the parties were not upon even terms, as respects age, intelligence and capacity, evidence which tends to defeat the right of the weaker party should be scrutinized with care. Among the essentials of a valid gift inter vivos are competency, intention and freedom of the will. When a transaction between an old, feeble and ignorant mother of uncertain capacity, and her daughter, comparatively young, in good health and of superior understanding, claimed by the latter to constitute a gift, will not be sustained as such." The transaction referred to is strikingly similar to the one alleged by the defendant. Clear and satisfactory proof was held to be essential in De Puy v. Stevens (37 App. Div. 289). In Case v. Case (49 Hun, 83), at page 87, it was said: "In cases where confidential relations exist between the parties, the person obtaining the benefit must show by the clearest evidence that the gift was freely and deliberately made. The burden is upon the person taking the gift to show that the transaction was fair and honest." In that case, in reciting the facts, the court said: "At the time the deed was executed and delivered the donee of this gift occupied a close confidential relation towards the plaintiff, who is his sister, and the transaction embraced her entire estate, so that at the age of sixty and upwards she is left penniless." That circumstance was regarded by the court as important in impelling it to the conclusion that the proof was not sufficient to sustain the gift, which was the subject of that li igation. We think the proof in the case at bar, when its probative force is measured by the rules laid down in an unbroken line of authorities, to wit, that it must be clear, satisfactory and convincing, falls far short of establishing the validity of the gift set up as a defense to the plaintiff's cause of action, and that the conclusion reached by the learned trial justice is not supported by the evidence. It follows that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide event.

The Diocese of Buffalo. Appellant, v. The New York Central and Hudson River Railroad Company, Respondent. (Action No.1.) - Or der reversed, and application granted so far as it seeks to restrain the defendant, during the pendency of the action, from enlarging. extending or increasing its Terrace depot, and from constructing or using additional switches, turnouts or tracks on the Terrace, without costs of this appeal to either party.

Appeal from an order made by the Supreme Court at the Erie Special Term, denying an application for an injunction pendente lite, and entered in Erie county clerk's office April 1, 1901

WILLIAMS, J.: The order appealed from should be reversed, and the application granted so far as to restrain the defendant, during the pendency of the action, from enlarging, extending or increasing its Terrace depot, and from constructing or using additional switches, turnouts or tracks in the Terrace, without costs of this appeal to either party. Without attempting to recite the facts at length as they appear in the record, it is sufficient to say that the plaintiff owns school property facing on the Terrace, an open space in the city of Buffalo nearly 200 feet wide, which was thrown open to the public by the Holland Land Company, prior to 1826. The defendant is operating a steam railroad along through the Terrace, in the same manner in which it has been continually operated since 1879. The plaintiff claimed the railroad was being operated through the Terrace without legal right, and September

[Vol. 66.

20, 1899, brought this action to restrain such operation. Only a summons was served then, however, and the action was allowed to rest until November, 1900, when the defendant, anticipating an increased traffic along the line during the Pan-American Exposition to be held in Buffalo the following year, took proceedings to increase its facilities for doing business by enlarging its depot and constructing new tracks, switches and turnouts in the Terrace. It asked the city of Buffalo for consent to such improvements, but the city has never yet granted such consent. Thereupon, in March, 1901, the plaintiff served its complaint in the action, and made the application in question for an order not only restraining the defendant from making new improvements in the Terrace, but also from operating its road as it is and as it has been operated since 1879. Upon the argument in this court defendant's counsel stated that after the order appealed from was made the defendant attempted to make the new improvements, but was prevented from doing so by the city authorities, and thereupon desisted and removed its material, and proposed to await the trial of the action. This being the condition of things, this court should provide that the parties be left as they are until the action is tried. We ought not, in advance of the decision of the case, to restrain the operation of the railroad in the manner it has been operated for many years. The plaintiff can wait. It did wait from September 20, 1899, until March, 1901, without applying for any injunction, or even serving its complaint in the action, and it only then revived the action and applied for an injunction, apparently because the defendant was proposing to add to the buildings and tracks in the Terrace. On the other hand, the defendant seems to be entirely willing to await the trial of the action on the merits before making its improvements, and we think it should be made entirely certain that it will so wait by making an injunction order to that extent. Without, therefore, attempting to pass upon the legal rights of the parties involved in the action, the order appealed from should be reversed, and the application granted so far as to restrain the defendant during the pendency of the action from enlarging, extending or increasing its Terrace depot, and from constructing or using additional switches, turnouts or tracks in the Terrace, without costs of this appeal to either party. All concurred. Joseph Blossom, Respondent, v. William A. Tummonds, Appellant, Impleaded with Another. Judgment affirmed, with costs. All concurred.

