TOWNSEND et al., Respondents, v. Mac GOVERN et al., Appellants. (Supreme Court, Appellate Term. May, 1902.) Action by James R. Townsend and another against Frank MacGovern and another. White & Case, for appellants. E. E. Mercelis, for respondents. PER CURIAM. This is an appeal from the general term of the city court, affirming an order of the special term, denying a motion to vacate an order for the examination before trial of two of the defendants. The order appealed from is one which does not go to the merits of the controversy, but is merely incidental to the suit. The rule is that an order of this kind is one of those matters of practice and procedure which should always be left to the court of original jurisdiction, and its decision should not be reviewed here, unless it appears from its order, and the papers upon which it is based, that the decision was founded upon some ground of law, not involving discretion, or the facts were not such as to bring the matter within the jurisdictional discretion of the court. See Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. 594. It seems to us, after a careful examination of the affidavit upon which the order for the examination is based, that it shows a compliance with the technical requirements of the Code, and states facts sufficient to call for the exercise of the discretion of the court below. So far as any controverted statements of facts are concerned, this court will not weigh the evidence in an appeal from the city court, where there is any evidence to sustain the finding of the court below. The order must be affirmed, with $10 costs and disbursements. Order af firmed, with $10 costs and disbursements. Action by the county of Ulster against the state of New York. No opinion. Reargument ordered. In re UNION TRUST CO. OF ALBANY. (Supreme Court, Appellate Division, Third Department. September 9, 1902.) In the matter of the application of the Union Trust Company of Albany, N. Y., to be designated as a No opinion. deposit bank for court funds. Referred to Charles J. Herrick, Esq., to take evidence and report to the court. In re UTICA & M. V. RY. CO. (Supreme Court, Appellate Division, Fourth Department. October 7, 1902.) In the application of the Utica & Mohawk Valley Railway Company for a determination that its road ought to be constructed and operated through, upon, and along North Ann street in the city of Little Falls. PER CURIAM. Motion for the appointment of commissioners granted, and order appointing the following named commissioners entered: Henry W. Bentley, Webster R. Chamberlain, and Frank Rice. VAN SLOOTEN v. TWOMBLY et al. (Supreme Court, Appellate Division, Second DeL. Van Slooten, as administratrix, etc., of Wilpartment. October 17, 1902.) Action by Mary liam Van Slooten, deceased, against H. McK. Twombly and James B. Haggin. No opinion. Order reversed on argument, with $10 costs and disbursements, without prejudice to a renewal of the motion at special term on proper papers. VAY, Plaintiff, v. CITY OF ROCHESTER, Defendant. (Supreme Court, Appellate Division. Fourth Department. October 7, 1902.) Action by Rudolph Vay against the city of Rochester. No opinion. Judgment ordered for the plaintiff for $25, with interest from August 7, 1902, with costs to the plaintiff. VILLAGE OF BALLSTON SPA, Respondent, v. HUDSON VAL. RY. CO., Appellant. (Supreme Court, Appellate Division, Third Department. September 9, 1902.) Action by the village of Ballston Spa against the Hudson Valley Railway Company. PER CURIAM. Motion denied, without costs. It appearing in open court upon the at the October term, the appeal from this order argument that the action is ready to be tried is put over the term. VINCENT v. ALDEN. (Supreme Court, Appellate Division, Third Department. September 3, 1902.) Action by Thomas Vincent against John F. Alden. No opinion. Motion denied. and 112 New York State Reporter VOLLKOMMER, Respondent, MEL, Appellant, et al. (Supreme Court, Ap pellate Division, Second Department. October 17, 1902.) Action by Joseph Vollkommer against Gottlieb Hummel, impleaded with others. No opinion. Judgment of the municipal court affirmed, with costs. ments, and on condition that no title was to pass until Cohen had made the first payment, and on the same condition indorsed and delivered the bill of lading to Cohen. Cohen paid nothing to plaintiff, who discovered the property in the possession of the defendants, and thereupon brought replevin for its recovery. The defendants set up and proved that they