author:
HaediN, P. J.:
      Martin, J.:
      Merwin, J. :

text:
    JOHN W. GRISWOLD and Another, Respondents, v. LEANDER W. BURROUGHS and JOHN STIMSON, Appellants, Impleaded with FREDERICK W. LIPE.

      Replevin — a sale defeasible for fraud — idhen a demand must be made before suit — declarations of the frcmdulent vendee — res gestee — adjournment.

    A vendor, upon discovery that his property has been obtained by means of fraud, may, without demand, reclaim it by suit, from the fraudulent vendee thereof, unless the property has come into the hands of a bona fide purchaser, but where such property in the hands of a fraudulent vendee is attached by another 1 creditor of the vendee before an attempt has been made to rescind the alleged fraudulent sale, the possession of the attaching creditor, or of the sheriff for him, is lawful, and it is necessary that there should he a demand by the vendor, and a refusal to deliver by the creditor or the sheriff, before an action can he maintained against such creditor or sheriff by the vendor.
    Declarations of the fraudulent vendee, not a party to such an action, and which were no part of the res gestee, are not competent as against creditors of the vendee, or the sheriff representing them.
    Duty of a justice of the peace to receive an affidavit and take testimony as to the propriety of an adjournment, upon the defendant's application therefor, considered.
    Appeal by tlie defendants, Leander W Burroughs and John Stimson, from a judgment of the Madison County Court, entered in the office of the clerk of Madison county on the 27th day of May, 1889, affirming the judgment of a Justice’s Court for the return of •certain personal property to the plaintiffs.
    The action was commenced in October, 1888, and proceedings In replevin were taken. Frederick W. Lipe, the alleged fraudulent vendee of the property, who is named as a defendant in the summons and proceedings, was not served with the summons. The defendants Burroughs and Stimson appeared and joined issue before the justice. The issues were tried before a jury and the return of the justice is to the effect, viz.: “ Jury retire and return a verdict for plaintiffs for possession of property. Jury discharged. Judgment entered •of twelve dollars costs against defendants.”

      George N. Brnoder, for the appellants.

      JD. M. Tuttle, for the respondents.
   HaediN, P. J.:

Plaintiffs, by their agent Iler, sold to Lipe 120 bundles of wire in the month of September, or the fore part of October. While the property was in the freight-house of the New York Central ■depot, one Bauder procured an attachment from a justice of this court, which was put into the hands of the sheriff, one of the defendants, and liis deputy, the other defendant, levied upon the property prior to the commencement of this action. Plaintiffs bring this action seeking to rescind the contract of sale which they made of the property to Lipe, on the ground that the same was induced by fraud, in that the purchaser, Lipe, did not disclose that he was insolvent at the time of making the purchase of the property. Lipe was not called as a witness at the trial. John ILodge was called as a witness and testified that he had had a conversation with Lipe, and upon his being asked to state the conversation the defendants objected to it as incompetent, immaterial, irrelevant; the objections were overruled. The witness then testified: “He asked me if it ever occurred to me how easily he could establish credit with manufacturers of bale ties, or those he bought of, by paying cash on the start, then get credit for a short time and finally place a large order and dispose of it for less than it cost before it came due, and let them get their pay the best way they could.” Defendant Lipe not having been served with process was not a party to this action. The admission of evidence which we have quoted of his declarations was error. When the witness Bennett was upon the stand he referred to a conversation he had had with Lipe, about the twenty-eighth of September, and when he was asked to state it, objections were made and the justice overruled the objections. We think the evidence was improperly received.

The cause having been adjourned to the 20th of December, 1888, the parties appeared before thé justice and an application was made for an adjournment. In the early part of the application it appeared to have been predicated upon the desire of the defendants to have a commission to take the testimony of Lipe. Objections were raised and the application was denied. The defendants proposed to submit an affidavit on the application to procure the adjournment, and the court refused to receive the affidavit. A further application was made by the defendants Burroughs and Stimson for an adjournment on the ground that there are necessary and material witnesses whose attendance they had not been able to procure, and offer to swear witnesses to make a case, and also ask the court to file an affidavit of H. L. Bander, in addition. The above offer refused by the court. No good reason appears why the justice should not have entertained the application and taken what evidence the defendants were able to furnish of the necessity for an adjournment ; of the materiality of the witnesses whose attendance they sought. It seems the justice applied a very stringent rule, and that, assuming that the question of an adjournment at that stage rested largely in his discretion, it is more than probable that he abused the discretion.

The justice, bv his return, fails to show that he entered a judgment in accordance with the verdict “ for the return of the property.” It seems to me the justice’s judgment, and the judgment of the County Court affirming the same, should be reversed.

Martin, J.:

The plaintiffs in this action sold the wire in question to one Lipe. It was delivered at the station at Oneida. While there it was attached by one of the defendants as sheriff. The plaintiffs subsequently sought to rescind the contract of sale and recover the wire; on the ground that it was obtained by fraud. Fraud in such case, does not intercept the passing of the title to the purchaser, but the> title acquired is defeasible, subject to the right of the vendor on discovery of the fraud to reassert his original right and reclaim the-property, unless it has come to the hands of a tona fide purchaser. (Goodwin v. Wertheimer, 99 N. Y., 152.) And where the original possession of the defendant is lawful and not tortious, it is-necessary to change the character of his possession by a demand and refusal before the plaintiff can maintain an action to recover the property. ' (Id., 1.53.)

In the case at bar the sale of the wire in question was not void» but voidable. It was valid, and passed the absolute title to Lipe, subject to the right of the plaintiffs to rescind the sale on the discovery of fraud and reclaim the goods. The interest which Lipe thus acquired the defendant attached, and took possession of t-lie property Iiis possession was lawful, even against the plaintiffs, until they rescinded the contract. His original possession having been lawful, a demand and refusal were necessary to change its. character before this action could be' maintained. (Goodwin v. Goldsmith, 49 Sup. Ct. R. [17 J. & S.], 101.)

This case is clearly distinguishable from those cited by the. respondents. In those cases the officer was a wrong-doer when the property was attached or levy made. In this case Lipeowned the property when the attachment was levied, and the defendant was not a wrong-doer in attaching it. If the plaintiffs, had not subsequently rescinded the contract, they would have had no interest whatever in the wire in question. The title would have-continued in Lipe. After such rescission, they could only change the-character of the defendant’s possession by a demand and refusal. I think the court erred in not granting the defendant’s motion for anonsuit.

I, therefore, concur in the result of the opinion of Hardin, P. J.

Merwin, J. :

I think the appellants Burroughs and Stimson were entitled to ■have a demand made before suit, and for lack of this the plaintiffs must fail. The declarations of Lipe, as testified to by John Hodge, were simply admissions by Lipe, and were clearly inadmissible against the appellants. (Truax v. Slater, 86 N. Y., 630; Flannery v. Van Tassel, 37 N. Y State Rep., 228, and cases cited.) For these reasons I favor reversal.

Judgment of the County Court of Madison county and that of the Justices’ Court reversed, with costs.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    JANE E. CHESTER and Others, Respondents, v. LUCY BRODERICK and Another, as Executors of MINOR T. BRODERICK, Deceased, Appellants.

      Sureties upon an undertaking, given on appeal to the General Term, a/re not discharged by the giving of a further undertaking upon an appeal to the Court of Appeals — novation.
    An undertaking was given upon an appeal from a judgment of foreclosure and sale, wliicli was conditioned to pay any deficiency wliicli might arise thereunder in case the judgment was affirmed at General Term or the appeal was dismissed. The judgment was affirmed at the General Term, and a further appeal was taken from such judgment of affirmance to the Court of Appeals, and another undertaking was given upon such latter appeal with other sureties. The judgment was affirmed by the Court of Appeals, and the sureties upon the undertaking given on the appeal to that court were forced, after a sale of the mortgaged premises, to pay their undertaking in full, in reduction of a deficiency-arising upon such sale.

      JSeld, that the sureties upon the undertaking, given upon the appeal to the General Term, were liable to pay the deficiency still remaining after the payment made by the sureties upon the undertaking given on the appeal to the Court of Appeals.
    That the giving of the second undertaking did not amount to a novation, or substitution of the new undertaking in place of the old one.
    Appeal by the defendants, Lucy Broderick and Edwin H. Ells-worth, as executors of Minor T. Broderick, from that part of an ■order entered in the clerk’s office of Schuyler county on the 4th day of December, 1890, which directed judgment to be entered for the plaintiffs upon the referee’s report in the above-entitled action; and also from a judgment, entered in said office on said last-mentioned day, in favor of the plaintiffs for $2,972.35, after a trial before a referee of a claim against the estate of a deceased person, pursuant to the statute.

      Robert T. Twiner, for the appellants.
    Baxter, Gibson db Gaylord, for the respondents.
   Hardin, P. J.:

Appellants’ testator executed an undertaking on appeal to the General Term from a judgment of foreclosure and sale rendered in an action wherein Sarah Decker was plaintiff and Hattie Decker and others were defendants. The undertaking was executed by the deceased and one Sackett, as sureties, and it was given to stay proceedings on such an appeal, and was conditioned to pay any deficiency that might arise upon the foreclosure sale, in case the decree was affirmed by the General Term or the appeal dismissed. The judgment was affirmed by the General Term and thereupon the defendant Hattie Decker appealed to the Court of Appeals, and upon such appeal an undertaking was given in the sum of $9,000, with Turner and Gillette as sureties. The judgment was affirmed by the Court of Appeals and the premises subsequently sold on the judgment of foreclosure and sale, and there remained a large deficiency. The sureties upon the undertaking given on the appeal to the Court of Appeals paid the full amount of their obligation, and after that payment was applied there remained a deficiency of $2,586.90 unpaid upon the original judgment of foreclosure. To recover that sum, a claim was made against the estate of Broderick upon the undertaking which he had executed. The claim was rejected by his executors and a referee was appointed, who reported m favor of the claimant against the estate of Broderick, and the report so made by the referee was confirmed by the Special Term. ■ The position taken by the appellants is that the giving of the said undertaking on the perfection of the appeal to the Court of Appeals discharged the prior sureties from further liability, because it amounted to a novation and a substitution of the new undertaking in place of the old.

We are of the opinion that the undertaking given by the appellants’ testator remained valid notwithstanding the undertaking given thereafter to perfect the appeal in the Court of Appeals. It may be conceded that the undertaking given in the Court of Appeals constituted the prior or primary obligation for the payment of the deficiency arising upon the sale of -the mortgaged premises. However, that is not important in this case, as the obligation has been fully met, and the moneys mentioned in the undertaking given in the Court of Appeals have been paid over to the plaintiff in that, action and applied in liquidation of the deficiency, and the estate represented by the appellants in this case would only be declared liable for the remaining deficiency.

