by

Bartlett, J.


author: Hardin, P. J.

text:
    The Central Trust Company of New York, Respondent, v. Syracuse and Binghamton Railroad Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Hardin, P. J.

Mem. by Martin, J.


author: Martin, J.

text:
    The Board of Health of the Town of Kortright, Plaintiff, v. Stephen Cease, Defendant.
   Motion granted and a new trial ordered, with costs to abide the event.

Opinion by

Martin, J.


text:
    Hannah M. Van Epps, Respondent, v. Simon Clock and John Wells, Appellants.
   — Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


author: Merwin, J.

text:
    Jacob Ackerman and others, Appellants, v. James O’Gorman, Respondent, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements and motion of defendant denied.

Opinion by

Merwin, J.


text:
    Charles H. Hart, Respondent, v. John F. Ryan and others, Appellants.
   Judgment and order

affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    The People of the State of New York, Respondent, v. Stanley Morehouse, Appellant.
   Judgment and order affirmed and the clerk directed to enter judgment and remit a certified copy with the return and decision of this court to the Court of Sessions of Chemung county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.

Opinion by

Martin, J.


author: Merwin, J.;

text:
    Augustus G. Wood and another, appellants, v. James Carleton, Respondent.
   Judgment reversed on the exceptions and a new trial ordered before another referee, with, costs to abide the event.

Opinion by

Merwin, J.;

Mem. by Hardin, P. J.


text:
    In the Matter of the Petition for the Sale of the Real Estate of David Merchant, Deceased, for the payment of debts and funeral expenses.
   Decree of the surrogate of Oswego county modified, by reducing the debt of Warren Merchant, as fixed by the decree, to the sum of $727.21, and as so modified affirmed, without costs of this appeal to either party against the other.

Opinion by

Merwin, J.


text:
    Jacob Deach, Respondent, v. William H. Perry, Appellant.
   — Judgment reversed and a new trial ordered before another referee, with costs to abide the event, unless the plaintiff shall stipulate to reduce the report ancf judgment by striking out the sum of foui dollars and fif cy cents, and the interest thereon, from the date of the referee’s report, in which event the report and judgment, as so modified, are affirmed, without costs of this appeal to either party.

Opinion by

Hardin, P. J.


text:
    John M. Olmstead, Respondent, v. Robert S. Rich and Stephen W. Rich, Appellants.
   Judgment affirmed, with costs.

Opinion by

Merwin, J.


author: Hardin P.J.

text:
    Mary Fox, Appellant, v. The Onondaga County Savings Bank, Respondent.
   — Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.

Opinion by

Hardin P.J.


author: Williams, J.,

text:
    Caroline C. Piper, Respondent, v. John L. Hoard, Appellant.
   Judgment affirmed, with costs, on the opinion of

Williams, J.,

delivered at Special Term.


text:
    Charles Cleveland, Respondent, v. The New Jersey Steamboat Company, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Hardin, P. J.


author: Parker, J.,

text:
    Bernard Ryan, Respondent, v. Syracuse, Binghamton and New York Railroad Company, Appellant.
   — Judgment and order affirmed, with costs, on the opinion of

Parker, J.,

delivered at Special Term.


author: Hardin, P.J.;

text:
    Margaret Dexter, Respondent, v. Randolph Beard, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Hardin, P.J.;

Merwin, J., not sitting.


author: Martin. J.

text:
    Henri M. Braem and others, Appellants, v. The Merchants’ National Bank of Syracuse, Respondent.
   Judgment affirmed, with costs.

Opinion by

Martin. J.


text:
    Edwin Wallace and others, Appellants, v. James R. O’Gorman and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Merwin, J.


text:
    Henry Mackey and another, Respondents, v. Julia A. Webb, Appellant.
   — Judgment of Jefferson County Conrt affirming the justice’s judgment affirmed, with costs.

Opinion by

Martin, J.


text:
    James L. McMullin, Respondent, v. John Mackey, Appellant.
   Judgment of the County Court of Jefferson county, and that of the Justices’ Court, reversed, with costs.

Opinion by

Merwin, J.


text:
    Maria E Woodman, Respondent, v. Thomas D. Penfield, as Sheriff, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Martin, J.


text:
    Lanie M. Petrie, Respondent, v. Morgan Petrie, Appellant, Impleaded, etc.
   — Order affirmed, with costs.