William Wallace Manning, an Infant, by William H. Manning, his Guardian ad Litem, Respondent, v. Genesee River and Lake Ontario Steamboat Company and Others, Appellants. Order reversed and proceedings dismissed, without costs, as the judgment upon which the same is based has been reversed. All concurred.

The People of the State of New York, Respondent, v. Manhattan Real Estate and Loan Company of New York. Appellant.— Order affirmed, with ten dollars costs and disbursements. All concurred.

Mabel Stell, an Infant, by John Stell, her Guardian ad Litem, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.-Judgment and order affirmed, with costs. All concurred. John H. Joslyn and Others, Respondents. v. The City of Rochester and Samuel B. Williams, as Treasurer of the City of Rochester, Appellants. Judgment affirmed, with costs, and order granting extra allowance of

56 623 Case 2

4 NY 499

App. Div.]

costs affirmed, with ten dollars costs. All concurred.

The Star Drilling Machine Company, Appellant, v. David Butler, Respondent.- Judgment and order affirmed, with costs. All concurred.

Christian J. Mahley, Respondent, v. The German Bank of Buffalo, Appellant, Impleaded with Others. Judgment affirmed, with costs on authority of same case, reported in 52 Appellate Division, 131. All concurred. Carl Weeden, Respondent, v. The Erie Railroad Company, Appellaut.-Judgment and order affirmed, with costs. All concurred. John S. Allen, Appellant, v. Frank X. Kelly, as Administrator, etc.. of John Kelly, Deceased, Respondent, Impleaded.-Judgment affirmed with costs on authority of same case, reported in 55 Appellate Division, 454. All concurred, except Williams, J., dissenting. Cora Chester Tripp, Respondent, v. George T. Chester, Individually and as Executor, etc., of Mary P. Chester, Deceased, Appellant, Impleaded with others.- Interlocutory judg ment affirmed, with costs. All concurred. Rumsey, J., not sitting.

Wolf M. Elsner, Appellant, v. Auguste Freiwald, Respondent.- Judgment and order affirmed, with costs. All concurred. Rumsey, J., not sitting.

Mary C. Donlon, Appellant, v. Laura M. Kimball and Others, Respondents.- Order af firmed, with ten dollars costs and disbursements. All concurred.

Mary R. Hammond, Plaintiff, v. John Bourklund and Others, Defendants; Agnes Kelly and Lottie M. Wilcox, Appellants; and Charles Nelson, Respondent. The court declines to consider the appeal in this case because the record is imperfect. 1. The affidavit of Warner F. Miller and the notice of motion for judgment of foreclosure noted in the order as having been read on the motion are not printed in the record. 2. The affidavits of James C. Beecher, Jacob T. Smith, Allison K. Hume, which are printed in the record, are not recited in the order as having been read on the motion. 3. The order should be resettled so as to show what papers were used before the judge, and such papers should be printed in the record. All concurred.

Elgin Logie and Another, as, etc., Respondents, v. Jeremiah H. Leh, Appellant. - Judgment affirmed, with costs. All concurred. Mary J. Comley, Respondent, v. Grace E. Selover, as Executrix, etc., of Emeline Suydam, Deceased, Appellant. - Judgment affirmed, with costs. All concurred.

Rose Gordon, Respondent, v, The Empire State Telephone and Telegraph Company, Appellant. Judgment of County Court and Justice's Court reversed, with costs. Held, that the defendant corporation was not a resident of the county of Wayne, and that the Justice's Court did not acquire jurisdiction by the purported service of a summons upon its officers. All concurred.

James R. Russell, Respondent, v. Lehigh Valley Railroad Company, Appellant.- Judg. ment and order reversed and new trial ordered, with costs to the appellant to abide event. Heid, that the plaintiff's injuries were the result of an assumed risk. (Loughlin v. State of New York, 105 N. Y. 159; Miller v. Thomas, 15 App. Div. 105; Simone v. Kirk, 57 id. 461.)

