ith and another, executors of the will of argaret J. Myers, deceased. No opinion. cree affirmed, without costs. All concur. fore, justified in directing the judgment herein. We find no other exception that would justify us in disturbing the judgment, or that requires discussion. It follows, therefore, that the judgSTABENAU v. ATLANTIC AVE. R. CO. ment should be affirmed. All concur. Judgupreme Court, General Term, Second Department affirmed, with costs. ent. July 26, 1895.) Action by Wilhelm abenau against the Atlantic Avenue Railroad mpany. No opinion. Judgment and order irmed, with costs. All concur. STEVENS v. MELCHER. (Supreme Court, eneral Term, First Department. December, 94.) Action by Charles G. Stevens against hn L. Melcher. No opinion. See memoranm on settlement of order. Memorandum for ttlement of order: First. A reference will t be ordered as to insurance premiums, as ose only can be allowed which the record bere us shows were paid; second, as to such mounts, we understand Mr. Zabriskie's stateent to be correct; third, in respect to the 0,000, the order will be in accordance with the ggestions in Mr. Hoadley's proposed order; urth, adopting such course as to the $90,000, ere would seem to be no occasion for striking it from the adjudication designated "tenth,' hat the said $100,000 and interest thereon ere paid on the 6th day of March, 1894," but should be modified by adjudging that said gacy was not fully paid on the 6th day of arch, 1894. De STOKES, Respondent, v. STOKES, Appelnt. (Superior Court of New York City, Genal Term. March, 1895.) Action by William - D. Stokes against Edward S. Stokes. endant's exceptions ordered to be heard in the est instance at general term. E. Cowen, for ppellant. G. H. Adams, for respondent. PER CURIAM. The court being divided, e defendant's exceptions are overruled, and dgment for plaintiff is ordered, with costs. SUTHERLAND v. CITY OF BROOKLYN - al. (Supreme Court, General Term, Second Department. June 14, 1895.) Action by John utherland against the city of Brooklyn, imeaded with others. No opinion. Order reersing judgment and granting new trial, with Dsts o the appellant to abide the event. ee 33 N. Y. Supp. 959. TAYLOR, Respondent, v. ROE, Appellant. Supreme Court, General Term, Fourth Departmert. July 5, 1895.) Action by Wilson B. Taylor against Jackson T. Roe. R. R. Tousey. for appellant. Newton R. Peckham, for espondent. MARTIN, J. A careful examination of the vidence contained in the appeal book has led s to the conclusion that it was sufficient to jusify the decision of the learned trial judge that he premises described had become and were a ublic highway. While there was something f a conflict in the testimony as to the facts bearng upon that question, it cannot be said that he findings of the court were against the weight of the evidence. Upon the facts as ound, the court properly held that the locus in to was a public highway, and it was, there TONJES, Respondent, v. TONJES, Appellant. (Supreme Court, General Term, Second Department. February, 1895.) Action by Catherine L. Tonjes against John H. Tonjes. No opinion. Judgment modified by reducing the alimony to the sum of $700 per year, and, so modified, affirmed, without costs. AULD. Appellant. (Supreme Court, General TOWN OF NEWTOWN, Respondent, v. Term, Second Department. July 26, 1895.) Action by the town of Newtown against Thomas Auld. Roswell W. Keene, for appellant. Clarence Edwards, for respondent. PRATT, J. This case does not purport to contain all the evidence adduced on the trial. Regulations of the local board of health were trary, we must assume that the property exread In the absence of evidence to the conisted under chapter 661 of the Laws of 1893. We can see from the case that there was sufficient evidence to justify the court in submitting the case to the jury. We discover no error in the record. Judgment affirmed, with costs. All concur. The de TRAVIS, Appellant, v. POST, Respondent. (Supreme Court, General Term, Second Department. July 26, 1895.) Action by Abram TravEugene B. Travis, for 18 against Robert Post. appellant. William A. Jaycox, for respondent. PRATT, J. This action was brought, apparently, and tried under those provisions of the Code relating to actions to compel the determination of claims to real estate. The parties own adjoining farms, and the only claim litigated was as to the precise line on which the fendant denied that he made any unjust claim division fence ought to be located. issue submitted to the jury, as was proper in to any of the plaintiff's farm, and that was the this form of action. It seems the plaintiff had put up a fence, and that the defendant took it down, claiming it encroached upon his land. Trespass would have been a better form of action, but, the case having been tried under another form, it must be determined as it is presented at the present time. The complaint did not describe the property which was said to be claimed by the defendant, as prescribed in this form of action (section 1511, Code), but it really alleged acts of trespass. The case was submitted to the jury, as I have before stated, under a charge which was not excepted to, and the verdict must stand, unless it appears that some