Opinion by

Merwin, J.


author: Hardin, F. J.

text:
    The Board of Supervisors of Oswego County, Respondent, v. Charles E. Betts, Appellant.
   Judgment affirmed, with costs.

Opinion by

Hardin, F. J.


text:
    Eunice House, Appellant, v. Orlando Howell and others, Respondents.
   — Judgment affirmed, with costs.

Opinion by

Martin, J.


text:
    John Hastings, Respondent, v. The New York, Ontario and Western Railway Co., Appellant.
   Judgment of the Delaware County Court af-affirmed, with costs.

Opinion by

Merwin, J.


text:
    Wesley B. Holmes and another, Appellants, v. Harvey Young, Respondent.
   — Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Charles H. Hudson, Respondent, v. James K. Spaulding and others, Appellants.
   Judgment reversed on the exceptions and a new trial ordered before another referee, with costs to abide the event.

Opinion by

Merwin, J.


text:
    Henry R. Kenyon and George H. Kenyon, Respondents, v. Enoch Covert and Thomas G. Miller, Appellants.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    George W. Parshall, Respondent, v. Mary Ann Smith, Appellant.
   — Judgment of tho County Court of Otsego county, affirming the justice’s judgment, affirmed, with costs.

Opinion by

Martin, J.


text:
    Francis M. Robinson, Respondent, v. Charles W. Smith and another, Appellants.
   — Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Bernard H. Smith, Respondent, v. The City of Utica, Appellant.
   Judgment of the County Court of Oneida county affirmed, with costs.

Opinion by

Martin, J.


text:
    George Van Gorden, Respondent, v. Allen B. Sackett, Appellant.
   Judgment of the County Court of Schuyler county affirmed, with costs.

Opinion by

Merwin, J.


author: Martin, P. J.

text:
    The People of the State of New York v. E. Remington & Sons (In the Matter of the Claims of Thomas Ringwood and others).
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Martin, P. J.


text:
    James G. Kitchen, Appellant, v. Samuel S. Lowery and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Merwin, J.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE PRESIDENT, MANAGERS AND COMPANY of the DELAWARE AND HUDSON CANAL COMPANY, Lessee of the ALBANY AND SUSQUEHANNA RAILROAD, and of the CHERRY VALLEY, SHARON AND ALBANY RAILROAD, Relator, Appellant, v. ABRAM BECKER, DANIEL SIMMONS and JOHN VAN VALKENBURGH, Assessors, and DURYEA HARPER, Clerk of the Town of Sharon, Schoharie County, N. Y., Defendants, Respondents. SAME, Appellant, v. PETER TRAVER and Others, Assessors, CALVIN KILTS, Clerk of the Town of Seward, Schoharie County, N. Y. Respondents.

      Review of assessment under eha/pt&r 269 of 1880 — extent of the review and, how determined.

    After a writ of eertiorm'i had been issued, under chapter 269 of 1880, to review an assessment of the relator’s property, the respondents moved on notice to modify the order and the writ so that it would not require any return as to the inequality of the assessment in question, as compared with other assessments, and so as to prevent the relator from raising on the return or in the proceedings any other question than that of the legal exemption from taxation conferred by chapter 255 of 1860.

      Affidavits of tlie assessors and tlieir .clerk were used on tlie motion, which stated that no question was raised before the assessors except that as to the relator’s right to exemption. This was denied by an affidavit made by a clerk in the office of the relator’s attorney.
    The petition for the writ stated that the assessment was illegal, and based such claim on the right to exemption as well as upon an unequal valuation.

      Held, that the act of 1880 gave an entirely new relief.
    That it provided not alone for a mere review of the action of the assessors, but for the examination of the whole matter, and for what was practically a new assess, ment by the Supreme Court in case the relator showed that he was aggrieved.
    That it provided for a rehearing upon new evidence, and that the return of the assessors was not conclusive in the matter.
    That the respondents had, in the present instance, attempted to limit the effect of the writ by proof made by affidavits, with which the affidavit of the relator was in conflict, and that the matter should not be determined in this summary manner.
    That the question as to what should be the extent of the relief given by the court was one affecting the merits, and should properly be determined on the return to the writ and on the evidence taken in the proceeding.
    Appeal by the relator from an order of a Special Term field in the county of Albany, wfiicfi was entered in the office of the clerk of Schoharie county on January 22, 1889.

      Edwin Eotmg, for the appellant.

