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FOURTH DEPARTMENT, FEBRUARY TERM, 1890.

F. Shankey, Respondent.- Order reversed,
with costs and disbursements. Opinion by
Barnard, P. J.; Dykman, J., not sitting.
The People of the State of New York ex rel.
James Ryan, Respondent, v. Frederick W.
Bleckwenn, Treasurer, etc., Appellant.- Order
for peremptory writ of mandamus affirmed,
with ten dollars costs and disbursements.
Opinion by Dykman, J.; Barnard, P. J.,
dissenting

William S. Forbes, Appellant, v. Theodore
Chichester, Executor, etc., Respondent
Order confirming referee's report and judg-
ment thereon affirmed, with costs. Opinion by
Pratt, J.

Bridget Flanagan, Administratrix, Respond-
ent, v. The New York, New Haven and Hart-
ford, Railroad Company, Appellant.-Judg.
ment and order denying new trial affirmed,
with costs. Opinion by Barnard, P. J.;
Pratt, J., dissenting.

William A. Hopkins, Respondent, v. Leon C. Riggs, Appellant, Impleaded.-Judgment and. order denying new trial affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., not sitting.

Edward J. Hall, Jr., Respondent, v. Cornelius R. Colyer, Appellant.-Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.

The People of The State of New York ex rel.

George Wren v. Adolph Goetting, Police Justice.-Order denying application for writ of mandamus affirmed, with costs. Opinion by Pratt, J.

Matter of Application of the Union Elevated Railroad Company, Respondent, to Condemn Lands of James C. Jewett, Appellant.-Award of commissioners and order confirming the same affirmed, with costs. Opinion by Barnard, P. J.

Barbara Stimmel, Appellant, v. Charles Watts and another, Respondents.-Judgment affirmed, with costs Opinion by Dykman, J.; Barnard, P. J., not sitting.

Harmon C. Schultz, Respondent, v. George

W. Mead, Appellant.-Judgment affirmed, with costs. Opinion by Pratt, J.

Matter of Application of Alfred M. Merrill, Trustee, etc.-Order reversed, with costs and disbursements. Opinion by Barnard, P. J. Theodore Westlake, Respondent, v. Rosina Koch and another, Appellants.- Judgment and modified judgment affirmed, with costs. Opinion by Pratt, J.; Dykman, J., not sitting. Russell W. Ostrander, Appellant, v. Joseph Hart, Executor, etc., Respondent. - Judgment affirmed, with costs. Opinion by Barnard. P. J. The People of The State of New York ex rel. George W. Smith, Appellant, v. The Board of Commissioners of Police for the County of Richmond, etc., Respondent.- Order overruling demurrer to return and judgment thereon affirmed, with costs. No costs on appeal from order. Opinion by Dykman. J. Mary A. Dale, Respondent, v. Peter A. H. Jack

son, Appellant - Judgment affirmed, with
costs. Opinion by Dykman, J.

Daniel Mapes, Jr., and others, Executors, Appel-
lants, v. Walter Charles and others, Respond-
ents-Judgment affirmed, with costs. Opinion
by Pratt, J; Dykman, J., not sitting.

Jane Montgomery, Respondent, v. The Long
Island Railroad Company, Appellant. - Judg-
ment affirmed, with costs. Opinion by Barnard,
P. J.

Matter of Arbitration of Michael Bennett.
Award and order confirming same affirmed,
with costs. Opinion by Barnard, P. J.
Julius A. Kohn, Appellant, v. Malcolm Hender-
son, Respondent. Judgment affirmed, with
costs. Op nion by Dykman, J.
Frederic N. Smith, Receiver, etc., Appellant, v.
Rosalie Hahn and another, Respondents.
Judgment affirmed, with costs. Opinion by
Pratt, J.; Barnard, P. J., not sitting.
Thomas C. Arnow and others, Respondents, v.
John D. Ferguson, Appellant, Impleaded. -
Order affirmed, with costs and disbursements.
Opinion by Dykman, J.; Barnard, P. J., not
sitting.

Matter of Judicial Settlement of Henry Huss,
Executor, etc - Part of surrogate's decree ap-
pealed from affirmed, with costs. Opinion by
Pratt, J.

Henry C. Martine, Respondent, v. Martha M.
Huyler, Appellant. Judgment and order
denying new trial reversed and new trial
granted, costs to abide event. Opinion by
Dykman, J.

Alice M Allan, Respondent, v. The State Steam-
ship Company (Limited), Appellant. -Judg-
ment and order denying new trial affirmed,
with costs. Opinion by Barnard, P. J.; Pratt, J.,
not sitting.