In the Matter of the Petition of John Ludlum, a Citizen Resident of the Town of Yates, for an Order for the Removal of John Putnam Levy from his Office as Justice of the Peace of the Town of Yates.-Ordered, that the referee's report be confirmed and proceeding dismissed, and that the petitioner, within

thirty days after the service of a copy of the order herein, to pay to the treasurer of the county of Orleans the sum of fifty dollars to reimburse said county for the fees and expenses of the referee and stenographer in this proceeding, as allowed by the court. In the Matter of the Appointment of a Trustee of the City and County Hall for the Use of the City of Buffalo and County of Erie, in Place of Henry Breitweiser, Deceased.Order appointing Wadsworth J. Zittel a trustee of the city and county hall, in place of Henry Breitweiser, deceased, filed with the clerk and certified to Erie county. In the Matter of the Charges of the New York State Bar Association v. Hadley Jones. Ordered that it be referred to Donald F. McLennan, Esq., to take proof and report the same, with his opinion thereon, at a term of this court to be held in the city of Rochester on the 7th day of January, 1902. Solomon Morrison and Samuel Risman, Respondents, v. Nehemiah Coy and George Penird, Appellants.-- Order affirmed, with ten dollars costs and disbursements. All concurred.

Hinman S Taylor and Frederick V. Taylor, Appellants, v. William Daly. Respondent.Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, upon condition that the plaintiff, within ten days after service of a copy of this decision, make and file with the clerk of Monroe county the stipulation recited in the order appealed from. Otherwise order affirmed, with ten dollars costs and disbursements. All concurred.

Sidney B. Breese, as Administrator, etc., of Catherine H. Graves, Deceased, Appellant, v. Maurice A. Graves and Charles E. Stevens, as Executors, etc., of Nathan F. Graves, Deceased, Respondents.- Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. All concurred.

Augustus E. Carver, as Executor, etc., of Mary D. Tower, Deceased, Respondent, v. Harriet A. Wagner, Appellant, Impleaded with John J. Wagner.- Judgment affirmed, with costs. All concurred.

Frank Harms, as Administrator, etc., of Joseph
Harms, Deceased, Appellant, v. Henry P.
Burgard, Respondent. Judgment and order
affirmed, with costs. All concurred.
Hannah Lahey. Appellant, v. Margaret Lahey,
Interpleaded by the Supreme Council of the
Catholic Mutual Benefit Association, Re-
spondent.-Judgment affirmed, with costs. a174 NY 146
All concurred.

Mary A. O'Reilly, Respondent, v. Supreme
Lodge, Knights of Honor, Appellant.-Judg-
ment and order affirmed, with costs. All
concurred.

William J. Gilboy, Plaintiff, v. Rochester Railway Company, Defendant.- Plaintiff's exceptions overruled and motion for a new trial denied, and judgment ordered for the defendant on the nonsuit, with costs. concurred.

All

Johnston Harvester Company, Appellant, v. George W. Doty, Respondent.- Judg. ment and order affirmed, with costs. All concurred.

Charles Lotherington. Respondent, v. Syracuse Rapid Transit Railway Company, Appellant.- Judgment of County Court reversed, and judgment of the Municipal Court affirmed, with costs. Held, that while the plaintiff and the defendant's employee Harrison were not co-employees as matter of law, what the latter said at the time of the accident was suggestive and advisory merely and that he was not authorized, nor did he attempt to give the plaintiff or his

66 Case 21

623

associates orders in the premises, and, therefore, the defendant is not liable. All concurred.

The Central Presbyterian Church of Buffalo, Respondent, v. Alice Palmer, Appellant. Interlocutory judgment modified so as to give the defendant the right at any time within twenty days after service of a copy of this decision to withdraw her demurrer and answer upon payment of the costs of the demurrer and costs as of one appeal in this court, and as thus modified, said judgment is affirmed, with costs. In the event that the defendant elects to withdraw her demurrer and answer, the final judgment is vacated; otherwise, affirmed, without costs. All concurred.

Frederick B. Robins, Respondent, v. Browning, King & Company, Appellant.- Judg. ment and order affirmed, with costs. All concurred.

[Vol. 66, App. Div.]

Joseph H. Sommers, Respondent, v. The Herkimer, Mohawk and Frankfort Railroad Company, Appellant.- Judgment and order affirmed, with costs. All concurred. In the Matter of Supplementary Proceedings for the Collection of a Tax of Henry H. Pryor. John B. Hamilton, as Treasurer of Monroe County, Appellant; Henry H. Pryor, Respondent.-Order affirmed, with ten dollars costs and disbursements. All concurred. Jacob Marshall and Benjamin Marshall, Respondents, v. Charles M. Friend, as Temporary Receiver of the D. J. Hamburger & Sons Company, Appellant, Impleaded with the D. J. Hamburger & Sons Company.— Judgment sustaining demurrer affirmed, with costs, on opinion of Hiscock, J., dedelivered at Special Term. (Reported in 35 Misc. Rep. 101.) All concurred. Hiscock, J., not sitting.