      Hobart Krum, for' the respondents.
   Learned, P. J.:

In' each of these two cases a writ of certiorari, under chapter 269, Laws of 1880, had been issued to review assessments of relator’s property.

The defendants moved, on notice, to modify the order and the writ, so as not to require any return as to the inequality of the assessment in question, as compared with other assessments, and so as to prevent the relator from raising, on the return or in the proceedings, any other question than that of the legal exemption from taxation under chapter 255, Laws of 1860. The order and writ were so modified and the relator appeals. The affidavits of the relator which had been presented to the assessors had been used on the motion. The affidavits of the assessors and the clerk were produced, stating that no question was raised before them except that of exemption, and that no claim of unequal assessment was made. In opposition, an affidavit of a clerk in the office of relator’s attorney was produced, stating that he did also protest against the assessment as illegal by reason of over-valuation.

It would seem that the learned justice who modified the order must have held that the weight of the evidence was that no objection was taken other than that of absolute exemption. It may be admitted that that is the prominent matter in the affidavits used before the assessors. The petition for the writ of cerUotcvri states the alleged illegality as based on the exemption claimed, and also on the unequal valuation. The act of 1880, above mentioned, undoubtedly gave an entirely new relief. It did not provide for a mere review of the action of the assessors, but for an examination of the whole matter, and for what was practically a new assessment by the Supreme Court, in case the relator showed that he was aggrieved. There was to be a rehearing on new evidence, and the return of the assessors was not to be conclusive on the matter. The act was undoubtedly passed because the legislature saw that the action of assessors was often arbitrary, and that under existing laws there was no redress against the most unjust assessments. It was a remedial statute, and while it may impose some labor on the court, it has already operated to redress injustice, and probably in some degree to prevent unequal assessments

In the enforcement of the rights given by this act, it may, perhaps, be a sound principle that the court shall refuse relief where the relator has not made his claim at the proper time to the assessors themselves. It may be reasonable that the court should require -that the aggrieved party should first seek his redress from the assessors, so that they may have the opportunity to correct any error which they have made, and that the court may not be unnecessarily burdened. (People ex rel. U. M. Tel. v. Comrs., 99 N. Y., 254; People ex rel. Hoffman v. Osterhoudt, 24 Weekly. Dig., 101.)

That, however, is not a condition laid down in the statute, which specifies the cases in which the writ shall be granted. And we do not think it necessary to decide that question on this appeal. The defendants have, in the present instance, limited the effect of the writ by proof made by affidavits ; and these affidavits are in conflict, with the affidavit of the relator. It seems to us that this matter should not be determined in this summary manner. The question what shall be the extent of the relief given by the court is one affecting the merits. It should properly be determined on the return to the writ and on the evidence taken in the proceeding. If this were only the ordinary writ of certiorari, the court would not determine what relief it should grant until it had heard the return. It would not limit the matters to be returned, as has beeen done in this instance. Still more when, under this writ, the court does not merely review the proceedings upon the proof before the assessors, but takes new and independent proof, it would seem best that all the proof should be produced which the parties can show to be proper. Indeed, the circumstance that new proof is to be taken by the court would seem to lessen the force of the rule above-mentioned, that objections must be made in the first instance, before the assessors. For if this court is to investigate for itself, in any case, the matter of unequal assessment, it does not seem that much can be gained by having the party ask the assessors not to assess him unjustly. If some peculiar privilege or right were to be asserted, there would be more reason for calling the attention of the assessors to it. But the duty of making an equal assessment is well known to the assessors; and the party is not limited, in this writ,, to the evidence which he produced before them. As he is not limited to that evidence, the argument of the defendants seems to-be simply that he must object to the assessors that his assessment is too high in proportion to others. And such objection would seem to be of no special use. But, without passing on the question which may come up when these writs shall be heard on the evidence taken in this court, we are of the opinion that the writs themselves should not be limited, as has been done by the orders appealed from.

Order modifying writs should be reversed, with ten dollars costs and printing disbursements,'and motion to modify denied, with ten dollars costs in each case.

Putnam and Fish, J J., concurred.

Order modifying writs reversed, with' ten dollars costs and printing disbursements, and motion to modify writs denied, with ten dollars costs in each case.


text:
    ANNA M. CLARK, Appellant, v. PERRY W. ELDRED, Respondent.

      Referee’s report set aside because of the misconduct of the referee.

