31q 631 a165a616 App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. affirmed, with ten dollars costs and disburse- | ments. No opinion. Michael Donnelly, Respondent, v. Patrick J. McArdle, Appellant. - Order affirmed, with ten dollars costs and disbursements. No opinion. The People of the State of New York ex rel. Max Rechnitzer, Appellant, v. Francis J. Worcester, Justice of the Municipal Court, Eleventh District. Borough of Manhattan. City of New York, Respondent.- Order affirmed, with ten dollars costs and disbursements, on the authority of People ex rel. Batey v. Tierney, decided herewith. (Ante, p. 309.) The People of the State of New York ex rel. William W. Burgoyne, Appellant, v. John M. Tierney, Justice of the Municipal Court of the City of New York, Second District, Borough of the Bronx, New York City, Respondent. Order affirmed, with ten dollars costs and disbursements, on the authority of People ex rel. Batey v. Tierney, decided herewith. (Ante, p. 309.) Daniel Rosenbaum, Respondent, v. Charlotte Tobler, Individually and as Administratrix, etc., of Henry M. Silverman, Deceased, and Others, Appellants. Impleaded with Others. Order affirmed, with ten dollars costs and disbursements. No opinion. Reuben L. Pritchard, Respondent, v. John Fish, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion. Helen S. McLean, Respondent, v. William F. Widmayer and Others. Appellants, Impleaded with Others. - Order affirmed, with ten dollars costs and disbursements. No opinion. L. Tannenbaum & Co. v. George W. Poucher et al. Application denied. John Crosby Brown et al. v. Central National Bank et al. Motion granted, on payment of ten dollars costs. Lewisohn Brothers, Suing, etc., v. Anaconda Copper Mining Co. et al. Motion granted. In the Matter of the Petition of Charles H. Meyer and Another.- --- Motion denied. Pasquale Caponigri v. Pasquale Altieri et al. — Motion granted. Warren H. Rose v. Harris Aronson et al.Motion granted, with ten dollars costs. Michael Brennan v. Michael Varian and Another.-Motion granted, with ten dollars costs. Rachel Cohen v. Consolidated Gas Company of New York. Motion granted, with ten dollars costs. Michael J. Keilty, Respondent, v. Bernard Traynor, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. The People of the State of New York ex rel. Henry Walsh, Relator, v. Frank Moss and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.- Proceedings affirmed, with costs. No opinion. Harriet R. eKim, Respondent v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants. -Judgment modified by reducing fee damage to $6,000, and as modified affirmed, without costs. No opinion. You ghiogheny and Lehigh Coal Company, Respondent, v. Adelaide S. Washburne, Appellant.-Order affirmed, with ten dollars ests and disbursements. No opinion. Nancy Rowland, Appellant, v. L. Laflin Kellogg. Respondent. - Order affirmed, with ten dollars costs and disbursements. No opinion. | John C. Lange, Appellant and Respondent, v. Henry Hirsch and Others, Respondents and Appellants.- Order affirmed, without costs. No opinion. David S. Meyer, Appellant, v. The Sidney National Bank and James L. Clark, Respondents.- Order affirmed, with ten dollars costs and disbursements. No opinion. Luther Stieringer, as Trustee of Insulating Staple Company, Appellant, v. Richard N. Dyer and William J. Jenks, Respondents.Order affirmed, with ten dollars costs and disbursements. No opinion. George Keister v. William Rankin.- Motion denied, with ten dollars costs. Thomas H. Boyce and Another v. Robert B. D. Boyce et al.- Motion granted, with ten dollars costs. John J. Crawford, Appellant, v. Lillie Winston, Impleaded --Motion denied, upon payment of ten dollars costs, and, upon payment of ten dollars costs, leave granted to apply in court below to open default. Merchants' National Bank v. Columbia Spinning Company. Motion granted, without interest. Thomas V. Butler, Appellant, v. Martin E. Waldstein, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Charles Sumner Smith. Respondent, v. Leslie G. Cauldwell, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. The United Brotherhood of Cloakinakers, No. 1, of New York and Vicinity, Respondent, v. Ignatz Zeisler and Menasse Forst, Doing Business under the Name of Ignatz Zeisler, Appellants.- Order affirmed, with ten dollars costs and disbursements. No opinion. Albert R. Genet, Appellant. v. Amanda M. De Graaf, Executrix, and Henry D. Cochrane, Executor, of the Last Will and Testament of Henry P. De Graaf, Deceased, Respondents. - Order affirmed, with ten dollars costs and disbursements. No opinion. Ralph Scott, Appellant, v. The Engineering News Publishing Company, Respondent.Order affirmed, with ten dollars costs and disbursements. No opinion. Oswald J. Waite, Respondent, v. Joseph Sabel. Appellant. - Order affirmed, with ten dollars costs and disbursements. No opinion. Leah Shapiro, Appellant, v. Abraham M. Cassel and Others, Respondents. Order affirmed, with ten dollars costs and disbursements. No opinion. Simon M. Lindenstein, Appellant, v. The Equitable Life Assurance Society of the United States. Respondent, Impleaded with The Fidelity Company of Hartford, Conn. Order affirmed, with ten dollars costs and disbursements. No opinion. Melchior B. Diepenbrock, Appellant, v. Domenico Borgia, Respondent. Order af firmed, with ten dollars costs and disbursements. No opinion. Warren Delano, Jr., Appellant, v. Isaac L. Rice, Respondent.