error was committed upon the trial. The deeds of both parties coincided in their descriptions, but two surveyors, one on each side, disagreed as to a proper location of the lines, according to the courses and distances stated in the deeds, and the jury had to grope their way through the fog of expert testimony. The plaintiff insists that the verdict is against the undisputed facts. This claim cannot avail him, as the defendant testified that he made no claim | except that the fence was not located on the right line, and until the plaintiff established the fact that it was not located over upon the defendant's land it could not be said that defendant claimed any of the land of the plaintiff. The plaintiff makes no points in his brief upon any exception taken upon the trial, and I assume they are abandoned. Judgment affirmed, with costs. All concur. CONVALENTI et al., Respondents, v. STANTINE et al., Appellants. (Supreme Court, General Term, Second Department. July 26, 1895.) Action by Orazio Valenti and another against Richard B. Constantine and another. Moore, Wallace & Dudley, for appellant Richard B. Constantine. A. C. Astarita, for respondents. PRATT, J. We are of opinion that the referee's conclusions are sustained by the testimony. Not only was there considerable evidence that Constantine had personal notice of the work done by the plaintiffs, but it seems pretty well established that the tenant had authority to make repairs. He made them for some years, and, until the present instance, his authority was never questioned. There are no exceptions that require notice, and judgment is affirmed, with costs. All concur. VAN KEUREN, Appellant, v. VAN KEUREN, Respondent. (Supreme Court, General Term, Third Department. July 6, 1895.) Action by William W. Van Keuren, as executor of the estate of Rachel Van Keuren, deceased, against Peter Van Keuren. O. P. Carpenter (D. M. De Witt, of counsel), for appellant. G. R. Adams, for respondent. PUTNAM, J. The affidavits submitted to the court below were conflicting. Those read by the plaintiff tended to show that defendant, on the trial in the county court, on the motion for a nonsuit being granted, in open court, waived all claims except as provided in the will of deceased. The minutes of the court and extracts from the stenographer's minutes also tended to show such a waiver. But defendant claimed that the minutes of the court did not contain all that took place on the trial; that the waiver he made was only of the demands set up in the answer, and not of the cause of action for which the suit of Peter E. Van Keuren against Rachel Van Keuren and another had been brought. In his affidavit for defendant, Mr. Adams says in reference to the waiver made at the time the motion for a nonsuit was granted: "That deponent expressly stated to the court, when the nonsuit was granted, that the defendant, by asking for the nonsuit, did waive the claims in the answer in the action, and the nonsuit would have the effect of a waiver, as there was a bar by statute of limitations for the commencement of a new action thereon; that deponent did not, by word or act, consent or say that the defendant waived anything, or claims further than as above stated, and did not intend to waive any other cause of action." The court below probably relied upon the statement of the transaction in court, when the complaint was Such statedismissed, made by Mr. Adams. able that, on granting the motion for a Daig MAYHAM, P. J., not voting. In re VAN VLECK. (Supreme Court, eral Term, First Department. June 14.1 No opinion. Order affirmed, with $10 costa mi disbursements. VILLAGE OF FLUSHING, Respec v. CARRAHER, Appellant. (Supreme C General Term, Second Department. June 1895.) Action by village of Flushing ag No opinion. Motion Patrick Carraher. leave to go to the court of appeals denied. 33 N. Y. Supp. 951. WALSH, Respondent, v. SAVAGE et Appellants. (Supreme Court, General T Third Department. July 6, 1895.) Action Martin Walsh against Henry Savage and P No opinion. Judgment rick H. Savage. firmed, with costs and disbursements. WATROUS, Appellant, v. LOW et al. spondents. (Supreme Court, General Ter Second Department. June 14, 1895.) Act by Matilda R. Watrous against Ellen E. LA and others. No opinion. Motion to dis appeal denied, upon condition that the app lant duly serve her case on appeal, and are said appeal at the term of this court for t second Monday of September, 1895; otherwis said motion is granted. WEIR, Appellant, v. SULLIVAN, Respon ent. (Supreme Court, General Term, First D June 14, 1895.) Action by Ham partment. ton Weir against Roger Sullivan. E. R. Dar M. I. Haviland, for ling, for appellant. No opinion. Order affirmed, with spondent. $10 costs and disbursements. WELLS, Respondent, v. WELLS. Appella (Superior Court of Buffalo, General Term. J uary, 1895.) Action by Jennie E. Wells against Henry H. Wells. No opinion. Order appeal from affirmed, with $10 costs and disburse ments WHITE, J., not sitting. WHEELER, Respondent, v. BELL et al. Appellants. (Supreme Court, General Ter Fifth Department. June 21, 1895.) Action Albert J. Wheeler, as substituted plaintiff i place of Mark H. İrish, against John Bell and Van Horn Ely. Adelbert Moot, for