text:
    Joseph Grafton, Appellant, v. William Moir, Respondent
   Judgment affirmed, with costs. Opinion by

Barrett, J.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    George A. McDermott, as Receiver, etc., Appellant, v. John Harrison and others, Respondents.
   Judgment affirmed, with costs.— Order also affirmed. Opinion by

Cullen, J.


author: Brady, J.

text:
    Emma Foley, Plaintiff, v. George Stone and others, Defendants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Harshaw Scott, Respondent, v. The Pennsylvania Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Frederick W. Banning v. Joseph J. Kittel and others.
   Motion denied. (Mem.)


text:
    Alfred De Cordova, Respondent, v. Stephen C. Barnum, Appellant.
   Judgment affirmed. Opinion by

Brady, J.


text:
    William H. Hussey, Respondent, v. Weeks W. Culver and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Brady, J.


author: Daniels, J.

text:
    John W. Haaren, Respondent, v. Jeremiah C. Lyons and others, Appellants.
   —Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Henry J. Burchell, Respondent, v. The Mayor, etc., of the City of New York, Appellant.
   Judgment'affirmed. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. Donald McQuien, Appellant, v. The Theatrical Mechanical Association, Respondent.
   Motion will not be considered under this order to show cause.


text:
    George P. Lawrence and others, Respondents, v. Jerome F. Manning and others, Appellants.
   Order affirmed, witn. ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Michael H. Cashman, Respondent, v. Hugh M. Reynolds and others, Appellants.
   Motion granted.


text:
    Cornelius B. Mitchell and others v. Alfred Oliver.
   Motion denied, with ten dollars costs, to abide event of appeal.


text:
    The People of the State of New York v. The New York, New Haven and Hartford Railroad Company.
   Motion granted.


text:
    George B. Inman and others. Appellants, v. John E. Corwin and others, Respondents.
   The judgment should be modified so as to allow the complaint to be amended within ten days on payment of the costs of the demurrer and of this appeal, and affirmed as modified. Opinion by

Brady, J.


text:
    In the Matter of the Last Will and Testament of Augustus Zerega, Deceased.
   Motion denied. (Mem.)


text:
    In the Matter of the Accounting of Executors of Benjamin A. Kavanagh, Deceased. (In re Sisters of the Poor.)

   No appeal having been taken to the Court of Appeals, this motion for a stay denied.


text:
    In the Matter of the Accounting of Executors of Benjamin A. Kavanagh, Deceased.
   There has not. as yet been such laches as would justify the dismissal of these appeals. Motion denied.


text:
    Robert W. Gleason, Respondent, v. Cornelius Morrison and others, Appellants.
   Judgment and order affirmed. .Opinion by

Daniels, J.


text:
    Hugh Reavey, Appellant, v. Garrett D. Clark and others, Respondents.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. William H. Osborne, Appellant, v. Edward Gilon and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements of this appeal. Opinion by

Brady, J.


text:
    William F. Kuntz v. C. C. White Company.
   Motion denied.


author: Van Brunt. P. J.

text:
    In the Matter of Sarah Bertholf v. Alfred Carr, Executor.
   Order reversed, with ten dollars costs and disbursements, and motion granted. Opinion by

Van Brunt. P. J.


text:
    In the Matter of the Revocation and of the Last Will of Ann Voorhis, Deceased.
   Motion for reargument denied, with costs. Opinion by

Daniels, J.


text:
    Charles T. Russell and others, Respondents, v. Samuel W. Allerton, Appellant.
   Reargument ordered on further briefs on points tobe submitted in ten days after notice of this decision.


text:
    Blanche L. Andrews v. William C. Brewster.
   Reargument ordered upon the question of damages.


author: Daniels J.

text:
    The Metropolitan National Bank, Appellant, v. Mary E. Palmer and others, Executrices, etc., Respondents.
   Judgment and order affirmed. Opinion by

Daniels J.


text:
    Meredith Howland, Trustee, etc., Respondent, v. Louis M. Howland and others, Appellants.
   Judgment modified as directed in opinion and affirmed as modified; the question of costs to be determined on settlement of the order. Opinion by

Daniels, J.


text:
    Herman Geisenheimer v. Erank M. Simons and others.
   Motion denied on appellant’s stipulating to argue at May Term.


author: Bartlett, J.

text:
    Thomas Cavanagh, as Administrator, etc., Appellant, v. The Oceanic Steamship Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Bartlett, J.


text:
    In the Matter of the Application of the Department of Public Parks, etc. In the Matter of the Estate of Ann Bolton.
   Motion denied,


text:
    Joseph O. Brown and others, Appellants, v. James Chesterman and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Brady, J.


author: Daniels, J.'

text:
    Chauncey St. John, Respondent, v. Howard W. Coates and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.'


text:
    In the Matter of Earle Marks, an Attorney.
   Referee’s report confirmed.


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


text:
    William H. W. Sistare and others v. Frederic P. Olcott, Receiver, etc.
   Motion denied.


text:
    William F. Lennon, Appellant, v. Mary A. Stiles, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


author: Van Brunt, P. J.

text:
    In the Matter of Wright E. Post and others, Appellants, v. William M. Evarts, and others, Respondents
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York ex rel. John Davidson v. Edward Gilon and others, Assessors, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York ex rel. D. Willis James v. Edward Gilon and others, Assessors, etc.
   Order affirmed, without costs. Opinion by

Van Brunt, P. J.


text:
    Konrad Schmidt and others, Appellants, v. Rochester Lithographic and Printing Company, Respondent
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York v. Stephen Colleti.
   The appeal is stricken from the calendar in order that the appellant may procure a properly certified copy of the record. (Mem.)


text:
    Albert L. David, Respondent, v. Charles F. David, Appellant, Impleaded, etc.
   Judgment; affirmed, without costs of the appeal. Opinion by

Daniels, J.


author: Brady and Daniels, J J.

text:
    In the Matter of John N. Blake, Appellant, v. Lilian H. Andrews, as Administratrix, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinions by

Brady and Daniels, J J.


text:
    Grace Wygant, Executrix, etc., Respondent, v. Joseph M. Brown, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


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

text:
    Charles S. McCulloh, Receiver, etc., Respondent, v. Aeby & Co., Appellant, Impleaded, etc.
   Order reversed, with usual costs and disbursements, and the attachment vacated. Opinions by

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


text:
    William D. Cunningham and others, Respondents, v. Theodore Von Pustan and others, Appellants.
   Order -affirmed, with ten dollars costs of this appeal and disbursements. Opinion by

Brady, J.


author: Brady, j.

text:
    William R. Hynes and others, Appellants, v. Farmers’ Loan and Trust Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Brady, j.


author: Van Brunt, P. O.

text:
    Tradesmen’s National Bank, Respondent, v. William H. Ertell and others, Appellants.
   •Judgment affirmed, with costs. Opinion by-

Van Brunt, P. O.


text:
    Morris Gluck, as Administrator, etc., Respondent, v. Ridgewood Ice Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York ex rel. George Hansen v. John McClave and others, Commissioners, etc.
   Proceedings of Commissioners affirmed and writ dismissed. Opinion by

Daniels, J.


text:
    In the Matter of the Application of the Mayor, etc., to Acquire Lands, etc., for Parks. (In re Estate Frederick A. Hemmer.)

   Motion denied.


text:
    Emma A. Marson, Individually, and as Executrix, etc., Appellant, v. Charles A. Purdy and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    John H. N. Graham and others, Respondents, v. I. Osgood Carleton and others, Appellants.
   Order affirmed, with ten dollars costs, and the disbursements on the appeal. Opinion by

Daniels, J.


text:
    William G. Irving, Respondent, v. Sumner E. Claggett, Appellant.
   Judgment reversed and new trial ordered, with costs to the defendant to abide the event. Opinion by Daniels, J.; dissenting opinion by

Brady, J.


text:
    Anna E. Bahruth v. Hilbert Bahruth.
   Motion granted, with ten dollars costs.


text:
    The Manhattan Electric Light Company, Appellant, v. Hugh J. Grant, as Mayor, etc., and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion Per Curiam*


text:
    The People of the State of New York ex rel. Louis Lorch, Relator, v. Stephen B. French and others, Police Commissioners, Respondents.
   Writ dismissed, with costs. Opinion by

Bartlett, J.


text:
    Simon August and others, Respondents, v. The Fourth National Bank, Appellant.
   Order affirmed on the condition stated in opinion. Opinion by

Bartlett, J.


author: Barrett, J.

text:
    Thomas Thorn and others, Respondents, v. The Metropolitan Elevated Railway Company and others, Appellants.
   Judgment, affirmed, with costs. Opinion by

Barrett, J.


text:
    Thomas Thorn and others. Respondents, v. The Metropolitan Elevated Railway Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barrett, J.


text:
    Aurelie Giordano, Respondent, v. The Manhattan Railway Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Bartlett, J.


text:
    Theodorus B. Woolsey and others, Respondents, v. The New York Elevated Railroad Company and others, Appellants.
   Judgment aflirmed, with cost6. Opinion by

Van Brunt, P. J.


text:
    Edward Mitchell and others, Respondents, v. The Metropolitan Elevated Railway Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barrett, J.


text:
    George Jacob Hochhalter, Respondent, v. The Manhattan Railway Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barrett, J.


text:
    Elias Sobel and others, Respondents, v. The New York Elevated Railroad Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barrett, J.


author: Barrett. J.

text:
    Thomas Thorn and others, Respondents, v. The Metropolitan Elevated Railway Company and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barrett. J.


text:
    Robert Irwin, Plaintiff, v. The Mayor, etc., of the City of New York, Defendants.
   Judgment for plaintiff for interest from August 26, 1889. Opinion by

Van Brunt, P. J.


text:
    Edith E. Otis and another, Appellants, v. Fannie A. Sherman and another, Respondents. Same v. Same.
   Orders affirmed, with ten dollars costs and disbursements.


text:
    Phebe Brandy, Appellant, v. Fannie A. Sherman and another, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


author: Dwight, P. J.;

text:
    Robert P. Russell, Appellant, v. Nelson Randall, Respondent.
   Order appealed from reversed, with ten dollars costs and disbursements, without prejudice to the defendant’s renewal of the motion for a new trial upon newly-discovered evidence, upon a case made and settled for that purpose. Opinion Per Curiam left with