The reasoning of the court in Smith v. Falconer (11 Hun, 483; S. C., affirmed, 79 N. Y., 633) seems to be adverse to the contention of the appellants. In that case it was said : “ The engagement was absolute to pay any judgment which the plaintiffs might recover in the action, and was -wholly independent of any statutory right to which the defendant, his principal, might resort for a stay of proceedings, which was the chief object of the undertaking given on the appeal. The plaintiffs are not responsible for the subsequent proceedings of the principal; they were obliged to submit, and the delay to which they were subjected was caused by the bond which the defendant gave. * * * If the defendant desired to prevent the accumulation of costs and interest, it was his duty, when the judgment was obtained, which ensued upon the reference, to have tendered the amount of it, and thus prevented any further liability. He did not do so, but permitted the appeal and the further undertaking and delay, without any act to protect himself.”

The case of Mackeller v. Farrell (29 N. Y. St. Rep., 350), is adverse to the contention of the appellants. It was there said, that “the perfection of the appeal to the Court of Appeals by the appellant, by giving a new undertaking and procuring a stay thereon, did not amount to a novation and did not discharge them (such sureties).” The authorities cited in the opinion delivered in the case seem to sustain the conclusion reached by the court.

In Babbitt v. Finn (101 U. S. Rep., 7), a decision was made which is adverse to the appellants. In the course of the opinion in that case, Judge Clifford says : “ Where the bond is given in a. .subordinate court to prosecute an appeal to effect in a superior -court, tbe sureties become liable if the judgment is affirmed in the superior court; nor are they discharged in case the judgment of the superior court is removed into a higher court for re-examination and a new bond is given to prosecute the second appeal, if the judgment is affirmed in the court of last resort. Nothing will discharge the sureties given to prosecute the appeal from the court of original jurisdiction but the reversal of the judgment in some court having jurisdiction to correct the alleged error.” Numerous ■eases are cited to sustain the position.

In Smith v. Crouse (24 Barb., 434), the court, in dealing with a similar question, observed: “No breach of the condition of the undertaking occurred till the judgment of this court was rendered, and the execution thereon was returned unsatisfied. "When the breach occurred, then the liability of the defendant became commensurate therewith; and he cannot claim to have it limited to a part which' cannot be measured of judicially ascertained, even though, under another state of facts, that might have been the ■extent of his liability.”

It is argued by the learned counsel for the appellants that the ■effect upon the estate caused by reason of the appeal to the Court ■of Appeals, was to permit the mortgaged property to diminish in value pending the appeal. ¥e think the answer to that suggestion lies in the fact that that risk was assumed by the appellants when they executed the undertaking. If they had desired to avoid any diminution or delay, they could have paid up the judgment secured by the undertaking and been subrogated to the rights of the judgment creditor; however, they were passive and acquiesced in the •delay occasioned by use of the ordinary means of reviewing the primary judgment. "We think the condition of the appellants’ undertaking required them to abide the action of the ultimate court, as was said by Judge Allen in Robinson v. Plimpton (25 N. Y., 485): “ The condition is, in substance, for the ultimate affirmance of the judgment appealed from. Upon the most literal and strict reading of the undertaking, the defendants became liable upon the filing of the remittitur from this court, and the entry of the proper judgment in the Supreme Court. The first judgment of that court became as if it had never been pronounced; and the judgment entered in pursuance of the decision of this court was one in affirmance of the judgment first appealed from. That the remedy of the plaintiff was suspended, or, rather, that the defendants’ liability was in suspense, pending the appeal to this court, does not affect the question. * * * They consented to become liable upon a contingency which has happened, and for the result of an action of which they had no control and to which they were not parties, and are-bound not because they were parties to either appeal but by the terms of their undertaking.”

"We think Gardner v. Barney (24 How., 467), supports the position, of the respondents. (See Seacord v. Morgan, 4 Abb. [N. S.], 251; Humerton v. Hay, 65 N. Y., 380.)

We are of.the opinion that the second undertaking on the perfection of the appeal to the Court of Appeals did not discharge-the appellants’ testator from the obligation assumed by him when he executed the- undertaking.

We are of the opinion that the report of the referee is right and that the order confirming the same was properly made.

The judgment and order must be affirmed, with costs.

Mastín and Mekwin, JJ., concurred.

Judgment and order affirmed, with costs.


author: MaiotN, J.:

text:
    In the Matter of the Application of MOSES COIT TYLER, Administrator of JOHN TYLER, Deceased, Appellant, foe a Writ of Mandamus to the BOARD OF SUPERVISORS OF TOMPKINS COUNTY, Respondent.

      Acting surrogate under a special act — compensation of, not affected by an act legalizing-his action— to what salary he is entitled — for what period.

    Section 16 of article 6 of tlie Constitution of the State of New York authorizes the legislature, upon the application of a hoard of supervisors, to provide for the election of local officers, not exceeding two, to discharge the duties of county judge and of surrogate in case of their inability to act or of a vacancy.
    Chapter 279, Laws of 1858, providing for such a local officer in Tompkins county, declared that he should be designated as special county judge, and directed that, he should receive such compensation as the board of supervisors allowed.

      A special county judge of said county, elected under said law of 1858, acted therein as surrogate without first procuring the proof of authority to act provided for by section 2487 of the Code of Civil Procedure.

      Held, that section 2484 of the Code of Civil Procedure, relative to supplying a vacancy in the office of surrogate, did not apply to this case, and that the acting surrogate's authority was derived entirely from the act of 1858; that, therefore, section 2493 of said Code, fixing the compensation of a substitute appointed under section 2484 of the Code, at the rate of the salary of the surrogate for his period of service, had no application, aud that the acting surrogate of Tompkins county was limited to such compensation as should be awarded him by the board of supervisors.
    The acts of such acting surrogate were, by chapter 221, Laws of 1889, legalized, so far as they were illegal because of his failure to procure proof of his authority under said section 2487 of the Code of Civil Procedure.

      Held, that this statute of 1889 did not change his status so far as compensation was concerned.

      Semble, that a special surrogate entitled, under said section 2493 1 ‘ for the time during which he so acts,” to the compensation of a surrogate, could claim only for the time when actually engaged, and was entitled to nothing when not acting.
    Appeal by Moses Coit Tyler, as ancillary administrator, with the will annexed, of John Tyler, deceased, from an order, entered in the clerk’s office of Tompkins county on the 8th day of December, 1890, denying his application for a writ of mandamus to the Board of Supervisors of Tompkins County, requiring it to audit and pay a claim of said John Tyler for services while acting as surrogate in the county of Tompkins.
    In the year 1888 John Tyler was the special county judge of the county of Tompkins, receiving a salary as such. From February 9, 1888, to March eighth of the same year, Hon. Marcus Lyon, the county judge and surrogate of that county, was absent from the county. During his absence the special county judge on certain days performed acts of an official character as acting surrogate. On other days he neither performed nor assumed to perform any official acts whatever. He was a practicing lawyer in Ithaca, had a separate office, and occasionally during the time went to the county judge’s office and performed acts as surrogate.
    There was a duly appointed clerk of the Surrogate’s Court during all that time who received a salary from the county. The salary of the Tompkins county judge and surrogate is $2,500 per annum. No order or proof was obtained,, or made as required by sections 2481 and 2488 of the Code of Civil Procedure authorizing or entitling the special county judge to act as surrogate of Tompkins county.
    On the 17th of November, 1888, John Tyler presented to the board of supervisors of Tompkins county a duly verified claim for $208.33 as compensation for the services alleged to have been rendered. This claim was for the entire time the county judge was absent. It was rejected by the board. Subsequently the legislature passed an act legalizing the official acts performed by John Tyler as acting surrogate between January 1, 1886, and January 1, 1889. (Laws 1889, chap. 221.)
    JolnvTyler died in the month of August, 1889, in the State of Michigan, where he then resided, leaving a last will and testament. On November 1, 1890, ancillary letters of administration, with the will annexed, were duly issued to Moses 0. Tyler -within the State of New York. The ancillary administrator, on the 12th of November, 1890, presented this claim to the board of supervisors, and it was again rejected. Thereupon Tyler, as such administrator, procured .an order to show cause before a Special Term of this court why a ■mandamus should not issue to compel the board of supervisors to raise by taxation an amount sufficient to pay such claim. Upon the return of the order to show cause the respondent appeared, and •certain 'affidavits were read in opposition to the application of the appellant. The appellant’s motion was denied. It is from this order that the appellant appealed.

      William N. Noble, for the appellant.

      William A. Finch, for the respondent.
   MaiotN, J.:

Section 16 of article 6 of the Constitution of the State of New York provides: “The legislature may, on application of the board of supervisors, provide for the election of local officers not to exceed two in any county, to discharge the duties of county judge and of surrogate in cases of their inability or of a vacancy, and to exercise such other powers in special cases as may be provided by law.”

In pursuance of this provision of the Constitution, the legislature, In 1858, passed an act declaring that there should be elected in Tompkins county a local officer “to discharge the duties of county judge and surrogate of said county in cases of vacancy or the absence ■or other inability of such officer.” This act, after stating that such ■officer should be a counselor-at-law of the Supreme Court, and that he should possess certain powers and perform 'certain duties, provided that he should be designated as special county judge, and “ shall receive for the services to be rendered by him, under the provisions of this act, such compensation as shall be allowed to him by the board of supervisors in said county.” (Laws 1858, chap. 279.)

It is contended by the appellant that the decedent was authorized by this statute to act as surrogate in the absence of the county judge, and hence that his right to so act ivas not dependent upon the provisions of section 2484 of the Code of Civil Procedure, nor restricted by the last paragraph of that section, which provides that before an officer is entitled to act, as prescribed in that section, proof of his authority must be made as prescribed in section 2487.

Section 2484 provides: “ Where, in any county, except New York or Kings, the office of surrogate is vacant; or the surrogate is disabled, by reason of sickness, absence or lunacy; and a special provision is not made bylaw — fen* the discharge of the duties of his office i/n that contingency; the duties of his office must be discharged until the vacancy is filled or the disability ceases, as follows: 1. By the special surrogate ; 2 * * * By the special county judge; 3. * * * By the county judge; 4. * * * By the district attorney.”

It will be observed that section 2484 provides who shall act in ■case of a vacancy, absence or other disability only where there is no •special provision of law for the discharge of the duties of that •office in such contingency. In Tompkins county a local officer was •elected to discharge the duties of surrogate in the absence of that •officer. Hence wo are disposed to adopt the appellant’s theory that .the provisions of section 2484 are not applicable in this case.

