author: Ing-raham, J. : Daniels, J.: Van Brunt, P. J.

text:
    In the Matter of the Application of JOSEPH W. HOWE and Another, as Executors of GEORGE P. CLAPP, for Leave to Sue BENJAMIN I. H. TRASK.

      Laches — leave to sue upon a bond where the lien of a mortgage collateral thereto has been cut off by the foreclosure of a prior mortgage — a judgment is presumed to embody all prior agreements as to its form.

    Two lots, belonging to one Trask and wife, were, August 15, 1872, mortgaged by tliem to an insurance company. Thereafter, and in June, 1873, the mortgagors gave two bonds and mortgages upon the same lots to one Desier A. Clapp. In May, 1876, Mrs. Trask, who had incurred the debt and received the proceeds of the second mortgages, conveyed certain other property to Desier A. Clapp, as alleged, in full satisfaction of the latter’s claim under her mortgages, in which transaction one C. F. Moulton acted as attorney for Desier A. Clapp.
    On September 3, 1877, the insurance company obtained judgments of forclosure upen its mortgages; pending which foreclosure Desier A. Clapp began actions, for the foreclosure of her mortgages by said Moulton, as her attorney.
    In the last-mentioned actions brought by Desier A. Clapp answers setting up usury were interposed and were stricken out as sham, as alleged, upon an agreement ■that if stricken out no judgments for a deficiency would be asked by Desier A. Clapp against Trask and his wife. Judgments of foreclosure were entered, September 6, 1877, by said Desier A. Clapp, containing the usual direction, for a deficiency judgment. The insurance company sold under its judgments and a deficiency resulted. No sale was ever had under the judgments of Desier A. Clapp. In 1881, Mrs. Trask was discharged in bankruptcy. In the same year Desier A. Clapp died and left a will, in which her husband, George P. Clapp, was named as sole legatee and devisee. George P. Clapp died in 1884 leaving a will, under which Joseph W. Howe and the said C. F. Moulton qualified as executors on May 14,1884. In March, 1891, the last-named executors began a proceeding, under section 1628 of the Code of Civil Procedure, for leave to sue upon the bonds given by said Trask and wife to said Desier A. Clapp. The court denied the application upon the ground of laches, fourteen years having elapsed since the foreclosure sale under the first mortgages.

      Held, error.
    That there was no rule requiring such an application to be made within any particular time. •
    That the judgments in foreclosure were a conclusive adjudication that Trask was-indebted to Desier A. Clapp, or to those legally representing her.
    That, as by the foreclosure of the first mortgages the second mortgages were cut off, and nothing was realized upon the latter, the representatives of Desier A. Clapp had a right to resort to the bonds against -which the statute of limitations, had not run.

      That the allegation of an arrangement whereby the answers alleging usury were allowed to be stricken out, upon a promise that no deficiency judgment should be entered, was conclusively disproved by the subsequent entry of the judgment in foreclosure containing a deficiency judgment clause. (Van Brunt, P. J., dissenting.)
    Appeal by Joseph W. Howe and Clarence F. Moulton, as executors of George P. Clapp, deceased, applicants herein, from ah order, entered in the office of the clerk of the city and county of New York on the 13th day of May, 1891, denying their motion for leave to sue Benjamin I. H. Trask upon certain bonds.
    The affidavits presented upon the motion tended to show the following facts not stated in the opinions: That Benjamin I. II. Trask and wife executed two bonds and mortgages upon the premises in question to the Mutual Life Insurance Company of Now York, hearing date August 15, 1872, and recorded in the register’s office of said city August 29, 1872. That actions for the foreclosure thereof were begun thereon, and that sales in foreclosure under said mortgages took place February 5, 1879, and resulted in large deficiencies in each action. That said Desier A. Clapp was a party defendant to both of said actions; that she was the owner at the time of the recovery of the judgments by the insurance company of bonds dated June, 1873, secured by genuine mortgages upon the same premises, upon which she obtained judgments of foreclosure, and for a deficiency, if any resulted on the sale; that she never sold under the judgments obtained by her upon her bonds and mortgages, nor ever entered any deficiency judgment in either of her actions; that certain payments were made to her by the Trasks in May, 1876, by the transfer to her by them of certain property in Duane street, in New York city, and that, upon such conveyance, one Clarence F. Moulton, as attorney in fact for Desier A. Clapp, indorsed upon the bonds accompanying said mortgages receipts for a part payment of such bonds. Trask alleged that this payment was to relieve and discharge himself and wife from any personal liability upon said bonds. There still remained due upon said bonds a large sum... That when Desier A. Clapp began to foreclose her mortgages against the Trasks, the latter answered and set up usury. Trask alleged that thereupon said Moulton, as attorney for Desier A. Clapp, ^requested him to allow judgment to be entered in order that she might, if possible, secure the amount remaining due, and Moulton then stated that it was not intended to enforce any personal claim against Traslc or against his wife, and that upon this assurance the answers were allowed to be stricken out as sham. Noth withstanding this, Desier A. Clapp, on September 6, 1877, entered in her actions the usual foreclosure judgments charging Trask and wife with any deficiency.
    Mrs. Trask alleged that the loan by Desier A. Clapp, for which said bonds and mortgages were given, was made to her, and not to her husband. Mrs. Trask was discharged in bankruptcy on the 23d day of November, 1881. Desier A. Clapp died September 17, 1881, and was then the owner of said bonds, to which the said mortgages of the Trasks were collateral. Iier husband, George P. .Clapp, was, under her will, her sole devisee, legatee and executor, and to him letters testamentary were issued November 14,1881. He thereupon qualified and, as such executor, received said bonds. Subsequently said George P. Clapp died, leaving a will, which was duly proved May 14, 1884, and upon the same day the executors named therein, Joseph W. Howe and Clarence F. Moulton, qualified, and, as such executors, subsequently received said bonds. Nothing had ever been done upon the part of Desier A. Clapp, or upon the part of her legal representatives, in the way of actions, proceedings or demands, to enforce payment of said bonds until the present application was made; nor did the said Howe and Moulton, as such executors, include them on their inventory' of the property of George P. Clapp.

      tQerrit Smith, for the executors of George P. Clapp, appellants.

      JO.harles Donohue, for Benjamin I. H. Trask, respondent.
   Ing-raham, J. :

The respondent admits having executed the bonds upon which the ¡appellants ask leave of the court to sue, and it appears that in an action to foreclose two mortgages given to secure the payment of the ibonds the respondent appeared and interposed an answer alleging the defense of usury, and that subsequently such answers were stricken out as sham and judgments of foreclosure and sale entered, whereupon the respondent was adjudged to pay any deficiency to plaintiff.

This judgment is a conclusive adjudication that defendant had no defense to the action and was indebted to plaintiffs’ testator in the amount of the bond. As the property covered by the mortgages was subsequently sold to satisfy a prior lien, nothing was realized in the foreclosure suits, and as the statute of limitations had not run against the bonds, the mere delay in making the application is not a reason for denying the motion.

There is no rule that requires that this application should be made at any particular time, and by denying it on the ground of laches in making the motion the court, in effect, establishes a different time within which an action upon a bond must be brought than that established by law.'

The allegation that some arrangement was made, whereby the obligor and his co-obligor would be released from any personal obligation upon the bond is conclusively established to be without foundation by the judgment subsequently entered in the foreclosure action. lie was represented by his attorney in that action and interposed an answer; he did not allege therein the making of the agreement now brought forward as a reason for denying this application, and the effect of the order appealed from is to reverse the adjudication of this court as to the liability of the defendant upon the mere statement of the respondent on this application, that in consequence of an agreement made before the entry of the judgment against him he was not to be personally responsible.

Upon the bond and judgment itself the petitioner is entitled to recover, and no reason is shown why they should not be allowed to commence the action.

The order appealed from should be- reversed, with ten dollars costs and disbursements, and motion granted.

Daniels, J.:

Whether a defense exists to the debts mentioned in the bonds can regularly be only determined on a trial when the evidence will be directly produced before the court, and to place the demands in the condition in which the trial can be had, the order permitting the bonds to be sued becomes necessary. To prevent the order the proof should be satisfactory that the bonds have been discharged or satisfied. That degree of proof is in this instance wanting, and leave to sue the bonds should be given.

I, therefore, agree witli the opinion of Mr. Justice Ingraham for a reversal of the order.

Van Brunt, P. J.

(dissenting):

In June, 1873, one Trask and wife executed and delivered to one Clapp their two joint and several bonds for $2,500, each secured by two second mortgages on two adjoining lots of land in New York city. In May, 1876, the mortgagors caused to be conveyed to the mortgagee certain property in Duane street, New York city, as claimed by the appellants, in part payment of said bonds, and credit was given therefor on said bonds, leaving a balance due. In November, 1877, two actions were begun by the mortgagee against Trask and wife to foreclose the mortgages for the balance alleged to-be due on the bonds, in each of which actions a defense of usury was interposed by the wife of Trask.

A motion was made to strike out such answers as sham, and upon the consent of the attorney for Mrs. Trask an order was entered striking them out, and subsequently decrees of foreclosure were entered on the 6th of September, 1877. A few days prior to the entry of the decrees in these actions (viz., on September 3, 1877), judgments of foreclosure and sale were entered in actions brought upon the first mortgages, and upon the sale of the premises a deficiency resulted upon said last named mortgages. No sale was had under the decree of September 6,1877.

The mortgagee died on September 17, 1881, leaving her husband sole executor and legatee under her will; and he died m 1884, leaving a last will and testament, of which the applicants Joseph W. Howe and Clarence Moulton are' executors. No other payments having been made upon said bonds this application, under section 1608 of the Code, was made for leave to bring suit thereon. This application being denied, from the order thereupon entered this appeal is taken.

The learned court below seems to have denied this motion upon the ground of laches, nearly seventeen years having elapsed since the making of the bonds. But it is doubtful whether any lapse of time short of the statute of limitations, unless there were other considerations, would be an answer to the right to sue.

But there is one difficulty presented upon the face of these papers which seems to justify the denial of the application.

It seems that the executor Moulton was acting as the attorney, in fact, of the mortgagee in connection with all these transactions; and it is alleged, upon the part of the appellant Trask, that the answers in the foreclosure suits were allowed to bo stricken out under and in pursuance of an agreement between himself and Moulton, that no personal judgment would be enforced either against himself or his wife.

And it is to be observed that Moulton verified the complaint in these foreclosure actions as the attorney of the plaintiff, who was absent from the city of New York. Moulton has made no affidavit or denial of these allegations. It seems to us, therefore, that the making of such an agreement is established, and it certainly would be inequitable to allow an action to be brought upon these bonds after the making of such an agreement by the representative and attorney of the plaintiff in those actions, who had the sole charge and management of her affairs in this respect.

The order should be affirmed, with ten dollars costs and disbursements.