Dwight, P. J.;

dissenting opinion by Corlett. J.


text:
    Alice Lafflin, Respondent, v. The Travelers’ Insurance Company, Appellant.
   Order aflirmed, with ten dollars costs and disbursements. Held, that the appointment of the superintendent of the insurance department, as the attorney for the defendant to be served with process, was not duly certified and authenticated by the certificate purporting to be that of a notary of the city of Hartford, Cl.


author: Macomber, J.

text:
    Victoria A. King and others, Appellants, v. Joseph Reed, Sole Commissioner of Highways for Town of Manchester, Respondent.
   Order vacating temporary injunction reversed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


text:
    The Manufacturers and Traders’ Bank, Appellant, v. Thomas V. Welch, as Receiver, etc., Respondent, Impleaded, etc.
   Orders appealed from reversed, without costs to either party. Opinion by

Dwight, P. J.;

Corlett, J., not sitting.


author: Corlett, J.

text:
    In the Matter of the Final Judicial Settlement of Accounts of Jane A. May, Executrix, etc., Appellant.
   Decree of surrogate affirmed, with costs. Opinion by

Corlett, J.


author: Macomber, J.;

text:
    William B. Reading, Administrator, etc., Respondent, v. Jeremiah C. Lamphier, Appellant.
   Judgment and order affirmed. Opinion by

Macomber, J.;

Corlett, J., not sitting.


text:
    In the Matter of the Revocation of the Will of Richard Simmons, Deceased.
   Decree of the surrogate affirmed, with costs. Opinion by

Corlett, J.


text:
    In the Matter of the Probate of the Will of Gottfried Tallinger, Deceased.
   Decree of the surrogate affirmed, with costs to respondents, payable out of the estate.


text:
    Chauncey Abbey, Appellant, v. Ada J. Ferris and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Macomber, J.


text:
    Emory J. Bishop, Respondent, v. Agricultural Insurance Company, Appellant.
   Judgment and order affirmed. Opinion by

Corlett, J.


author: Dwight, P. J.:

text:
    Olive Knight, Executrix, etc., Respondent, v. Lucius P. Warren, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Dwight, P. J.:

Corlett, J , not sitting.


text:
    Charles A. Drefs and others, Appellants, v. David P. Stewart and others, Respondents. Same v. Same.
   Judgment reversed and a new trial granted, with costs to abide the final award of costs. Opinion Per Curiam left with

Dwight, P. J.;

Corlett, J., not sitting.


text:
    Emma E. Cramer and others, Plaintiffs, v. The Masonic Life Association of Western New York, Defendant.
   Motion for a new trial denied, and judgment ordered for the defendant on the verdict. Opinion by

Corlett, J.


text:
    Seth Wells, Respondent, v. John W. Garbutt, Appellant.
   Judgment affirmed, with costs.


author: Corlett, J.,

text:
    True D. Matson, Appellant, v. Justin Blossom, Respondent, Impleaded, etc.
   Judgment and order appealed from affirmed on authority of the decision in this case on former appeal, reported in 18 N. Y. State Reporter, 726. Opinion by

Corlett, J.,

dissenting.


text:
    George H. Hammond & Co., Appellants, v. Adaline Young, Respondent.
   Judgment and order appealed from, affirmed with costs. Opinion by

Macomber, J.


text:
    William Garlock, Appellant, v. Samuel W. Markham, Respondent.
   Judgment and order appealed from affirmed. See Mem. in case of Matson v. Blossom (supra). Dissenting opinion by

Corlett, J.


text:
    In the Matter of the Probate of the Last Will and Testament of Daniel Gould, Deceased.
   Decree of surrogate affirmed, with costs to be paid by the appellant personally. Opinion by

Macomber, J.


text:
    Gustavus Griebel, Respondent, v. The City of Rochester, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Mary Mulligan, Administratrix, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant
   Reargument ordered


text:
    James S. Havens, Receiver, etc., Appellant, v. Julia H. Exstein and others, Respondents.
   Judgment affirmed, with costs. Opinion hy

Macomber, J.


text:
    Joseph Roehm and others, Respondents, v. William L. Blanchard, Appellant.
   Judgment reversed for want of findings of fact to support the conclusions of law, and a new trial granted before another referee, with costs of this appeal to abide the event. Opinion Per Curiam left with the presiding justice.


text:
    Arthur D. Pease, Appellant, v. George W. Batten, Respondent.
   Judgment and order appealed from, affirmed. Opinion hy

Macomber, J.


text:
    Arthur P. Flagler, Respondent, v. Asa Plumb and others, Appellants, Impleaded, etc.
   Judgment appealed from affirmed, with costs. Opinion by

Corlett, J.


author: Dwight, J.;

text:
    George W. Bennett and another, Appellants, v. Austin R. Knapp and another, Respondents.
   Plaintiffs’ motion for a new trial denied, with costs and judgment ordered for the defendants on the nonsuit. Opinion by

Dwight, J.;

Ma-comber, J., dissenting.


text:
    Titus Hart and others, Appellants, v. James D. Castle, as Executor, etc., Respondent.
   Judgment and order appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    The Town of Ontario, Appellant, v. Francis A. Hill, Respondent.
   Reargument ordered.

Ala-comber, J., not sitting


text:
    T. Scott Thacher, Executor, Respondent, v. Hope Cemetery Association, Appellant.
   Judgment appealed from affirmed, with costs on the decision of the Supreme Court on former appeal, reported in 46 Hun, 594.


text:
    Augusta S. Carpenter v. Frederick W. Carpenter.
   Defendant's motion for a new trial denied, and the case remitted to the Special Term to proceed therein. Opinion by

Dwight, P. J.;

Corlett, J., not voting.


author: Macomber, J.:

text:
    Thomas Clement, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from, affirmed. Opinion by

Macomber, J.:

Corlett, J., not sitting.


text:
    Allen Deloss Briggs, Appellant and Respondent, v. Thomas H. Groves, Respondent and Appellant.
   Judgment appealed from affirmed, but without costs of this appeal to either party. Opinion hy

Corlett, J.


text:
    In the Matter of the Petition of Orsell Cook and others, for Marvin Smith of Jamestown, N. Y., to show cause why he should not be removed as an Attorney and Counselor-at-Law for misconduct.
   Application granted and reference made to Myron H. Pecx, Esq. of Buffalo, to take the evidence and report the same to this court with his opinion thereon, upon the matters embraced within the formal order herewith handed down.


author: Dwight, P. J.

text:
    Pliny T. Sexton, Appellant, v. Charles W. Bennett and others, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Dwight, P. J.


text:
    The People of the State of New York ex rel. Philander D. Ellithorpe, Appellant, v. The Judges of the Superior Court of Buffalo, Respondents.
   Order appealed from affirmed. Opinion hy

Macomber, J.


author: Corlett, J ;

text:
    Exchange National Bank of Olean, Respondent, v. Charles D. Marshall, Appellant, Impleaded, etc.
   Order denying the motion for a new trial affirmed, with costs. Opinion by

Corlett, J ;

Dwight, P. J., and Macomber, J., concur in result.


text:
    Wilber J. Smith, Respondent, v. John F. Mosher and others, Appellants.
   Judgment appealed from affirmed, with costs.


author: Macomber J.

text:
    Sylvester Trimmer, Appellant, v. City of Rochester. (Action No. 1.) Same v. Same. (Action No. 2.)
   Judgment affirmed. Opinion by

Macomber J.

(In No. 2 judgment affirmed, on opinion in No. 1.)


text:
    Angus McDuffie, Appellant, v. Adelia Clark, Respondent.
   Judgment and order appealed from reversed and new trial granted, with costs to abide the event. Opinion by

Dwight, P. J.


text:
    In the Matter of Proving a Paper Propounded as the Last Will, etc., of Elizabeth A. S. R. Rockwell, Deceased.
   Appeal dismissed, with ten dollars costs and disbursements. Opinion by

Macomber J.


text:
    Elizabeth J. Weber, Respondent, v. John N. Lester and others, Appellants.
   Motion fornew trial denied, with costs, and final judgment ordered in accordance with interlocutory judgment. on opinion of Daniels, J., delivered at Special Term.

Dissenting opinion by Corlett, J.


author: Corlett,,!.

text:
    Myron E. Bartlett, Appellant, v. James Halligan, Respondent.
   Order appealed from confirmed, without costs of this appeal. Opinion by

Corlett,,!.


text:
    Martin Clark, Plaintiff, v. William H. Locke, Defendant.
   Judgment ordered for Plaintiff on the submission for $600. Opinion by

Macomber, J.


text:
    Cattaraugus Cutlery Company, Respondent, v. Andy J. Case, Appellant.
   Order appealed from reversed, with ten dollars costs and disbursements of appeal and motion granted, Opinion by

Dwight, P. J.;

Corlett, J., not sitting.


author: Macomber. J.

text:
    Enos B. Wood, as Supervisor of the Town of Hamlin, Respondent and Appellant, v. The Board of Supervisors of Monroe Comity and Alexander McVean, Appellants and Respondents.
   Judgment modified so as to add to the plaintiff’s recovery the amount of the State tax, and as so modified affirmed, with costs to the plaintiff; terms of the judgment to he settled by the justice writing the opinion. Opinion by

Macomber. J.


text:
    The Dundee National Bank, Plaintiff, v. Anthony T. Wood and another, Defendants.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Corlett, J.


text:
    Jerome J. Gallup, Appellant, v. Jacob Bernd, Respondent.
   Judgment Appealed from affirmed, with costs.


author: Ma-comber. J,

text:
    The Seneca Nation of Indians, Appellants, v. Wellington Hugaboom, Respondent.
   Judgment and order affirmed. Opinion by

Ma-comber. J,


text:
    Archibald M. Baley, Appellant, v. Marvin Henderson, Respondent.
   Judgment and order reversed and a new trial granted in County Court, with costs to appellant to abide the event. Opinion by

Corlett, J.


text:
    Matter of Judicial Settlement of Accounts of John S. Ogilsbie and another, Surviving Executors of William Hedger, Deceased.
   Decree of the surrogate affirmed, with costs, payable out of the estate. Opinion by

Corlett, J.


text:
    The People of the State of New York ex rel. John N. Snyder, Respondent, v. William Summers and others, Members of the Common Council of the City of Buffalo, Appellants.
   Order appealed from reversed. Opinion by

Macomber, J.:

Corlett, J., not sitting.


text:
    First National Bank of Union Mills, Appellant, v. Judson H. Clark, Respondent.
   Judgment and order appealed from affirmed.