Assuming, then, that the statute of 1858 conferred upon the ■decedent the authority to act as such surrogate, independent of section 2484, the question arises whether section 2493 has any application .to this case. That section provides that an officer who acts as surrogate as prescribed in the last nine sections must be paid for the time he so acts a compensation equal pro rata to the salary of the surrogate or county judge. In this case the decedent acted as-surrogate, not as prescribed by the sections of the Gode relating to-that subject, but independent of those sections, and under the provisions of the statute of 1858, which declared that he should receive for his services such compensation as the board of supervisors should allow. Therefore, we are of the- opinion that section 2493 of the Code of Civil Procedure is not applicable to this case, and that the decedent was entitled only to such compensation as was allowed by ■the board of supervisors.

If, however, our conclusion that the provisions of the Code are not applicable in this case is wrong, still, as those provisions were-not complied with, it is difficult to discover upon what theory the-appellant is entitled to the relief sought. No proof of the authority of the decedent to act as such surrogate was given, nor order made as-required by sections 2487 and 2488 of the Code. We think the making-of such proof and the obtaining of such an order was a condition precedent to the testator’s right to act as such surrogate, if acting under the provisions of the Code, and that at least as to him his-acts were so far unauthorized that lie was not entitled to the-compensation provided for by section 2493.

But it is said that the act of 1889 (Laws 1889, cliap. 221), which-was a statute to legalize the official acts of the decedent performed' between January 1, 1886, and January 1, 1889, by reason of any failure to make proof as to his authority, has, by relation, supplied the required authority for the acts of the decedent as such surrogate. By this statute his acts were legalized as to third persons, so far as-the legislature could do so, but we think it was not its .purpose or intent to change the status of the decedent, so far as the question of compensation was concerned, nor do we think that such was the effect of the statute.

There is also another reason why this order should be affirmed. Section 2493 provides that the officer or person therein mentioned “ must be paid,for the time during which he so acts, a compensation equal pro rata to the salary of the surrogate; or * * * county judge.” We think a fair construction of this provision requires us to hold that even if entitled to compensation under the Code the. decedent was entitled only td^such compensation while acting as such surrogate, and that he was not entitled to compensation when not so acting. The papers read on the motion in this case show that the testator acted during only a portion of the time for which he seeks compensation. Therefore, in any event, his claim was for too much and properly disallowed. (People ex rel. Byrnes v. Green, 64 Barb., 162; People ex rel. Ketteltas v. Cady, 2 Hun, 224.)

These considerations lead to the conclusion that the order should be affirmed.

Merwin, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Misrwin, J.:

text:
    FRED PORTER, Plaintiff, v. NELSON GARDNER, Defendant.

      Gift — evidence as to the intent to give and the fact of delivery — when a question foi the jury — decla/rations of the donor that the donee is the owner.

    The situation, relation and circumstances of the parties, and of the subject of a gift, may be taken into consideration in determining the intent to give and the fact as to the delivery.
    The owner of a farm leased it to her nephew, reserving the right to pasture two colts. At the time of the lease, and subsequently, three colts which had belonged to her were pastured there. The owner expressed an intention to give the third colt, which was two years old, to her nephew. She also said that she would keep it for him until it was three years old, and that he might keep it right there. After this the nephew took charge of it. Other witnesses.testified that she had told them she had given it to her nephew.
    In an action brought by the nephew against her executor to recover for a conversion of the colt:

      Held, that the plaintiff should not have been nonsuited, and that the question as to whether or not there was a delivery should have been submitted to the jury.
    Where an article given is, at the time of the gift, in the custody of the donee, the declarations of the donor to the effect that the donee is the absolute owner thereof will authorize the inference of a complete delivery by the donor.
    Exceptions of the plaintiff Fred Porter directed to be heard in the first instance at General Term, after a trial at the Cortland Circuit before the court and a jury on the 19th day of June, 1890, at which the plaintiff’s complaint was dismissed.
    This action was brought for the conversion of a colt of the value of ninety dollars. The defendant claimed that the colt was a part of the estate of Jane P. Markham, deceased, of whose will he was the executor. The main issue at the trial was whether Mrs. Markham, before her death, gave the colt to the plaintiff. At the close of the evidence the court ordered a nonsuit.

      B. A. Benedict, for the plaintiff.

      Dorr O. Smith, for the defendant.
   Misrwin, J.:

On the 7th March, 1887, Mrs. Markham was the owner of a farm of about ninety acres in the town of Homer. At that date she and the plaintiff, who was her nephew, entered into a written agreement, by which she did “ demise and lease her farm, with the appurtenances,” to the plaintiff for the term of one year from the 1st of March, 1887, she agreeing to leave on the farm all the farming tools, eight cows, a team and some other property, and pay all taxes except the road tax. She reserved “ the right to pasture two colts by paying to the party of the second part one-third of the cost of pasturing the same, and also reserves the front part of the house, with front yard, for her own use.” The plaintiff, upon his part, agreed to carry on the farm and do all the work in a good and workmanlike manner. It was also agreed that Mrs. Markham should have two-thirds of all the produce of the farm and the plaintiff one-third, and if he did not fulfill the agreement on his part, Mrs. Markham had the right to re-enter and have full posses sion. The plaintiff moved on to the farm with his family and occupied half of the house. At this time Mrs. Markham had on the farm five colts. Of these, two were quite young and soon after died. Of the remaining three, two were those named in the agreement and the third was the one in controversy and coming two years old that spring. Jennie Porter, the wife of plaintiff, testified that in June, 1887, she heard a conversation at the breakfast table between the plaintiff and Mrs. Markham, in which Mrs. Markham said to plaintiff: “ He had been good to her and she wanted to make him a present and she would give him the bay colt; this was after the two smaller colts had died; that she would never try to raise any more; she had no mate for it, and she would make him a present of it. Ered said, in substance, to her that he did not want to take anything from her unless she had a mind to let him liave it. She said she was willing that he should have it or she wouldn’t give it to him. She said she would keep it for him until it was three years old, ready to break and drive for use; that he might keep it right there. Q. What did she say about his assisting in breaking her colts, if anything? A. She said she would like to have him take care of her colts and break them. Fred took charge of this bay colt after that.” This witness also testified that the colts were then in the pasture upon the farm, and so remained until the death of Mrs. Markham the following October, except as they got out or were occasionally taken out by the plaintiff; that this colt remained upon the place in the same way, in the same manner as the other stock of Mrs. Markham,, until the time it was sold by the defendant in October; that the plaintiff treated the three all alike; that he had no other place to keep the colt but on the farm. The plaintiff himself testified that when the defendant came there after the death of Mrs. Markham he told him the colt was his, that Mrs. Markham had given it to him, and the defendant replied, he did not dispute it at all, but the question was whether he, the plaintiff, could hold it or not; that after the conversation at the breakfast table the colts were treated in very nearly the same manner as they had been before; that they remained in the pasture except on occasions when they got out, and he had to tie up the bay one, the one in question, in the barn. Another witness, a nephew of the deceased, testified that upon an occasion in July, when the colts had broken out and the plaintiff had got them home, Mrs. Markham was taken out to the road to see them and said: “ I want to see these two older colts broke and harnessed together, the little red one I have given to Fred;” that she owed him for work and had given him the little red colt, meaning the bay one; that plaintiff was there nearby though not present at the conversation. Another witness testified that upon another occasion in July Mrs. Markham said she had given the bay colt to Fred Porter, and in the last of August or first part of September she told another party substantially the same, and that the colt was the plaintiff’s whether she lived or died.

There seems to be no question about the intention of Mrs. Markham, but the defendant claims there was no delivery sufficient to make a valid gift. In some cases it has been held that a delivery might be inferred from declarations that a gift had been made. In Grangiac v. Arden (10 Johns., 293, 296), it is said that declarations, referring to and recognizing a gift as having been made, afford reasonable ground for a jury to infer that all the formality necessary to make it a valid gift had been complied with. The principle of this case seems to have been recognized in Young v. Young (80 N. Y., 435). In Trow v. Shannon (78 N. Y., 446), a finding of delivery was sustained though there was no direct evidence of it. There were admissions by the donor that she had given the bonds there in question and that they belonged to the donee, and weight was given to these admissions, as some evidence from which the jury might infer that the gift had been completed by an absolute delivery. In Harris v. Hopkins (43 Mich., 272), it was held that evidence that a decedent had stated positively that she had given certain specified furniture to her sons and had previously declared an intent to give it, and that one of the sons remained in her house until her death, warrants a finding of a complete gift inpresentí,.

So it has been held that a delivery is not necessary when the intended donee is already in possession, but that in such a case the gift, if completed and unambiguous, may be effected by a simple oral declaration. (Prov. Institute for Savings v. Taft, 14 R. I., 502; Wing v. Merchant, 57 Me., 383; Tenbrook v. Brown, 17 Ind., 410; 8 Am. and Eng. Ency. of Law, 1319 and cases cited.) Substantially the same was held in Taber v. Willets (44 Hun, 348). In Stevens v. Stevens (2 Hun, 470), a gift causa mortis of a note was held to be effectual where there was no delivery in fact, it being said by the court, “the small note was ■ in his (the donee’s) possession; that is, it was in the Bureau in his house and presumptively accessible to him.” In Whiting v. Barrett (7 Lans., 109), it is said by Mullin, P. J.: “It would seem to me that when the owner of property makes a verbal gift of it to another, such other acquires a perfect title if he gets possession of it before revocation of the gift by the donor, although it was not present when the gift was made, or it was not even in esse at the time. The consent that the donee shall take the 'property as owner must be presumed, unless revoked, until possession is obtained.”