had purchased the property in good faith and without notice, and had paid the value of the property to Cohen, who had delivered the bill of lading, duly indorsed by him. The learned justice, holding that, if Cohen had fraudulently obtained the property and parted with it, he could not give any greater title than he had himself, and that under fraud and deceit no title could be received, gave judgment to the plaintiff. This judgment must be reversed. Upon the evidence, respecting which there is practically no conflict, it appears that no title to the lumber passed from the plaintiff to Cohen. There was an agreement to sell, but there was to be a payment upon delivery. Payment was thus made a condition precedent, and until the condition was performed the title could not be affected. But as the plaintiff euabled Cohen, by the symbolical delivery of the lumber through putting into his hands the title paper, to assume possession and appar: ent ownership of the lumber, third persons had a right to consider it as Cohen's, and the plaintiff is estopped as against the defendants, purchasing without notice that the condition had not been performed, and in the belief that Cohen's apparent title was the real title and his ownership absolute. Dows v. Kidder, 84 N. Y. 121. Judgment reversed, and new trial ordered, with costs to abide the event. WILKE et al., Respondents, v. BENNETT, Appellant. (Supreme Court, Appellate Division, Second Department. October 17, 1902.) Action by Henry B Wilke and John B. Roesch against David Bennett. No opinion. Order modified, by inserting a provision therein requiring the plaintiffs to pay the costs of the trial and all disbursements in the action to date, together with the costs of this appeal, all to be paid within 20 days from the entry of this order; otherwise, order reversed, and judgment directed to be entered on the verdict, with costs and costs of this appeal. WILLIAMS, Respondent, v. SYRACUSE, L. & B. RY., Appellant. (Supreme Court, Appellate Division, Fourth Department. September 30, 1902.) Action by Jennette C. Williams, an infant, etc., against the Syracuse, Lakeside & Baldwinsville Railway. No opinion. Judgment and order affirmed, with costs. WINN, Appellant, v. WINN, Respondent. Supreme Court, Appellate Division, Fourth Richmond Winn against Ellen F. Winn. No Department. October 17, 1902.) Action by opinion. Judgment affirmed, with costs. In re WISNER. (Supreme Court, Appellate Division, Fourth Department. October 14, 1902.) In the matter of proceedings for the disbarment of Gabriel W. Wisner. No opinion. Order of reference entered, referring the issues to M. H. Riley, Esq., attorney and counselor at law, residing at Cazenovia, N. Y., and directing the district attorney of Onondaga county and Charles G. Baldwin, Esq., as counsel, to prosecute. WOOD, Respondent, v. E. & H. T. ANTHONY & CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 17, 1902.) Action by Revilo C. Wood, as guardian ad litem of Harry C. Wood, a minor, against E. & H. T. Anthony & Co. No opinion. Appeal dismissed on argument, with $10 costs and disbursements, on the ground that the case is not appealable. END OF CASES IN VOL. 78 INDEX. ABATEMENT AND REVIVAL. Election of remedy, see "Election of Reme- dies." Right of action by or against personal represent- 1. Death of party and revival of ac- A survivor of two tenants in common, being Continuation of an action commenced by ABDUCTION. 1. Prosecution and punishment. ABUTTING OWNERS. Assessments for expenses of public improvements, Rights as to street railroads, see "Street Rail- Rights in streets in cities, see "Municipal Corpo- ACCEPTANCE. Of dedication, see "Dedication," § 1. ACCOMMODATION PAPER. See "Bills and Notes." ACCORD AND SATISFACTION. See "Compromise and Settlement"; "Payment"; ACCOUNT. Accounting between partners, see "Partnership," 78 N.Y.S. Accounting by committee of insane person, see Accounting by executor or administrator, see ACCRUAL. Of right of action, see "Limitation of Actions," ACKNOWLEDGMENT. Operation and effect of admissions as evidence, ACTION. Abatement, see "Abatement and Revival." Pendency of action, see "Lis Pendens." Actions between parties in particular relations. Co-tenants, see "Partition," § 1. Actions by or against particular classes of See "Brokers," § 2: "Carriers," §§ 1, 2; "Corpo- Stockholders, see "Corporations," § 2. Taxpayers, see "Municipal Corporations," § 14. Trustees in bankruptcy, see "Bankruptcy," § 1. Particular causes or grounds of action. (1145) |