Patrick Brennan, Respondent, v. The New York
Central and Hudson River Railroad Company,
Appellant. Judgment and order denying new
trial affirmed, with costs. Opinion by Pratt, J.
Milly Ann Ryerson, Respondent, v Edmond F.
Ryerson, Appellant -Judgment affirmed, with
costs. Opinion by Pratt, J.

Lewis E. Waterman and another, Appellants, v.
Edward L. Shipman and another, Respond-
ents.- Judgment affirmed, with costs. Opin-
ion by Barnard, P. J.

James C. Bell, Respondent, v. Daniel J. Weir
and others. Appellants. -Interlocutory judg-
ment affirmed, with costs. Opinion by Pratt, J.;
Dykman, J., not sitting.

Matter of Peter M. Baum. - Application to dis-
bar respondent as an attorney of the Supreme
Court, granted. Opinion by Dykman, J.
Roxana Kelley, Plaintiff, v. Ann Augusta Foster
and others, Defendants. Judgment affirmed,
with costs. Opinion by Barnard, P. J.;
Cullen, J., dissenting.

Lewis L. Fosdick, Plaintiff, v. Town of Hemp-
stead and others Defendants.-Judgment modi-
fied in accordance with opinion of Cullen, J.
Opinions by Barnard, P. J., and Cullen. J.
Order to be settled by Justice Cullen;
Dykman, J., dissenting.

FOURTH DEPARTMENT, FEBRUARY TERM, 1890.

James Singleton, Respondent, v. Home Insurance Company of New York, Appellant, Impleaded, etc.-Judgment affirmed; order affirmed, with ten dollars costs and disbursements. The People of the State of New York, Appellant, v. Alfred M. Crotty, Respondent.- Order and judgment reversed, and demurrer overruled, with liberty to the defendant to plead, and the clerk directed to enter judgment and remit a certified copy thereof with the return and de

cision of this court to the Court of Oyer and
Terminer of Oswego county, pursuant to sec-
tions 547 and 548 of the Code of Criminal Pro-
cedure. Opinion by Hardin, P. J.

In the Matter of the Judicial Settlement of Dan-
iel Falls, as Administrator, etc.. Respondent,
v. Scott G. Falls, Appellant.-Case sent back
for such action and proceeding as counsel may
deem advisable. Opinion by Hardin, P. J.
Christian Wiel, Respondent, v. Edward C.

55 611

44ap403

Case 25

40 Mis 13

FOURTH DEPARTMENT, FEBRUARY TERM, 1890.

Wright, as Administrator, Appellant.-Judgment and order of the County Court of Onondaga county affirmed, with costs. Opinion by Hardin, P. J.

Elizabeth Nary, as Administratrix, Respondent, v. New York Ontario and Western Railway Company, Appellant.- Judgment and order affirmed, with costs Opinion by Merwin, J. Cora M. Walters, Respondent, v. Mortimer M. Mayhew, as Executor, etc., Appellant.- Judg ment and order affirmed, with costs to respondent. Opinion by Hardin, P. J. Forest G. Weeks, Appellant, v. John E. Waller, Respondent.-Judgment affirmed, with costs, on the opinion of Vann, J., delivered at Special Term.

Michael Dillon, Respondent, v. the City of Syracuse, Appellant.-Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Opinion by Merwin, J.

Clara L. Doty, Respondent, v. The New York State Mutual Benefit Association of Syracuse, New York Appellant.-Judgment and order affirmed, with costs. Opinion by Martin, J. Maud Webber, Respondent v. Dorliska B. Vincent and another, Appellants.- Judgment and order affirmed, with costs. Opinion by Merwin, J.

Jeremiah Callaghan, as Administrator, etc, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.-Judg. ment and order affirmed, with costs. Herman Berry, Respondent, v. The American Central Insurance Company of St. Louis, Appellant. Judgment affirmed, with costs. Ópinion by Hardin, P. J.

James Boyle, Respondent, v. William Youmans, Appellant. Judgment affirmed, with costs. Opinion by Martin, J.

Julia O. Ludington, Respondent, v. George B. Garlock, Appellant.- Judgment of the County Court of Onondaga reversed, and that of the Justice's Court affirmed, with costs. Opinion by Merwin, J.

Silas Graves, Appellant, v. Lula Graves and others, Respondents.- Judgment reversed on the exceptions and a new trial ordered, with costs of the action to abide the event Opinion by Merwin, J. Mem. by Hardin, P. J. Thomas J. Larkin, Respondent, v. William C. Taber, Appellant.-Judgment affirmed, with costs. Opinion by Martin, J. John E. Strickland and others, Respondents, v. Ruth H. Laraway and others, Appellants. Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Opinion by Merwin, J.