    Upon an appeal by tbe plaintiff from an order of tlie .Rensselaer County Court, granting a new trial on tbe ground of misconduct on tbe part of tbe referee, wbo bad reported in favor of tbe defendant for costs, it appeared that tbe alleged improper conduct of the referee consisted in drinking liquor with tbe defendant, at bis expense, in saloons, while tbe reference was pending, and in altering bis report after it bad been delivered to tbe defendant's attorneys. Tbe court imposed as a condition of setting aside tbe report, that if tbe plaintiff should be successful upon tbe merits upon a new trial, sbe should credit the defendant, on tbe judgment or any execution issued thereon, with the sum paid by him for referee’s and stenographer’s fees on tbe first trial.

      Held, that tbe court was fully justified in setting aside tbe report.
    That, as tbe ground on which it was set aside was, to some extent at least, chargeable against tbe defendant, that tbe portion of tbe order appealed from which imposed tbe condition as to paying referee’s and stenographer’s fees, should be stricken out.
    That the order was appealable under section 1340 of tbe Code of Civil Procedure, as amended by chapter 507 of 1888.
    Appeal by tbe plaintiff from an order of the Rensselaer County Court, which was entered in the office of the clerk of Rensselaer county on the Uth day of June, 1889.
    The appeal is taken from that portion of the said order which read as follows, to wit: Except that it is further ordered, as a condition of granting a new trial herein, that if the plaintiff shall hereafter be successful and_ recover a judgment upon the merits thereof against the defendant in said action, upon a new trial’ thereof, plaintiff shall credit the defendant upon said judgment, or any execution issued thereon, the sum paid out by him for referee’s and stenographer’s fees on said first trial, in reduction of said final judgment in favor of the plaintiff.

      H. A. King, for the appellant.

      D. M. Westfall, for the respondent.
   Learned, P. J.:

The opinion in Reilley v. Delaware and Hudson Canal Company (102 N. Y., 383), gives two reasons for its conclusion; one that no order had been entered in the County Court. If no order had been, in fact, entered, then, of course, there was no occasion justifying a decision that such order could not be reviewed. The other reason was that an order granting or refusing a new trial was not an order affecting a substantial right. (Code Civil Pro., § 1340.) This decision made it necessary for the legislature to express its meaning more clearly. And it did so by chapter 507, Laws of 1888, amending section 1340 Code Procedure. Since that amendment it would be difficult for the Court of Appeals to deny the right of appeal under that section. (Ithaca, Agl. Works v. Eggleston, 107 N. Y., 277.) With this section thus amended, and with section 1342 as amended in 1881, chapter 135, we think that the present appeal lies to this court. (Cramer v. Lovejoy, 41 Hun, 581; Gray v. Fisk, 53 N. Y., 630.)

We think, also, that there are cases where the terms imposed on granting relief may be so contrary to those established by law and practice as to justify a review in this court. (O'Brien v. Long, 49 Hun, 81.) The order of the County Court granted a new trial on the ground of misconduct of the referee. He had reported in favor of the defendant for costs. The court imposed as terms that if the plaintiff should be successful on the merits upon a new trial, she should credit the defendant on the judgment and execution with the sum paid by him for referee’s fees and stenographer’s fees on the first trial. There are two constructions which may be given to this order. One is that the plaintiff, if successful, would, on final judgment, include in her costs the referee’s fees and stenographer’s fees on the former trial, and, therefore, that the defendant should not pay these twice. The other is that the plaintiff would not include these sums in her costs and that the defendant would offset what he had paid for the referee and the stenographer. The latter is the construction put on the order by the plaintiff, and on that construction she insists that the order is unjust in its terms.

The alleged improper conduct of the referee consists in drinking liquor with the defendant at his expense in saloons, while the reference was pending, and in altering his report after it had been delivered to the defendant’s attorney. Enough appears in the affidavits to fully justify the setting aside of the report. And it will be seen that the grounds on which it was set aside are, to some extent, at least, chargeable against the defendant. It seems, therefore, rather strange that the terms imposed on setting the report aside should be beneficial to the defendant, on whom some of the blame must rest for this miscarriage of justice.

Justice plainly would require that the referee should refund what he has received for fees. But, perhaps, this cannot be brought about. But should the plaintiff finally recover in the action, then it will have been determined that she had a just claim, and that the defendant was wrong in neglecting to pay it. It would then seem unreasonable to make the plaintiff, in that case, pay the fees of the first referee and of the stenographer, when she was in no way blamable for the misconduct.