Order reversed, with ten dollars costs and' disbursements and motion granted.


source: Caselaw Access Project

author: Ingraham, J.:

license: Public Domain

text:
    CHARLES A. LEALE, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and Another, Appellants.

      TSlevated railways in New York — action not maintainable foi' the erection of a freight depot in a house near that of a property owner — evidence of the value of land.

    The complaint in an action alleged that the defendant, the Metropolitan Elevated Kailway Company, maintained an elevated railway in Fifty-third street, in New York city, and a depot at the intersection of said street and Eighth avenue ; that it had established a freight depot in a house upon said street next but one to the house of the plaintiff, and that it had connected said depot and freight depot by a continuous platform built over the whole of the sidewalk beneath. The complaint demanded that the said defendant and its lessee, the Manhattan Railway Company, a co-defendant, be forever enjoined from operating said railroad adjoining and in front of plaintiff’s premises, and from maintaining said station; it further demanded damages for past trespasses.
    The court found “ that, by reason of the construction and operation of said railroad, and of the depot and freight depot aforesaid,” the rental value of the plaintiff’s premises had been diminished $600, and the fee value $6,500, and directed that judgment be entered accordingly.
    Held, that the defendants had a right to maintain a freight depot in the house next but one to that of tlie plaintiff, the same not being in the street nor upon any property subject to the plaintiff’s easement.
    That, inasmuch as it was impossible for the appellate court to discover what part of the recovery was predicated upon the erection of the freight depot, and how much thereof depended upon damages resulting from the operation of said railway in front of the plaintiff’s premises, the judgment must be reversed.
    That, upon the question of the value of said premises when plaintiff purchased, it was improper to allow him to state the prices at which similar property had, at about that time, been offered to him.
    Appeal by tlie defendants, the Metropolitan Elevated Railway Company and tlie Manhattan Railway Company, from a judgment, entered in tlie office of the clerk of the city and county of New York on the 2d day of December, 1890, after a trial at the New York Special Term, awarding the plaintiff damages, based upon the rental and fee value of his premises, and an injunction restraining the operation of the defendants’ road unless such damages were paid.

      Samuel Blythe Rogers, for the appellants.

      B. F. Dos Bassos, for the respondent.
   Ingraham, J.:

The plaintiff alleges that defendant, the Manhattan Elevated Railway Company, has erected, constructed and maintains an elevated railroad and station at the intersection of Eighth avenue and Fifty-third street in front of plaintiff’s premises, and that they also have established a freight station in a house or building next but one to the plaintiff’s premises, and connected tlie aforesaid railroad station and the freight station by a continuous platform which covers or is built over the whole of the sidewalk ; and the complaint demanded judgment that each and both of the defendants be perpetually restrained and enjoined from maintaining, constructing or operating the above-described railroad, and from maintaining and using the station at the corner of Fifty-third street and Eighth avenue, and for damages for the loss of réntate caused by the construction and maintenance of such railroad and station.

The court found the construction and maintenance of the railroad and station, and also made the following findings : “ Tenth. That soon after the commencement and operation of said road, tlio defendants erected and established, and still use and maintain, a freight depot, in the building next but one to the plaintiff’s premises and westerly therefrom, the platform of which said dej>ot extends to within, twenty feet of the plaintiff’s house, and which said platform completely extends over the sidewalk below.” “ Seventeenth, That the annual rental value of said premises, by reason of the construction and operation of said railroad, and of the depot and fi eight depot aforesaid, has been diminished in the sum of $600; and that the fee value of said premises, by the same reason and causes, has been diminished in the sum of $6,500;” and, as conclusion of law, that plaintiff is entitled to recover from defendants the depreciation of the rental value of said property ; and that plaintiff is also entitled to recover from defendants damages in the sum of $6,500, for the depreciation of the fee value of the said premises ; and that plaintiff is entitled to an injunction restraining them from operating and maintaining the structure and railroad, running cars and engines and operating the same in front of plaintiff’s premises; and directed judgment that plaintiff recover from defendants the sum of $10,720.10, being the amount of the damage to the rental value to the premises, with interest and costs, with an injunction restraining the operation and maintenance of the railroad in front of plaintiff’s premises, unless the defendants pay to the plaintiff the sum of $6,500, the amount of the depreciation of the fee of the plaintiff’s premises.

The damage thus caused to the plaintiff’s property is found by the court to be caused by the maintenance of the elevated railroad, and the depot and freight depot. Sncli freight depot has been found to have been established in the building next but one to the plaintiff’s premises.

It is not in the street or upon any property that is subject to plaintiff’s easement. There is no evidence in the case to show, nor is there any finding that the employment or use of this building for a depot was illegal, or interferred in any other way with plaintiff’s nights or property. ■

It is impossible for us to say how much of the total damage to the rental value of the property was caused by the maintenance and operation of the railroad structure in the street, and how much was caused by the maintenance of the depot in the building on the street, or how much of the $6,500 found by the court as the depreciation of the fee value of the property was caused by the elevated railroad structure or the depot.

So far as appears, the defendants who maintained the depot in the building had as much right to use their property for that purpose as the plaintiff had as to his property, and upon no principle can plaintiff recover damages caused to his property by reason of the use of the house or building for a depot either by the defendants or any other corporation.

Nor do I think that there is any evidence to justify the finding that these defendants maintained or operated the depot.

While the denial of the allegation as to the maintenance and operation of the depot is not very specific, I think it is sufficient to raise an issue as to whether defendants had established and maintained such freight depot in the building and the fact conceded by the defendants on the trial that freight and baggage was taken at No. 213 West Fifty-third street from the platform and put into a baggage car of the elevated railroad, and that it is hauled by an engine of the elevated railroad eight or ten times a day, that the car is laden and unladen there, and that the Manhattan Railroad derives a revenue from that business, with the limitation that it was not admitted that either of the defendants was concerned with the handling of the baggage or freight at that place upon tlieir cars, is not an admission that the depot is operated and maintained by the defendants; and the testimony introduced by defendants shows that such depot is not maintained by the defendants, but by another corporation known as the New York City and Northern Railroad Company.

Plaintiff, on the trial, testified that at the time he purchased the property in question he made inquiry as to what neighboring property was held at, and as to efforts to purchase neighboring property in Fifty-third street, immediately contiguous to his own property. He was then asked this question: “ Q. Hid you ascertain at that time what the property was held at? ” That question was objected to by the counsel for defendants as irrelevant, incompetent, immaterial and hearsay. The objection was overruled, to which the defendants excepted, and the witness answered: “ I saw the owner of the prop, erty 235, a similar house to mine, and after seeing him two or three times the lowest price he would take for his house was $23,000.” Counsel for defendants then objected to the answer and moved to strike it out on the ground that it called for the opinion of the witness, and also on the ground that it was hearsay. The motion was denied, and the evidence was admitted, to which the defendants excepted, and the witness continued his answer: “No. 237 was offered to me for $21,000.” And the plaintiff was subsequently allowed to testify to interviews with the owners of both houses, Nos. 235 and 237, and offers made to him for the sale of such houses; and the counsel for the defendants then objected to all of the foregoing questions and answers and the court admitted the same, to which the defendants excepted.

We think this evidence was all inadmissible and should have been excluded by the court. (See case of Keller v. Paine, 31 Hun, 167, and cases there cited.)

"Without passing upon the other questions raised, for the reasons before stated, the judgment must be reversed, new trial ordered, with costs to appellants to abide the event.

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

Judgment reversed and new trial ordered, with costs to appellants to abide event:


text:
    Ellen I. Ballard, as Executrix, etc., of William P. Ballard, Deceased, Respondent, v. The Hitchcock Manufacturing Company, Appellant.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Opinion by Merwin, J.


text:
    George Oster, Appellant, v. James Tolman, Impleaded, etc. Respondent.
   — Judgment affirmed, with costs, on the opinion of JLl.y. How-land. referee.


text:
    In the Matter of the Application of Mary Walker, Appellant, for the relief from an order that she make payments to the Superintendent of the Poor of Oneida County, Respondent.
   — Order affirmed. Mem. by Ilardin, P. J.


text:
    In the Matter of the Judicial Settlement of the Accounts of Irvin A. Williams and another, Executors, etc., of Abijah J. Williams, Deceased.
   Decree of the surrogate of Oneida county affirmed, with costs. Opinion by Martin, J.


text:
    Edwin R. Briggs, Respondent, v Elmina L. Hart, Appellant.
   — Judgment of the County Court of Madison county affirming a justice’s judgment affirmed, with costs. Mem. by Hardin, P. J.


text:
    The People of the State of New York ex rel. Morris A. Young, Respondent, v. Charles Straight, Clerk of the Village of Wellsburg, Appellant.
   Order affirmed, with costs.


text:
    Martin Barney, Respondent, v. Louis E. Fuller and Truman K. Fuller, Appellants.
   — Judgment and order affirmed, with costs. Per Curiam opinion filed with the clerk of Oneida county.


text:
    Charles E. Crouse, Survivor, etc., Respondent, v. First National Bank of Penn Yan, Appellant.
   Judgment reversed and a new trial ordered before another referee, with costs to abide the event. Opinion by Menvin, J.


text:
    Ann Tucker, Respondent, v. The United Life and Accident Insurance Association, Appellant.
   Judgment and order affirmed, with costs. Mem, by Hardin, P. J.


text:
    Joseph Pailca, Respondent, v. David J. Hamburger, Appellant.
   — Judgment and order of the County Court of Onondaga county affirmed, with costs. Mem by Ilardin, P. J.


text:
    Hiram Gilmore, Appellant, v The City of Utica, The Mayor and Common Council of the City of Utica, William F. Hoerlein, as Treasurer of the city of Utica, and the Warren-Scharf Asphalt Paving Company, Respondents.
   — Judgment affirmed, with one bill of costs to the respondents. Opinion by Hardin, P. J.


text:
    Jehiel Hymes, Respondent, v. Mynderse Van Cleef, Administrator, etc., Appellant.
   — Motion denied, without costs; judgment and order affirmed, with costs. Opinion by Martin, J.


text:
    Edwin R. Holden and another, Respondents, v. John O’Donoghue, Impleaded, etc., Appellant.
   —Judgment affirmed, with costs. Opinion by iVerwin, J.


text:
    John Storm and another, Respondents, v. Phenix Insurance Company of Brooklyn, New York, Appellant.
   — Judgment and order affirmed, with costs Opinion by I-Iardin, P. J.


text:
    The Knickerbocker Company, Respondent, v. Alfred G. Burnham, Appellant.
   — Judgment affirmed, with costs, on the opinion of Williams, J., delivered at Special Term.


text:
    Henry C. Kenyon and another, as Administrators, Appellants, v. William R. Olney, George W. G. Kinney and Bert Olney, Executors, etc. Respondents.
   — Judgmentaffirmed, with costs. Opinion by Merwin, J.