Abram M. DeWitt and another, Respondents, v. The Elmira Transfer Railway Company. Appellant. -- Interlocutory judgment reversed, with ccsts, and judgment ordered for the defendant upon the demurrer, with costs, with leave to the plaintiffs to amend their complaint upon payment of the costs of the demurrer and of this appeal. Opinion by Merwin, J. The People of the State of New York ex rel. Henry W. Stevens, Respondent, v. John Barden, as Mayor of the City of Ithaca, Appellant Order reversed, with ten dollars costs and disbursements, and motion denied. Memorandum by Hardin, P. J.

Simon D. Paddock, Appellant, v. Patrick Guyder, Respondent.- Order reversed, with ten dollars costs and disbursements, and leave given to the defendant to answer in twenty days upon payment of ten dollars costs of the motion, and the costs and disbursements allowed on appeal. Opinion by Hardin, P. J. Emma E. Dryer, Respondent, v. Elon G. Brown,

as Surviving Executor, etc, Appellant.- Order modified by striking therefrom all provisions as to an amended answer and payment of costs as a condition of serving the same, and by in

serting in the order a provision vacating the stipulations as to pleadings and striking out the pleadings had under the stipulation, and as so modified, affirmed, without costs to either party of the motion or upon this appeal Opinion by Hardin. P. J. Memorandum by Martin, J.; Merwin, J., not voting.

William O. Allison, Respondent, v. Harvey N. Loomis and others, Appellants. Impleaded. 55 61 etc.- Judgment reversed on the exceptions and 141a 6 a new trial ordered before another referee, with costs to abide event. Opinion by Merwin, J.

Albert O. Briggs, Respondent, v. Harvey Austin,
Appellant, Impleaded, etc.- Judgment re-
versed on the exceptions and a new trial or
dered, with costs to abide the event. Opinion
by Hardin, P. J.

James M. Tator, Appellant, v. Charlotte M.
Tator, Respondent Impleaded, etc.- Judg-
ment affirmed, with costs. Opinion by
Martin, J.

Margaret Wheeler, Respondent, v. The Conti-
nental Insurance Company, Appellant.-Judg
ment affirmed, with costs. Opinien by
Merwin, J.

Ira Dwight, Respondent, v. The Elmira, Cort-
land and Northern Railroad Company, Appel-
lant. Case sent back for such action or pro-
ceeding as counsel may deem advisable.
Memorandum by Hardin, P J.

Isaac G. Jenkins, as Receiver of the Firm of
Bond & Jenkins, v. Stephen Lefaiver, Respond-
ent, and Ozro M. Bond, Appellant.-Judgment
affirmed, with costs. Opinion by Martin, J.
Joshua L. Wadley, Respondent, v. Jacob S.
Poucher and Willard Johnson, Appellants.
Judgment affirmed with costs. Opinion by
Merwin, J.

The People of the State of New York, Respond-
ent, v. Daniel Upton, Appellant.- Judgment
of the Court of Sessions of Tompkins county
affirmed, and the clerk directed to enter judg
ment and remit certified copy thereof, with the
return and decision of this court to the Court
of Sessions of Tompkins county, pursuant to
sections 547 and 548 of the Code of Criminal
Procedure. Opinion by Hardin, P. J.
Eliza W. Brown, Appellant, v. Louisa Danforth,
Esther Sanborn, David Wheeler and others.-
Judgment reversed on the exceptions and a
new trial ordered before another referee, with
costs to abide event. Opinion by Martin. J.
Patrick Phillips, Respondent, v. The Rome,
Watertown and Ogdensburgh Railroad Com-
pany, Appellant.-Judgment affirmed, with
costs. Opinion by Hardin, P. J.
Jane R. Pulman, Respondent, v. Caroline
Johnson, Appellant.- Judgment affirmed, with
costs. Opinion by Hardin, P J.

Hannah L. Smith, Respondent, v. John Birgham,
Appellant Judgment of the County Court of
Otsego county, affirmed, with costs. Opinion
by Merwin, J.

Jedediah Hoose, Appellan', y. Solomon S. Alex-
ander, Respondent.- Order reversed, with
printing disbursements and motion denied,
with ten dollars costs.

Charles B. Preston, Appellant, v. Solomon S.
Alexander, Respondent.- Order reversed, with
printing disbursements and motion denied,
with ten dollars costs.