The claim in suit is about sixty dollars. The defendant’s costs are over $374, of which the referee’s fees are $125, and the stenographer’s eighty-three dollars and fifty cents. To require the plaintiff, if successful, to pay these sums is practically to deny her justice. She is entitled to a fair trial. It is decided that she has not had that, owing to the fault of the referee, and, perhaps, of the defendant. If the referee alone were culpable, it might then be the just disposition to make these fees of the referee a part of the final costs so that they would fall on the unsuccessful party. But the order appealed from casts these fees on the finally successful party.. Bor if the plaintiff is unsuccesful in the end, then we suppose the defendant will tax these fees in his final bill. And if the plaintiff is successful, she is required by this order to pay these fees. On the whole, it seems to us that the best disposition is to strike out that part of the order which is appealed from.

The part of the order appealed from is stricken out. The ten dollars costs of this appeal and printing disbursements to abide the event of this action.

Putnam and Bise, JJ., concurred.

Motion to dismiss appeal denied, with ten dollars costs; the part of the order appealed from stricken out; the ten dollars costs of appeal and printing disbursements to abide event of the action.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES HAIGHT, Appellant.

      Burglm'y in the third degree — indictment, when insufficient in its description of the place.

    Upon an appeal from a judgment of conviction of felony, consisting in tlie commission of tlie crime of burglary in the third degree, it appeared that the indictment charged that on a certain day, and in the night-time, the defendant “feloniously and burglariously did break and enter the stove-works of Zebulon Hunt” with the intent to steal, etc., and did steal certain property.

      Held, that the allegation that he did break and enter the stove-works was not a sufficient allegation that he broke and entered into a building or room, or part of a building, within the meaning of section 498 of the Penal Code, which is defined, in section 504 thereof, to include a railway car, vessel, booth, tent, shop or other erection or inclosure.

    That the words “stove-works” do not necessarily imply aplace inclosed by a fence, still less do they imply of necessity a building; these words are used to mean all the grounds used by a manufacturer for the manufacture of stoves, and include the buildings, and also the grounds about the buildings, whether such grounds are fenced or not.
    That this was not an imperfection in form, such as is spoken of in section 285 of the Code of Criminal Procedure; that the indictment was defective and the demurrer thereto should have been sustained.
    Appeal from a judgment of conviction of the crime of burglary in the third degree, rendered by the Columbia Court of General Sessions, which was entered in the office of the clerk of Columbia county on June 15,1889, and from an order granted by the said Court of Sessions overruling a demurrer to the indictment therein interposed by tlie defendant.

      G. JD. B. Sasbrouoh, for the appellant.

      A. B. Ga/rdenier, district attorney, for the respondent.
   Learned, P. J.:

The prisoner was indicted for the crime of burglary in the third degree. He demurred to the indictment. The demurrer was overruled. Thereupon he pleaded not guilty; was tried, convicted and sentenced. He now appeals from the judgment in order to review the order overruling the demurrer. The indictment charges that on a certain day, and in the night-time, he “ feloniously and burglariously did break and enter the stove works of one Zebulon- Hunt,” with the intent to steal, etc., and. did steal certain property.

The simple question is whether the allegation that he did break and enter into the stove works of one Zebulon Hunt is a sufficient allegation that he broke and entered a building or room, or part of a building. Section 498, Penal Code, is defined in section 504, to include a railway car, vessel, booth, tent, shop or other erection or inclosure. It is hardly to be supposed that a place inclosed by a fence is an “ inclosure ” within the meaning of these sections. (People v. Richards, 108 N. Y., 148.) The words “ stove works ” does not necessarily imply a place inclosed by a fence. Still less do they imply, of necessity, a building. These words are used to mean all the grounds used by a manufacturer for the manufacture of stoves. They include the buildings and, also, the grounds about the buildings, whether such grounds are fenced in or not. They are words of the most general meaning. (Webster’s Dictionary under “Work.”) One who entered into grounds used for the manufacture of stoves might, in the legal phrase, be said to break into the close of the owner. And plainly the allegation of the indictment does not necessarily include the breaking into any building, or even into any grounds inclosed by a fence.