Under the lease, the plaintiff, as between him and Mrs. Markham, was in possession of the farm. The colt, being on the farm, was in his actual custody and control. He had the charge and care of it. Upon the evidence it might be found that she had given it to him absolutely. If the declaration in June was only of an intention, the subsequent declarations were of such a character that it might be found that she had made the gift absolute. It might also be found that she had parted with all dominion or control over it, or right to possession which she might have had. If she did so, that would make it a completed gift. The fact that it remained on the ■farm was not necessarily inconsistent (Armitage v. Mace, 96 N. Y., 542), nor was the fact of no apparent change in the control. (Tenbrook v. Brown, supra.) The situation, relation and circumstances of the parties, and of the subject of the gift, may be taken into consideration in determining the intent to give and the fact as to delivery. (Cooper v. Burr, 45 Barb., 33.) In that case it is said that a total exclusion of the power or means of resuming possession by the donor is not necessary. In Penfield v. Thayer (2 E. D. Smith, 305), it was held that it was not necessary to take at the time manual possession. If the article given is at the time in the custody of the donee, the declarations of the donor to the effect that the donee is absolute owner, and characterizing the possession of the donee as absolute, will authorize the inference of complete delivery by the donor. An acceptance may be implied when the gift, otherwise complete, is beneficial to the donee. (Beaver v. Beaver, 117 N. Y., 429.) In Hunt v. Hunt (119 Mass., 474), a bond was lent by the owner to the defendant, the owner taking therefor a receipt. There was evidence that afterward the owner, while sick in bed, made, verbally, a gift of it to defendant without any other delivery of the bond, and promised to return the receipt when he should be able to get it; that he afterward told another party that he had provided for the defendant and his children by giving a bond to the defendant. It was held that the question of •delivery was a matter of fact for the jury.

In the present case we are of the opinion that the question of •delivery was for the jury to decide, and that, therefore, the motion for a new trial should be granted.

Hardin, P. J., and Martin, J., concurred.

Motion for a new trial granted, with costs to abide the event.


author: Hardin, P. J.

text:
    Fourth Department,
    April Term, 1891.
    Jarvis Dinsmoor, Appellant, v. The Commercial Travelers’ Association of the State of New York, Respondent.
   — Order reversed, with ten dollars costs aud disbursements, payable by respondent. Opinion by

Hardin, P. J.


author: Merwin, J.

text:
    Elizabeth Fletcher, as Administratrix, etc., Appellant, v. Oliver P. Hurd, as Executor, etc., Respondent.
   —Judgment affirmed, with costs. Opinion by

Merwin, J.


text:
    William H. Everett, Appellant, v. Charles E. Jones and others, Respondents.
   — Motion for a new trial denied and judgment affirmed, with costs. Opinion by

Merwin, J.


text:
    Ball Electric-Light Company, Appellant, v. Sanderson Brothers Steel Company, Respondent.
   Judgment reversed and new trial ordered, costs to abide the event. Opinion by

Merwin, J.


author: Martin. J.

text:
    The Mutual Life Insurance Company of New York, Respondent, v. Matthias Suiter and others, Appellants.
   — Judgment reversed and new trial ordered, with costs to abide the event. Opinion by

Martin. J.


text:
    In the Matter of the Judicial Settlement of the Accounts of Robert Washbon and John Cope, as Surviving Testamentary Trustees under the Last Will and Testament of Andrew G. Washbon, Deceased. Andrew Washbon and others, Beneficiaries, etc., Appellants, v. Robert Washbon and others, Respondents.
   — Decree of Surrogate’s Court of Otsego county reversed, without costs of this appeal to either party, and proceedings remitted to that court. Opinion by

Hardin, P. J.


text:
    Clara E. Schumaker, Respondent, v. Joshua Mather and Charles W. Mather, Appellants
   Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.


text:
    John Dunn, Jr., and others, Appellants, v. Frank D. Arnold and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Hardin, P. J.


author: Martin, P. J.

text:
    Emma F. Roberts. Appellant, v. The Johnstown Bank, Albert E. Blunck and Will E. Leaning, Respondents, Impleaded with Timothy H. Roberts.
   — Judgment and order affirmed, with costs. Opinion by

Martin, P. J.


text:
    Frederick A. Saville and others, Executors, Appellants, v. Delos Steer and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Merwin, J.


text:
    William Williams, Respondent, v. Edward F. Wright, Appellant.
   — Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to abide the event.


text:
    Wilson H. Gardenier, Appellant, v. Hiram Eldred, Respondent.
   — Order modified by striking therefrom all that portion declaring the appellant guilty of misconduct and awarding an attachment, and as modified affirmed, without costs of this appeal to either party.


text:
    Leonard Gardainer, Respondent, v. George H. Northrup, Appellant.
   Order reversed, with ten dollars costs and disbursements.


text:
    George Benjamin, as Overseer, etc., Respondent, v. John Monroe, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    John Franey, Appellant, v. Herman T. Smith and others, Respondents.
   — Motion denied, without costs; order affirmed, without costs.


text:
    Michael McQuigan, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   —Order affirmed, with ten dollars costs and disbursements. Following 29 Ilun, 154: 18 Jones & Spencer, 412


text:
    Abba Richards, as Administratrix, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
   — Judgment affirmed, with costs.


text:
    Mary E. McGowan, Respondent, v. John Sullivan and others, Appellants.
   — Judgment and order affirmed, with costs.


text:
    John B. Stanchfield, Respondent, v. Benedict Harford, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    George F. Comstock, Appellant, v. The City of Syracuse and others, Respondents.
   — Judgment modified by inserting a provision declaring that section 18 of the act of 1889, as amended by chapter 314 of the Laws of 1890, is'invalid, and restraining the defendants from exercising any powers or functions by virtue of such sections; also modified by striking out the award of costs, and as so modified judgment affirmed, with costs of the appeal to the appellant. Opinion by

Merwin, J.


author: Van Brunt, P. J.

text:
    First Department,
    April Term, 1891.
    Charlotte M. Parker, Appellant, v. George W. Murray, as Executor, etc., Respondent.
   — Judgment modified by striking out costs, and, as modified, affirmed, without costs of this appeal. Opinion by

Van Brunt, P. J.


text:
    Utley Hare, Respondent, v. Michael Mahoney, Appellant.
   — Judgment aud order affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, P. 'J.

text:
    Edward L. Merrifield, Appellant, v. Ezekiel Y. Bell, as Assigeee, etc., Respondent.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. 'J.


text:
    Enoch P. Hincks and others, Respondents, v. Aaron Field and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Department of Public Parks (In re Bolton).
   Claims for services rendered and expenses incurred to be paid out of the fund stated in opinion. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York ex rel. Alonzo T. Decker, Respondent, v. The Hoboken Turtle Club, Appellant.
   — Order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Delaware, Lackawanna and Western Railroad Company, Respondent, v. Nathan Corwith, Jr., and others, Appellants.
   Judgment reversed and new trial ordered, with costs to appellants to abide event. Opinion by

Van Brunt, P. J.


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

text:
    The People of the State of New York, Respondent, v. Michael Fleming, Appellant.
   — Judgment affirmed. Opinions by

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


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

text:
    In the Matter of the Application for Letters, etc., on Goods, etc., of Katharine Sturtzkober, Deceased.
   Order affirmed, with ten dollars costs and the disbursements to be paid personally by the appellant. Opinions by

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


text:
    The People of the State of New York, Respondent, v. William McElroy and Edward Ryan, Appellants.
   Judgment affirmed. Opinion by

Van Brunt, P. J.


author: Daniels, J.

text:
    Increase M. Grenell, Appellant, v. Sarah A. Stillwell, Respondent.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Irvine A. Hodge and others, Respondents, v. John H. Drake and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Ferdinand Brooks, Plaintiff, v. John T. Terry and others, Executors, Defendants.
   — Judgment for plaintiff as directed in opinion, with the costs of this proceeding. Opinion by

Daniels, J.


text:
    In the Matter of the Judicial Settlement of the Accounts of Robert C. Reeves, Executor, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    New York, Lake Erie and Western Railroad Company, Respondent, v. The National Steamship Company, Appellant.
   — Judgment and order reversed and new trial ordered, with costs to the defendant to abide event. Opinions by

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


text:
    The Suburban Rapid Transit Company, Appellant, v. The Mayor, etc., of the City of New York and others, Respondents.
   — Judgment and order affirmed, with coste. Opinion by

Daniels, J.


text:
    Pierre T. C. Richards, Appellant, v. Mary H. Moore and others, Respondents.
   Judgment and order affirmed, with costs. Opinion by

Daniels, J.


text:
    Rufus Foster, Executor, etc., Respondent, v. Benjamin C. Wetmore, Executor, etc., Appellant.
   Judgment reversed, with costs to the appellant to abide the result of another trial to be ordered Opinion by

Daniels, J.


text:
    Samuel E. Howe, Respondent, v. Thomas M. Moore, Appellant.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Patrick Martin, Appellant, v. Valentine Cook and others, Respondents.
   Objections to the dismissal upon the xneriis sustained, and the other exceptions overruled, and the motion for a new trial denied and judgment ordered for the defendant, dismissing the complaint, with costs, except the costs of this motion for a new trial. Opinion by

Van Brunt, P. J.


text:
    Christian H. Schultheis, Respondent, v. Georgiana F. Webster and others, Appellants.
   Motion denied, with ten dollars costs.


text:
    Joseph Sawyer and others, Appellants, v. Otis G. Clark and others, Respondents.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Nathaniel Sleeman, Appellant, v. Lewis Hotchkiss and others, Respondents.
   Order affirmed, With ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Daniels. J.

text:
    In the Matter of the Judicial Settlement of the Account of Henry A. V. Post, Administrator, etc.
   — Order modified, as directed in opinion, and, as modified, affirmed, without costs of this appeal. Opinion by

Daniels. J.


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

text:
    Joseph Marrone, Respondent, v. The New York Jockey Club, Appellant.
   Order reversed, with ton dollars costs and disbursements, and the1 motion denied. Opinions by

Van Brunt, P. J.» and Daniels, J.


author: Lawrence, J.

text:
    Ophelia J. Cuthbert, Appellant, v. Cordelia D. Chauvet and others, Respondents.
   Order affirmed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    Rufus L. Todd, Executor, etc., Appellant, v. The Union Dime Savings Institution, Respondent.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Ophelia J. Cuthbert, Respondent, v. Margaret S. Ives, Impleaded, etc., Appellant.
   Order affirmed, with costs and disbursements


text:
    Ophelia J. Cuthbert, Respondent, v. Antoinette L. Schemerhorn and others, Appellants.
   Order affirmed, With costs and disbursements.


text:
    The People of the State of New York ex rel. Isaac P. Martin v. Edward Gilon and others.
   Writ dismissed, with costs. Opinion by

Lawrence, J.


text:
    Frank Ross, Ancillary Administrator, etc., Appellant, v. Wallace P. Willett and others, Respondents.
   Order reversed, with ten dollars costs and disbursements, and the motion granted. Opinion by

Daniels, J.


author: Van Brunt P.J.

text:
    John Claflin and others, Respondents, v. John F. Eagan and others, Appellants.
   — Order reversed, with ten dollars costs and disbursements, and the motion granted. Opinion by

Van Brunt P.J.


author: Van Brunt, P J.

text:
    Mary A. P. Tucker, Plaintiff, v. Cornelia Gilman, Defendant.
   — Order affirmed, without costs. Opinion by