-Appeal from order striking cause from calendar dismissed. No opinion. Warren Delano, Jr., Respondent, v. Isaac L. Rice, Appellant. Order for separate trial at Special Term of issues raised by counterclaim and reply affirmed, with ten dollars costs and disbursements. No opinion. The Pyrogravure Company, Respondent, v. George Staber and Others, Appellants. Order affirmed, with ten dollars costs and disbursements. No opinion. In the Matter of the Application to Procure Revocation of Letters Testamentary Granted to Henry A. Oakley under the Last Will and Testament of Sarah E. Miller, Deceased.Order affirmed, with costs. No opinion. Edward Felbel v. German Kahn.- Motion denied, with ten dollars costs. Martin J. McMahon v. James G. Bennett.Motion denied, with ten dollars costs. FOURTH DEPARTMENT, JUNE TERM, 1898. George W. Young v. John V. Farwell, Jr.- Charlotte A. Horton v. Forty-second Street Charlotte A. Horton v. Forty-second Street In the Matter of Herman Koehler.- Motion default. Thomas Dolan v. Justus Rothschild.-- Motion. In the Matter of Robert Irwin, Deceased. — [Vol. 31. Margaret J. Van Orden v. John M. Van Orden. Frederick S. Meyers v. Maria Ross, Individu- costs. Jacob Hirshfield v. John Bopp et al. - Motion The People of the State of New York ex rel. The People of the State of New York ex rel. William E. Newsam, Relator, v. Frank Moss and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents - Proceedings affirmed, with costs. No opinion. Justus Heilbronn and Stephane Marchand, Appellants, v. Abraham S. Herzog, Respondent.- Motion denied. FOURTH DEPARTMENT, JUNE TERM, 1898. Julia O'Brien, Appellant, v. The Buffalo Trac- FOLLETT, J.: This action was begun July 31, street surface railroad, or extensions or branches thereof, shall not be built, extended or operated unless the consent in writing, acknowledged or proved as are deeds entitled to be recorded, of the owners, in cities and villages of one-half in value of the property bounded on, and also the consent of the local authorities having control of that portion of a street * * ** upon which it is proposed to build or operate such railroad shall have been first obtained. * ** The value of the property above specified shall be ascertained and determined by the assessment roll of the city ** * in which it is situated completed last before the local authorities shall have given their consent." January 6, 1896, the authorities of the city of Buffalo consented that the defendant might construct a street surface railroad in South Division street between Main and Smith streets, the validity of which consent is not challenged. It is alleged in the complaint that in May, 1897, the defendant obtained the consent, in writing, of some of the owners of property on South Division street that it might construct a street surface railroad in said street, and that May 23, 1897, the board of assessors of the city of Buffalo certified that the signers of said consent represented the owners of one-half in value of the property bounded on said street, which consents and certificate were filed in the office of the clerk of the county of Erie May 26, 1897, which allegation is adimitted in the answer. The plaintiff does not assert that these consents were not duly obtained, authenticated and filed, but she asserts that the consent of the Ellicott Square Company was erroneously counted as representing on the assessment roll of 1895 property assessel at $683,700, while such consent should have been counted as representing only $124,380. It is alleged in the complaint that the total assessed land values on South Division street from Main App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. $559,400 street to Smith street is $3,813,478," which allegation is admitted in the answer. Onehalf of this sum is $1,906,739, so that before the defendant had the right to build this roal in this street it was required to obtain the consents of the owners of property bounded on this street valued on the assessment roll of 1895 at $1,906,739, or in lieu thereof to obtain the consent of the Appellate Division of the fourth department. It is alleged in the complaint that the defendant obtained written consents of the prop erty owners on said street, including said Ellicott Square Company, whose property was assessed at $2,327,858. The aggregate assessment of all the property included within Ellicott square on the assessment roll of 1895 was $683,780, but the plaintiff insists that only $124,380 of this assessment should be counted as consenting property. Deducting $124,380 from $683,780 leaves $559,400, which the plaintiff insists should be deducted from the sum of the assentsi -32,527,858. Deducting from $2.527.858, the sum of the consents, leaves $1,968.458, or $61,719 more than one-half of the assessed value of the property. If it be urged that this conclusion is contrary to the second finding of fact not embraced within the signed decision of the court, but found upon the request of the plaintiff and stated outside of the decision, it must be answered! that since the amendinent of the Code of Civil Procedure in 1894 (Chap. 686, Laws of 1894 a trial court or referee is without power to find facts not embraced within the decision signed, and in case a court or referee assumes to find and state facts outside of the signed decision which are inconsistent with the facts admitted in the plead- | ings and those found in the signed decision, the facts found and stated outside of the signed decision will be disregarded on appeal. The burden was on the plaintiff to prove on the trial that the requisite amount of consents had not been obtained, and the burden is on her to demonstrate by the record on this appeal that the conclusions of law of the trial court are unsupported by the facts admitted in the pleadings and by the facts found, and are unsound. This burden is not successfully borne. The judg ment should be affirmed, with costs. All concurred, except Ward, J., not voting. Michael H. Shea, as Administrator, etc., of Margaret Birmingham, Deceased. Respondent, v. Great Camp of the Knights of the Maccabees for New York, Appellant.- Judg ment and order reversed and a new trial, ordered, with costs to the appellant to abide ¦ the event. Verdict at the Monroe Trial Term for the plaintiff. Action to recover upon a certificate of membership in the defendant's organization. After the verdict was received, the defendant moved for a new trial upon the minutes on the ground that the verdict was contrary to the evidence, as well as upon several other grounds. Appeal by the defendant from the judgment entered upon the verdict and from the order denying a motion for a new trial HARDIN, P. J.: In the application signed by the insured on the 10th of November, 1893, | there was contained the following: "11. Do you drink wine, spirit or malt liquors daily or habitually? No. If so, state what you drink, and daily average amount. (Do not use the word moderate.) A glass of ale occasionally. 12. Have you ever been addicted to the excessive or intemperate use of these liquors ? No."* To the 14th question, "If intoxicated within the last year, how many times?" there was no answer. Following these questions and others was a declaration APP. DIV.-VOL. XXXI. as follows: "I hereby declare that the above are fair and true answers to the foregoing questions, and I hereby agree that these statements in this application, and the laws of the Supreme Tent of the Knights of the Maccabees of the World, and of the Great Camp for New York, shall form the basis of this contract for endowment; that any untrue or fraudulent answers, any omissions of fact in regard to my health, age, occupation, personal habits, or neglect to pay any assessment, ** shall vitiate by (sic) beneficiary certificate and forfeit all payments made thereon. * * At the close of * Q. Did ་་ the evidence the defendant asked the court to direct the jury to find a verdict for the defendant of no cause of action. The motion was denied, and an exception was taken. After a verdict was received for the plaintiff, a motion was made for a new trial on the minutes upon all the grounds specified in section 999 of the Code of Civil Procedure. The motion was denied, and there is an appeal from the order denying the motion. We are called upon to consider whether the verdict is against the evidence. To answer that question, we must have reference to the evidence Upon looking into the evidence, we find the following: Patrick Caufield testified that he was a member of the police force and had been for nineteen years; that he knew John C. Birmingham in his lifetime, and had known him for twenty years. He testified: "I think there was another occasion, on August 7, 1893, when I arrested him in the same plac, police station. At that time he appeared to be under the influence of some drug or other -- I could not say what it was. * * he appear to be under the influence of liquor? A. He appeared like a man that would be under apparent drunkenness." John Cawthra testified that he was one of the deputy sheriffs of Monroe county, and had been for fifteen years or over, and that in his official capacity he had charge of the jail of the county; that he knew John C. Birmingham in his lifetime; that he first became acquainted with him at the jail September 12, 1887; the next time was July 12, 1889: the next November 21, 1889; the next January 13, 1890; the next July 3, 1890; the next July 21. 