FOURTH DEPARTMENT, FEBRUARY TERM, 1890. F. Shankey, Respondent.- Order reversed, William S. Forbes, Appellant, v. Theodore Bridget Flanagan, Administratrix, Respond- 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 Daniel Mapes, Jr., and others, Executors, Appel- Jane Montgomery, Respondent, v. The Long Matter of Arbitration of Michael Bennett. Matter of Judicial Settlement of Henry Huss, Henry C. Martine, Respondent, v. Martha M. Alice M Allan, Respondent, v. The State Steam- Patrick Brennan, Respondent, v. The New York Lewis E. Waterman and another, Appellants, v. James C. Bell, Respondent, v. Daniel J. Weir Matter of Peter M. Baum. - Application to dis- Lewis L. Fosdick, Plaintiff, v. Town of Hemp- 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 In the Matter of the Judicial Settlement of Dan- 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, James M. Tator, Appellant, v. Charlotte M. Margaret Wheeler, Respondent, v. The Conti- Ira Dwight, Respondent, v. The Elmira, Cort- Isaac G. Jenkins, as Receiver of the Firm of The People of the State of New York, Respond- Hannah L. Smith, Respondent, v. John Birgham, Jedediah Hoose, Appellan', y. Solomon S. Alex- Charles B. Preston, Appellant, v. Solomon S. Linus B. Cobb, Appellant, v. Solomon S. Alexan- 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- Martin Barney, Appellant, v. Lewis E. Fuller and Charles J. Rumsey and another, Respondents, v. 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- John Mitchell, as Executor, Respondent, v. Henry C. Ballon, Executor, Respondent, v. Erastus Z. Wright, Receiver, etc., Respondent, John A. Morgan, Respondent, v. William Wilsey, costs. Allison Parks, Appellant. v. James Boyce, Re- William W. Gilmore, Respondent, v. Edward E. ACTION Who may not maintain an action for the construction of a will. 183 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." 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. 593 469 561 |