appellants. Adolph Redabow, for respondent. WARD, J. The original plaintiff was Mark H. Irish. Irish sued the defendants in Er county for fraud in putting upon him some reti ment was the more probable one. It was prob-estate in Buffalo, and in obtaining the s property from him by fraudulent means. The ae endants were real-estate agents, and asled to act as such for Irish in the purchase real estate, and went into an arrangement a the owner of some real property in Buf, whereby they got an option on the propfrom him for $10,000, and without disclosthat fact to their principal, Mr. Irish, cured the sale to him of this property for ,000, whereby the defendants and some pers associated with them in the transaction de $5,000. Irish took the property, made improvements thereon, and left it in rge of the defendants, as his agents, for a e, and went away, he living in Canada. Aftvards, wanting money, he proposed to sell to defendants the same property. They, in icert with another real-estate agent, found a rchaser for the property at $24,000, and the endants, without informing Irish of this fact, ught the property of Irish, giving him what had paid for it, with interest and certain exnditures he had made upon the property, ounting in all to $17,500, and they then sold the other party the same property for the 4,000, and, after paying an associate in the Isiness $1,000, the defendants realized from e transaction $5,500, making the total amount ey had received in operating on both sides of r. Irish $9,500. There was evidence to jusfy the jury in finding these facts, and they endered a verdict against the defendants of aly $2,000, which defendants seek to set aside, a exceptions to the refusal to nonsuit, and a efusal to direct a verdict for defendants, and ⇒ certain portions of the charge. None of the xceptions have merit, and the judgment and rder should be affirmed. All concur. WOODWORTH, Respondent, v. BROOKLYN CITY R. CO., Appellant. (City Court of Brooklyn, General Term. June 24, 1895.) Action by Charles S. Woodworth against the Brooklyn City Railroad Company. Morris & Whitehouse, for appellant. Foley & Wray, for respondent. PER CURIAM. The sole point raised on this appeal is that the verdict is against the weight of evidence. We have carefully read the record, and are satisfied that the case was properly submitted to the jury. The testimony of Mr. Sanford, read as a whole, is not necessarily in conflict with the testimony of plaintiff. It is conceded by the plaintiff that the horse ran away after the collision, and Mr. Sanford testified that plaintiff told him that the horse did run away. but this is to be taken in connection with his testimony at folios 128 and 129. Dean substantially corroborated plaintiff as to the cause of the collision. Judgment and order denying new trial aflirmed, with costs. Mr. WRIGHT v. BROOKLYN EL. R. CO. et al. (Supreme Court, General Term, Second Department. July 26. 1895.) Action by Mary Ann Wright against the Brooklyn Elevated Railroad Company and another. No opinion. Judgment affirmed, with costs. All concur. WYSE V. WYSE et al. (Superior Court of New York City, General Term. June, 1895.) Action by William S. Wyse against Marie S. Wyse and others. G. D. Lamb, for plaintiff. E. B. Hinsdale, for defendants Wyse and Woolverton. Chas. B. Alexander, for defendant Equitable Life Assurance Society. WILLIAMS, Appellant, v. LINDBLOM, Repondent. (Supreme Court, General Term. irst Department. June 14, 1895.) Action by William S. Williams against Robert Lindblom, mpleaded. John M. Mitchell, for appellant. Linus A. Gould, for respondent. PER CURIAM. PER CURIAM. The record herein discloses We find upon an examinaion of this case that it has never been settled; a carefully conducted trial. The court seems or has it ever been ordered on file by any one to have been governed by correct principles of ho participated in any portion of the proceed-law, and to have accorded to the appellant all The case must be stricken from the cal ngs. endar. WIMMER v. CLEARLY et al. (Supreme Court, General Term, Second Department. The findthe rights he could justly demand. ings of fact necessary to the conclusion reached are fully supported by competent evidence, and should not be disturbed. None of the excep tions is meritorious. The judgment should be affirmed. with costs to the respondents. END OF CASES IN VOL. 34 INDEX. Abandonment. By town, see "Towns." Joinder of causes, see "Pleading." Of leased premises, see "Landlord and Ten- Litigation between codefendants, see "Plead- ant. Of wife, see "Disorderly Conduct." Abatement. Pleas in, see "Pleading." ABATEMENT AND REVIVAL. ing." To determine validity of probate, see "Wills." Complaint held to allege breach of contract, Action for damages caused by defective bridge Administrators. Accounting by guardian is not barred by par- ADVERSE POSSESSION. Admission as to ownership held competent on Agents. ACCORD AND SATISFACTION. When acceptance of part of an amount due ACCOUNTING. By guardian, see "Abatement and Revival." Alienation. Suspending power of, see "Wills." Aliens. Forbidding employment of, by city contractors, Ambiguities. One who seeks to impeach account rendered Parol evidence to explain, see "Evidence." |