Linus B. Cobb, Appellant, v. Solomon S. Alexan-
der, Respondent.- Order reversed and attach-
ment amended so that it shall stand for the
debt of $420 only and costs, and the motion in
other respects denied, without costs.
L. M. Cole, as Administratrix, etc.. Appellant, v.
Solomon S. Alexander, Respondent.- Order
reversed, with printing disbursements, and
motion denied, with ten dollars costs.
Henry Humphries. Respondent, v. Solomon S.
Alexander, Appellant.- Order modified so as
to allow the attachment to be amended so that

FOURTH DEPARTMENT, FEBRUARY TERM, 1890.

it may stand for $116.85 debt and costs, and as modified affirmed, without costs to either party of the appeal. Adelia Blakeslee, Appellant, v. Solomon S. Alexander, Respondent.- Order reversed and attachment amended so that it shall stand for the debt of $167.54 and costs, and the motion in other respects denied.

Eliza A. Cone, Appellant, v. Solomon S. Alexan-
der, Respondent.-Order reversed with print-
ing disbursements and motion denied, with
ten dollars costs.

Martin Barney, Appellant, v. Lewis E. Fuller and
another, Respondents - Order affirmed, with
ten dollars costs and disbursements.
People ex rel. Horace E. Taylor, Respondent, v.
Albert S. Potts, Appellant.- Motion to dismiss
denied. Order reversed, with ten dollars costs
and disbursements.

Charles J. Rumsey and another, Respondents, v.
Ann McCarthy, Appellant.-Order affirmed, |
with ten dollars costs and disbursements.
Charles W. Bardeen, Respondent, v. Jerome
Allen and others, Appellants.- Order affirmed,
with ten dollars costs and disbursements.
Frank B. Chapman, Respondent. v. Lucius
Gleason, Appellant, Impleaded with Patrick
Lynch. Order affirmed, without costs.
In the Matter of the Application to disbar
William Youmans.- Proceedings dismissed
unless report of the referee be procured and
filed with the clerk of Onondaga county during
the next term of this court, and it is further
ordered that the notice of motion and affidavit
accompanying the same, and the affidavit of
C. H. Bell in opposition thereto. presented at
this term of court, be transmitted to the clerk
of Onondaga county.

Elizabeth H. Butler, Appellant, v. The City of Oswego and another, Respondents.- Motion for reargument denied.

The People of The State of New York, Appellant, v. John Snaith and others, Respondents.- Order affirmed, with ten dollars costs and disbursements.

The People of The State of New York. Respond-
ent, v. Palmer M. Wood, Appellant.-Order
settled and filed with the clerk of Oneida.
Hardin, P. J, not voting.

John Mitchell, as Executor, Respondent, v.
David H. Knapp, Appellant, Impleaded.-
Order settled and filed with the clerk of
Oneida county. Martin. J. not sitting.

Henry C. Ballon, Executor, Respondent, v.
Thomas Carton and others, Appellants.-
Motion for leave to appeal to the Court of
Appeals denied.

Erastus Z. Wright, Receiver, etc., Respondent,
V. Charles T. Segar. Appellant.- Motion
granted, with ten dollars costs, and judgment
affirmed with twenty dollars costs of the ap-
peal and disbursements.

John A. Morgan, Respondent, v. William Wilsey,
Appellant-Judgment and order of the
County Court of Oneida county affirmed, with

costs.

Allison Parks, Appellant. v. James Boyce, Re-
spondent.-Judgment of the Madison County
Court reversed and that of the Justice's Court
affirmed, with costs.

William W. Gilmore, Respondent, v. Edward E.
Ham and Sarah E Ham, Appellants, Im-
pleaded, etc.-Judgment affirmed, with costs.
Opinion by Hardin, P. J.

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ACTION

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Who may not maintain an action for the construction of a will.
See RUPPEL v. SCHLEGEL.

183

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ADVERSE POSSESSION No title to land under water can be acquired by planting oysters thereon for any length of time.

See PEOPLE v. LOWNDES..

AFFIDAVIT - Stating two facts in the alternative, alleges neither — proceedings supplementary to execution.] An affidavit, upon which an application was made for the examination of a judgment-debtor in proceedings supplementary to execution, alleged that an execution against the property of the judgment-debtor had been issued out of a court of record and delivered to the sheriff of Chemung county, where the said judgment-debtor then resided, and yet resides, or has, at the time of the commencement of these proceedings, an office for the regular transaction of business in person."

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Held, that the statement in the affidavit was in the alternative, and hence alleged neither one fact nor the other, and was insufficient to justify the granting of an order for the examination of the judgment-debtor.

ARNOT v. WRIGHT.

See DEPOSITION.

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