and 100 New York State Reporter state the date of the larceny, although it was otherwise described with such a degree of circumstance as to make its identification seem complete. Since that case was decided, however, the appellate division of the supreme court, in this department, has passed upon a somewhat similar case (People v. Sloan, 39 App. Div. 265, 56 N. Y. Supp. 930), in which they expressly hold that the date of the commission of the crime was not material. In the case last cited the description of the offense read as follows: "Charged with petit larceny, in stealing one mink boa, valued at $18.75, the property of J. Ñ. Adam & Co." It was held that this was a sufficient designation of the offense, even if the construction here contended for by relator is to be applied to the language of section 721. The court is, however, careful to point out that where the defense of previous conviction is asserted the defendant is not limited by the record, but may establish the fact that the two prosecutions are for the same offense by evidence outside the record; and the case of People v. Finn, 87 N. Y. 533, is cited as holding that a description of the of fense by the very general term "misdemeanor of petty larceny" is sufficient. In the case of People v. Markell (Co. Ct.) 50 N. Y. Supp. 766, which was a proceeding similar to the one here under consideration, Judge Ross, of Onondaga county, held a certificate of convic tion sufficient which simply recited that the defendant was before the recorder of the city of Rome, "charged with petit larceny in said city on the 25th day of September, 1897." Here was no description of the crime, except by date and place. The argument was made in that case, as here, that the designation was so vague as to make it difficult for defendant to prove what he had been convicted of, in case of a subsequent prosecution for the same offense. This difficulty is, however, pronounced "imaginary" by the learned judge, and so it seems to me. No matter how vague the record, it is in the power of the defendant, so long as he does not contradict the record, to establish on a second prosecution, by evidence outside the record, precisely what he was convicted of before. The designation of the offense in the case at bar is precisely the same as that held sufficient by the court of appeals in People v. Finn. The decision in the Sloan Case does not seem to me to require any more definite designation, and I shall therefore hold the certificate sufficient. Application denied, and the prisoner ordered remanded. MEMORANDUM DECISIONS. ADAMS, Appellant, v. OLD DOMINION S. S. CO., Respondent. (Supreme Court, Appellate Term. November 8, 1900.) Action by George F. Adams against the Old Dominion Steamship Company. From a judgment of the general term of the city court of New York (65 N. Y. Supp. 1127) affirming a judgment for defendant, and an order denying a new trial, the plaintiff appeals. Affirmed. Hyland & Zabriskie, for appellant. Owen & Sturges, for respondent. PER CURIAM. Judgment affirmed, with costs. In re BALDWIN. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) In the matter of the estate of Henry Baldwin, deceased. No opinion. Motion to substitute Charles Stubbs as administrator of estate of James Stubbs, deceased, granted. BALDWIN'S BANK OF PENN YAN, Appellant, v. DIXON et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. September 25, 1900.) Action by Baldwin's Bank of Penn Yan against Edward S. Dixon and another. No opinion. Judgment affirmed, with costs. ALTMAYER et al., Respondents, v. McKEON et al., Appellants. (Supreme Court, Appellate Division, First Department. July 17, 1900.) Action by Nathaniel Altmayer and another against Patrick J. McKeon and another. C. E. Thornall, for appellants. E.liams and others. No opinion. Judgment and Blumenstiel, for respondents. No opinion. Order affirmed, with $10 costs and disburse ments. AMER et al., Respondents, v. FOLK et al., Appellants. (Supreme Court, Appellate Term. November 9, 1900.) Action by Edward C. Amer and another against John Folk and anther. From a judgment and order of the genral term of the city court (65 N. Y. Supp. 127) affirming a judgment for plaintiffs, deendants appeal. Affirmed. Hastings & Gleaou, for appellants. Blumensteil & Hirsch, for espondents. PER CURIAM. The only question in this ase was whether there had been an accord nd satisfaction between the parties. This isHe was submitted to the jury by a charge hich correctly followed the opinion delivered then this case was here on a former appeal. mer v. Folk, 28 Misc. Rep. 508, 59 N. Y. upp. 532. The evidence was conflicting, and mply supported the judgment rendered against he defendauts. The order denying the defendnts' motion to set aside the verdict is not apealable to this court. Judgment affirmed, ith costs. ARNOLD, Town Supervisor, v. FORD. Supreme Court, Appellate