Corlett, J., not sitting.


text:
    George W. Wells, Appellant, v. Rufus A. Sibley and others, Respondents.
   Judgment and order reversed and a new trial granted, with costs to abide the event. Opinion by

Corlett, J.; Macomber, J., not voting.


text:
    James Connolly, Plaintiff, v. Devine M. Munger, Defendant.
   Motion for a new trial denied, with costs and judgment ordered for the plaintiff on the verdict on authority of the former decision in-this case, as reported sub nomine Burns v. Munger (45 Hun, 75).


text:
    Ignatz Seltenmeyer, Respondent, v The City of Rochester, Appellant.
   Judgment and order appealed from affirmed, with costs.


text:
    In the Matter of Laying out a Highway in the Town of Greece, Monroe county, N. Y., from the stone tavern on the Little Ridge road to the north line of the City of Rochester, N. Y., through an orchard of William H. Robinson.
   Order of county judge affirmed.


text:
    William E. Edmonds, Executor, etc., Respondent, v. W. Martin Jones, Appellant.
   Order affirmed, Avith ten dollars costs and disbursements.


text:
    Sophia Bon, Appellant, v. Frederick Moschell, Respondent, Impleaded, etc.
   Motion denied.

Macomber, J., not sitting.


text:
    Theodore Weideman, Respondent, v. Board of Education of the Village of Lyons, Appellant.
   Motion granted.


text:
    Matter of Drainage of Lands in Town of Gates.
   Motion denied.


text:
    Jonathan Chamberlain, Respondent, v. the Town of Wheatland, Appellant.
   Motion denied.


text:
    Mortimer F. Reynolds, Respondent, v. Arthur W. Lawton, Appellant.
   Memorandum of decision amended so as to read: Judgment reversed and a new trial granted m the County Court, with costs to the appellant to abide the event.


text:
    Matter of Final Accounting of Leroy Parker, Assignee, etc.
   Motion granted.


text:
    In the Matter of Charles E. Opdyke, an Attorney and Counselor-at-law.
   Reference ordered to take proof, etc. Order to be settled by

Dwight, P. J.


text:
    John Stearns and another, Respondents, v. James McGinty, Appellant.
   Motion denied.


text:
    Elizabeth J. Dudley, Respondent, v. Edward D. Parker, Appellant.
   Motion denied.


text:
    George C. Unglish, Respondent, v. George W. Marvin, Appellant.
   Motion denied.


text:
    John Lamberty, Respondent, v. Milton J. Roberts, Appellant.
   Judgment affirmed, with costs. Opinion by

Barrett, J.


author: Van Brunt, P. J.

text:
    Catherine Cowan, Respondent, v. Third Avenue Railway Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Rufus H Emerson, Respondent, v. William A. H. Loveland, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Van Brunt, P. J.


author: Barrett, J.

text:
    Henry Abegg and others, Respondents, v. Emanuel Schwab and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barrett, J.


text:
    The People of the State of New York, Respondent, v Patrick W. Connor, Appellant.
   Judgment affirmed. Opinion by

Barrett, J.


text:
    Daniel B. Childs, Receiver, Appellant, v. Edward T. Latham and others, Respondents.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Barrett, J.


text:
    Elizabeth Bickford, Appellant, v. Henri Menier and others, Respondents.
   Judgment reversed and new trial ordered, with costs to abide event. Opinion by

Barrett, J.


text:
    Michael Gernsheim and others, Respondents, v. Frederic P. Olcott and others, Appellants.
   Order reversed, with ten dollars costs and the usual disbursements, and the injunction dissolved; without prejudice, however, to afurther application upon an amended complaint and proper proofs, if the plaintiffs are so advised Opinion by

Barrett, J.


text:
    Arnold Leo, Appellant, v. Israel Joseph and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


author: Daniels, J.

text:
    James J. McComb, Respondent, v. The Barcelona Apartment Association and others, Appellants.
   Judgment modified as stated in opinion* and, as modified, affirmed, without costs of the appeal. Opinion bv

Daniels, J.


text:
    James J. McComb, Respondent, v. The Cordova Apartment Association and others, Appellants.
   Judgment modified as stated in opinion; and, as modified, affirmed, without costs of the appeal to either party. Opinion by

Daniels, J.


author: Daniels, J.-

text:
    James J. McComb, Respondent, v. The Lisbon Apartment Association and others, Appellants.
   Judgment modified as stated in opinion; and, as modified, affirmed, without costs of the appeal to either party. Opinion by

Daniels, J.-


text:
    James J. McComb, Respondent, v. The Madrid Apartment Association and others, Appellants.
   Judgment modified as stated in opinion; and, as modified, affirmed, without costs of the appeal to either party. Opinion by

Daniels, J.


author: Hardin, P. J.

text:
    Warren Newton, as Railroad Commissioner of the Town of Norwich, N. Y., Respondent, v. Annie E. Manwarring, Appellant, Impleaded with M. Palmer Newton and others.
   Judgment reversed upon the exceptions and a new , trial ordered, with costs to abide the event. Opinion by

Hardin, P. J.


text:
    Seth Miner, Appellant, v. D. Lamott Stebbins, Respondent.
   Judgment affirmed, with costs.


author: liar-din, P. J.;

text:
    Jerome D. Holmes, Respondent, v. William E. Roper et al., as Administrators, etc., of Job Holmes, Deceased, Appellants.
   Order reversed and order of confirmation and judgment thereon set aside, and a new trial directed before another referee, upon payment by the defendants within twenty days of the costs ■ allowed by the order, and in the judgment, , and costs of the appeal before notice of argu- ¡ ment, and in default of such payment the order denying the motion for a new trial affirmed, with costs, and the judgment and orders affirmed with costs. Opinion by

liar-din, P. J.;

Mem. by Merwiu, J.; dissenting opinion by Martin, J.


author: Merwin, J.

text:
    Joseph H. Wilcox and Henry E Snyder, Appellants, v. Louis F. Joslin, Respondent.
   Judgment and orders affirmed, with costs. Opinion by

Merwin, J.


author: Martin, J.

text:
    Obed A. Seeley, Respondent, v. Amos D. Shaffer, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Martin, J.


text:
    Patrick Redmond, Appellant, v. The Rome, Watertown and Ogdensburg Railroad Company, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Martin, J.


text:
    Hiram B. Simmons, Respondent, v. the Syracuse, Binghamton and New York and Oswego and Syracuse Railroad Benevolent Society, New York, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Merwin, J.


text:
    Rosanna Murphy, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant
   Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Lory O. Rand, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Merwin, J.


author: Hardin. P. J.

text:
    The Mutual Life Insurance Company of New York, Respondent, v. Margaret Cranwell, Impleaded, Appellant.
   Judgment modified by inserting a clause therein to the effect that the same shall be “without prejudice to the right of the Cranwells to proceed either by a suit at law or a bill in equity to enforce the agreement set up in the answer against Robeson and Bulgin', or to recover compensation in damages,” and so modified judgment affirmed, with costs. (See Jones v. Grants 10 Paige, 351.) Orders appealed from affirmed, without costs. Opinion by

Hardin. P. J.


text:
    Isaac D. Garfield, Respondent, v. Charles C. Blair, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Martin, J.


text:
    The People of the State of New York ex rel. The West Shore Railroad Company, Respondent, v. Victor Adams and others, Trustees of the Village of Little Falls, Appellants.
   Order entered July 3, 1889; reversed, with ten dollars costs and disbursements, and prayer of petitioner denied, with costs against the petitioner as upon the trial of an issue of fact in the Supreme Court. Appeal from order entered November 8,1889, dismissed, without costs. Opinion by

Merwin, J.

Mem. by Hardin, P. J.


author: Merwin. J.;

text:
    The People of the State of New York ex rel. The West Shore Railroad Company, Respondent, v. Warner Edick and others, Trustees of the Village of Little Falls, Appellants.
   Order entered July 3, 1889, reversed with ten dollars eosts and disbursements, and prayer of petitioner denied with costs against the petitioner as upon the trial of an issue of fact in the Supreme Court. Appeal from order entered November 8, 1889, dismissed without costs. Opiuion by

Merwin. J.;

Mem. by Hardin, P. J.


author: Hardin, P. J., and Martin, J.;

text:
    Dempster C. Austin, Appellant, v. Charles C. Vroman and Christopher H. Chase, Respondents.
   Judgment, reversed and a new trial ordered, with costs to abide the event. Leave given to appeal to the Court of Appeals as a question of law is involved which ought to be reviewed by that Court. Opinions by

Hardin, P. J., and Martin, J.;

Merwin, J., not sitting.


text:
    Margaret Hayden, Respondent, v. Wallace Clarke, as President of the Utica Toboggan Club, Appellant.
   —Judgment and order affirmed, with costs. Opinion by

Martin, J.


text:
    Joseph Mullen, as Receiver of the Property of William W. Herrick and Henry H. Ayres, Plaintiff, Appellant, v. Humphrey Sisson, as Assignee of William W. Herrick and Henry H. Ayres, Defendant, Respondent.
   Judgment affirmed, with costs.

Mem. by Merwin, J.


text:
    J. M. Crounse and Charles B. Crounse, Respondents, v. Luman Bailey, as Sheriff of St. Lawrence county, Appellant.
   Judgment reversed upon the exceptions and a new trial ordered before another referee, with costs to abide the event. Opinion by

Hardin, P. J.