text:
    John A. Muldoon, Respondent, v. Jerusha Deline, Appellant.
   Judgment and order affirmed, with costs. Mem. by Hardin, P. J.


text:
    Edwin E. Cole, Respondent, v. Orson D. Clark, Appellant.
   —Judgment of the County Court of Madison county, affirming a justice’s judgment,, affirmed with costs


text:
    Edwin E. Cole, Respondent, v. William Richards, Appellant.
   — Judgment of the County Court of Onondaga comity, affirming a justice’s judgment, affirmed with costs. Mem. by Hrnuin, P. J.


text:
    Fanny M. Hamilton, in Behalf of Herself and all other Stockholders of the Defendant Corporation, Respondent, v. Courier Printing Company and Milton H. Northrup, Appellants.
   — Interlocutory judgment affirmed on the opinion of Kennedy, J., delivered at Special Term, with leave to defendants to answer upon payment of the costs of the demurrer, and one bill of' cost8 on this appeal.


text:
    The Salt Springs National Bank of Syracuse, Respondent, v. George B. Sloan, Appellant.
   Judgment and order reversed upon the exceptions and a new trial ordered, with costs lo-abide the event. Opinion by Hardin, P. J.


text:
    Frederick C. Friess, an Infant, by John Friess, his Guardian ad litem, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   — Order modified by striking out the words “with costs to abide the event ’’ and substituting in place thereof “ upon the payment of costs," and the order as modified affirmed, with costs to the appellant. M em. by Ilardin, P. J.


text:
    Walter H. Cornell and another, Appellants, v. The Skaneateles Railroad Company, Respondent.
   Order affiimed, with costs. Mem. by Hardin, P. J.; Mem. by Martin, J.


text:
    Daniel Quinlan, Appellant, v. Providence Washington Insurance Company of Providence, R I. Respondent.
   Judgment afiirmed, with costs. Opinion by Martin, J.


text:
    The People of the State of New York ex rel. George H Lester, Respondent, v. Edward Mitchell, Mayor of the City of Oswego, and John Dowdle, Appellants.
   Order afiirmed, with ten dollars costs and disbursements. Opinion by Hardin, P. J.


text:
    Robert Reuben, Respondent, v. Joseph Andorsky, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by Hardin, P. J.


text:
    George S. Gilbert, Respondent, v. The Shortsville Cart Company, Appellant
   — Order affirmed, with fen dollars costs and disbursements. Opinion by Hardin, P. J.; Mem. by Marlin, J.


text:
    The People of the State of New York, Respondent, v. James McHale, Appellant.
   — Judgment of conviction in the Court of Sessions of Onondaga county affirmed, and proceedings remitted to that court. Opinion by Ilardin, P. J.


text:
    The People of the State of New York, Respondent, v. Hiram Rouse, Appellant.
   — Judgment affirmed, with costs. Opinion by Merwin, J.


text:
    Adam H. Eysaman, as Guardian of Lulu Eysaman, Appellant, v. Mary Small, Respondent.
   Judgment affirmed, with costs. Opinion by Hardin, P. J.


text:
    In the Matter of the Estate of George Clark, Deceased. Daniel R Bennett, Appellant, v. Ichabod McIntosh, Miles C. Comstock and others, Respondents.
   Decree of the surrogate of Otsego county affirmed, with costs Opinion by Martin, J.


text:
    Emily Tompkins, as Administratrix of David C. Tompkins, Deceased, Respondent, v. The City of Oswego, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Martin, J


text:
    Edward Dexter, Appellant, v. Riverside and Oswego Mills, Respondent.
   Judgment affirmed. with costs. Opinion by Martin, J.


text:
    Irving Snell, Respondent, v. Robert R. Thorp, Appellant.
   Judgment and order affirmed, with costs. Opinion by Merwin, J.


text:
    George F. Ellison, Respondent, v. John W. Jones, Appellant.
   Appeal from the order dismissed; judgment affirmed, with costs. Opinion by Hardin, P. J.


text:
    James E. McCabe, Respondent, v. John T. Goodfellow, Treasurer, etc., Appellant.
   Judgment affirmed, with costs. Opinion by Martin, J.; dissenting Mem. by Merwin, J.


text:
    Elizabeth Gibbons, Respondent, v. The Village of Phœnix, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Merwin, J.


text:
    George Spies, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by Hardin, P. J. ; Merwin, J., not sitting.


text:
    Francis Duford and Francis A. Duford, Respondents, v. William Patrick, Appellant
   —Judgment and order affirmed, with costs. Opinion by Hardin, P. J.


text:
    The First National Bank of Lowville, Appellant, v. George D. Moffatt, Respondent, Impleaded, etc
   Judgment reversed and a new trial ordered, with costs to abide the event. Opinion by Merwin, J. Mem. by Hardin, P. J.


text:
    Frederick L. Lovelace, Respondent, v. S. Gregor Doran and others, Appellants
   Interlocutory judgment affirmed, with costs, with leave to defendants to withdraw their demurrer and answer on payment of the costs of the demurrers and of this appeal. Opinion by Hardin. P J.


text:
    Frederick L. Lovelace, Respondent, v. Doran & Wright Co. (Limited). S Gregor Doran and others, Appellants.
   Interlocutory judgment, as to the appellants, other than the corporation defendant, affirmed, with costs, with leave to answer upon payment of costs of the demurrer and of this appeal. Opinion per Hardin, P. J. Interlocutory judgment as to the corporation appellant reversed, with costs, with leave to plaintiff to amend upon payment of costs of the demurrer and of this appeal. Mem. by Hardin, P J.


text:
    Horace P. Hoyt and another, Respondents, v. John H. Cline, Appellant.
   Judgmentaffirmed, with costs. Opinion by Martin* J.


text:
    Frank Lamercaux, Respondent, v. Jonas Rivenburgh, Appellant.
   Judgment and order affirmed, wilh costs.


text:
    Hiram Gilmore, Respondent, v. The Warren-Scharf Asphalt Paving Company, Appellant, Impleaded, etc.
   Order modified so as to allow the appellant thirty-six dollars and ninety-nine cents disbursements, and, as modified, affirmed, without cost to either party on this appeal.


text:
    The Bank of Syracuse. Respondent, v. The Wisconsin Marine and Fire Insurance Company, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Lydia O. Burland, as Administratrix, etc, Respondent, v Samuel Clare and others, Appellants.
   Appeal from order dismissed and judgment affirmed, with costs.


text:
    Jennie L. Lines, Respondent, v. Hector B. Johnson, as Sheriff, etc., Appellant.
   Judgment and decree affirmed, with costs.


text:
    Andrew J. Feck, Respondent, v. John Manley, Appellant.
   Order modified sous to allow new trial on condition that the plaintiff pay the costs of the former trial, and, as modified, af firmed, with costs of this appeal.


text:
    The People of the State of New York, Respondent, v. Rachel Brooks, Appellant.
   Judgment and order of the Court, of Sessions of Onondaga comity affirmed, and the clerk directed to enter judgment and remit certified copy (.hereof, with the return and decision of this court, to the Court of Sessions of Onondaga county, pursuant to sections 517 and 54tf of the Code of Criminal Procedure. Opinion by Martin. J.


text:
    Michael Kealey and others, Respondents, v. Dwight H. Murray, Impleaded with others, Appellants.
   Judgment affirmed, with costs. Opinion by Menvin, J.


text:
    Charles E Crouse and others, Appellants, v. Frederick Reichert, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William Duffus, Respondent, v. Rose Cole, Appellant.
   Order reversed, without costs of appeal to either party.


text:
    Mary Flood, as Administratrix of Timothy Flood, Deceased, Respondent, v. The Western Union Telegraph Company, Appellant.
   Judgment and order affirmed, with co^ts. Opinion by Merwin, J.


text:
    Charles Gilbert and another, Respondents, v. Philip Schrain, Appellant.
   Judgmentaffirmed, with costs.


text:
    Edwin Young, Executor, etc., Respondent, v. The Rondout and Kingston Gas-Light Company, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by Learned. P. J.


text:
    Alvah J Zimmer, Appellant, v. John J. Matteson and others, Respondents.
   Order reversed, .withten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by Landon, J.


text:
    Thomas F. Morgan, Respondent, v. The Hudson River Ore and Iron Company, Appellant
   Judgment and order affirmed, with costs.


text:
    The People of the State of New York, Plaintiff, v The Fitchburg Railroad Company, Defendant.
   Judgment ordered for people on submission.


text:
    Henry Martin, as Assignee, etc, Appellant, v. Thomas O. Crehan, Respondent, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    Alexander H. Kerr, as Commissioner of Highways of the Town of Edwards, Respondent, v. Mary Hammer, Appellant.
   Judgment affirmed, with costs. Opinion by Landon. J.


text:
    Philip J. Warner, Respondent, v. Schoharie and Schenectady Counties Farmers' Mutual Fire Insurance Company, Appellant
   —Judgment reversed, new trial granted, costs to abide event. Opinion by Mayham, J.; Landon, J., not acting.


text:
    The People of the State of New York, Respondent, v. Charles H. Carnrick, Appellant.
   Judgment and conviction affirmed. Opinion by Learned, P. J.


text:
    The People of the State of New York ex rel. Orville Crouse, Appellant, v. John E. Leavitt, as Sheriff, etc., Respondent.
   Order dismissing habeas co^ns proceedings and demanding, etc., affirmed. Opinion by Landon, J.


text:
    Delia Weinckie, Appellant, v. The New York, Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion" by Mayham, J.; Landon, J"., not acting.


text:
    The People of the State of New York ex rel. Ebenezer G. Blakslee, Appellant, v. The Commissioners of the Land Office, Respondent.
   Action of commissioners confirmed, with fifty dollars costs and disbursements. Opinion by Mayham, J.


text:
    George C. Preston, Respondent, v. Samuel R. Hawley, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by Learned P. J,; and by Mayham, J"., dissenting.


text:
    Walter B. Bonney, Respondent, v. James Paul and others, Appellants.
   Judgment of County Court and of justice of peace reversed, with costs. Opinion by Learned, P. J.


text:
    Warren B. Collamer, Respondent, v. Albert H. Farrington, Appellant.
   Judgment affirmed, with costs. Opinions by Learned, P. J., and Mayham, J.


text:
    James Donohue, Respondent, v. Hiram Whitney, Appellant.
   Judgment affirmed, with costs. Opinion by Landon, J.; Mayham, J., not acting.


text:
    James H. Chadwick, Respondent, v. William Bewsher, Appellant.
   Judgmentaffirmed, with costs. Opinion by Landon, J.


text:
    The Merchants’ National Bank of Whitehall, Respondent, v. Harriet C. Chapin and others, Appellants.
   Order modified as per opinion, and, as modified, affirmed, with costs. Order to be settled by Landon, J.


text:
    Amelia H. Bumstead, an Infant, etc., Appellant, v. Walter T. L. Sanders, Respondent.
   Judgment affirmed,- with costs. Opinion by Learned. P. J.; Mayliam, J., not acting.