This is not an imperfection in form such as is spoken of in section 285, Code of Criminal Procedure. Notwithstanding the liberality with which indictments may now be construed, they must allege facts which show that the crime has been committed. The br'eaking and entering into a building is a material part of the crime here charged and must be alleged. We think the indictment is defective, and that the demurrer should have been sustained.

The judgment should be reversed, demurrer sustained, prisoner discharged.

Putnam and Fish, JJ., concurred.

• Judgment reversed, demurrer sustained and prisoner discharged under the indictment.


author: Xeaened, F. J.:

text:
    In the Matter of the Accounting of CHARLES M. PRESTON, as Assignee for the Benefit of the Creditors of WILLIAM B. FITCH.

      Mortgage given by the maker of certain notes to secure them — pro rata application of the proceeds thereof, notwithstanding that the mortgage is given to an assignee whose assignor (the indorser of the notes) preferred the holder of certain of the notes.

    Prior to November, 1884, one Adele Anderson had given to William B. Pitch, the assignor of Charles M. Preston, several promissory notes in payment for goods, sold, amounting to over $13,000. At the time of the general assignment to Preston, which was made in that month, one of the notes, of the amount of $1,169, remained in Pitch’s hands and passed to the assignee, the others had previously been discounted by banks and were held by them with Pitch’s indorsement, as follows: By the National Bank of Rondout, to the sum of $4,194; by the National City Bank of Brooklyn, to the sum of $1,200, and by the State of New York National Bank of Kingston, to the sum of $5,861. By the assignment, after preferring wages of employees, the assignor Pitch 'preferred the notes held by the National Bank of Rondout, on which he was liable as indorser or otherwise.
    A few days after the execution of the assignment a mortgage was executed by Adele Anderson to Preston, as assignee of the estate of Pitch, in pursuance of a prior understanding between Pitch and her that she was to secure these notes, on property valued at $8,000, which recited that Adele Anderson was indebted to-the estate of Pitch in the sum of $8,000, which sum was inserted because that was considered all that the property was worth. The notes were spoken of when the mortgage was given, and there was no indebtedness of Adele Anderson to ■ Pitch other than these notes.
    Upon the foreclosure of the mortgage by Preston, the assignee, the net proceeds realized were $4,384.46, of which sum he applied $1,169 to the discharge of that note which Pitch had at the time of the assignment, and this application was approved by the court and he was directed to apply the residue, as far as it would go, to the payment of those notes of Adele Anderson which were held by the National Bank of Rondout. Upon an appeal from this order of the court:

      Held, that as Adele Anderson gave this mortgage to secure all the notes which she had given to Pitch, and intended to apply its avails to the payment of all these notes, it was the right of each holder of these notes to share, pro rata, in the avails, and that none of the several holders of these notes had a right to take more than his pro rata share of the net avails.
    That the previous assignment of Pitch, by which, as to his own property, he preferred the National Bank of Rondout, did not affect Adele Anderson’s mortgage.-
    That it was not material, to the proper disposal of the case, that the mortgage was in form to Preston, the assignee, as it was given to secure the notes and Preston could not properly apply the proceeds in any other manner.

      That the decree should be modified so that Preston, the assignee, should retain only his pro rata share of the avails of the mortgage, and should distribute all of the said avails of the mortgage pro rata among all of the Anderson notes without regard to the preferences made by Pitch in his assignment.
    Appeal by the State of New York National Bank from a decree made in this proceeding at the Ulster Special Term, which was entered in the office of the Ulster county clerk on the 11th day of June, 1889.
    One 'William B. Fitch made a general assignment to Charles M. Preston in November, 1884 Before that time Mrs. Adele Anderson had given Fitch Several promissory notes in payment for goods sold amounting to over $13,000. One of these notes of the amount of $1,169 remained in his hands at the time of the assignment. The others had, previously to the assignment, been discounted by banks, and were held by them, with Fitch’s indorsement, amounting as follows: By National Bank, of Rondout, $4,194; by National City Bank, of Brooklyn, $1,200; by State of New York National Bank, of Kingston, $5,861. Fitch’s assignment, after preferring wages due to employees, preferred notes held by the National Bank of Rondout, on whch he was liable as indorser or otherwise. A few days after the execution of the assignment, Fitch procured from Mrs. Anderson a mortgage on real estate. It was given to Preston, assignee of the estate of Fitch. It recited that Mrs. Anderson was indebted to the estate 'of Fitch in the sum of $8,000, and was conditioned to pay that sum February 2, 1885. This mortgage was given to secure the aforesaid notes, amounting to over $13,000. It was made for $8,000 because that .was all that the property was worth. The mortgage was given in pursuance of a prior understanding between Fitch and Mrs. Anderson that she was to secure these notes on that property. At the time the mortgage was given Mrs. Anderson did not know by whom the notes were held but supposed they were held by Fitch. The notes were spoken of wken the mortgage was given and there was no other indebtedness of Mrs. Anderson to Fitch than these notes. Preston, the assignee, subsequently foreclosed the mortgage and obtained $4,284.46, as the net proceeds. Of that sum he applied $1,169 to the discharge of that note of Mrs. Anderson, which Fitch had at the time of the assignment, and which passed to the assignee. On the accounting this application was approved by the court, and he was directed to ■apply the residue, so far at it' would go, to the payment of those notes of Mrs. Anderson, which were held by the National Bank ■of Rondout, the first preferred creditor of Fitch. The State of New York National Bank, of Kingston, a creditor in a subsequent ■class, appeals.