1890; the next January 1, 1891; the next January 4, 18 2; that was the next after January 1, 1891; the next was April 3, 1892; the next December 28, 1892. The next occasion was February 3, 1893; the next June 17, 1893; * ** the next August 5, 1893. Q. What was your observation as to his condition as to sobriety. A. Each time that he was brought in he showed signs of being un ler the influence of drink.“ This witness then gave the length of time that Birmingham was kept there on these occasions, amounting in all to seventy-two days. "Q. Are you able to state from your observation of his appearance and talk with him on these occasions, whether or not he was intoxicated? A. I believe he was. On cross examination the witness testified: "I think if I had observed him on the street in the same condition that he was in when brought there it would have occurred to me that he was intoxicated." The witness Michael Fitzpatrick testified that he was a member of the police force, and that he helped take Birmingham into eustody on July 6, 1893; that at that time he was intoxicated. The witness Stewart Church testified that he was the stationary engineer of the jail and knew Birmingham, and had seen him at the jail in 1892 and 1893, about four or five different times. "Q. What was his condition as to sobriety at that time? A. When he was brought there he was always 80 ** 31 634 a161a6511 31g 634 $55 479 31g 634 $ 166a488 FOURTH DEPARTMENT, JUNE TERM, 1898. in an intoxicated condition." To meet the testimony offered by the defendant in respect to the habits of the deceased for intoxication, several witnesses were called by the plaintiff who had seen the deceased on sundry occasions when he was free from the influence of intoxicating liquors, and who testified in a general way to his habits. Several of the witnesses, however, admitted that they had seen the deceased under the influence of liquor, and several of them gave facts and circumstances tending to support the evidence of the defendant. We are of the opinion that the finding of the jury is against the weight of the evidence. In the 12th, question the deceased was asked, viz.: "12. Have you ever been addicted to the excessive or intemperate use of these liquors?" (wine, spirit or malt liquors) and the deceased answered the question "No." We are of the opinion that, as the evidence was presented at the trial, the answer was false, and that the verdict of the jury in favor of the plaintiff is against the weight of evidence, and that the order refusing a new trial on the minutes should be reversed and the verdict set aside. All concurred. 31 634 William S. DeCamp, Individually and as Trus159a 444 tee under the Last Will and Testament of Julia L. DeCamp, Deceased, Appellant, v. Edward Thompson, Jr., and Others, Respondents.-- Judgment affirmed, with costs, on the opinion of McLennan, J, delivered at Trial Term. All concurred. (Reported in 22 Misc. Rep. 385.) Syracuse Rapid Transit Railway Company. Ap- Addie M. Hurlburt, Respondent, v. The Village William C. Greene, as Receiver of the Mer- William J. Shepard, Respondent, v. Gettie E. John H. Brewster and Others, Respondents, v. Alice M. Turner, Respondent, v. Mina Z. Dexter Sulphite Pulp and Paper Company and | | [Vol. 31. ben and Others, Respondents.- Judgment reversed on the authority of Town of Wirt v. Supervisors (90 Hun, 210), and a new trial ordered, with costs to appellant to abide the event. Order for extra allowance reversed. All concurred. The People of the State of New York ex rel. New York, West Shore and Buffalo Railroad Company and Another, Appellants. v. Spencer Johnson and Others, Assessors, etc., Respondents.-- Motion denied, without prejudice to an application to renew the same after entry of final judgment. All concurred. John Conway, Appellant, v. The City of Rochester et al.. Respondents.- Motion granted. All concurred. The National Harrow Company v. E. Bement & Sons. Motion to dismiss the appeal granted, with ten dollars costs. All concurred. In the Matter of the Proceedings to Disbar Dennis W. Hunt, au Attorney, etc.