text:
    Elizabeth Winne, Appellant, v. The City of Albany, Respondent.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Michael Murray, Respondent, v. Louis Friensberg, Appellant
   —Judgment and order affirmed, with costs. Opinion by Mayham, J.; Landon, J., dissenting


text:
    Frederick Beiermeister, Jr., and others, Appellants, v. The City of London Fire Insurance Company, Respondent.
   Judgment affirmed, with costs. Opinion by Learned. P. J.


text:
    Maria Ten Eyck and others, Appellants, v. Catherine A. Whitbeck and others, Respondents.
   Judgment affirmed, with costs. If plaintiff desires, the judgment may state that, but for the recording acts, judgment would have been reversed. Opinion by Landon, J.; Mayliam, JM not acting.


text:
    The People of the State of New York, Respondent, v. William H. M. Hulett, Appellant.
   Judgment and conviction affirmed. Opinion by Mayham, J.


text:
    The People of the State of New York, Respondent, v. Edward Wilber, Appellant.
   Judgment and conviction affirmed. Opinion by Learned, P. J.


text:
    Harmon Houghtaling, Respondent, v. Harriet L. Lloyd, Appellant.
   —Judgment of County Court and of justice of peace reversed, with costs. Opinion by Learned, P. J.


text:
    Delia Crate, Respondent, v. Jarvis Decorah, Appellant.
   Judgment affirmed, with costs. Opinion by Landon, J.


text:
    Jonathan D. Manett, Respondent, v. William Simpson, Appellant.
   Judgmentaffirmed, with costs. Opinion by Mayham, J.


text:
    Charles Oberle, Respondent, v. The Lang Manufacturing Company, Appellant
   —Motion to go to Court of Appeals, or for reargument, or to modify judgment, reversed and new trial ordered, with costs to abide event unless plaintiff stipulates to allow ten dollars, and, if allowed, then affirmed, with costs.


text:
    Mary Pratt v. Sidney G. Poole and others
   —Judgment affirmed, with costs. Opinion Iby Barnard, P. J.


text:
    Anna V. Borden, as Administratrix, etc., Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
   Judgment affirmed, with costs.


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


text:
    Joanna E. Eustace, Appellant, v. John Shoemaker, Respondent.
   J udgmenl of the County Court reversed, and that of the justice affirmed, with costs.


text:
    George Miner, Respondent, v. Clark N. Brown and others, Appellants.
   —Judgment affirmed, with costs.


text:
    Leonard Gardiner, Respondent, v. George H. Northrup, Appellant.
   Judgment of the County Court of Madison county and of the Justice’s Court reversed, with costs.


text:
    The Village of Oneida v. The Board of Supervisors of Madison County.
   Held: (1.) Tlieact of the legislature, under which the claims of the plaintiff are made, is constitutional. (2) The claims of sixty dollars and sixty cents, and interest thereon from the 1st day of June, 1883, and of seventy-one dollars and forty two cents, and interest thereon from the 1st day of June, 1884, are barred by the statute of limitations. (3) The plaintiff is entitled to recover the chums, not so barred, mentioned in the first question stated in the submission, with interest thereon from the several dates mentioned in said questions, and judgment therefor is ordered for the plaintiff against defendant, with costs. The formula of the judgment may be settled before Hardin, P. J.,upon five days notice.


text:
    The People of the State of New York, Appellant, v. Stephen W. Jones, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Estate of Sidney Smith, Deceased, Adon Smith and others, Appellants; Henry M. Aylesworth, District Attorney, Respondent
   Order affirmed, with ten dollars costs and disbursements


text:
    Hope A. Lemon, Respondent, v. Adon Smith and others, Appellants. Richard O. Smith and others, Respondents, v. Adon Smith and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Daniel Shaver, Respondent, v. Allie Shaver, as Executor, and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Thomas Heslan and another, Appellants, v. William W. Fowler and others, Respondents.
   Order affirmed, with costs. Mem. by Hardin, P. J.; Merwin, J., not sitting.


text:
    William Hughes, as Executor, and others, Appellants, v. George Bingham and others, Respondents.
   Judgmentaffirmed, with costs.


text:
    Sarah L. McCoy, Respondent, v The California Insurance Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    John Leonard, Appellant, v. James F. Herrick and others, Respondents.
   Judgment and order affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. The Milk Exchange (Limited), Appellant.
   interlocutory judgment overruling a demurrer to the complaint affirmed, with costs, with leave to the defendant to answer upon payment of the costs of the demurrer and of the appeal.


text:
    William Curtis, as Administrator, etc., Appellant, v. The Rome, Watertown and Ogdensburg Railroad Company, Respondent.
   —Judgment affirmed, with costs,


text:
    George E. Woods, as Supervisor of the Town of Stockbridge, v. The Board of Supervisors of Madison County.
   Held: (1.) The act of the legislature under which plaintiff’s claims are made is constitutional and valid. (2) The claims mentioned in the third question stated in the submission are barred by the statute of limitations. (3.) The plaintiff is not entitled to recover the items paid for State taxes mentioned in question one, except those barred as above stated, and judgment therefor is ordered for the plaintiff against the defendant, with costs. The form of judgment to be settled before Hardin’, P. J., upon five days’ notice.


text:
    Rose Spring, Respondent, v. The Life Union, Appellant
   J udgment and order affirmed, with costs.


text:
    In the Matter of Ambrose H. Carpenter, Creditor, Appellant, for Leave to Sell the Real Properly of Eleanor Greenly, Deceased; Edward Sabins and another, Respondent.
   Decree of the Surrogate’s Court reversed and a new hearing ordered before the Surrogate’s Court, with costs to abide the event Held, that the evidence does not show such a dispute, and the rejection of the claim, as to bring the case within the provision of section 1822 of the Code of Civil Procedure.


text:
    Mary E. Owens, Appellant, v. Joel A. Omens, Respondent.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Mary E. Owens, Respondent, v. Joel A. Omens, Appellant.
   Judgment and decision modified by striking therefrom the award of costs to the plaintiff, and as so modified affirmed, without costs of the appeal to either party.


text:
    Margaret Rhodes and others, Administrators, etc., Appellants, v. The Elmira, Cortland and Northern Railroad Company, Respondent.
   Judgment of the County Court of Tompidns county affirmed, with costs.


text:
    In the Matter of the Will of Joseph Van Orman, Deceased; Thomas Van Orman, Appellant, Jacob Van Orman, Respondent
   Decree modified by striking therefrom the award of costs personally against the appellant, and by inserting in lieu thereof a provision charging the same upon, and payable out of, the estate, and as so modified affirmed, without costs of this appeal to either party.


text:
    Angeline A. Schouten, Respondent, v. The Town of Lapeer, Appellant.
   Order affirmed, without costs.


text:
    Samuel R. Mott, as Supervisor of the Town of Madison, v. The Board of Supervisors of the County of Madison.
   —Held: (1.) That the resolutions of the board of supervisors mentioned in question one, stated in the submission, do not prevent the county from interposing the statute of limitations. (2.) That the plaintiff is entitled to recover the taxes appropriated within six years prior to February 7, 1891, the date of the submission, with interest, and judgmeirt therefor is ordered in favor of the plaintiff against the defendant, with costs. The formula of the judgment to be settled upon five days’ notice before Hardin, I'. J


text:
    Caroline E. Ogden and others, Appellants, v. George W. Welden, Respondent
   —Judgment affirmed, with costs. Per Curiam opinion


text:
    In the Matter of the Probate of the Last Will of Mary Ann O’Brien, Deceased; James Donlon, Appellant, Patrick F. Bulger and others, Respondents.
   Decree and decision modified b}' limiting the construction of the twentieth provision of the will to the personal estate, and, as so modified, affirmed, with costs to the appellant, payable out of the estate.


text:
    Watertown National Bank, Respondent, v. Fonda Lake Paper Company, Appellant.
   Judgment affirmed, with costs.


text:
    Ellen A Vaughn, Respondent, v. Walter Hughes, Appellant.
   Judgment of the County Court of Madison county, affirming a justice’s judgment, affirmed, with costs.


text:
    Winfield H. Bossout, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    Morris S Miller, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment and order reversed and new trial ordered, with costs to abide the event. Held whether the plaintiff's servant, at the time of the accident, was guilty of contributory negligence was a question of fact and should have been submitted to the jury.


text:
    Stephen B. Banks and another, Appellants, v. William M. Bently, Respondent.
   Appeal dismissed, with ten dollars costs and disbursements. (See Kincaid v. Richardson, 25 Hun, 237; Herman v.Stalp, 24 St. Rep., 40; Deiffenbach v. Rock, 112 N. Y , 620.)


text:
    George M. Johnson, Respondent, v. The Utica and Mohawk Railroad Company, Appellant.
   Judgment and order affirmed', with costs


text:
    Jacob Block and Simon Block, Respondents, v. Stewart L. Devendorf, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted


text:
    John J. Vedder, Appellant, v J Peter Davis and Robert J. Davis, Respondents.
   —Judgment of Herkimer County Court affirmed, with costs.


text:
    Marion Shead, Appellant, v. Jeremiah Bauter and Margaret C. Bauter, Respondents.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Alfred Wilkinson, Jr., Respondent, v. Charles E. Hubbell, Receiver, etc., Appellant.
   Order affirmed.


text:
    Charles McCarthy, Appellant, v. Joseph M. Shipway, as Trustee, Respondent.
   Judgment of the County Court reversing a justice’s judgment affirmed, with costs. Held: (l.) That the Justice’s Court committed an error in refusing to strike out the ovidcuce relating to the plaintiff’s personal services, as the plaintiff was not entitled to recover for his personal services in the absence of an agreement on the part of the district. (2.) The weight of the evidence is to the effect that plaintiff’s bill, when presented to the school meeting, was rejected by the meeting


text:
    Wealthy M. Dexter, Appellant, v. John N. Sharp, Respondent.
   —Judgment affirmed, with costs.


text:
    Peter Kissell, Respondent, v. James Casey, Appellant.
   Judgment and order affirmed, with costs.


text:
    William W. Hare, Appellant, v. John K. Follet, Respondent
   —Judgment and order affirmed, with costs.


text:
    William Duffus v. Eli T. Bangs
   —Motion denied, without costs.


text:
    Almira N. Strever, Respondent, v. Orrin R. Earl, Appellant.
   Motion for leave to appeal to the Court of Appeals denied; motion for reargument denied.


text:
    Hattie E. Van Allen, Respondent, v. James H. Glass and others, Appellants.
   — Motion denied.


text:
    Jane A. Sherman, Respondent, v. Thomas P. Sherman, Appellant.
   Order affirmed, with ten . 'dollars cosis and disbursements.


text:
    Sidney Wilder, Respondent, v. Henry C. Ballou, as Executor, etc, Appellant.
   Order modified by striking out the ten dollars costs, and as so modified affirmed, without costs to either parly to this appeal.