      F. L. Westbrook, for the State of New York Bank, appellant.

      FCowa/rd Ohipp, for the assignee, respondent.

      J. FT. Fiero, for the other preferred creditors, respondents.
   Xeaened, F. J.:

There can be no question that Mrs. Anderson gave this mortgage to secure all the notes which she had given to Fitch. Such is the testimony of Fitch and such is the evident meaning of the transan, tion. She had no intention to secure one rather than another of all these notes. And the reason why the mortgage was not made for the whole amount of the notes was explained to be because the property was not worth more than $8,000.

The property was hers and she had a right to apply it as she ■choose. She did apply it to the payment of all these notes. Therefore, it was the right of each holder of these notes to share pro rata in the avails. No one of these several holders of these notes had a right to take more than his pro rata share of the net avails. Mrs. Anderson was the debtor and she had a right to secure one debt, or all, as she might prefer. There is not any evidence that •she desired to prefer one above another. Xideed, she supj)osed that all the notes belonged to. Fitch. Her appropriation, therefore, of her own property settled the rights of her several creditors. And ■each became -at once entitled to share pro rata in the proceeds. The previous assignment of Fitch, by which, as to his own property, he preferred the National Bank of Rondout, did not affect Mrs. Anderson’s mortgage. Fitch had no right to control Mrs. Anderson’s property; and he did not attempt to control her property-For when he made the assignment the mortgage had not been executed. It is suggested that there had been a previous understanding that she would secure these notes (that is, all of them) on this subsequently mortgaged property. If this gave Fitch any equity, such equity would equitably pass to the several owners of the notes to -whom lie had transferred them. It is not material to the proper disposal of this case that the mortgage was in form to Preston,, assignee. It was given to secure these notes, and Preston cannot be permitted to apply the proceeds in any other way than as the mortgagor determined. It is fully in the power of the court, under the statute, to make a proper and just .disposition, and to cause these net avails to be applied pro rata among all who are entitled. All the persons entitled to share are before the court, and the person in possession of the property is here also.

The respondents urge that if Preston took the property as assignee, then he should distribute it according to the preferences of the. assignment; that if it took it in any other capacity it cannot be brought into this accounting. But this is not sound. As assignee Preston is entitled to the^w rata share belonging to the note which was in Pitch’s possession when he assigned. But the- mortgage belonged in equity to all the holders of the notes pro rata. And as he is in possession of the avails the court can, under the equity powers given by the statute, prevent the assignee from misappropriating to the use of the assignment property which is not subject thereto. It is a settled rule that the debt is the principal and the security is the collateral. The debts in this case consist of the several notes, and of all of them. The mortgage is but the collateral. The holders of the notes are the equitable holders of the collateral. And the person who has possession of the avails of the collateral must distribute those avails among all the holders of the notes in proportion to their claims. The decree appealed from, must be modified so that Preston, the assignee, shall retain only his pro rata share of the avails of the mortgage, and shall distribute all of the said avails pro rata among all of the Anderson notes, without regard to the preferences of the assignment.

The appellants are entitled to costs of their appeal against the respondents, except assignee.

Putnam and Pish, JA, concurred.

Decree modified so that Preston, assignee, shall retain only, his pro rata share of the avails of the mortgage, and shall distribute all of said avails pro rata among the Anderson notes, without regard to preferences of the assignment. Appellants to have costs of appeal against respondents, except the assignee.