Van Brunt, P J.


text:
    In the Matter of the Last Will, etc., of Emily L. De Russey, Deceased.
   — Order reversed, and the order directing the reference vacated. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. Henry Butts, Relator, v. Charles F. MacLean and others, Police Commissioners, Respondents
   — Writ dismissed, with costs. Opinion by

Van Brunt, P. J.


text:
    Jean Albert Tauziede and others, Plaintiffs, v. Francois Henry Jumel and others, Defendants.
   — Stay of proceedings directed, but subject to the condition that the case shall be argued or submitted at the next May General Term.


text:
    John B. Smith, Respondent, v. William F. Lennon and others. Appellants
    (Action No. 1).
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    John B. Smith, Respondent, v. William F. Lennon and others, Appellants
    (Action No. 2).
   Judgment affirmed, with costs. Opinion by,'

Van Brunt, P. J.


text:
    The People of the State of New York, Respondent, v. Thomas Hagan, Appellant.
   — Judgment affirmed. Opinion hy

Daniels, J.


text:
    Mary O. Simis, Respondent, v. Daniel S McElroy, Appellant.
   — Case stricken from caleudar in order that the parties may present a proper case. Opinion by

Van Brunt, P. J.


text:
    The New York, Lake Erie and Western Railroad Company, Respondent, v. The Atlantic Refining Company, Appellant.
   Motion for reargument denied.


author: O’Brien, J.

text:
    Clara A. Lamb and others, Respondents, v. Samuel T. Lamb and others, Appellants
   Judgment affirmed, with costs and disbursements. Opinion by

O’Brien, J.


text:
    First Department,
    May Term, 1891.
    Caroline J. Cammerer, Respondent, v. Clemens Muller, Appellant.
   — Judgment and order affirmed,^with costs. Opinion by

Van Brunt, P. J.


text:
    Isaac L. Lyons, Appellant, v. Atlanta Hill Gold Mining and Milling Company, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Lawrence, J.


text:
    The Rector, etc., of the Holy Trinity Church, etc., Appellant, v. The Rector, etc., of the Church of St. Stephen, etc., Appellant, and James Blackhurst and others, Respondents.
   — Order affirmed, ' with ten dollars costs and disbursements against the plaintiffs. Opinion by

Van Brunt, P. J.


author: Van Brunt,P. J.

text:
    William Paine, Appellant, v. Elizabeth W. Aldrich, Respondent, Impleaded, etc.
   — Judgment affirmed, with costs Opinion by

Van Brunt,P. J.


author: Dauiels, J.

text:
    Daniel A. Higgins, Plaintiff, v. The Mayor, etc., of the City of New York, Defendants.
   — Judgment ordered for plaintiff on the verdict, with costs. Opinion by

Dauiels, J.


text:
    Louis F. Martin and others. Appellants, v. Eliza Jane Adams and others, Executors, etc., Respondents.
   — Judgment reversed and new trial ordered, with costs to the plaintiffs to abide the result. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. William L. Taylor v. Charles F. MacLean and others, Commissioners, etc.
   — Order dismissing the relator affirmed, with costs. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. John W. Cochrane, Administrator, Respondent, v. Michael Coleman and others, Commissioners, etc.
   Order affirmed, with costs and disbursements to respondent. Opinion by

Lawrence, J.


text:
    Daniel B. Childs, Receiver, etc., Plaintiff, v. Edward T. Latham and others, Defendants.
   Judgment affirmed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    The United States National Bank, Respondent, v. Thomas Ewing, Appellant.
   Judgment and order affirmed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    Philip D. Wheatland, Respondent, v. S. Morris Pryor and others, Appellants.
   judgment affirmed, with costs and disbursements. Opinion by

Lawrence, J.


author: Lawrence, j.

text:
    George F. Vietor and others, Appellants, v. William M. Halstead and others, Respondents.
   Order affirmed, with costs and disbursements. Opinion by

Lawrence, j.


text:
    William S. Williams, Appellant, v. The United States Trust Company of New York, Respondent.
   Judgment affirmed, with costs and disbursements. Opinion by

Lawrence, J.


text:
    Arthur Leary, as Executor, Respondent, v. John H. Melcher and others, as Executors, etc., Appellants.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Lawrence, J.


text:
    Charles G. Landon and others, Executors, etc., Respondents, v. Mary N. Townsend and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Jacob A. Zimmerman and others, Respondents, v. Christian Jourgenson, Appellant.
   — Judgment reversed ana new trial ordered before another referee, with costs to appellant to abide the event. Opinion by

Van Brunt, P. J.


text:
    John Colvill and others, Appellants, v. Percy Chubb, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    National Broadway Bank, in the City of New York, Plaintiff, v. Stephen T. Barker, Defendant.
   Order affirmed, with ten dollars costs and the disbursements on the appeal'. Opinion by

Daniels, J.


text:
    In the Matter of the Petition of Matilda and Louisa Myers for an Allowance, etc.
   Decrees modified as directed by opinion, and, as modified, affirmed, without costs of the appeals. Opinion by

Daniels, J.


text:
    Irving Grinnell and ors., Executors, Respondents, v. Roger M. Sherman, Appellant.
   — Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    In the Matter of George W. McLean, Receiver of Taxes, Respondent, v. The Cuper Milling Company, Appellant.
   — Order affirmed, without costs. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. William E. Demarest, Appellant, v. John J. Gorman, Sheriff, etc., Respondent.
   — Order affirmed, wiih ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York v. James A. Barker.
   — Motion denied upon stipulating to argue in June.


text:
    Louisa B. Hasbrouck, as Assignee, etc., of Richard D. Young, v. Emma B. Young.
   There is no authority for amotion such as this. Motion denied.


text:
    Julius Newwitter, Appellant, v. Maurice Mansell and others, Respondents.
   Order affirmed, with ten dollar’s costs and disbursements. Opinion by

Daniels, J.


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

text:
    In the Matter of Application of Charles Sargent v. John J. Gorman, Sheriff,etc.
   — Order affirmed, with ten dollars costs and disbursements. Opinions by

Van Brunt, P. JM and Daniels, J.


text:
    Jacob D Nordlinger and others, Appellants, v. Hollins McKim and others, Respondents.
   Order affirmed, without costs to the respondents. Opinion by

Daniels, J.


author: Van Brunt, P.J.

text:
    Gilbert M. Husted, Appellant, v. Augustus Cruikshank,as Trustee, etc., Respondent.
   — Judgment affirmed,'with c^sts. Opinion by

Van Brunt, P.J.


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

text:
    Samuel Galle, Respondent, v. Adolph Tode, Appellant.
   Order reversed aud motion denied, without costs. Opinions by

Van Brunt, P. J., and Dauiels, J.


author: Per Curiam.

text:
    John Parker and others, Executors, etc., Appellants, v. Mark Lithgoe and others, Respondents.
   Motion for restitution denied,as directed in opinion. Opinion

Per Curiam.


author: Van Brunt, P. J.

text:
    Charles S. McCulloh, Receiver, etc., Respondent, v. Palliard Non-Magnetic Watch Co., Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    The W. J. Johnston Company (Limited), Appellant, v. The Electric Age Publishing Company, Respondent.
   Order affirmed, with ten dollars costs and the disbursements on the appeal to abide the final result of the action, Opinion by

Daniels, J.


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

text:
    Adam Dutenhofer, Respondent, v. The Adirondack Railway Company and others, Appellants.
   judgment modified as directed in opinion, and, as modified, affirmed, without costs of the appeal to either party. Opinions by

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


text:
    Frederick M. Hill, Respondent, v. The Knickerbocker Electric Light and Power Company, Appellant.
   — Order affirmed, with ton dollars costs and the disbursements on the appeal. Opinion by

Daniels, J.


author: Barrett, J.

text:
    The People of the State of New York, Respondent, v. Abraham Suydam, Appellant.
   Judgment affirmed. Opinion by

Barrett, J.


text:
    The Veterans of the Seventh Regiment, Appellant, v. The Field Officers of the Seventh Regiment and others, Respondents.
   — Judgment affirmed, with costs and disbursements to the respondents. Opinion by

Lawrence, J.


author: Lawrence, J., and Daniels J.

text:
    William A. Darling, Jr., Appellant, v. Mary W. Howe, Respondent.
   Judgment reversed and new trial ordered, with costs and disbursements to the appellant to abide event. Opinions by

Lawrence, J., and Daniels J.


author: Daniels, J.

text:
    The People of the State of New York, Respondent, v. James Noonan, Appellant.
   — Judgment affirmed. Opinion by

Daniels, J.


author: Barnard, P. J.

text:
    Second Department,
    May Term, 1891.
    Matter of Petition for Revocation of Probate of Will of William Watson, the Younger.
   — Motion denied, with ten dollars costs. Opinion by-

Barnard, P. J.


author: Dykman, J.;

text:
    David D. Weaver, by Guardian, Respondent, v. John N. Bullis, Appellant.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Dykman, J.

text:
    Matter of Estate of William L. Denton.
   — Motion denied, without costs. Opinion by

Dykman, J.


author: Pratt, J.

text:
    The People of the State of New York, Appellant, v. Reuben Tanner, Respondent.
   — Judgment-affirmed, with costs. Opinion by

Pratt, J.


text:
    Ackerly & Gerard Company, Respondent, v. Charles Portz, Appellant.
   — Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


author: Pratt, J.;

text:
    Henry C. Griffin, Appellant, v. John A. Todd, Respondent.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Wingfield S. Velsor v. James W. Eaton.
   —Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    John J. Mulligan v. The Long Island Railroad Company.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Albert C. Smith, Appellant, v. Herbert J. Fowler, Respondent.
   — Order affirmed, with costs and, disbursements. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Henry Schwenk v. William Widemeyer.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    George E. Russell v. Frederick B. Bardes.
   Judgment and order allowing costs affirmed, with costs. Opinion by

Pratt, J.


text:
    James Thompson v. Henry D. Leslie
   —Judgment affirmed,with costs. Opinion by

Barnard, P. J.


text:
    Matter of Estate of Simeon Watts, Deceased.
   Appeal dismissed and order affirmed,with costs, for not filing papers according to stipulation.


author: Pratt. J.

text:
    William Watson, Appellant, v. Albert Benz. Respondent.
   --Order affirmed, with costs and disbursements. Opinion by

Pratt. J.


text:
    William Hughes, Receiver, v. Alexander C. McKenzie.
   — Order modified in accordance with opinion; order to be settled by Judge) Pratt. Opinion by

Pratt, J.


text:
    William Ziegler, Respondent, v. Alfred C. Chapin and others, Appellants.
   — Order affirmed, with costs. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. v. The Mayor, etc., of Yonkers.
   — Order affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Dykman, J., not sitting.