text:
    Wilson H. Gardenier, Appellant, v. Hiram Eldred, Respondent.
   Order entered in Oswego county May 13, 1891, vacated, and an order settled and filed with the clerk of Oneida county.


text:
    Daniel Crouse and others, Respondents, v. Walter Whittlesey, Appellant.
   Order reversed, without costs of this appeal to either party, and a reference ordered to a referee to take proofs of both parties and report the same, with his opinion thereon, to a Special Term, where a further hearing may be had upon usual notice. The referee, if not agreed upon, to be named on motion at Special Term. Opinion by Williams, J.: Mem. by Hardin, P. J.


text:
    Charles P Leonard, Appellant, v. James P. Bowman and Edward J. Boshart, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Williams, J.


text:
    Wilson H. Gardenier, Plaintiff by Substitution, v. Hiram Eldred, Defendant.
   Motion to vacate the service of the notice of the appeal fromtho judgment, and dismiss such appeal, granted. Motion to vacate the service of the notice of appeal from the order, and dismiss such appeal, denied. Mem. by Merwin, J.


text:
    Isaac Hoag, Appellant, v. The Town of Greenwich, Respondent.
   Judgment affirmed, with costs. Order granting extra allowance affirmed, with ten dollars costs and printing disbursements. Opinion by Learned, P. J.


text:
    Warren B. Collamer, Respondent, v. Albert W. Farrington, Appellant.
   Motion to go to Court . of Appeals denied.


text:
    Patrick E. Walsh, Respondent, v. Mutual Life Insurance Company, Appellant.
   Motion to go to Court of Appeals granted; Mayham J., not acting.


text:
    The People of the State of New York ex rel. Brush Illuminating Company, Appellant, v. Edward Wemple, Comptroller, Respondent.
   Motion to amend granted.


text:
    The People of the State of New York ex rel. Edison Electric-Light Company, Appellant, v. Edward Wemple, Comptroller, Respondent
   Motion of attorney-general denied: motion of relator to amend by restoring further sum of sixty-seven dollars and forty cents granted.


text:
    Jeffrey Paris, Respondent, v. The Village of Green Island Appellant.
   Motion to amend denied.


text:
    In the Matter of Andrew Jubin, a Lunatic.
   Order affirmed, with ten dollars costs and printing disbursements


text:
    The Fire Department of Kingston, Respondent, v. John P. Derrenbacher and others Appellants, and two other cases of same Plaintiff against Derrenbacher.
   Order affirmed, with ten dollars costs and printing disbursements; Mayham. J., not acting.


text:
    In the Matter of Petition of Elvira B. Carpenter for Appointment of a Trustee.
   Order reversed, with ten dollars costs and printing disbursements; and motion denied with ten dollars costs, without prejudice to any action at law or in equity by petitioner to recover the property. Opinion Dy Learned. P. J.


text:
    James M. Smith, Executor, Appellant, v. Frank Pelott, Respondent.
   Judgment affirmed, with costs; appeal from order of reference dismissed, with ten dollars costs.


text:
    George W Crook, as Assignee, Respondent, v. The Milwaukee Mechanics’ Insurance Company, Appellant. Same v. The American Central Insurance Company, Appellant.
   Each order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York ex rel. E P Howe, Respondent, v. The Trustees of the Village of Saratoga Springs, Appellants.
   Resolution of trustees designating two newspapers reversed, with fifty dollars costs and disbursements.


text:
    Minnie O’Neil, by Guardian, Respondent, v. Fred G Battie, Trustee, Appellant.
   Judgment affirmed, with costs against defendant personally. Opinion by Learned, P. J.


text:
    Herbert M. Taylor, Respondent, v. Town of Constable, Appellant.
   Judgment and order af-l firmed, with costs. Opinion by Learned,! P. J.


text:
    James M. Covart, Respondent, v. John W. Johnston, Appellant.
   Judgment reversed and complaint dismissed, with costs against plaintiff. Opinion by Learned, P. J.


text:
    Orrando V. Dexter, Appellant, v. William D. Dustin and others, Respondents.
   Judgment reversed and new trial granted on the issues ordered as for mistrial, costs to abide event.


text:
    The People of the State of New York ex rel. Woodford Gaylord, Respondent, v. Supervisors of Schoharie County, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements, and with leave to enter order nunepro tune Mem. by Learned, P. J.; Mayham, J., not acting.


text:
    Jane Jackson, Respondent, v. Town of Fort Covington, Appellant.
   Order affirmed, with costs on opinion below.


text:
    Charles W. Weston, Respondent, v. Rufus C. Landon and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    James C. Birge, Respondent, v. The Berlin Iron Bridge Company and another, Appellants.
   Order for stay granted. (See order on file.)


text:
    Philip J Warner, Respondent, v. Schoharie and Schenectady Counties Mutual Fire Insurance Association, Appellant.
   Motion to go to Court of Appeals denied.


text:
    Henry Schwartz, Appellant, v. Valeria Pomeroy, Respondent.
   Judgment of County Court affirmed, with costs.


text:
    Patrick J. Connors, Infant, Respondent, v. William Walsh, Appellant.
   Judgment and order affirmed, with costs.


text:
    John Dillon, Respondent, v. William Lee, Appellant.
   Judgment and order affirmed, with costs; Landon. J., not acting.


text:
    Herbert J. Pelkey, Respondent, v. Charles H. Carnrick, Appellant.
   Judgment affirmed, with costs.


text:
    Alexander H Kerr, Respondent, v. Mary Hammer, Appellant.
   Motion for reargument denied.


text:
    Beulah Rouse, Infant, Appellant, v. The Catskill and New York Steamboat Company, Respondent.
   Judgment affirmed, with costs.


text:
    Robert H. Shannon and another, Appellants, v. John H. Pickell and others, Respondents
   Appeal from the order confirming the report of referee dismissed, without costs to either party. Judgment modified by striking out from the costs taxed in favor of the six defendants, heirs of John Pickell. all except the sum of $289.60, and as so modified affirmed, with ten dollars costs and disbursements of their appeal to the plaintiff to be paid by said six defendants. Opinion by Dwight, P. J.


text:
    Achille J. Oisher, Respondent, v. Guiseppe Lazzarone, Appellant.
   Order appealed from reversed, with ten dollars costs aud disbursements of the appeal, and the motion granted, with ten dollars costs. Opinion by Macomber, J.


text:
    La Fayette Cole, Appellant, v. The Fall Brook Coal Company, Respondent.
   — Order appealed from affirmed, with costs to abide the event. Opinion by Lewis, J.


text:
    Betsy Whitman, Administratrix, v. Matthew F. Foley and others, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements, and the motion denied. Opinion by Macomber, J.


text:
    De Villo W. Selye, Respondent, v. Frederick Zimmer, Appellant.
   Judgment reversed and a new trial granted, with costs to abide the event, unbss the plaintiff stipulates to deduct from the amount for which judgment was entered the sum of seventy-five dobars, with interest thereon from May 12, 1884, the date of judgment; and if such stipulation is given, then judgment affirmed, without costs of this appeal to either party. Opinion by Dwight, P.J.


text:
    The People of the State of New York, Respondent, v. Stephen F. Sherman, Appellant.
   Judgment and conviction affirmed; case remitted to the Court of Oyer and Terminer of Erie county to proceed thereon. Opinion by Lewis, J.


text:
    Edward Rock, Appellant, v. Retsof Mining Company, Respondent
   —Judgment and order appealed from affirmed. Opinion by Dwight, P. J.


text:
    George Foggan, Respondent, v. The Lake Shore and Michigan Southern Railway Company, Appellant
   Judgment and order appealed from affirmed. Opinion by Macomber, J


text:
    Frederick Mohuk, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from affirmed on authority of Glushing v. Sharp, Receiver, etc. (96 N. Y, 676); Palmer v. New York Ventral and Hudson River Railroad Company (112 id., 234); Oldenburg v. Same (36 N. Y. St. Rep., 402). Lewis, J., not sitting.


text:
    Leonard A. Wooster, Respondent, v. The Western New York and Pennsylvania Railroad Company, Appellant.
   Judgment and order appealed from affirmed. Opinion by Lewis, J.


text:
    Abram Shaver, Respondent, v. Nelson B. Eldred, Appellant.
   Judgment of the County Court of Cayuga county reversed and a new trial granted, with costs to abide the event. Opinion by Macomber, J.


text:
    Charles Hartshorn, Respondent, v. Ransom M. Chaddock, Appellant.
   Judgment appealed from affirmed. Opinion by Lewis, J.


text:
    John Fahy and another, Appellants, v. James C. Fargo, as President of the American Express Company, Respondent.
   Reargument ordered. Dwight. P. J., not sitting.


text:
    Ludwig Herbst, Appellant, v. The Vacuum Oil Company, Respondent.
   Order granting a new trial affirmed with costs of this appeal to abide the event. Opinion by Dwight, P. J.


text:
    John W Nolan, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from reversed and a new trial granted, with costs to abide the event. Opinion by Lewis, J.


text:
    Carrie Whalen, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from reversed and a new trial granted,with costs to abide the event. Opinion by Dwight, P. J.


text:
    William M. Brown, Appellant, v. Frank A. Burgett, Respondent
   —Judgment appealed from affirmed, with costs. Opinion by Dwight, P. J.


text:
    Frank Fleissner, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from reversed on the ground that the verdict was contrary to* evidence, and a new trial ordered on payment by the defendant of the plaintiff’s costs of the former trial. Opinion by; Macomber, J.


text:
    Maria Moeller, Administratrix, etc, Respondent, v. Austin Brewster and others, Appellants.
   Judgment and order appealed from affirmed; Macomber, J., not voting.


text:
    Samuel H. Torrey, Jr., Respondent, v. Henry Standish and another, Appellants.
   Judgment appealed from affirmed. Opinion by Macomber, J.


text:
    John F. Parkes and another, Respondents, v. Miles A. Stafford and another, Appellants.
   Judgment and order appealed from affirmed. Opinion by Lewis, J.


text:
    Catherine Toomey, Respondent, v. Arnold Lyman, Appellant.
   Judgment and order of the County Court of Ontario county appealed from reversed and a new trial granted, with costs to abide the event. Opinion by Dwight. P. J.


text:
    C. Frank Pitcher, Respondent, v. The Lake Shore and Michigan Southern Railroad Company, Appellant.
   Judgment and order appealed from affirmed. Opinion by Macomber, J.; Dwight, P. J., dissenting.


text:
    William Garratt, Appellant, v. The Trustees of the Village of Canandaigua, Respondents.
   Judgment appealed from affirmed, with costs. Opinion. Per Curiam left with Lewis, J.


text:
    In the Matter of Charles E. Opdike, Jr., an Attorney at Law.
   Report of referee confirmed, the respondent removed from the office of attorney and counselor at law and his name struck from the roll. Opinion by Lewis, J.