Dissenting opinion by Merwin, J.


text:
    Matthias H. Arnot et al., Respondents, v. Charles L. Bingham, Receiver, etc., Appellants.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    In the Matter of the Proceedings to disbar William Yeomans.
   Motion of defendant denied. Motion of petitioner for leave to add supplemental charges to those now pending before the referee denied.


text:
    Cora M. Walters, Respondent, v. Mortimer M. Mayhew, as Executor, etc., Appellant.
   Motion denied.


text:
    The People ex rel. Simmon D. Paddock, Appellant, v. Kirby W. Lewis et al., Respondents.
   Motion denied.


text:
    People ex rel. John C. Streeter, Appellant, v. Albert Fitzgerald, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Mary Ketcham, Respondent, v. George Dickerson, Appellant, Impleaded.
   Order affirmed, with ten dollars costs aud disbursements.


text:
    William Disbrow, as Administrator, etc., Appellant, v. John Disbrow, Respondent.
   Order affirmed, with ton dollars costs and disbursements.


text:
    David R. Coe and another, as Administrators, Appellants, v. Ledyard W. Coe, Respondent
   Order affirmed, with ten dollars costs and disbursements.


text:
    Warren H. Powell, Appellant, v. Michael Russell, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Jacob M. Mertens, as Survivor, etc., Plaintiff, v. Isaac N. Wright and another; George N. Crouse and another, Plaintiffs, v. Same Defendants; John Dunn, Jr., et al., Plaintiffs, v. Same Defendants; Isaac B. Richmond, Appellant.
   Order reversed, with ten dollars costs and disbursements. See opinion of Martin, J.. in McCarthy and others v. Isaac N. Wright and another, decided at this term,


text:
    Catherine McGraw, as Administratrix, etc., Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Impleaded, Respondent.
   Judgment affirmed, with costs.


text:
    Samuel Buil, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    William B. Wright, Respondent, v. Emeline Peterson, Administratrix, etc., Appellant.
   Order modified; to be settled by Hardin, J., on live days' notice.


text:
    In the Matter of the Alleged Will of Caleb Demelt, Deceased; Elias J. Demelt, Appellant.
   Decree of surrogate affirmed, with costs to the respondent, payable out of the estate.


text:
    The Fisher Manufacturing Company (Limited), Respondent, v. Willet Fisher, Appellant. Dennis Dobbins v. Willet Fisher.
   Order reversed, without costs, and without prejudice to an application or motion under section 2463 of the Code of Civil Procedure.


text:
    Ellen Melhinch, Respondent, v. the Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment affirmed, with costs.


text:
    James D. Shead, Respondent, v. The Rome, Watertown aud Ogdensburg Railroad Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    B. Franklin Chapman, as Executor, etc., Appellant, v. Gerrit A. Forbes, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William M. Peck, Respondent, v. Alva M. Baldwin, Appellant.
   Appeal dismissed, with ten dollars costs and disbursements. (See Billington v. Billington, 4 N. Y. Supp., 504, and Fink v. Mannering, 46 Hun, 323; Code of Civ. Pro., § 2433.)


text:
    Sophia Pitcher, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Order affirmed, with costs.


text:
    In the Matter of the Probate of the Alleged Will of John J. Ingles, Deceased, by Mary L. Ingles, Proponent and Appellant, v. Ruth Eddy et al., Contestants and Respondents.
   Decree of the surrogate of Madison county reversed upon the exceptions, and ilie proceedings remanded to the Surrogate’s Court for further action. The question of costs reserved for the determination of the court below upon the final disposition of the case. Held (1), that the surrogate erred in receiving the evidence of Dr. Urc. (See Code Civ. Pro., § 834; Matter of Eysman, 113 N. Y., 62.) Also (2), in rejecting the oilers to show that tire testator had made advancements to some of his children.


text:
    Emmor Haynes and others, Appellants, v. M. Calvin West and another, Respondents.
   Judgment and order affirmed, with costs.


text:
    Henry O. Kenyon, Appellant, v. John F. Luther and Addison L. Upham, Respondents.
   Judgment and order affirmed, with costs.


text:
    John Peterson, Appellant, v. John M. Williams and others, Respondents.
   Judgment affirmed, without costs of the appeal, ana with leave to amend the complaint upon the terms given in the interlocutory judgment within tweuty days.


text:
    John McMulIin, Respondent, v. George Crouse, Jr., Appellant.
   Judgment affirmed,with costs.


text:
    Miles C. Comstock and others, Appellants, v. Samuel H. Budlong and others, Respondents.
   Judgment of the County Court of Oneida county, reversing the judgment of the City Court of Utica, reversed, with costs, and the judgment of the City Court of Utica affirmed, with costs.


text:
    The People, Respondent, v. William F. Warner, Appellant.
   Conviction, order and judgment affirmed, and proceedings remitted to the Court of Sessions of Tioga county with instructions to proceed.


text:
    John Gibson and another, as Executors, etc., Respondents, v. Anna A. McLaury and another, Appellants.
   Judgment affirmed, with costs.


text:
    John Zimmerman, Appellant, v. Sanderson Brothers Steel Company, Respondent.
   Judgment affirmed, with costs.


text:
    Jacob Ackerman et al., Appellants, v. Lewis D. Burdick, Respondent.
   Order affirmed,with ten dollars costs and disbursements.


text:
    Charles W. Bardeen, Respondent, v. Angus P. McIntyre, Appellant.
   Order reversed, with ten dollars costs and disbursements and motion granted.


text:
    The People of the State of New York, Respondent, v. Joseph Keyser et al., Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Alfred C. Lewis and Alvin R. Smith, Respondents, v. William H. Douglass, Appellant, Impleaded.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People, Respondent, v. William A. Richardson, Appellant.
   Conviction, order and judgment revei sed and a new trial ordered in the Court of Sessions, Schuyler county, to which court the case is remitted. Held, that the evidence was insufficient to sustain the verdict.


text:
    Martha E. Hill v. George H. Egglestone, Judah Egglestone, Appellant, Ithaca Agricultural Works, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William M. Stout et al., Appellants, v. John W. Sherman, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Rhoda Clark, Respondent, v. The Glens Falls Insurance Company, Appellant.
   Judgment and order affirmed, with costs. Followed former decision of this court, reported in 21 Weekly Digest, 197.


text:
    Stephen Coursey and another, Appellants, v. John Morton et al., Respondents.
   Judgments affirmed, with costs to the respondent Sidney Smith, assignee, only.


text:
    Charles A. Clark and another, Appellants, v. Charles J. Mikels, Respondent, Impleaded.
   Judgment affirmed, with costs.


text:
    The Village of Canastota, Appellant, v. Kate L. Woodford, Respondent.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that the complaint states facts sufficient to constitute a cause of action and to warrant equitable relief.


text:
    Jacob Kent, Respondent, v. Jacob Crouse, Appellant.
   Judgment ana orders affirmed, with costs.

Merwin, J., not acting.


text:
    Maurice Plett, Respondent, v. Fowler Willson, Jr., and others, Appellants.
   Judgment affirmed, with, costs. Followed Plett v. Willson (50 Hun, 60).


text:
    Thomas Finnegan, Respondent, v. Mary Finnegan, Appellant.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, the trial court erred in excluding evidence as to whether a difficulty had been had between defendant and Mrs. Tuttle.


text:
    Alice M. Harrington et al., Appellants, v. Pardon S. Brown et al., Respondents.
   Decree of the Surrogate’s Court of Chenango county affirmed, with costs.


text:
    Justus Pallas, Appellant, v. The City of Syracuse, Respondent.
   Judgment affirmed, with costs.


text:
    Michael O’Gorman and another, Respondents, v. The National Fire Insurance Company, Appellant.
   Judgment and orders affirmed, with costs.


text:
    Calvary Cemetery Association of Watertown, Appellant, v. Tobias Glenn and the Society of St. Patrick’s Church, Respondents.
   Judgment affirmed, with costs.


text:
    Ira Dwight, Respondent, v. The Elmira, Cortland and Northern Railroad Company, Appellant.
   Judgment affirmed, with costs.


author: Pratt, J.

text:
    William H. Wood, Respondent, v. Elisha T. Baldwin, Appellant.
   Judgment affirmed, with costs. Opirnon by

Pratt, J.


author: Barnard, P. J.

text:
    Elmer Chace, Respondent, v. Albert E. Nichols, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Pratt, J.;

text:
    Anton Nowak, Appellant, v. George F. Waller and another, Respondents.
   —Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    The People of the State of New York v. William Flynn.
   Conviction and judgment affirmed for non-submission of papers by stipulation.


text:
    Gloucester Iron Works, Appellant, v. The Board of Water Commissioners of the Village of Sing Sing, Respondent.
   Order affirmed, with costs and disbursements. Opinion hy

Barnard, P. J.


author: Dykman, J.

text:
    Charles Dattelbaun, Respondent, v. William Blumer, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Francis Kierans, Respondent, v. Armand Wolff and another, Appellants.
   Judgment of County Court reversed and that of Justice affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P, J., dissenting.


text:
    Warren Foote and another, Respondents, v. Richard D. Stryker and another, Appellants.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Elizabeth A. Moore, Respondent, v. John Baylies, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    George H. Deller, Appellant, v. Staten Island Athletic Club, Respondent.
   Judgment affirmed, with costs. Opinion hy

Barnard, P. J.


text:
    Elbert Stannard v. Charles H. Hubbell.
   Motion to dismiss appeal denied, without costs. Opinion hy

Barnard, P. J.


text:
    George W. Carpenter, as Executor, Respondent, v. Carrie M. Mosher and another, Appellants.
   Judgment affirmed, with costs. Opinion hy

Pratt, J.;

Dykman, J., not sitting.


text:
    David H. James, Appellant, v. Isaac Sammis and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    In the Matter of the Last Will of Eliza Dunscomb, Deceased.
   Order reversed, without costs of appeal. Opinion by

Barnard, P. J.


author: Barnard, P. J.;

text:
    Brooklyn Bank, Appellant, v. Archibald Lamon and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    In the Matter of the Estate of Graciano de Oraindi.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    Emma L. Shaw, Respondent, v. Winfield S. Shaw, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Barnard. P. J.

text:
    The People of the State of New York ex rel. Henry Waterman v. N. B. Schellenger and others.
   Order laying out highway affirmed, with costs. Opinion by

Barnard. P. J.


author: Dyfanan, J.

text:
    In the Matter of the Petition of William C. Camp
   Judgment modified in accordance with opinion of Justice Dykman: order to be settled by him. Opinion by

Dyfanan, J.


text:
    Albon P. Man and another, as Trustees, Respondents, v. Ambrose Snow and others, Appellants.
   Judgment reversed and new trial granted, costs to abide event. Opinion hy

Pratt, J.


text:
    Maggie La Manna, as Administratrix, Respondent, v. The National Security Life and Accident Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    No. 1. The Metropolitan Life Insurance Company v. Wilson C. Hall and others.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    No. 2. Same v. Same. No. 3. Same v. Same. No. 4. Same v. Same. No. 5. Same v. Same. No. 6. Same v. Same. No. 7. Same v. Same.
   Judgment in each of the above six actions abide the result of action No. 1, and judgments therefore affirriied, with costs.