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

text:
    Hannah Bennett v. Village of Sing Sing.
   Judgment affirmed, with costs. Opinions by

Barnard, P. J., and Dykman, J.


text:
    William D. Briggs, v. Casper Lawson.
   — Judgment of County’Court affirmed, with costs. Opinion by

Dykman, J.


text:
    Lewis R. Stegman, Respondent, v. Henry S. Hollingsworth, etc., Appellant.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Oliver Downs, Appellant, v. Maria Wells, as Administratrix.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    The Board of Health of the Village of New Rochelle, Plaintiff, v. Eugenia Valentine, Defendant.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Matter of Estate of John M. Whittemore, Deceased.
   — Part of decree appealed from affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykinan, J.

text:
    Ludlow W. Valentine, an Infant, etc., Appellant, v. Matilda A. Richardt, Respondent.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by

Dykinan, J.


author: Barnard, P. J.;

text:
    George V. Brown, as Receiver, etc., Respondent, v. Joseph D. Baucus, Appellant.
   Order affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. Mansfield Compten, Appellant, v. Elbert Hegeman, Treasurer, etc., Respondent.
   — Order affirmed, with costs. Opinion by

Dykman, J.


text:
    Gideon F. Smith v. W. Frank Smith.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    John C. Orr and others, Respondents, v. St. Anthony’s Roman Catholic Church, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Mary Clemans, Respondent, v. Supreme Assembly Royal Society of Good Fellows, Appellant.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    James F. Gillen, Respondent, v. Hamlin Babcock, Appellant.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Pratt, J, ;•

text:
    Henry C. Henderson, Respondent, v. William McReynolds, Appellant.
   Order granting new trial reversed and judgment given on verdict. Opinion by

Pratt, J, ;•

Dykman, JM not sitting.


author: H^ratt, J.;

text:
    Thomas Kitson, Respondent, v. Sarah F. Blake, Appellant. Thomas Kitson, Respondent, v. Frederick D. Blake, Appellant.
   Order denying motion to set aside judgment, and open default affirmed, with costs. Opinion by

H^ratt, J.;

Dykman, J., not sitting.


text:
    Charles McLaren, Respondent, v. Thomas Stokes and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barnard,P.J.;

Pratt, J., not sitting.


author: Dykman, J ;

text:
    Daniel W. Tallmadge, Plaintiff, v. Press Publishing Company, Defendant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J ;

Pratt, J./not sitting.


text:
    William H. Boggs, Respondent, v. Theodore S. Bird and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Amanda Palmeri, Respondent, v. The Manhattan Railway Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Oscar W. Hommert, Appellant and Respondent, v. Patrick J. Gleason, Respondent and Appellant.
   — Judgment sustaining demurrer to complaint affirmed, with costs; order striking out words “ on the merits ” from findings and interlocutory judgment reversed, with costs and disbursements. Opinión by

Dykinan, J.


author: Barnard, P J.

text:
    David Miller, Respondent, v. Benjamin Wright, Appellant.
   — Appeal dismissed, with co3ts and with costs. Opinion by

Barnard, P J.


text:
    In the Matter of the Probate of the Alleged Will of Peter Paul Mahoney.
   Motion denied.


text:
    George C. Tidden and others, Respondents, v. William Raab and another, Executors, etc., Appellants.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.;

Pratt. J., not sitting.


text:
    The People of the State of New York, Respondent, v. Henry A. Cassidy, Appellant.
   Conviction and judgment affirmed. Opinion by

Pratt, J.


text:
    Bridget Meyer v. Daniel Hunt.
   — Judgment reversed and new trial granted at circuit. Opinion by

Barnard, P. J.


author: Dykman, J. ;

text:
    Frederick Loeser, Appellant, v. Herman Liebmann and others, Respondents.
   Judgments and orders appealed from affirmed, with costs. Opinion by

Dykman, J. ;

Pratt, J., not sitting.


author: Pratt, J. ;

text:
    William I. Thorn, Appellant and Respondent, v. Oliver T. Beard, Respondent and Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J. ;

Barnard, P. J.. not sitting.


author: Eykman, J.

text:
    In the Matter of the Claim of Frank Harris, Appellant, v. The Estate of Carrie W. Harris, Respondent.
   Judgment affirmed, with costs. Opinion by

Eykman, J.


text:
    Stewart H. Pink, Respondent, v. William S. Church, as Administrator, etc , Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    James Thompson v. Henry D Leslie.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Frank W. Ehrman, an Infant, etc., Respondent, v. The Brooklyn City Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. George J. Penfield, Appellant, v. Robert George, Commissioner, etc., Respondent.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. Thomas McCormack, Appellant, v. Patrick J. Weldon and others, Commissioners, Respondents.
   Order denying peremptory writ of mandamus affirmed, with costs. Opinion by

Dykman, J.


text:
    William Nicoll, Appellant, v. Charles G. Sands and others, Respondents
   — Judgment affirmed, with costs. Opinion by

Pratt, J.


author: vPratt, J. ;

text:
    In the Matter of the Widening Washington Street in the City of Poughkeepsie.
   — Order confirming report of commissioners of assessment affirmed. Opinion by

vPratt, J. ;

Barnard, P. J., not sitting.


text:
    Matter of Estate of Clarissa Darling.
   Order reversed, and case remitted to surrogate for-further action. Opinion by

Pratt, J.


author: Learned, P. J.

text:
    Third Department,
    May Term, 1891.
    David McKosker and others, Appellants, v. Emanuel Smith, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements. — Opinion by

Learned, P. J.


author: Landon, J.

text:
    Peter Blake, Respondent, v. John J. Harrigan, Individually and as Executor, and others, Appellants.
   — Order reversed, with ten dollars costs and printing disbursements, and motion for reference denied, with ten dolíais costs. Opinion by

Landon, J.


text:
    Michael Larow, Appellant, v. Nicholas J. Clute, Respondent.
   — Judgment affirmed, with costs. Opinion by

Landon, J.


author: Mayham, J.

text:
    Margaret Bell and Jennie Hindell, Respondent, v. William Bumstead, Jr., Appellant, Impleaded, etc.
   —Order affirmed, with costs. Opinion by

Mayham, J.


text:
    Jeffry Parris, Respondent, v. The Village of Green Island, Appellant.
   — Judgment reversed, new trial granted, costs to abide event. Opinion by

Mayham, J.


author: Learned. P. J.

text:
    James Toomey, Appellant, v The City of Albany, Respondent.
   — Judgment affirmed, with costs. Opinion by

Learned. P. J.


text:
    Margaret Hill, Respondent, v. Frank Froehlick and others, Executors, etc., Appellants.
   Judgment and order reversed,new trial granted, costs to abide event. Opinion by

Landon, J.


text:
    James C. Rogers, Respondent, v. William G. Wiley and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Charles Stone, Respondent, v. The City of Troy, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Landon, J.


text:
    Ann C. Ostrander, Respondent, v. John T. Washburn and others, Appellants.
   —Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Landon, J.


author: Mayham. J.

text:
    Jacob Parmenter, Respondent, v. John J. Fitzpatrick, Appellant, Impleaded with others.
   Judgment and order affirmed, with costs. Opinion by

Mayham. J.


author: May-ham, J.;

text:
    Frances E. Williams, Respondent, v. The United States Mutual Accident Association of the City of New York, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

May-ham, J.;

Learned, P. J., dissenting.


text:
    Charles Shaw and another, Appellants, v. Frank A. Roberts, Respondent.
   — Judgment of County Court reversed, witli costs. Opinion by

Landon, J.


text:
    Ira Downs, Respondent, v. The Central Vermont Railroad Company, Appellant.
   — Judgment interlocutory affirmed, with costs, and judgment final for plaintiff; writ of inquiry to issue. Opinion by

Learned, P. J.


author: Mayham, J.;

text:
    Mary McC. Hastings, Respondent, v. John Claflin and others, Appellants.
   — Judgment and order affirmed, with costs. Opinion by

Mayham, J.;

Landon, J., not acting.


text:
    In the Matter of the Petition of George Christie for Appointment of Trustee, etc.
   — Motion to cancel order denied.


text:
    John Morehead and another, as Overseers, etc., Appellants, v. Charles Brown, Respondent.
   Motion to go to Court of Appeals denied.


text:
    The People of the State of New York, Respondent, v. The Mutual Savings and Distribution Fund Association, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Morris, Tasker & Co , Respondent, v. Lee Chamberlain, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


text:
    Sylvester McChesney, Respondent, v. Panama Railroad Company, Appellant
   —Order affirmed, with ten dollars costs and printing disbursements.

Mayham, J., not aclng.


text:
    Samuel W. Fuller and others, Appellants, v. Owen W. Humphrey, Respondent, Impleaded, etc.
   — Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Jane Ellis, Appellant, v. Clinton County Court and others, Respondents.
   Order reversed and motion for writ granted, without costs.


text:
    The People of the State of New York ex rel. The Troy Press Company, Appellant, v. The Common Council of the City of Troy and others, Respondents.
   Proceedings reversed, with fifty dollars costs and disbursements personally against the fourteen aldermen who voted for the designation.


text:
    Salie Straus, Respondent, v. David Straus. Appellant.
   The part of the order appealed from reversed, without costs to either party,


text:
    Edmund Deyo, Respondent, v. Foster B. Morss, as Executor, etc., under will of Burton G. Morss, Appellant.
   Order reversed, with ten dollars costs an d printing disbursements, and motion denied, with ten dollars costs, without prejudice to any application for an injunction. Opinion by

Learned, P. J.


text:
    William H. Smith, Respondent, v. London and Lancashire Fire Insurance Company of Liverpool, England, Appellant.
   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York ex rel. J. J. Fitzpatrick, Appellant, v. The Board of Supervisors of Clinton County, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York ex rel. J. B. White, Appellant, v. The Board of Supervisors of Clinton County, Respondent.
   Order affirmed, with, ten dollars costs and printing disbursements.


text:
    David Addis and others, Respondents, v. Cornelius Low Addis, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


author: May-ham, J.

text:
    Peter Beaudin, Appellant, v. The Central Vermont Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

May-ham, J.


text:
    Cornell Vosburgh, Respondent, v. Peter G. Kemp and another, Appellants.
   — Judgment affirmed, with costs.


text:
    In the Matter of the Application of John S. Maxwell for Admission as Attorney and Counselor.
   — Application for admission denied. Opinion by

Learned, P. J.