text:
    In the Matter of a Judgment Recovered by Ezekiel Fleming, Judgment Creditor, Respondent, v. Albion W Tourgee and another, Judgment Debtors, Emma K. Tourgee, a Third Person in Supplementary Proceedings in such action, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J.; Lewis, J., not sitting.


text:
    Emma K. Enos, Respondent, v. John A. Enos, Appellant.
   Judgment and order appealed from affirmed.


text:
    Nicholas C. Newerf and another, Respondents, v. Thomas A. Jebb and another, Appellants.
   Judgment appealed from affirmed, with, costs. (See opinion on former appeal, 6 N. Y. Supp., 581.)


text:
    Rochester Lantern Company, Respondent, v. The Stiles & Parker Press Company, Appellant.
   Judgment appealed from affirmed. Opinion by Lewis, J.


text:
    Edward F. Lathrop and another, Appellants, v. Henry M. Ellsworth and another, Respondents, Impleaded, etc.
   Judgment appealed from affirmed. Opinion by Dwight, P. J.


text:
    De Witt C. Reed, Respondent, v. Nathaniel Chilson and another, Appellants.
   —Judgment appealed from affirmed. Macomber, J., not sitting.


text:
    Martha Bennett, by Guardian, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order appealed from affirmed, and judgment ordered for the plaintiff on the verdict. Opinion by Lewis, J.


text:
    Ida G. Richardson, by Guardian, Respondent, v. The New York Central and Hudson River Railroad, Appellant.
   Judgment and order appealed from affirmed. Opinion by Dwight, P. J.


text:
    Michael Gormley, Administrator, etc., Appellant, v. The Grand Trunk Railway Company of Canada, Respondent.
   Order granting new trial affirmed, with costs to abide the event.


text:
    William E. Earl, Administrator, etc, Respondent, v. George W. Crouch, Jr., Appellant.
   Judgment appealed from affirmed. Opinion by Lewis, J.; Macomber, J., taking no part.


text:
    Ann M. Dill and another, Administrators, etc., Plaintiffs, v. Charles W. Voshall, Defendant.
   Motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit. Opinion by Macomber, J.


text:
    Christina Ott, Administratrix, etc., Respondent, v. The City of Buffalo, Appellant.
   Judgment and order appealed from affirmed. Opinion by Macomber, J.


text:
    William Woodbury, Respondent, v. Ansel F. Conger, Appellant
   Judgment appealed from affirmed. Opinion by Macomber, J.


text:
    Rebecca E. Whiteman, Plaintiff, v. John Hyland and others, Defendants.
   Motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict Opinion by Dwight, P. J.


text:
    Giles H. Boyd, Respondent, v. William Bassett, Appellant, Impleaded, etc.
   Judgment of the County Court of Monroe county appealed from affirmed, with costs. Opinion by Macomber, J.


text:
    Sylvester C. Clarke, Appellant, v. John House, Respondent, Impleaded, etc.
   Judgment appealed from affirmed. Opinion by Lewis, J.


text:
    George C. Carpenter and another, Respondents, v. The German American Insurance Company, Appellant.
   Judgment and order appealed from affirmed.


text:
    George W. Cole, Respondent, v. Sidney B. Roby, Appellant.
   Judgment and order appealed from reversed, with costs, and the complaint dismissed. Opinion by'jViacomber, J.


text:
    Ambrose Moore, Appellant, v. Percival L. Drayton, Respondent
   --Order denying plaintiff’s motion for a new trial appealed from affirmed, with costs, and' judgment ordered for the defendant on the verdict. Opinion by Lewis, J.


text:
    Michael Filon, Respondent, v. John M. Durkin, Respondent, Impleaded with Melville G. Riker, Appellant, and others.
   Appeal dismissed, with ten dollars costs and disbursements. Opinion by Macomber, J.


text:
    Francis B. Brewer, Respondent, v. Frank G. Longnecker and another, Appellants
   —Order appealed from modified by striking out all that part which amends the judgment, and, as so modified, affirmed, without costs of this appeal to either party. Opinion by Dwight, P. J.


text:
    In the Matter or the Attachment of the Vessel or Canal Boat called the ''New York Sensation,” otherwise known as the ''Sensation;” Charles J. Hamilton, Contestant and Appellant; Adam Homer, Claimant and Respondent.
   Order of county judge of Erie county appealed from affirmed, with costs. Opinion by Macomber, J.


text:
    Thomas M. Rhines, Respondent, v. The Town of Royalton, Appellant
   —Order denying motion for a new trial affirmed, with costs, and judgment ordered for the plaintiff on the verdict. Opinion by Macomber. J.


text:
    Lawrence E. McLouth, Respondent, v. Mary E. Myers, Appellant.
   — Judgment of the County Court of Cattaraugus county affirmed, with costs. Opinion hy Lewis, J.


text:
    Josiah Shults, Appellant, v. Nellie Shults and another, Respondents.
   Judgment appealed from affirmed, without costs of this appeal to either party. Opinion by Dwight, P. J.


text:
    In the Matter of the Judicial Settlement of Accounts of Benjamin F. Grant, Executor, etc., of James Benedict, Deceased.
   Case sent back to surrogate of Steuben county for further1 hearing of matters specified in opinion: question of costs reserved. Opinion by Lewis, J.


text:
    Benjamin B. Conable, Respondent, v. Matison Keeney and others, Appellants.
   Judgment, appealed from affirmed. Opinion by Lewis, J.


text:
    Mary Guenther, Administratrix, etc., Plaintiff, v. James Lockhart, Defendant.
   Motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit. Opinion hy Lewis, J.


text:
    Charles C. Bigelow, Appellant, v. Joseph Garwitz, Respondent.
   Order granting anew trial affirmed, with costs of this appeal to abide the event. Opinion by Dwight, P. J.


text:
    The Hamilton Coal Company, Plaintiff, v. Charles Bernhard and another, Defendants.
   Defendants’ motion for a new trial granted,with costs to abide the event. Opinion by Macomber, J.


text:
    Nancy E. Pickard, Appellant, v. James Carr and another Respondents.
   The court declines to consider this appeal, submitted without argument at the June Term, for the reason that it nowhere appears that the case has been settled and ordered filed by the judge before whom the action‘was tried. (Code Civ. Pro., § 997; Rule 35 of General Rules of Practice; McNish v. Bowers, 30 Hun, 214; Reese v. Boesey 92 N. Y. 632.) The stipulation annexed to the case is not sufficient.


text:
    Philip D. Armour and others, Plaintiffs, v. The Cayuga Lake Ice Line, Defendant.
   Motion for new trial denied, with costs, and judgment ordered for the plaintiff on the verdict. Opinion by Macomber, J.


text:
    Alexander S. Turner, Respondent, v. William W. Weston and others, Appellants.
   Judgment appealed from affirmed, with costs. Opinion by Lewis, J.


text:
    In the Matter of Proving Last Will of Maria Soule, Deceased.
   Decree of surrogate of Erie county reversed on a question of fact, and a trial by jury ordered of the material questions of fact arising upon the issues between the parties, such trial to be had in the Circuit Court of Erie county. The costs of this appeal to abide the final award of costs; order to be settled by the presiding justice. Opinion by-Dwight, P. J.


text:
    Harry Evarts, by Guardian, Respondent, v. The United States Mutual Accident Association of the City of New York, Appellant.
   Judgment and order appealed from affirmed. Opinion by Macomber, J.


text:
    In the Matter of George Benson, a Supposed Lunatic.
   Appeal dismissed, with ten dollars costs and disbursements, it having been made to appear that the alleged lunatic has died since the finding of the inquisition, and that no property rights are involved in the appeal.


text:
    James Ryan, Respondent, v. Jacob Parr, Appellant.
   Order appealed from confirmed, with ten dollars costs and disbursements. Opinion Per Curiam.


text:
    Joseph W. Hastings and another, Appellants, v. Ætna Insurance Company, Respondent.
   Judgment appealed from affirmed.


text:
    Matilda Adams, Appellant, v. Sarah Jane Green and another, Respondents.
   Judgment appealed from affirmed upon the merits, with costs.


text:
    Eliza Rice and another, Respondents, v. John W. Calkins and another, Appellants.
   Motion granted, with ten dollars costs? unless appellants serve appeal papers within twenty days, after service of the order to be entered on this decision, and pay ten dollars costs taking the motion.


text:
    William Savage and others, Respondents, v. The City of Buffalo, Appellant.
   Motion for certificate. under subdivision 4 of section 190 of Code of t ivil Procedure, granted.


text:
    Cyrus D. Angell, Appellant, v. William Van Schaick and others, Respondents.
   Motion, under subdivision 4 of section 190 of the Code of Civil Procedure, cannot be entertained until the return made to the Court of Appeals has been remitted to this court for that purpose.


text:
    Henry N. Fultz, Appellant, v. George Paul and others, Respondents.
   Motion for reargument granted.


text:
    The People of the State of New York v. Newton A. Drowns.
   Motion to amend order denied.


text:
    The People of the State of New York v James J. Thompson.
   Motion to amend order denied.


text:
    Lawrence Green, Appellant, v. Henry W. Watson, Respondent.
   Motion for leave to appeal to Court of Appeals denied.


text:
    George P. Brand v. James R McMahon.
   Motion for reargument denied.


text:
    The People of the State of New York ex rel. Jeremiah Sullivan v. J. Hampden Robb and others.
   Proceedings affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    In the Matter of Proving the Last Will and Testament of John Patterson, Deceased.
   Motiou for realignment denied, with costs. Opinion by Barrett, J.


text:
    William H. Yeandle and others, Appellants, v. Celeste Yeandle, Respondent.
   Judgment affirmed, with costs. Opinion by Bartlett. J.


text:
    Michael Gernsheim and others, Appellants, v. Central Trust Company and others, Respondents.
   Order affirmed upon the opinion delivered by Mr. Justice Patterson at ¡special Term. Opinion Per CuHam.


text:
    In the Matter of the Application of the New York Elevated Railroad Company (In re Clarkson and others).
   Order affirmed, with costs. Opinion by Bartlett. J.


text:
    John Enright, Appellant, v. The Montauk Fire Insurance Company, Respondent.
   Judgment affirmed. Opinion by Bartlett, J.


text:
    William P. Walton and others, Respondents, v. Albert P. Stewart, Trustee, Appellant.
   Judgment affirmed, with costs. Opinion by Bartlett, J.; dissenting opinion by Barrett, J.


text:
    Meyer Bukofzer, Respondent, v. The United States Grand Lodge of the Independent Order of the Sons of Benjamin, Appellant.
   Judgment and order affirmed, with costs. Opinion by Bartlett, J


text:
    The Commercial Union Insurance Company (Limited), Appellant, v. Morris H. Smith and others, Respondents.
   Appeal dismissed,without costs. Opinion by Bartlett, J.; dissenting opinion by Barrett, J.