text:
    Andrew J. Wightman, Appellant, v. Augustus A. Brush and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    No. 1.
    Benjamin Collins, Respondent, v. Long Island City, Appellant.
   Judgment reversed and new trial granted at Special Term, costs to abide event. Opinion by

Barnard, P. J.


text:
    No. 4.
    Benjamin Collins, Respondent, v. Long Island City, Appellant.
   Judgment in this action by stipulation is to abide result in foregoing appeal.


text:
    No. 5.
    Benjamin Collins, Respondent, v. Long Island City, Appellant.
   Judgment reversed and new trial granted at Special Term. Opinion by

Barnard, P. J.


text:
    Edward Schell, Trustee, etc., Appellant, v. George B. Elkins and others, Respondents.
   Order modified in accordance with opinion. Order to be settled by

Barnard, P. J.


text:
    Sarah F. Carpenter, Appellant, v. William T. Carpenter, Respondent, Impleaded, etc.
   Judgment modified in accordance with opinion of Judge Pratt, without costs. Opinion by

Pratt, J.


text:
    Ezra A. Hayt, Respondent, v. Bernard J. Malone and others. Appellants.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Queens County Bank, Respondent, v. Eliza M. Leavitt, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Mary M. Gouverneur and others, Appellants, v. The National Ice Company of New York, Respondent.
   Reargument ordered.


text:
    Mary A. Pountney, Respondent, v. William Pountney, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Mary A. Pountney, Appellant, v. William Pountney, Respondent.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Joseph J. Doyle, Respondent, v. The Unexcelled Fire Works Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Wilhelmina Luehsen, Respondent, v. The Unexcelled Fire Works Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    In the Matter of the Probate of the Will of Francis W. Lassak, Deceased.
   Decree of surrogate affirmed, with costs to be paid out of the estate. Opinion by

Dykman, J.


text:
    The Port Jervis, Monticello and New York Railroad Company, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Dykman, J.;

text:
    John Flannery, Appellant, v. J. Wesley Van Tassell, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Pratt, J ;

text:
    The New York, Lake Erie and Western Railroad Company, v. Edward C. Beirne and another.
   Judgment affirmed, with costs. Opinion by

Pratt, J ;

Barnard, P. J., not sitting.


text:
    Edward Kane, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Dykman. J., not sitting.


text:
    William H. Lyon and another, Appellants, v. James M. Davis and others, Respondents.
   Judgment aflirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Charles M. Kittredge and another, Respondents, v. J. Wesley Van Tassell, Appellant.
   Judgment aflirmed, with costs. Opinion by

Dykman, J.;

Barnard, P, J., not sitting.


text:
    John J. Quinlan, Respondent, v. Emily A. Stratton and another, Appellants.
   Judgment aflirmed, with costs. Opinion by

Barnard, P. J.


text:
    George Chatfield, Appellant, v. Charles Reynolds, Respondent.
   Order affirmed, with costs. Opinion by

Barnard, P. J.


author: Learned, P. J.

text:
    In the Matter of the Estate of Frederick D. Hodgman, Deceased.
   Order affirmed, with ten dollars costs and printing disbursements to each respondent separately appearing. Opinion by

Learned, P. J.


author: , Learned. P. J.

text:
    Agnes E. Abel, Executrix, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant
   Judgment and order affirmed, with costs. Opinion by,

, Learned. P. J.


author: Landon, J.

text:
    Mary S. Davis, Appellant, v. Jacob H. Davis, Respondent.
   Judgment aflirmed, with costs. Opinion by

Landon, J.


text:
    In the Matter of the Probate of the Will of Charles B. Bishop.
   Decree reversed, issues sent to circuit for trial; order and issues to be settled by Landon, J,; costs of appeal to appellant to be paid out of the estate, other costs to abide event. Opinion by

Landon, J.


text:
    James W. Green and another, Respondents, v. Abijah Weston and another, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements. Mem.

Learned, P. J.


text:
    Samuel Stern and another, Respondents, v. John Meiklehan, Appellant.
   Case dismissed on the ground that there is no valid appeal.


text:
    Margaret Jane Hunter, Respondent, v. Emma Louise Stender, as Executrix, etc., Appellant.
   Order reversed, with ten dollars costs and printing disbursements, and order for bill of particulars granted, with ten dollars costs. Opinion by

Landon, J.


text:
    Julia A. Hurlehy, Appellant, v. Godfrey R. Martine and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    The People of the State of New York ex rel. George W. Van Hise, Appellant, v. The Board of Police Commissioners of the Village of Greenbush and the Members of said Board, Respondents.
   Proceedings reversed, with fifty dollars costs and disbursements.


text:
    James McBride, Appellant, v. Shepard Tappen, as Sheriff, etc., Respondent.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


text:
    Margaret M. Hayes and others, Appellants, v. Jacob Alsdorf, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.


author: May-ham, J.

text:
    Otto Volk, Guardian, etc., Respondent, v. Johnson Livingston, as President of the National Express Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

May-ham, J.


author: Mayliam, J.;

text:
    Henry B. Hanson, Respondent, v. Byron J. Town, Receiver of Taxes and Assessments of the Town and Village of Saratoga Springs, Appellant.
   —Judgment aflirmed, with costs. Opinion by

Mayliam, J.;

Landon, J., not acting.


author: Learned, P. J.;

text:
    Mary J. Coxe and George F. Jones, as Executors and Trustees under the Last Will and Testament of Mary J. Jones, Respondents, v. Byron J. Town, Receiver of Taxes and Assessments of the Town and Village of Saratoga Springs, Appellant.
   Judgment, affirmed, with costs. Mem. by

Learned, P. J.;

Landon, J., not acting.


text:
    Diefendorf v. Diefendorf.
   Judgment corrected as on file.


text:
    James Dunn, Respondent, v. John O'Keefe, Appellant.
   Judgment affirmed, with costs. Mem. by

Landon, J.


text:
    Frank B. Reynolds and others, Appellants, v. Samuel Little and another, Respondents.
   Order aflirmed, with ten dollars costs and printing disbursements.


text:
    The Berlin Iron Bridge Company, Plaintiff, v. Joseph E. Wagner, as Highway Commissioner, etc.
   Motion to dismiss submission denied.


text:
    Manly W. Morey and Charles Lee, Jr., Respondents, v. Charles F. Walker and Edward M. Walker, Appellants. Same Respondents v. Joseph C. White and another, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    John A. McDonald, Respondent, v. The Trojan Button Fastener Company and others, Appellants.
   Order granting injunction affirmed, with ten dollars costs and printing disbursements. Order denying motion for receiver affirmed, with ten dollars costs and printing disbursements, with privilege to either party to apply again for receiver at future time. Mem. by

Learned, P. J.


text:
    Patrick Robbins, Appellant, v. Peter La Fountain, Respondent.
   Judgment affirmed, with costs.


author: Daniels, J.

text:
    The Mayor, etc., of the City of New York, Respondent, v. The National Broadway Bank of the City of New York, Appellant.
   Judgment affirmed. Opinion hy

Daniels, J.


text:
    The Mayor, etc., of the City of New York, Appellant, v. The Tradesmen’s National Bank of the City of New York, Respondent.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Charles T. Russell and others, Respondents, v. Samuel W. Allerton, Appellant.
   Judgment and order reversed and new trial granted, with costs to the defendant to abide event. Opinion by

Daniels, J.


text:
    David H. Gould and others, Appellants, v. George I. Seney and others, Respondents.
   Judgment modified as stated in opinion, and as modified affirmed, without costs lo either party. Opinion by

Daniels, J.


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

text:
    Jacob Oppenheimer, Respondent, v. Asahel W. Humphreys and others, Administrators, etc., Appellants.
   Judgment affirmed, with costs. Opinions by

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

dissenting opinion by Brady, J.


author: Van Brunt, P. J.;

text:
    Eleanor C. Phillips, Appellant, v. The New York Life Insurance Company, Respondent.
   Judgment and order affirmecl, with costs. Opinion hy

Van Brunt, P. J.;

dissenting opinion by Brady, J.


text:
    People ex rel Henry Woltman v. Theodore W. Myers, Comptroller, etc.
   Motion granted.


text:
    William Benson, Respondent, v. Charles A. Gerlach, Appellant.
   Motion denied; ten dollars costs of motion to respondent to abide event of appeal.


text:
    Philip W. Scribner, Assignee, etc., Appellant, v. Solomon Jacobs, Respondent.
   Judgment reversed and new trial ordered, with costs to the plaintiff to abide event. Opinion by

Daniels, J.


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

text:
    Kate P. Lutz, Respondent, v. Alexander Lutz, Appellant.
   Judgment affirmed, with costs. Opinions by

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


text:
    Albert P. Miller, Respondent, v. New Jersey Steamboat Company, Appellant.
   Motion denied, with ten dollars costs to respondent to abide event of appeal. (Mem.)


text:
    Andrew Roseberry, Respondent, v. Kate M H. Nixon, Appellant.
   On payment of ten dollars costs motion denied.


text:
    In the Matter of the Judicial Settlement of the Accounts of Frank H. Gray, Executor, etc.
   Upon appellant's stipulating to argue in October, ana paying ten dollars costs of motion, motion denied.


text:
    In the Matter of John A. Dalzell, an Attorney, etc.
   We think motion should be made in department in which attorney has his office and residence.


text:
    Robert Kell, Appellant, v. Solomon Isaacs and others, Respondents.
   Motion denied.


text:
    George Munro, Respondent, v. Frank Tousey, Appellant.
   Motion denied, with ten dollars costs.


text:
    Robert Macdonald and others, Appellants, v. Anna Wallstein and others, Respondents.
   Motion denied, without costs.


text:
    In the Matter of the Probate of a Paper Propounded as the Last Will and Testament of Rachel Berrien, Deceased.
   Motion denied.


text:
    Elise Kohler and others v. John Lindenmeyr.
   Motion denied and ten dollars costs to abide event of appeal.


author: Brady, J., and Van Brunt, P. o.

text:
    The People of the State of New York, Respondent, v. James P. Henries, Appellant.
   Judgment affirmed. Opinions by