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


text:
    Charles Oberle, Respondent, v. The Lang Manufacturing Company, Appellant.
   — Judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulates within twenty days to deduct from the recovery ten dollars and sixty-six cents, being amount of judgment in City Court: if it be so stipulated, judgment, as so modified, affirmed, with costs.


text:
    Milton F. Adams v. The Lamson Consolidated Store Service Company.
   Motion to go to the Court of Appeals denied.


text:
    Aaron R. Stevens and others, Appellants, v. The Union Trust Company and others, Respondents.
   Order modified by denying motion to make petitioners defendants, but requiring plaintiffs to serve on their attorney notice of' application for judgment, or of discontinuance or other disposition of the case in like manner as if they were parties, and without prejudice toa renewal of this application; no costs to either party.


author: Dwight, P. J.

text:
    Fifth Department,
    June Term, 1891.
    In the Matter of the Extension of Newland Avenue in the City of Jamestown.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Dwight, P. J.


text:
    The People of the State of New York, Respondent, v. Emily Hawes, Appellant.
   — Judgment ana conviction affirmed, and the case remitted to the Court of Sessions of Niagara county to proceed therein.


text:
    The People of the State of New York ex rel Thomas B. Cosford, Appellant, v. The Board of Supervisors of Niagara County, Respondent.
   Order appealed from affirmed, with costs on opinion of Lewis, J.. at Special Term.


author: Macomber, J.

text:
    Samuel Bryant, Administrator, etc., Respondent, v. The Town of Randolph, Appellant.
   Judgment and order appealed from affirmed. Opinion by

Macomber, J.


author: Ma-comber, J.

text:
    Myra L. Spring, Executrix, etc., Respondent, v. Chautauqua Mutual Life Association. Appellant.
   Order denying motion for a new trial affirmed, with costs, and judgment ordered for the plaintiff on the verdict. Opinion by

Ma-comber, J.


text:
    In the Matter of the Application of Certain Freeholders of Town of Montezuma for an order requiring repairing or rebuilding of a bridge, between the Towns of Montezuma and Conquest, known as Howland Bridge.
   Order denying prayer of petition affirmed, with costs. Order denying costs to the two towns reversed, and separate bills' of costs allowed to them. Opiuion by

Macomber, J.


text:
    The People of the State of New York, Respondent, v. Stephen Tower, Appellant.
   — Case stands over to enable respondent to obtain correction of the appeal book.


text:
    The People of the State of New York, Appellant, v. John O. Jeffery, Respondent.
   Judgment' of Court of Sessions of Niagara county affirmed. Opinion by

Macomber, J.


text:
    The People of the State of New York, Appellant, v. Hezekiah Seeley, Respondent.
   — Judgment of Court of Sessions of Niagara county affirmed. Opinion by

Macomber, J.


author: Dwight, J.

text:
    Frank Harley, Appellant, v. Buffalo Car Manufacturing Company, Respondent
   — Order denying plaintiffs’ motion for a new trial reversed, and a new trial ordered, with costs to abide the event. Opinion by

Dwight, J.


text:
    Honora Archibald, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Judgment of the County Court of Monroe county appealed from affirmed with costs. Opinion by

Macomber, J.


author: Dwight, P J.

text:
    Sylvester Trimmer, Appellant, v. George T. Fish and another, Respondents.
   Judgment and order appealed from reversed, and a new trial ordered in the County Court of Monroe county, with costs to abide the event. Opinion by

Dwight, P J.


author: Macomber, J.; Dwight, P. J ,

text:
    The People of the State of New York, Respondent, v. Newton A. Drown and another, Appellants.
   Judgment and conviction appealed from reversed, and a new trial granted in the Court of Sessions of Monroe county. Opinion by

Macomber, J.;

Dwight, P. J ,

concurs on ground of the errors in the charge of the court to the jury.


text:
    Charles Griesa and others, Respondents, v. The Massachusetts Benefit Association, Appellant.
   — Judgment appealed from affirmed. Opinion by

Dwight, P. J.


text:
    William Prince, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Judgment and order of County Court of Monroe county appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    Frederick St. John, Respondent, v. Conrad Swain, Jr., Appellant.
   — Judgment and order of the County Court of Erie county appealed frpm affirmed, with costs. Opinion by

Ma-comber, J.


text:
    The People of the State of New York, Respondent, v. Charles Harris, Appellant.
   —Judgment and conviction affirmed and the case remitted to the Court of Sessions of Cattaraugus county to proceed therein. Opinion by

Macomber, J.


text:
    James Rock, Respondent, v. John Doerr, Appellant.
   Judgment appealed from affirmed. Opinion by

Dwight, P. J.


text:
    William H. Lockwood, Appellant, v. Benjamin F. Lockwood, Respondent.
   — Judgment of County Court of Monroe county affirmed, with costs. Opinion by

Macomber, J.


text:
    Baldwin’s Bank of Penn Yan, Appellant, v. John H. Butler, Impleaded, etc., Respondent
   Order appealed from granting a now trial modified so as to impose the payment of the costs of the trial, and of the motion, as a condition of the order, and as so modified affirmed, without costs of this appeal to either party. Opinion by

Macomber, J.


text:
    Rochester Railway Company, Appellant, v. William H. Robinson, Respondent.
   — Judgment appealed from affirmed, with costs, hut without prejudice to a renewal of the application on an amended petition.


text:
    Rochester Electric-Light Company, Appellant, v. The Rochester Power Company, Respondent.
   —Judgment appealed from affirmed, with costs. Opinion by

Dwight, P. J.


author: M. H. Peck, Esq., Referee.

text:
    Charles H. Moore, as Receiver, etc., Appellant, v. The American Loan and Trust Company and others, Respondents.
   — Judgment appealed from affirmed on opinion of

M. H. Peck, Esq., Referee.


text:
    Sarah A. Thomas, an Infant, by Guardian, Appellant, v. Mary E. Thomas, Respondent.
   Judgment appealed from reversed and a new trial granted, with costs to the appellant to abide the event. Opinion by

Dwight, P. J.


text:
    Richard D. Richards, Respondent, v. Frances B. Allen, Appellant.
   —Judgment of County Court of Monroe county affirmed, with costs.


author: Dwiglit, P. J.

text:
    The People of the State of New York ex rel. John P. Titsworth, as Commissioner, etc.. v. Edwin A. Nash, County Judge, etc.
   — The determination of the commissioners, and of the county judge of Livingston county, confirmed, with costs. Opinion by

Dwiglit, P. J.


text:
    The People of the State of New York, Respondent, v. Fred Wilkinson, Appellant.
   Judgment and conviction appealed from afiirmed and the case remitted to the Court of Sessions of Monroe county to proceed therein. Opinion by

Macomber, J.


text:
    In the Matter of the Revocation of Probate of the Last Will and Testament of Robert Liney, Deceased.
   — Decree of the surrogate of Monroe county affirmed, with costs to both parties payable out of the estate.


text:
    Michael Filon and another v. The Miller Brewing Company, Impleaded with John F. Harris.
   Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the verdict. Opinion by

Dwight, P. J.


text:
    The People of the State of New York, Respondent, v. James J. Thompson, Appellant.
   — Judgment and conviction reversed and a new trial ordered in the Court of Sessions of Monroe county. Opinion by

Macomber, J.


text:
    Bernard Rothschild and others, Respondents, v. The Grand Trunk Railway Company of Canada, Appellant.
   — Interlocutory judgment appealed from affirmed, with costs, with leave to the defendant to withdraw the demurrer and answer over, on payment of costs. — Opinion by

Macomber, J.


text:
    Hugh Kelly, Respondent, v. the City of Rochester, Appellant.
   Order setting aside the verdict and granting a new trial affirmed, with costs of this appeal absolutely to the respondent. Opinion by

Dwight, P. J.


text:
    The People of the State of New York ex rel. Oak Hill Cemetery Association, Appellant and Respondent, v. Luther A. Pratt and others, Assessors of the City of Rochester Respondents and Appellants.
   — Judgment appealed from affirmed, without costs of this appeal to either party. Opinion Per Curiam left with

Macomber, J.


text:
    Cora Chase, Respondent, v. Jamestown Street Railway Company, Appellant.
   — Judgment and order appealed from affirmed. Opinion by

Dwight, P. J.


text:
    Lawick H. Carter, Appellant, v. William Stevens, Appellant, and George Carnahan, Respondent.
   — Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by-

Dwight, P. J.


text:
    Joseph D. Schwartz, Respondent, v. Theodore C. Green, Appellant.
   — Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


text:
    Lawrence Green, Appellant, v. Henry W. Watson, Respondent.
   — Judgment and order appealedfroin affirmed. Opinion by

Macomber, J.


text:
    Charles S. Murray, Appellant, v. William T. Cameron, Respondent.
   — Order appealed from affirmed, with ten dollars costs and disbursements. Opinion, by

Dwight, P. J.


text:
    Anna M. Zent, Administratrix, etc., Appellant, v. John Fuchs, Respondent.
   — Order of the County Court of Erie county setting aside verdict affirmed, with costs. Opinion oy

Macomber, J.


text:
    Thurlow W. Abel and others v. Alonzo Bradner and another.
   — The order and judgment appealed from modified as stated in the opinion, and, as modified, affirmed, without costs of this appeal to either party. Opinion by

Dwight, P. J.


text:
    William D. Moody, Appellant, v. Francis W. Belden and others, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


text:
    Aultman, Miller & Co., Appellant, v. Frederick Hacker, Respondent.
   — Judgment and order appealed from reversed and a new trial granted, with costs to abide the event. Opinion by

Macomber, J.


text:
    George P. Brand, Plaintiff, v. James W. McMahon, Defendant.
   Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant’on the verdict. Opinion by

Dwight, P. J.