text:
    The Chatham National Bank, Respondent, v. James H. Pratt, Appellant.
   Judgment affirmed, with costs. Opnion by Bartlett, J.; dissenting opinion by Barrett, J.


text:
    Jose A. Del Valle, Appellant, v. Josiah A. Hyland and others, Respondents.
   Judgment reversed and new trial ordered, with costs to the appellant to abide the event. Opinion by Bartlett, J ; Van Brunt, P. J., dissenting.


text:
    Linus A. Gould, Respondent, v. The Chicago, Burlington and Quincy Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by Bartlett, J.


text:
    In the Matter of the Application of the Board of Street Opening, etc. (In re Lexington Avenue).
   Order affirmed,with costs. Opinion by Bartlett, J.


text:
    Marcus Ward & Co. (Limited), Appellant, v. William H. Ward and others, Respondents.
   Judgment affirmed, with costs. Opinion by Bartlett, J.


text:
    George E. Hodgman, Respondent, v. Stephen T. Barker, Appellant.
   Appeal dismissed, without costs. Opinion by Van Brunt, P. J.


text:
    The National Broadway Bank, Appellant, v. Stephen T. Barker, Respondent.
   Order affirmed. with costs. Opinion by Van Brunt, P. J


text:
    In the Matter of the Application of John A. Holmes, Jr, for Leave to Issue Execution, etc.
   Decree affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    In the Matter of Lexington Avenue (In re John Schreyer), Appellant.
   Order affirmed, with ton dollars costs and disbursements; motion to dismiss appeal denied, without costs. Opinion by Ingraham. J.


text:
    In the Matter of the New Haven Clock Company, Respondent, v. Richard Hubbard, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Opinion by Ingraham. J.


text:
    Margaret Devlin, Respondent, v. Robert Boyd and others, Appellants.
   Order reversed and the preliminary injunction dissolved, with ten dollars costs and disbursements. Opinion Per Curiam.


text:
    The Union Distilling Company, Respondent, v. Henry Ruser, Appellant.
   Order reversed, with ten dollars costs and disbursements, and the motion granted. Opinion Per Curiam.


text:
    George H. W. Curtis, Respondent, v. The Wheeler & Wilson Manufacturing Company, Appellant.
   Order and judgment reversed and a new trial granted on payment of the costs of the trial, including witnesses’ fees and other disbursements, with costs of this appeal to appellant to abide event. Opinion by Ingraham, J.


text:
    In the Matter of Charlotte M. Hutchings.
   Order affirmed, with ten dollars costs and disbursements. Opinion Per Curiam.


text:
    Ezra Haskell and others, Respondents, v. Robert M. Drummond, Appellant.
   Order affirmed, with costs. Opinion Per Curiam.


text:
    The Bowery Bank, Respondent, v. Mahlon C. Martin and others, Appellants.
   Order reversed, with ten dollars costs and disbursements to abide event, and the case remitted to the circuit.- Opinion Per Curiam.


text:
    Emil Bachman, Respondent, v. Philip Wagner, Appellant.
   —Order affirmed, with ten dollars costs and disbursements. Opinion Per Curiam.


text:
    Mary C. Cambreilng and others v. Euphemia C. Purton, Appellant; M. Lippmann, Purchaser, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion Per Curiam.


text:
    Lucy M. Rice, Respondent, v. John S. Rice, Appellant.
   Order affirmed, with costs. Opinion Per CuHam.


text:
    George S. Ronalds v. Catherine A. Cammon and others.
   —Appeal dismissed, with costs. Opinion Per Curiam.


text:
    James F. Malcolm, Respondent, v. The Manhattan Railway Company, Appellant.
   Judgment affirmed, with costs. Opinion Per Curiam.


text:
    The Essex County National Bank of Newark, Respondent, v. Thomas V. Johnson, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion. Per Curiam.


text:
    Prosper S. Hewes, Appellant, v. Annie K. Hewes, Respondent.
   Judgment affirmed, with costs. Opinion by Ingraham, J.


text:
    Herbert Cecil Pelly, Respondent, v. Henry Naylor, Appellant, Impleaded, etc.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by Daniels, J.


text:
    Herbert Cecil Pelly, Respondent, v. Andrew J. Robinson, Appellant, Impleaded, etc.
   Judgment reversed and new trial ordered, with costs to abide event. Opinion by Daniels. J.


text:
    William G. Shailer, Receiver, etc., Appellant, v. Eugene Corbett and others, Respondents.
   Judgment modified as directed by opinion, and, as modified, affirmed. The question of costs upon the affirmance to the defendants should be reserved to bo determined on settlement of order. Opinion by Daniels, J.


text:
    James Falvey, Respondent, v. Francis J. Bridges, Appellant.
   Judgment affirmed, with costs. Opinion by Daniels, J


text:
    The Manufacturers and Traders’ Bank, Appellant, v. The C. W Dare Company and others, Respondents.
   Order reversed and report set aside, with ten dollars costs and the disbursements, and another referee appointed to make the assessment. Opinion by Daniels, J.


text:
    The C. B. Keogh Manufacturing Company, Respondent, v. Charles Molten and others, Appellants, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements, with liberty, upon payment of costs and disbursements of appeal, to renew motion for reference upon proof of length of accounts, and that no other substantial issues are involved. Opinion by VanBrnnt, P. J.


text:
    William A. Woodhull, Receiver, etc., Respondent, v. Ansel L. Washburn, Appellant.
   Order reversed,with ten dollars costs of appeal and disbursements, and the motion granted, with leave to renew upon additional papers on payment of the costs on appeal. Opinion by Van Brunt, P.J.


text:
    Merritt E Haviland, Executor, etc., Respondent, v. The Manhattan Railway Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by Daniels, J.


text:
    Dennis Nugent, Appellant, v. The Atlas Steamship Company, Respondent.
   Judgment affirmed, with costs. Opinion Per Curiam.


text:
    John W. Gilbert v. Henry S. Deshon and others.
   Order reversed, with ten dollars costs and disbursements, with leave to renew the motion at Special Term upon further affidavits. Opinion by Ingraham, J.


text:
    Banker & Campbell Company (Limited) v. Frederick J. Stimson.
   Order modified, and, as modified, affirmed, with costs. Opinions by Patterson and Barrett, JJ.


text:
    Louis B. Hasbrouck, Respondent, v. Emma B. Young, Appellant
   —Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinions by Patterson and Barrett, JJ.


text:
    William Henry Willets, Respondent, v. The New York Elevated Railroad Company, Appellant.
   Judgment modified as directed in opinion, and, as modified, affirmed, without costs. Opinion by Van Brunt, P. J.


text:
    Julius Gottberg, Executor, etc., v. The United States National Bank.
   Judgment affirmed, with costs. Opinion by Patterson. J.


text:
    Peter W. Gallaudet and others v. Charles Kellogg and others.
   Exceptions (except as stated in opinion) overruled and judgment directed that the complaint be dismissed, with costs. Opinion by Patteison, J.


text:
    Bertha E. Martin, Administratrix, etc, Respondent, v. Spencer C. Platt and others, Appellants, Impleaded, etc.
   Order affirmed, with costs. Opinion by Daniels; J.


text:
    Robert B. Denison and others, v. Caroline L. Denison and others. George E. Denison, Appellant, v. James L Denison and others, Respondents.
   Judgment affirmed, with ten dollars costs and disbursements.


text:
    Charles A Burt, Appellant, v. Oneida Community (Limited) and others, Respondents.
   Judgment affirmed, with costs. Opinion by Hardin, P. J.


text:
    Clara A. Lake, Respondent, v. William Lawton, Appellant, Impleaded, etc.
   Judgment and order affirmed, with costs.


text:
    Mary Hiller, Appellant, v. Catherine Vincent, Respondent.
   Judgment of the County Court and judgment of Justice’s Court reversed, with costs.


text:
    James Van Camp, for Himself and all other Legatees under the Last Will and Testament of Ann Jennette Van Camp, Deceased, Respondent, v. Albert Fowler, as Executor of the Last Will and Testament of Oliver H. Perry, Deceased, and others, Appellants.
   - -Judgment affirmed, with costs.


text:
    William W. Hare, Appellant, v. J. K. Follett, Respondent.
   Motion for leave to appeal to Court of Appeals denied.


text:
    Austin O Ames and others, Appellants, v. The Associated Lace Makers’ Company, Respondent.
   Order reversed, with ton dollars costs and disbursements; plaintiff to receive answer in ten days upon payment of ten dollars costs and disbursements and ten dollars costs of motion.


text:
    Dorah Grubert, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
   Judgment affirmed, wilh costs


text:
    Wilson H. Gardenier, Appellant, v. The Oswego Mutual Savings and Aid Association and Edward Kelly, Respondents.
   Order modified by striking therefrom the words "‘and also the sum of sixty six dollars and twenty-six cents, with interest from February 26 1891, judgment for costs of last-mentioned date in the action of Wilson H. Gardcniei against the said association,” and as so modified affirmed, without, costs to either party of this appeal. Opinion by Ilardin, P. J.


text:
    Daniel F. Appleton and others, Respondents, v. Kate Fuller and others, Appellants.
   Motion for new trial denied, with costs to the parties appearing to be paid out of the estate. Opinion by Van Brunt., P. J


text:
    The People of the State of New York ex rel. Edward Luckemeyer, Appellant, v. Michael Coleman and others, Commissioners, etc, Respondents.
   Judgment affirmed, with costs. Opinion by Van Brunt. P. J.


text:
    Adolph Luthy, Appellant, v. James Regan, Respondent.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    Riverside Bank, Appellant, v. John Totten, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Lena Finelite, Appellant, v. Alexander Finelite, Respondent.
   Order affirmed, without costs. Opiuion by Van Brunt, P. J.


text:
    Charlotte E Patten, Respondent, v. United Life and Accident Insurance Association, Appellant.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J


text:
    Joseph McGuire, Respondent, v. John A. Hudson, Appellant.
   Order reversed, with ten dollars costs and disbursements. Opinion Per Curiam.


text:
    Catherine Scott, as Administratrix, etc, Respondent, v The Third Avenue Railroad Company, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event.. Opinion by Van Brunt, P. J


text:
    Benjamin Lewis, Respondent, v. The Chronicle Company (Limited), Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P J


text:
    Albert Jean Tauziede, Plaintiff, v. Francois Henry Jumel and others, Defendants.
   Motion for reargument denied, with ten dollars costs.


text:
    Thomas G. Frothingham and others, Appellants, v. Anthony I. G. Hodenpyl and others, Respondents.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    Pauline Jacobs, Plaintiff, v. Lena Davis, Respondent, Abraham Greenberg and others, Appellants.
   —Order reversed and a new order of ' reference made to ascertain the amount of appellants’ claim upon the surplus moneys; costs of this appeal to abide the final event. Opinion by Van Brunt, P. J.