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


author: Daniels, J.;

text:
    Jacob S. Rogers and others, Appellants, v. William Walter Phelps and others, Respondents
   Judgment affirmed. Opinion by

Daniels, J.;

Van Brunt, P. J., dissents.


author: Brady, J.

text:
    Robert Warren, Appellant, v. The Rendrock Powder Company, Respondent.
   Judgment affirmed. Opinion by

Brady, J.


author: Van Brunt, P. J

text:
    Josephine M. McBride, Respondent, v. Robert P. McBride, Appellant.
   Judgment reversed and new trial ordered, without costs. Opinion by

Van Brunt, P. J


text:
    Kate Hogan, Administratrix, etc., Respondent, v. Allen C. Smith and others, Appellants.
   Judgment affirmed. Opinion hy

Brady, J.


text:
    The People of the State of New York, v. The American Bell Telephone Company.
   Motion for allowance granted. One thousand dollars allowed.


text:
    Joseph S. Richards, Respondent, v. Sarah Frances Richards, Appellant.
   On appellant’s paying ten dollars costs of motion stipulating to argue at next term of court, motion denied.


text:
    Edward B. Babcock, Respondent, v. The Schuylkill and Lehigh Valley Railway Company, Appellant.
   Judgment affirmed. Opinion hy

Brady, J.


author: Bartlett, J.

text:
    The People of the State of New York ex rel. John J. Quinn v. J. Hampden Robb and others, Commissioners, etc., Respondents.
   Dismissal affirmed and writ dismissed, with costs. Opinion by

Bartlett, J.


author: Barrett, J.

text:
    Mary C. Carroll, as Executrix, etc., Plaintiff, v. John Conley, Jr., Defendant.
   The court is of the opinion that the plaintiff is able to give a good and marketable title, and that she have judgment accordingly, with costs. Opinion hy

Barrett, J.


text:
    Charles Muller v. Charles F. Post.
   On payment of ten dollars costs, motion denied.


author: Van Brunt, P. J.

text:
    Ralph S. Hamilton, Respondent, v. Frederick D. Steck, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


author: Per Guriam.

text:
    Herman Stein and others, Appellants, v. Charles F. Levy, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Guriam.


text:
    John E. Sweeney, Appellant, v. Charles D. Sweeney and others, Respondents.
   Judgment affirmed, with costs. Opinion hy

Brady, J.


text:
    Henry Thœsen, Respondent, v. Thomas D. Crowe, Appellant.
   Order modified as stated in opinion, and as modified affirmed, without costs of the appeal to either party.— Opinion by

Daniels, J.


author: Brady, J., and Daniels, J.;

text:
    Mary Peard, Appellant, v. John D. Karst, Jr., and others, Respondents.
   Judgment as to defendant John D. Karst, Jr., reversed and new trial ordered, with costs to appellant to abide event, but as to the other defendant the judgment in his favor affirmed. Opinions by

Brady, J., and Daniels, J.;

dissenting opinion by Van Brunt, P. J.


text:
    John Lamberty v. Milton J. Roberts.
   Motion for reargument, denied, with ten dollars costs. Opinion

Per Guriam.


text:
    Herman Hahlo and others, Respondents, v. Hugh J. Grant, as Sheriff, etc. and others, Appellants.
   Judgment and order denying motion for new trial affirmed, with costs. Opinion hy

Barrett, J.


text:
    Anthony J. Drexel and others, Respondents, v. Joseph M. Pease and others, Appellants.
   Judgment rendered in the plaintiff’s favor affirmed, except as to the extra allowance, which should be reduced to five per cent upon the recovery, and the appeal taken by the banks and the assignee dismissed, without costs. Opinion by

Barrett, J.


text:
    David Welsh, Respondent, v. The Old Dominion Mining and Railway Company, Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide the event. Opinion by

Barrett, J.


text:
    Rosetta M. Kearney, Appellant, v. Charles E. Fleming and others, Respondents.
   On stipulation mentioned in opinion being given, the judgment will be modified accordingly, without costs of this appeal to either party, and without varying the costs and allowances awarded at Special Term. Otherwise a new trial is ordered, costs to the appellant to abide the event. Opinion by

Barrett, J.


author: Yan Brunt, P. J.

text:
    The People of the State of New York ex rel. Alexander Hicinbotham v. Henry D Purroy and others.
   Writ dismissed, without costs. Opinion by

Yan Brunt, P. J.


text:
    Charles F. Hubbard and others v. John Hay, Jr., and others.
   Motion granted upon appellants paying ten dollars term fees and ten dollars costs of motion and stipulating to serve case in thirty days and to argue appeal in October.


text:
    In the Matter of James Armstrong and others.
   Appeal dismissed for want of findings.


author: Brady, J.;

text:
    George F. Vietor and others, Respondents, v. Moritz Bauer, Appellant.
   Judgment reversed and a new trial ordered, with costs to appellant to abide event. Opinion by

Brady, J.;

dissenting opinion by Yan Brunt, P. J.


text:
    The Oregon Pacific Railroad Company, Appellant, v. George J. Forrest and others, Executors, etc., Respondents.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Fannie Higgins and others, Appellants, v. Union Trust Company and others, Respondents.
   Judgment modified by striking therefrom the words “on the merits,” and as thus modified affirmed, with costs to the respondents. Opinion by

Yan Brunt, P. J.


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

text:
    Ann Farmer, as Administratrix, etc., Respondent, v. The Emigrant Industrial Savings Bank, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinions by

Yan Brunt, P. J., and Barrett, J.


text:
    Gustav Amberg, Appellant, v. William Kramer and others, Respondents.
   Order affirmed, without costs. Opinion by

Van Brunt, P. J.


text:
    In the Matter of Balthazer Albrecht, Deceased.
   Decree of surrogate affirmed, with costs. Opinion by

Yan Brunt, P. J.


text:
    George Darker v. John M. Beck.
   Judgment for plaintiff for a specific performance, and for costs and an extra allowance of $250. Opinion by

Van Brunt, P. J.


text:
    The People of the State of New York ex rel. Patrick McCormack, Appellant, v. Stephen B. French and others, Respondents.
   Proceedings affirmed. Opinion by

Barrett, J.


text:
    In the Matter of the Petition of Margaret Gibbons, etc.
   Order affirmed, with costs. Opinion by

Barrett, J.


text:
    Walter Junge, Respondent, v. John Haug, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Dwight, P. J.:

text:
    PLINY T. SEXTON, as Survivor, etc., Plaintiff, v. HENRY BREESE, Defendant.

      Sale of crops — not affected by a prior mortgage of the land, and possession of the mortgagee thereunder, giren subsequent to the sale and while the crops are unreaped.

    A mortgagor, who had given a mortgage upon a farm as a general continuing collateral security for obligations and liabilities to be incurred by him, the amount of such indebtedness being unliquidated, and no demand for its payment having been made, executed to the holder of the mortgage an instrument in writing, by which he authorized the latter to take possession of the farm and run the same, or any portion of it, as he saw fit, and after paying all expenses to apply the net income upon the indebtedness of the mortgagor to him, under which instrument the holder of the mortgage took possession of the mortgaged premises.
    In the previous fall the mortgagor had sown a crop of wheat upon the mortgaged premises, and shortly prior to the execution of the instrument given to the mortgagee, as above stated, he sold the growing crop by a bill of sale, which in terms gave to the purchaser “full power, right, authority and license to enter upon said premises and secure and harvest the same.”

      Held, that the growing crop was a chattel and subject to be sold like other personal property.
    That the holder of the mortgage, by taking possession of the farm under the consent of the mortgagor for the purpose stated in the agreement, acquired no title to the farm, nor did it change his relation as mortgagee thereto, nor affect the right of a previous purchaser of a crop thereon, nor give to the holder of the mortgage any right superior to that which the mortgagor himself had at the time he transferred the rents and profits to the mortgagee.

      Tlial, as the mortgage provided that it should become due one month after demand, and there was no evidence that any demand had ever been made, there was no question presented as to a forfeiture having already arisen at the time the mort gagee took possession of the farm.
    Exceptions ordered to be heard in the first instance at the General Term, with a stay of proceedings upon the verdict in the meantime, after a trial before the court and a jury at the Wayne County Circuit, at which a verdict for seventy-five dollars was rendered in favor of the defendant, in whom the title to the property described in the complaint was found to be by the jury.
    The action was brought to recover the possession of a quantity of wheat in the straw, which had been grown on about four acres of land, together with damages for the alleged unlawful detention thereof.

      Charles MoLouth, for the motion.

      Josejih Welling, opposed.
   Dwight, P. J.:

The action was replevin for a crop of wheat in the straw, of the value of seventy-five dollars.'

The plaintiff was the holder of a mortgage on the farm of one Mumford, which had been given by the latter to the firm of Cuyler & Sexton, of which the plaintiff was the survivor, as a general continuing collateral security for obligations and liabilities to be incurred by the mortgagor, and which, by its terms, was to become due one month after demand.

At the time of the transactions, out of which this action grew, Mumford was largely indebted to the plaintiff on the security of the mortgage, the amount of such indebtedness being unliquidated, and no demand for its jiayment having been made.

On the 17th day of April, 1877, Mumford executed to the plaintiff an instrument in writing, by which he authorized the latter to take possession of the farm and rent the same or any portion of it as he should see fit, and, after paying all expenses, to apply the net income upon the indebtedness of Mumford; and accordingly, within a few . days thereafter, the plaintiff took possession of the farm and put a man in charge for him.

In the previous fall Mumford had sowed the small crop of wheat in question, and on the 1st day of March, 1879, he sold the growing crop to the defendant by a bill of sale, which, in terms, gave to the latter “ full power, right, authority and license to enter upon said premises and secure and harvest the same.” When the wheat was ripe the defendant went onto the farm for the purpose of cutting it, claiming the right to do so under his bill of sale which he exhibited to .the plaintiff: The latter denied his right; forbid his cutting the wheat and went on and cut it himself, leaving it in shocks on the field. Early the next morning the defendant went onto the field and drew away the crop, whereupon this action was brought to recover its possession.