- Report of the referee, with the opinion accompanying the same, confirmed, and it is ordered that the defendant be suspended from the office of attorney and counselor of the Supreme Court for the period of two years from the entry of this order. It is further ordered that all the proceedings, referee's report, opinion, exhibits be transmitted to the clerk of Onondaga county and filed, with a copy of this order to be entered in the clerk's office of Onondaga county. Howard H. Baker, by Ranson R. Baker, his Guardian ad Litem, Respondent, v. Mary W. Allard and Lizzie Santmier. Appellants. Order affirmed, with ten dollars costs and disbursements. All concurred. Ward, J., not sitting. Mary J. Harrington, Respondent, v. Margaret A. Chedell, Appellant, Impleaded with Others. Order reversed, with ten dollars costs and disbursements, and motion denied. with ten dollars costs. All concurred. Ward, J. not sitting. In the Matter of the Examination of Eugene C. Sirret and Emile G. Sirret, Judgment Debtors, in Proceedings upplementary to Execution under the Judgment in the Action Entitled: Supreme Court, New York county. Augustus P. Rockwell v. Eugene C. Sirret, William B. Sirret and Emile G. Sirret.-Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. All concurred. Ward, J, not sitting. The People of the State of New York ex rel. Frederick M. Powers, Respondent, v. Thomas Smith, Appellant, Impleaded with Others, as Inspectors, etc.- Order reversed and the writ dismissed, without costs to either party. Held (1), that the original ballots should have been produced at the Special Term for the inspection of the court; (2) that the writ should have been addressed to the canvassing board which should have made a return of its proceedings. All concurred. William Godfrey, as Administrator, etc., of George Godfrey, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.- Judgment and order denying motion for a new trial affirmed, with costs. Order granting extra allowance reversed, with ten dollars costs. All concurred. George A. Bagley, Respondent, v. Mutual Reserve Fund Life Association of New York, Appellant.- Order affirmed, with ten dollars costs and disbursements. All concurred. Ward, J., not sitting. Wilhelmina Billings, Appellant, v. Delos Williams, Respondent.- So much of the order as is appealed from reversed, with ten dol lars costs and disbursements. Held, that 31 634 a161a565 App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. the notice of appeal was served too late. (See Hewitt v. City Mills, 136 N. Y. 211.) All concurred. Ward, J., not sitting. George W. Sturdevant, as Administrator with the Will Annexed of Sophia M. Warner, Deceased, Appellant, v. Seth H. Warner and Others, Individually and as Executors of Albert R. Warner, Deceased, Respondents.-Judgment affirmed, with costs. All concurred, except Adams, J., not voting. 31b 635 Gilbert D. Metcalf, Appellant, v. Morris Shear #1672569 and Others, Respondents.- Judgment affirmed, with costs. All concurred. William P. Sherman, Appellant, v. David Hunt and Others, Respondents.-Judgment and order affirmed, with costs. All concurred. Providence Retreat et al. v. The City of Buffalo et al.- Motion for reargument denied. Held, that, in our view of the case, the 32d finding of fact, though unsupported by evidence, is inconsequential. All concurred. Anna Batterson, Appellant, v. Lydia Bentley, Respondent.-Judgment of the County Court reversed, with costs, and the judgment of the Justice's Court affirmed, with costs. All concurred. Lena Lipsitz, Plaintiff, v. John E. Purcell, De- M. the court house in the city of Rochester on the 26th day of July, 1898, at ten o'clock a. The proofs and hearing before said referee to be had in the city of Buffalo upon eight days' notice by either party. Union Bank of Rochester v. Frederick A. Sherwood, Impleaded, etc.- Motion for leave to appeal to the Court of Appeals granted, and the following questions certified to that court, viz.: 1. Was the defendant Sherwood a bona fide purchaser for value, not having delivered all the notes of Bolton, which he agreed to deliver, prior to his receiving notice that the sale to him and Mrs. Bolton was claimed to be in fraud of creditors? 2. The trial court having found that said bill of sale of August 2, 1893, was fraudulent and void, in so far as it transferred property to Mrs. Bolton, does it follow, as a matter of law, from the findings and from the undisputed facts in the case, that said bill of sale was fraudulent as to both vendees named therein? The City of Rochester, Respondent, v. Robert West, Appellant.- Motion for reargument denied. Motion for leave to go to the Court of Appeals granted, and the following questions certified to that court, viz.: 1. Whether or not the common council of the city of Rochester has authority, under subdivision 21 of section 40 of its charter, to pass the ordinance under consideration in this case? 2. Whether or not the ordinance in question is not an unreasonable and an undue restraint upon a lawful trade and business, and also a restraint upon the lawful and beneficial use of private property? John Van Voorhis v. Hawley E. Webster, Impleaded, etc.- Motion for reargument denied. Sarah L. Wood v. Richard P. Hubbard et al. Motion for reargument and for modification denied. Motion for leave to go to the Court of Appeals denied, with ten dollars costs. 31 635 160a 661 |