text:
    Thomas H. Thorn and others, Respondents, v. James H. Sutherland and others, Appellants.
   Judgment affirmed, with costs. Opinions by Ingraham, J , and Van Brunt, P. J.


text:
    David R. Paige and others, Appellants, v. The Mayor, etc., of the City of New York, Respondent.
   Judgment affirmed, with costs. Opinion by Ingraham. J.


text:
    John R. Drake, Appellant, v. Herbert L. Satterlee, as Receiver, Respondent.
   Judgment modified as directed by opinion, and as modified affirmed, without costs in this court, with leave to the plaintiff to withdraw the demurrer on payment of the costs in the court below. Opinion by Ingraham. J.


text:
    Henry G. Keasbey and others, Appellants, v. The Brooklyn Chemical Works and others, Respondents.
   Order affirmed, with ten dollars costs and the disbursements. Opinion by Daniels, J


text:
    Thomas W. Reilly and others, Respondents, v. John R. Lee, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinions by Van Brunt, P. J., and Ingraham, J.


text:
    Mary A. Poole, Respondent, v Burton G. Winton and others, Appellants.
   Judgment affirmed, with costs. Opinion by Ingraham, J


text:
    Louis Youngling and others, Respondents, v. John E. Brada, Appellant.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York ex rel. Charles Putzel v. John Simonson and others.
   Motion granted.


text:
    William H. Geary and others, Plaintiffs, v. Eliza A. Melvin and others, Defendants.
   Upon payment of ten dollars costs of the previous motion to dismiss, and ten dollars costs of the present motion, this motion will be denied. (Mem.)


text:
    In the Matter of the Judicial Settlement of Account of Henry S. Myers, Administrator of Jacob Charles Myers, Deceased.
   The delay in serving order upon previous motion was so great that this motion should be denied.


text:
    The Norfolk and New Brunswick Hosiery Company, Plaintiff, v. Anna M. Arnold, Defendant.
   Motion granted, with ten dollars costs.


text:
    Neil McLeod Keating, Appellant, v. Adeline F. Keating, Respondent.
   Motion denied.


text:
    George F. Hodgman, Plaintiff, v. Stephen T. Barker, Defendant.
   Motion granted, with ten dollars costs.


text:
    Nathaniel Sleeman, Appellant, v. Lewis Hotchkiss and others, Respondents.
   Order reversed, with ten dollars costs and disbursements. Opinion Per Ouriam.


text:
    Catherine V. Murray, Appellant, v. Thomas E. Murray, Respondent.
   Judgment affirmed. Opinion by Daniels, J.


text:
    Humphrey H. Leavitt and others, Respondents, v. John L. Dodge, Appellant.
   Judgment and order reversed and a new trial ordered, with costs to the defendant to abide event. Opinion by Daniels, J.


text:
    In the Matter of the Application of John Loftus, etc.
   Order reversed, with ten dollars costs . and disbursements to abide the result, and a writ of alternative mandamus directed to he issued on behalf of the appellant to the commissioner of the department of street cleaning, requiring him to show why the applicant should not be restored to his position. Opinion by Daniels, J.


text:
    Sarah E. Mellen, Respondent, v. William C. Banning, Executor, and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Lambert, J.


text:
    Charles G. Cornell, Jr., and others, Respondents, v. The United States Illuminating Company, Appellant.
   Order reversed and motion denied, with ten dollars costs and disbursements. Opinion by Lambert, J.


text:
    Annie M. Bausch, Respondent, v. Charles D. Ingersoll, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    In the Matter of the Application of the Trustees of the Simonds Soap Company.
   Order affirmed, with ten dollars costs and disbursements, but with leave to apply to the court for a modification of the injunction as stated in opinion. Opinion by Van Brunt, P. J.


text:
    Benjamin P. Johnson, Respondent, v. The Manhattan Railway Company, Appellant.
   Judgment affirmed, with costs. Opinion by Ingraham, J.


text:
    Herbert Booth King and others, Appellants, v. Alva E Davis, Respondent.
   Judgment and order reversed and new trial ordered, with costs to plaintiff to abide event. Opinion by Daniels, J.


text:
    Charles Smith and others, Respondents, v. The Seattle, Lake Shore and Eastern Railroad Company, Appellant.
   Order affirmed, with ton dollars costs and disbursements. Opinion by Ingraham, J.


text:
    Edmund Fitz Gibbon, Appellant, v. Seymour G. Smith and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Barrett, J.


text:
    Mary G. Pinckney, Respondent, v. John B. Day, Appellant.
   Judgment affirmed, with costs. Opinion by Barrete, J.


text:
    William L. Genin, Respondent, v. Samuel K. Schwenk, Appellant.
   Order affirmed, with costs. Opinion by Barrett, J.


text:
    James Moore, Appellant, v. Arthur D. Williams, Receiver, etc., Respondent.
   Judgment reversed and judgment ordered for the plaintiff, with costs of the action and costs of this appeal to he settled, as to its terms, upon notice to the counsel for the receiver, and the appeal from the order dismissed. Opinion by Daniels, J.


text:
    William P. Walton, Plaintiff, v. Albert P. Stewart, Defendant.
   Motion granted.


author: Barrett, J. :

text:
    In the Matter of the Petition of GEORGE W. McLEAN, as Receiver of Taxes, to Enforce Payment of the Tax for Personal Property Imposed upon ABRAM L. ERLANGER for the Year 1890.

      Taxes upon personal property in New York city — chap. 410, Laws of 1882 — the return of a marshal is conclusive as to a demand homing been made— when a delinquent taxpayer will not he charged with costs.

    The receiver of taxes of the city of New York issued a warrant for the collection, of a personal tax, under the New York consolidation act, chapter 410, Laws of 1882, to a marshal of said city, who returned the same unsatisfied. Said act, at section 857, provides that “ in case of the refusal or neglect ” of a taxpayer to pay such a tax the said receiver may within a year proceed to enforce payment.

      Held, that, in a proceeding to enforce the tax, the marshal’s return was conclusive, and that the taxpayer could not show that the marshal never, as matter of fact, demanded of him payment of the tax.
    That as, however, the charge that the marshal never demanded payment was not denied by the receiver, the court would, under section 861 of the act, relieve the taxpayer from payment of the costs of such proceeding.
    Appeal by Abraham L. Erlanger from an order, entered in the office of the clerk of the city and county of New York on the 24th day of June, 1891, whereby it was, among other things, adjudged, that said Erlanger was guilty of a failure to pay'a tax for personal property assessed against him for the year 1890, and that he be committed to the jail of the city and county of New York, there to remain until he had paid the sum of ninety-two dollars and seventy-five cents, and directing that a warrant issue against him for that purpose.

      Thomas P. Wiclces, for the appellant Erlanger

      John G S Meyers, for the respondent McLean, receiver.
   Barrett, J. :

■The question here is whether the appellant can go behind the return of the marshal to whom the warrant for the collection of the personal tax imposed upon him was issued. We agree with the appellant that jurisdictional facts must be stated in the petition, and it is conceded that all such facts are therein stated. One of these facts is that a warrant .for the collection of the tax was issued by the petitioner to a marshal, and that that officer has returned such warrant unsatisfied. This statement is made positively by the .affiant, and is necessarily within his personal knowledge. It is not denied by the respondent. The latter merely denies “ any knowledge or information sufficient to form a belief of the issuance of such -warrant.” This form of denial would, under the Code, raise an issué to a complaint in an action, but it is not a denial of fact stated positively in an affidavit. (Matter of Petition of N. Y. L. and. W. R. R. Co., 99 N. Y., 17; Rome, W. and O. R. R. Co. v City of Rochester, 46 Hun, 149; The People ex rel. Carleton v. Board of Assessment, 52 How. Pr., 140; Matter of Sullivan, 55 Hun, 285.) We thus have all the jurisdictional facts properly averred and conceded. For the averment that the marshal demanded payment under the warrant was superfluous, as the statute is in the alternative and provides for these proceedings in case of the refusal or neglect of any person to pay the tax imposed. The question is thus reduced to that suggested at the outset; can the appellant in these proceedings go behind the return of the marshal and prove its falsity? We think not. Such a doctrine would be subversive of the entire system provided for the collection of personal taxes, and it could be inaugurated only by over-turning the general rule that the returns and certificates required of a public officer in the performance ■of official duty are to be taken in the proceeding in which they are made as of unquestionable verity. (Cooley on Taxation [2d ed.], 260, and eases there cited.)

It will be observed that the marshal is not a party to this proceeding, and that the statute requires the receiver of taxes to proceed against the delinquent upon the marshal’s official act, namely, the return of the warrant unsatisfied. (Con. Act, § 559.) Such a return is conclusive evidence, in the proceeding in question, of the jurisdictional fact that the person proceeded against “ neglected ” to pay the tax imposed upon him and that he had “ no goods or ■chattels in his possession ” (§ 851) upon which the same could be levied by distress and sale according to law. The burden of establishing this latter fact by evidence aliunde the return of the marshal is nowhere imposed upon the receiver of taxes, and if such burden were imposed upon him, the statute would become a dead letter-A public officer like the receiver of taxes, acting.under statutory mandate and seeking to collect taxes for the purposes of government from a vast number of individuals, should certainly not be held to a ■stricter rule than that which applies to individuals with respect to their private contentions. And yet it is well settled that, although the return of an execution unsatisfied is a necessary prerequisite to the filing of a creditor’s bill, such bill cannot be defeated by proof of the existence of personal property which might have been levied upon, unless at least there was collusion between the plaintiff and the ■sheriff. (Stoors v. Kelsey, 2 Paige, 418; Meyer v. Mohr, 19 Abb., 299 ; Balde v. Smith, 5 Ch. Sentinel [N.Y.], § 11.) The remedy in .all such cases is by an action against the officer for a false "return. But .such a remedy is scarcely requisite in cases like the present. For what damage can be done to the person taxed by a false return, •even if he has sufficient personal property to pay the tax ? He is ■only asked to pay the tax once, and whether he does this under .stress of the warrant or of the order to show cause is immaterial. Fie can, it is true, be mulcted the costs of contempt proceedings, but that is all. Now the court, under section 861 of the consolidation act, has ample discretion to relieve him from these costs, and while treating the marshal’s return as conclusive upon the question of jurisdiction, it would doubtless consider the failure, as matter of fact, to make a demand or to search for property, upon the question of costs. Indeed, in the present case, upon the broad statements made by Mr. Erlanger in his affidavit, and not denied in any manner, we think he should have been absolved from the costs of these proceedings. The order appealed from should be modified accordingly, so that Mr. Erlanger stand committed until he pay the tax imposed upon him, with lawful interest, but without costs either at Special or General Term.

Yan Brunt, B. J., and Ingraham, J\, concurred.

Order modified as mentioned in opinion, and as modified affirmed, but without costs either at Special or General Term.