There was evidence tending to show that, at the time the plaintiff took possession of the farm, he applied to the wife of Mumford, who was in the neighborhood, her husband having gone to the west, for the keys of the house on the farm, and, in answer to an inquiry on that subject, declared that his taking possession would have no effect upon the defendant’s interest in the wheat; that he made no claim to the wheat, and that it belonged to the defendant. This evidence, being controverted, was submitted to the jury upon the •question whether the plaintiff, by such declaration, as part of the res gestee, qualified or limited his possession of the farm and excluded the wheat therefrom, and the jury found for the defendant upon the question so submitted.

' We are inclined to think that the submission of that question to the jury was unnecessary, and that the defendant was entitled to a verdict on the principal question and on the undisputed evidence in the case.

The growing crop of wheat was a chattel and subject to sale like other personal property. (Frank v. Harrington, 36 Barb., 415; Whipple v. Foot, 2 Johns., 418; Stewart v. Doughty, 9 id., 112.) The plaintiff, by taking possession of the farm under the consent of the mortgagor, for the purpose stated in the agreement above mentioned, aquired no title to the farm. This he could do, in the ' absence of a conveyance, only by foreclosure of his mortgage. Until foreclosure, whether in or out of possession, he was a mortgagee merely, holding his mortgage as security for the payment of his debt. (Packer v. Rochester and Syracuse R. R. Co., 17 N. Y., 283, 295; Trimm v. Marsh, 54 id, 599.)

The agreement under which the plaintiff went into possession did not purport to transfer to the plaintiff any title to the land, nor to-change his relation thereto as mortgagee. On the contrary, it expressly recognized that relation as continuing, and gave to the-plaintiff the right only to receive the rents and profits of the farm and apply them in reduction of the indebtedness secured by the mortgage; and this attached only at the time of taking possession, or, at the most, at the date of the agreement under which possession was taken. It could not affect the right of a previous purchaser of a crop, nor give to the plaintiff any right superior to that which the mortgagor himself had at the time he transferred the rents and profits to the mortgagee.

"We think the cases referred to by counsel for the plaintiff as authority for the proposition that a mortgagee in possession, after forfeiture, has all the rights of a purchaser'at a sale on foreclosure,, are not applicable to this case. In the first place, there seems to be a failure of proof to establish a forfeiture at the time the plaintiff took possession of the farm. The mortgage, as we have seen, was,, by its terms, not enforcible until one month after demand of the • amount due thereon. The only evidence of a demand of payment, relates to a time shortly after the death of the plaintiff’s partner, Mr. Cuyler, in July, 1876, when, as the plaintiff testifies, he had a. talk with Mumford about settling and paying what he owed, with a view to closing up the partnership affairs, and he testified that he asked for payment, of the mortgage at th&t time. There is nothing in the case to show what was due to the plaintiff at that time. The mortgage was a general continuing security for indebtedness to be-incurred; the amount and consideration of such indebtedness was-changing from time to time, and the undisputed evidence, furnished by the statement rendered by the plaintiff to Mumford on the 1st of April, 1881, is to the effect that the whole of the indebtedness existing at the time possession was taken by the plaintiff had. been incurred after the date of the demand, if such it was, in July, 1876, and for the payment of that indebtedness there is no evidence that any demand was ever made.

But, secondly, the plaintiff can claim nothing by virtue of his possession under the mortgage beyond what is declared by the instrument under which the possession was taken; and this, as we have seen, plainly excludes the theory of any acquisition of title to the mortgaged premises, and confines the mortgagee to the receipt of the rents and profits to apply on the indebtedness secured.

We think that, upon the grounds here considered, the defendant was entitled to the verdict taken at the circuit, and. that the motion for a new trial should be denied.

Corlett, J., concurred; Macomber, J., not sitting.

Motion for a new trial denied, with costs, and judgment ordered for the defendant on the verdict.


text:
    WEBSTER B. VAN NUYS, Respondent, v. JOSIAH E. TITSWORTH, Appellant, Impleaded, etc.

      Stipulation in an action — lohen a pa/t'ty will be relieved therefrom, by the cowrt.

    Where, in an action brought for the settlement of a partnership account, a party has.been induced to enter into a stipulation for its compromise and settlement, through a desire to escape from further litigation, and it appears, in the light •of subsequent events, that instead of buying his peace by the compromise made he has thereby involved himself in future litigation likely to be even more serious and protracted than that from which he attempted to escape, the court will, in the exercise of its discretion, where all parties can be restored to the •same condition in which they were when the stipulation was made, relieve such party from the stipulation thus entered into by him.
    Appeal by the defendant Josiah E. Titswortli from an order, entered in the office of the clerk of the .county of Livingston on the 21st day of December, 1889, setting aside a stipulation,
    The action was brought for the dissolution of a copartnership existing between the defendants Josiah E. Titswortli and Amos Yan Nuys, as of the date of an assignment by said Yan Nuys to the plaintiff, and judgment was asked that an account should be taken of all the ■copartnership dealings and transactions, and that the defendant Titswortli should be adjudged to pay to the plaintiff whatever should appear upon said accounting to be due to him, as the assignee of the defendant Amos B. Yan Nuys; that a receiver be appointed, and that the defendant Titswortli should be enjoined from interfering with the property until the final judgment in this action. Pending the action a stipulation was entered upon the minutes of the referee, before whom the action was tried, and was as follows:
    This instrument or writing, dated the 21st day of October, 1889, is given for value received, and is intended as and for a receipt in full from Amos B. Van Nuys, Webster B. Van Nuys and Harriet K. Van Nuys, and each of them, to Josiah E. Titsworth and Eleanor M. Titsworth and each of them, of all claims and demands of every name and nature growing out of, or in any manner connected with, the business or business relations, and the property, or the avails thereof, of the former firm of Titsworth & Van Nuys, composed of Josiah E. Titsworth and Amos B. Van Nuys, said property being now in the possession of James B. Frazer as receiver of the property and assets of said firm, and of all other claims and demands which we or either of us now have or hold against the said Josiah E. Tits-worth and Eleanor ÜVE. Titsworth, or either of them.
    •This receipt is given for the further consideration of a complete, final and full settlement of all accounts, demands and business relations by and between the said Josiah E. Titsworth and Amos B-Van Nuys; and the said Webster B. Van Nuys, for value received, agrees to immediately, or as soon as practicable, discontinue, or cause to be discontinued, all proceedings now pending in the Siipreme Court, before Hon. E. A. Nash, referee, in which said Webster B. Van Nuys is plain tiff and said Josiah E. Titsworth is defendant or co-defendant; and all other litigations or suits in which the said Amos B. Van Nuys, Webster B. Van Nuys and Harriet K. Van Nuys, or either of them, are plaintiffs or co-plaintiffs, as against said Josiah E. Titsworth and Eleanor 1VI. Titsworth, or either of them, as defendants or co-defendants.
    The respective parties to each and all suits, or legal proceedings, now pending, to pay their respective attorneys. The balance of all costs and expenses incurred or hereafter necessary to be incurred in the settlement of all pending litigation, to be paid by the respective parties thereto, as they shall agree, at or before the execution and delivery of this jiaper.
    And the said Amos B. Van Nuys, Webster B. Van Nuys and Harriet K. Van Nuys agree that they will in a proper and legal manner unite with the proper person or persons in obtaining from the possession of said James B. Frazer all moneys and other property in liis possession or-under his control as receiver as aforesaid of the property and avails of said firm of Titsworth & Yan Nuys, the same to be delivered to such person or persons, and in such proportion as the said Webster B. and Harriet K. Yan Nuys may hereafter agree upon.
    This writing, or receipt, not to become effective or binding until all the considerations and conditions hereinbefore mentioned have been fully complied with.
    AMOS B. YAN NUYS. WEBSTER B. YAN NUYS. HARRIET K. YAN NUYS.

      F. O. Peck, for the appellant.

      F. W. Noyes and G. J. Bissell, for the respondent.
   Dwight, P. J.:

Agreements and stipulations made between the parties to a pending action, and relating to its prosecution or discontinuance, are regarded as specially within the supervision and control of the court, and a wide discretion is exercised in relieving parties from such agreements, even though made upon sufficient consideration, if only both parties can be restored to the same condition as when the agreement was made. It is not necessary in such case to show fraud, deceit or mutual mistake, over-reaching or undue influence; it is sufficient if it appear that either party has inadvertently, unadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his prejudice. (Becker v. Lamont, 13 How. Pr., 23, and the cases and authorities cited; Barry v. The Mutual Life Insurance Co., 53 N. Y., 536.)

In the cáse first cited Judge Mason quotes a remark of Lord Lyndhurst in Furnival v. Bogle (J Russ., 149), when relieving a party from an important order entered by consent. The lord chancellor said: “ I am the more disposed to come to this conclusion because, though the Messrs. Bogle will lose the benefit of the order, they will not lose any advantage which the merits of their case entitle them to.” The remark, though apologetic in form, indicates the principle upon which this power of the court is exercised, viz., that the court to which the rights of the parties have once been submitted ■will exercise a supervision of all proceedings in tlie action, even tliougli taken by consent, and will control such proceedings with a view to a final disposition of the case according to its merits.

This action was for the settlement of a partnership account, and was brought by the plaintiff as assignee of the interest of his brother in the copartnership, which had been transferred to the former in consideration of an indebtedness due to him from the latter. The proceedings in the action had been protracted; the plaintiff was an invalid and his health was injuriously affected by the trouble and anxiety incident to the trial, and he seems to have been chiefly induced to enter into the agreement for a compromise of his claim and a settlement of the action, by his desire to escape further litigation. He entered into the agreement against the advice of his attorney and the counsel who had assisted in the trial, and the agreement was drawn by an attorney not engaged in the case. Developments which occurred soon after the execution of the agreement tended to show that instead of buying his peace by the concessions he had made, he had thereby involved himself in future litigation, likely to be even more serious and protracted. It was then, for the first time, that he discovered the fact that there were large judgments against his brother and assignor, and that, immediately upon the fact of the settlement of this action becoming known, the owner of two of those judgments, amounting to some $12,000, had commenced proceedings supplementary to execution thereon. Here was an indication of an intention on the part of creditors to inquire into the circumstances of the transfer by the debtor of his interest in the copartnership and the disposition of that interest, with a view, possibly, of charging the assignee with the value of that interest over and above the amount of the debt in consideration of which the transfer was made. It was upon learning of these facts, and of his liability to be made defendant in another litigation, or series of litigations, even more onerous than that which he had sought to escape, that he appealed to the court to be relieved from the agreement and stipulation in this action.