Iu each of the following cases a reargument or resubmission is ordered, which may be had at the present term by consent of counsel. On application to the court by both parties, any of these causes may be set down for a day certain during this term, and they will be entitled to a preference on such day calendar. Additional printed cases and points need be furnished to Mr. Justice Lewis only


author: Ma-comber, Jv

text:
    George W. Bennett and another, Respondent, v. Austin R. Knapp and others, Administrators, etc., Appellants. Samuel Wilder, Respondent, v. William A. Stace, Appellant. Bridget Ward, Administratrix, etc., Respondent, v. The Rochester Electric Railway Company, Appellant. Harriet C. Knapp, Respondent, v. The Northwestern Mutual Life Insurance Company. Orin S. Bacon, Jr., Respondent, v. Albert Jacobs and another, Appellants. George W. Wells, Respondent, v. Rufus A. Sibley and others, Appellants. Harriet A. Rhinelander, Appellant, v. The City of Lockport, Respondent.
   — Order appealed from affirmed; with costs. Opinion by

Ma-comber, Jv


author: Daniels, J.

text:
    First Department,
    June Term, 1891.
    Decisions handed down June 12, 1891.
    Margaret M. Brennan, Administratrix, etc., Respondent, v. Susan E. Hall and others, Trustees, etc., Appellants.
   — Judgment affirmed, with costs. Opinion hy

Daniels, J.


text:
    Walter S. Johnston, Receiver, etc , Respondent, v. The Manhattan Railway Company and another. Appellants.
   Judgment affirmed. Opinion hy

Daniels, J.


author: Patterson, J.

text:
    The New York Life Insurance and Trust Company, Plaintiff, v. John H. Livingston and others, Defendants.
   — Judgment affirmed, with costs. Opinion hy

Patterson, J.


author: Paiterson, J.

text:
    Melvin Stephens, Respondent, v. Robert L. Humphreys, Appellant.
   — Judgment affirmed, with costs. Opinion hy

Paiterson, J.


author: Barrett, J.

text:
    The People of the State of New York, Respondent, v. Raffaele Izzo, Appellant.
   Mew trial ordered. Opinion hy

Barrett, J.


author: Van Brunt, P. J.

text:
    Henry A. Rice, as Attorney, etc , Respondent, v. James Grange, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Probate of the Last Will and Testament of Samuel B. Peck, Deceased.
   Case sent hack to surrogate for such action and proceeding as counsel may deem advisable. Opinion hy

Barrett, J.


text:
    Henry Rosellen, as Assignee, etc., Respondent, v. Henry Henrich and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements, on opinion of court below.


text:
    Albert W. Gates and another, Respondents, v. Willard W. McDonald and others, Appellants.
   Order granting commission, etc , affirmed, with ten dollars costs and disbursements.


text:
    James T. Leavitt and others, Respondents, v. Gustave M. Miller and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


author: Per Curiam.

text:
    In the Matter of Virginia S. Kaufman.
   — Decree reversed. Opinion

Per Curiam.


text:
    John Parker and others v. Maria Linden and others.
   Motion denied, with ten dollars costs.


text:
    German-American Title Guarantee Company v. G. J. W. Van Slingerlandt and others.
   Motion granted,


text:
    James Abbott v. The Petersburg Granite, etc., Company.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York v. Henry G. McGonigal
   — Motion denied.


text:
    The People of the State of New York v. William N. Loew.
   Motion denied.


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

text:
    Sidney M. Dyer, Receiver, etc., Appellant, v. Edward Power and others, Respondents.
   Judgment affirmed Opinions by

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


text:
    Jean A. Tauziede and others, Appellants, v. Francois A. Jumel and others Respondents.
   Judgment affirmed, with costs to the respondents against plaintiffs, appellants- Opinion hy

Van Brunt, P. J.


text:
    Nathaniel Hooper and others, Appellants, v. C. McCulloch Beecher and others,Respondents.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    William D. Mackey and another, Appellants, v. Benjamin Rausch and others, Executors, etc., Respondents.
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Marx Ottinger and another, Respondents, v. The New York Elevated Railway Company and another, Appellants.
   — Judgment modified as directed in opinion, and as modified affirmed, without costs. Opinion hy

Van Brunt, P. J.


text:
    Mary O. Simis, Respondent, v. Daniel S McElroy, Appellant.
   — Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Van Brunt, P. J.


text:
    Levi P. Morton and others, Respondents, v. Charles P. Palmer, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Per CuHam.

text:
    Charles F. Starr, Respondent, v. Charles G. Patterson, Appellant.
   — Order affirmed, with ten dollars costs and disbursements, but with leave, on payment of the costs of this appeal and of the proceedings in the court below, to renew the motion upon additional papers. Opinion

Per CuHam.


text:
    Albert W. Gates and others, Respondents, v. Willard W. McDonald and others, Appellants.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per CuHam.


author: hy Barrett, J.

text:
    Dunlap’s Cable News Company, Appellant, v. David M. Stone, President, etc., Respondent.
   Order affirmed, with costs. Opinion

hy Barrett, J.


text:
    The Union Distilling Company, Respondent, v. Henry Ruser, Appellant.
   — Order affirmed, with costs. Opinion by

Patterson, J.


text:
    Isidore S. Korn and others, Respondents, v. The New York Elevated Railway Company and another, Appellants.
   — Judgment affirmed, with costs. Opinion hy

Patterson, J.


text:
    In the Matter of the Application of Janet Kingsland, Executrix, etc., of Henry Foster Topping, Deceased.
   — Motion denied, with ten dollars costs.


text:
    Decisions handed down June 26, 1891.
    Edward B. Babcock, Appellant, v. Schuylkill and Lehigh Valley Railroad Company, Respondent.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    The Prince Manufacturing Company, Appellant, v. Prince’s Metallic Paint Company, Respondent.
   Judgment reversed and new trial ordered, with costs to the plaintiff to abide event. Opinion hy

Daniels, J.


author: Van Brunt, P J.

text:
    The People of the State of New York ex rel. Joseph A. Gardner v. John McClave and others, Commissioners, etc.
   —Writ dismissed, with costs. Opinion hy

Van Brunt, P J.


text:
    Frederic P Olcott and others, Appellants, v. Deborah Powers and others, Respondents.
   Judgment reversed, order of reference vacated and a new trial ordered, with costs to appellant to abide event. Opinion by

Van Brunt, P. J.


text:
    Thomas J. Robinson, Respondent, v. Arthur E. Wood, Individually, etc., as Receiver, etc., Appellant.
   — Judgment affirmed, with costs. Opinion hy

Van Brunt, P. J.


text:
    The People of the State of New York, Respondent, v. The New York Central Underground Railway Company, Appellant, Impleaded,etc.
   Order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    William S. Keiley, as Receiver, etc., Respondent, v. The Mechanics and Traders’ Bank, Appellant.
   — Judgment affirmed, with costs. Opinion hy

Van Brunt, P J.


text:
    The People of the State of New York, Respondent, v. Pincus Block, Appellant.
   — Conviction affirmed. Opinion hy

Van Brunt, P. J.


author: Vau Brunt, P. J.

text:
    The People of the State of New York ex rel. James A. Costello, Appellant, v. John McClave and others, Commissioners, etc., Respondents.
   Writ dismissed, with costs. Opinion hy

Vau Brunt, P. J.


author: Patterson, J.;

text:
    Charlotte P. Robbins, Respondent, v. Eliza T. Robbins, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Patterson, J.;

dissenting opinion hy Barrett, J.


text:
    Lyman P. French, Appellant, v. The Brush-Swan Electric-Light Company of New England, Respondent.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Rachel Pollock, Respondent, v. The Brooklyn Cross-town Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Patterson, J.;

Van Brunt, P. J., dissents


text:
    The People of the State of New York, Respondent, v. Thomas McGuinness, Appellant.
   Con viction affirmed. Opinion by

Van Brunt, P. J.


text:
    Henry A. Mott and others. Respondents, v. Jacob Oppenheimer and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Marion Langdon v. The Mayor, etc., of the City of New York.
   — Referee’s report affirmed, and the plaintiff to recover judgment as stated in opinion in Walter Langdon v. The Mayor, decided herewith, with interest upon the amount of award from the time of the appropriation of said property by the city, with $>2,000 extra allowance. Opinion by

Van Brunt, P. J.


text:
    Walter Langdon, v. The Mayor, etc., of the City of New York.
   Referee’s report confirmed, and judgment given to the plaintiff as stated in opinion, and motion for extra allowance granted, the plaintiff being allowed five per cent upon the amount recovered. Opiuion by

Van Brunt, P. J.


text:
    Margaret A. Oliver, Respondent, v. William L. Moore, Administrator, etc., Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Barrett, J.


text:
    Christian Kuebler, as Administrator, etc., Appellant, v. The Mayor, etc., of the City of New York, Respondent.
   — Exceptions overruled, and judgment for defendant upon the dismissal, with costs. Opinion by

Barrett, J.


text:
    Augustus S. Shepard, Respondent, v. The New York Elevated Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Patterson, J.


text:
    The People of the State of New York ex rel. Steinson, Appellant, v. The Board of Education, etc., Respondent.
   — Order affirmed, with costs. Opiuion by

Patterson, J.


text:
    James Graley, an Infant, etc., Appellant, v. The Harlem Bridge, etc., Railway Company, Respondent.
   Order affirmed, without costs.


text:
    Herbert Sanguinnetti, Respondent, v. Frances Roche, Appellant.
   — Judgment reversed and new trial ordered, with costs to the appellant to abide event. Opinion by

Barrett, J.


text:
    Benizno S. Suarez, Respondent, v. The Manhattan Railway Company and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Barrett, J.


author: Patterson and Barrett. JJ.

text:
    Leonhardt Hilsenbeck, Respondent, v. John M. Guhring, Appellant
   — Judgment affirmed, with costs. Opinions by

Patterson and Barrett. JJ.


text:
    Peter Santos Suarez, Respondent, v. The Manhattan Railway Company and another, Appellants.
   — Judgment affirmed,with costs. Opinion by

Barrett, J.


text:
    The People of the State of New York ex rel. Albert E. Westlotorn v. Charles F. MacLean and others, Commissioners, etc., Respondents.
   — Writ dismissed, with costs. Opinion by

Barrett, J.


text:
    The People of the State of New York, Respondent, v. Sampson Wallach, Appellant.
   — Judgment affirmed. Opinion by

Barrett, J.


text:
    Stephen P. Tregoning, Respondent, v. Richard F. Tregoning and others, Appellants.
   —Interlocutory judgments affirmed, with costs. Opinion

Per Curiam.


text:
    Modesto Pineiro, Respondent, v. Richard Gurney, Appellant.
   — Judgment reversed and new trial ordered, with costs to abide event. Opinion by

Barrett, J.


text:
    Henry E. Bandell, Respondent, v. S. Elwood May, Appellant.
   — Judgment affirmed, with costs. Opinion by

Patterson, J.


text:
    In the Matter of the Application of the Metropolitan Elevated Railroad Company v. Henry Siefke.
   — Order reversed, with costs. Opinion by

Patterson, J.


author: Bartlett, J.

text:
    Ricot J. Dovale, Respondent, v. Bernard L. Ackerman and others, Appellants.
   — Judgment reversed and new trial ordered. Opinion by

Bartlett, J.


text:
    The People of the State of New York Respondent, v. Charles Seaton, Appellant.
   — Judgment reversed and new trial granted. Opinion by

Bartlett, J.