In view of the principles briefly stated above, we think it was not in excess of the discretion of the court at Special Term to make the order appealed from which restores all parties to the status quo, and in no way prejudices the merits of the action.

We think the order should be affirmed, without costs of this appeal to either party.

Macomber, J., concurred; Corlett, J., not voting.

Order appealed from affirmed, without costs of this appeal to ■either party.


author: Macomber, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of JOHN H. HOPKINS, as Executor of the Will of ROSILLA D. OVIATT, Deceased.

      Direction to an executor to pay a bond and mortgage on the testator’s real estate — in case of a deficiency in the estate to pay all the legacies the payment on the bond and mortgage does not abate.

    A testatrix, by lier will, provided as follows: “Third. My said trustee I hereby direct to sell and to convert into money my frame-house and the lot,” etc., “ and out of the proceeds of said premises to pay, first, the bond and mortgage upon my store.” The will further provided for the payment of a number of legacies which, owing to a deficiency of assets, could not, all of them, be paid in full.

      Held, that the direction to pay the bond and mortgage could not be construed to be a bequest of a legacy in such wise as that the amount to be paid thereon should be reduced or abate in the same proportion as the payments to be made on the legacies.
    Appeal, by Yiola D. Schoecraft, by Arthur E. Sutherland, special .guardian, from portions of a decree entered in the Surrogate’s Court •of Monroe county on December 9, 1889.

      Arthur E. Sutherland, for the appellant Yiola D. Shoecraft.

      Porter M. French, for the respondents Wilson D. Oviatt and Percy Oviatt.

      John H. Hojdkvns, executor in person, and for the respondent Adelia J. Rabcock.
   Macomber, J.:

The appeal is from that portion only of the decree of the surrogate which credits to the executor the full amount claimed by him in Schedule 0 of his accounts, being the sum of $3,844.15 ; and which adjudges that there is a balance in his hands of only $540.10, and which directs the executor to pay to the commissioners of Mt. Hope the sum of $100, the interest of which last-named sum was to preserve in good order a burial lot in Mt. Hope Cemetery, and which requires the executor to pay the balance of the fund in his hands to the respondent Adelia J. Babcock, one of the legatees named in the will, or deposit the same with the treasurer of Monroe county.

The questions presented by this appeal arise upon the third provision of the last will of Rosilla I).' Oviatt, which is as follows: “ Third. My said trustee I hereby direcA to sell and to convert into money my frame-house and the lot on which it stands situate upon the north-east corner of South avenue and Comfort street, in said city, and out of the proceeds of said premises to pay, first, the bond and mortgage upon my store and building situate on South St. Paul street, known as No. 38, south of Ely street, in the second clause above described; and, secondly, to pay any and all other debts I may owe therefrom; and then, thirdly, to deposit one hundred dollars therefrom, the interest to be used to keep up the lot, being north-east, one-quarter of lot No. 80-in Mt. Hope Cemetery for all time, either in a savings bank or with the commissioners of Mt. Hope, as he may deem best; and, fourth, to pay from said proceeds $500 to my sister Mrs. Adelia, Jane Babcock, of Rochester, N. .Y., now of Colorado, as her property forever; fifth, to pay to Yiola D. Shoecraft, daughter of my' deceased daughter Imogene Shoecraft, now of "W ashington Territory, the sum of one thousand dollars as hers forever; sixthly, to pay to Robert M. Shoecraft, son of my said daughter, now of the city of Rochester aforesaid, the sum of $500 to him and his heirs forever ;; seventh, that the balance of said proceeds shall be securely invested by my said trustee, and the income thereof shall be paid by him for and towards the education and improvement of the four children now living of Eugene A. Oviatt, until the youngest child is twenty-one years of age, and at that time said funds shall be equally divided between them, share and share alike, as theirs forever.”

The executor, in pursuance of this provision of the will, sold the-real estate so directed by the will to be sold by him, and with the-avails thereof paid the bond and mortgage upon the other real estate-mentioned, amounting, at the time of payment, to the sum of $2,570. The appellant objected to the allowance of such payment, but such objection was overruled, and from the decision of the surrogate this appeal is taken. An elaborate argument has been made, by the learned counsel for the appellant, that the legacies mentioned in clauses one to six, inclusive, in the third paragraph of the will above quoted, stand on an equal footing, and inasmuch as there is a deficiency of assets to pay them all in full they must be paid ratably, and, that, consequently, the payment of the mortgage upon the block, mentioned ivas unauthorized.

An answer to this argument is, in brief, that the testatrix was-indebted by her bond for the payment of the amount secured by the mortgage resting upon her South St. Paul street store, and, being-so indebted, she did, by her will, take the case out of the operation of the statute and charge the payment of such indebtedness expressly upon the avails of the sale of the house and lot on the corner of' South avenue and Comfort street. Except for the statute (1 R. S., 749, § 4 [6th. ed.], vol. 2, 1130) the devisee could not be obliged to-satisfy the mortgage out of his oivn property without resorting to the executor. But where there is an express direction in the will of the testator that such mortgage be otherwise paid, the same is as obligatory upon the executor as the payment and discharge of any other indebtedness of the decedent. (Searles v. Brace, 19 Abb. N. C., 17; Cochrane v. Hawver, 54 Hun, 556.)

In no sense can this clear and positive direction for the payment of an outstanding indebtedness be deemed a separate and independent bequest or legacy to the son, Wilson D. Oviatt and his children. The question, therefore, which has been discussed by the counsel for the appellant does not, in our judgment, arise upon the reading of this will.

It follows, therefore, that the, decree of the surrogate should be affirmed, with costs to the respondents payable out of the estate.

Dwight, P. J., and Corlett, J., concurred.

Decree of surrogate affirmed, with costs payable out of the estate.


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    GEORGE L. KINGSTON, as Assignee, etc., Appellant, v. HARRIET N. KOCH, as Administratrix, etc., Respondent.

      Assignment for the benefit of creditors — necessity of a delivery by the assignor to the assignee — fraudulent intent.

    Where a general assignment for the benefit of creditors, after being prepared and signed by the assignor, is placed in the hands of his attorney to loe used in case of necessity, and the attorney holds it until a judgment has been entered against the assignor, and thereupon, without any further communication with the assignor, takes the assignment and gives it to 'the assignee named therein, such assignment is inoperative and void.
    Until delivery, an assignment is a nullity, and unless the assignor has, by his acts, authorized a delivery, the instrument is inoperative.
    In determining whether an assignment was made for the purpose of defrauding creditors, it is not the intention of the assignee, but rather that of the assignor before the delivery of the assignment, which is to govern.
    Appeal by the plaintiff George L. Kingston, as assignee, from a judgment entered in tlie clerk’s office of tbe county of Erie on tlie 29tli day of May, 1889, after a trial before a referee, uiion wliose report judgment was entered dismissing tlie plaintiff’s complaint, with costs.
    The action was brought to recover the value of certain fixtures of .a grocery store, together with goods on the shelves of such store, belonging, to one Southwick, the plaintiff’s assignor,and which were levied upon by the defendant’s intestate, acting as sheriff of Erie ■countjr, under an execution against the property of Southwick.
    . Edmond J. Plumley, for the appellant.

      Seward A. Simons, for the respondent.
   Macomber, J.:

The plaintiff, as assignee for the benefit of the creditors of one George Southwick, brought this action to recover the value of certain property which he claimed under such assignment and which had been seized by the defendant’s intestate, as sheriff of Erie county, under a judgment and execution issued against the assignee in behalf of one Houghtaling.

The action of Houghtaling was begun in the Municipal Court of Buffalo November 28, 1884, and the summons therein was made returnable at ten o’clock a. m., on tbe fifth day of December of that, year. An unverified answer was attempted to be filed by the. defendant in that action, but the same was finally rejected, but such effort resulted in a delay in the proceedings of a few hours. Early in the afternoon, however, a judgment was taken, a transcript was-immediately issued and filed with the clerk of Erie county, and at. ten minutes past three o’clock of that day an execution was. delivered to the sheriff. A levy was actually made upon the-property in question on the 8th day of December, 1884.

The debtor, Southwick, had prepared and had signed and placed in the hands of his attorney, prior to the entry of such judgment against him, the general assignment for the benefit of creditors under which the plaintiff claims. This instrument was put into the safe of the attorney, and there remained until the judgment above-mentioned was procured, when the attorney, who had been defending the case in the Municipal Court, went hurriedly to his office and, without any further, communication with the assignor, took the assignment from the safe and gave it to the plaintiff, the assignee therein named.

We are of the opinion that this assignment never became effective, as against creditors. When the assignor executed the same he had no intention of having it delivered as an effective instrument, but intended the same to be used only as a shield in case of necessity. The last positive instructions which the case shows that the assignor made to his attorney were to the effect that he should not deliver that instrument in the morning of the day above mentioned. There, is no evidence of any instruction that he should deliver it at a particular time or in any particular event, though it is a fair inference that the same was designed to be delivered or withheld from delivery according to the course pursued in the action in the Municipal Court. There is no evidence of any subsequent direction of the assignor to the attorney to deliver the instrument to the assignee. The assignor kept within his own control, save as above mentioned, the entire-matter. Southwick pursued his business as theretofore without any change, and as though the instrument that he had executed was not outstanding. It was, in fact, a provisional execution of a general assignment, not to become operative until further orders had been given to the attorney. There was, therefore, reserved to the assignor-the right to withhold the delivery of the assignment, and the right to revoke it and render it void. Until delivery, an assignment is a nullity, and, unless the assignor has, by his acts, authorized a delivery, the instrument is inoperative. (Reichenbach v. Winkhaus (67 How. Pr., 512; MeIlhargy v. Chambers, 27 N. Y. St. Rep., 921; Chapin v. Thompson, 89 N. Y., 270.)

The referee has found as a fact that the assignment was made for the purpose of defrauding creditors, and particularly creditor Houglitaling, and is, therefore, void. This conclusion is abundantly sustained by the evidence, and is fortified by the following authorities which show that it is not the intent of the assignee, but rather the intent of the assignor, before the delivery of the assignment, which is to govern: Cuyler v. McCartney (40 N. Y., 221); Talcott v. Hess (31 Hun, 282).

The judgment should be affirmed, with costs.

Dwight, P. J., and Corlett, J'., concurred.

Judgment affirmed.