Division, Third Deartment. September 11, 1900.) Action by J. oward Arnold, as supervisor of the town of lifton Park, against William T. Ford. No inion. Motion denied. BALL, Appellant, v. WILLIAMS et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 2, 1900.) Action by Lydia M. Ball against Sarah Wilorder affirmed, with costs. BANK, Appellant, v. MARKOWITZ, Respondent. (Supreme Court, Appellate Division, First Department. November 9, 1900.) Action by Samuel Bank, by his guardian, against Herman Markowitz. From an order granting defendant's motion to set aside judgment in favor of plaintiff and awarding a new trial (65 N. Y. Supp. 369), plaintiff appeals. Affirmed. Joseph Wilkenfeld, for appellant. Max Altmayer, for respondent. O'BRIEN, J. For the reasons stated in the opinion of the court below, the order appealed from should be affirmed, with costs. All concur, except VAN BRUNT, P. J., and INGRAHAM, J., who dissent. BARNUM, Respondent, v. BARNUM, Appellant. (Supreme Court, Appellate Division, First Department. November 9, 1900.) Action for divorce by Sarah A. Barnum against Rhilo F. Barnum. From a judgment awarding plaintiff a limited divorce, and directing defendant to pay plaintiff $50 per month, defendant appeals. Modified. William P. Burr, for appellant. John C. Coleman, for respondent. PER CURIAM. The judgment should be modified by reducing the amount of alimony to $20 a month, and, as so modified, it should be affirmed, without costs. BATTINI, Appellant, v. McNAB, Respondent. (Supreme Court, Appellate Division, Fourth Department. September 18, 1900.) Action by Paul Battini against William J. McNab. No opinion. Judgment affirmed, with costs. ASTOR, Appellant, v. MOSS, Respondent. upreme Court, Appellate Division, First Dertment. July 17, 1900.) Action by William '. Astor against Theo Moss. J. S. Mont- BAUER, Appellant, v. EIRICH et al., Remery, for appellant. M. Cohen, for respond-spondents. (Supreme Court, Appellate Divit. No opinion. Appeal dismissed. sion, Second Department. October 12, 1900.) and 100 New York State Reporter Action by John Bauer against Otto Eirich and another. Judgment of the municipal court affirmed by default, with costs. BELL v. VALENTE. (Supreme Court, Appellate Term. November 7, 1900.) Action by Harry W. Bell against Gabrielle Valente From a judgment of the general term (64 N. BEARD, Respondent, v. BEARD et al., Ap-Y. Supp. 378) affirming judgment for plaintif pellants. (Supreme Court, Appellate Division, defendant appeals. Affirmed. Second Department. October 12, 1900.) Action by Emma C. Beard against William Beard and others. Judgment of the municipal court affirmed on argument, with costs. BEAVER RIVER LUMBER CO., Respondent, v. ST. REGIS LEATHER CO. et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) Action by the Beaver River Lumber Company against the St. Regis Leather Company and Frank A. Cutting. No opinion. Judgment affirmed, with costs. BEAVER RIVER LUMBER CO. v. ST. REGIS LEATHER CO. (Supreme Court, Appellate Division, Fourth Department. September 18, 1900.) Action by the Beaver River Lumber Company against the St. Regis Leather Company. No opinion. Motion for leave to appeal to the court of appeals denied, with $10 costs. BECKER, Respondent, v. WEIDENFELD et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) Action by Peter W. Becker against Camille Weidenfeld, individually, and Thomas W. Lawson and Camille Weidenfeld, composing the firm of Lawson, Weidenfeld & Co. No opinion. Judgment affirmed on argument, with costs. BECKWITH, Respondent, v. CHICAGO AGRICULTURAL IRON WORKS, Appellant. (Supreme Court, Appellate Division, First Department. July 17, 1900.) Action by Dean A. Beckwith against the Chicago Agricultural Iron Works. W. Sutphen, for appellant. J. H. Hildreth, for respondent. No opinion. Judgment affirmed, with costs. PER CURIAM. Judgment and order af firmed, with costs. BEREUTER, Respondent, v. MANHATAppellate Division, First Department. Ju TAN R. CO., Appellant. (Supreme Court 17, 1900.) Action by Caroline A. Bereuter. individually, etc., against the Manhattan Ra road Company. W. H. Godden, for appet lant. W. G. Peckham, for respondent. ducing the amount awarded for fee damage PER CURIAM. Judgment modified by reto $1,000, and by reducing the amount alowed for rental damage to $200 per year. thas reducing the judgment as entered to $2.941.54. and, as thus modified, affirmed, without costs. BERKOWITZ, Respondent, v. CONGRE GATION STROPKOWER CHEBRA JOSEPH CLAIM ANSHEI SEPARD, Appellant. (City Court of New York, General Term October 29, 1900.) Action by Morris Br kowitz against the Congregation Stropkower Chebra Joseph Claim Anshei Separd to recover the value of certain alterations and repairs to a building. From a judgment in favor of the plaintiff and an order denying a new trial, defendant appeals. Affirmed. Mex Brown, for appellant. Paul Hellinger, for respondent. ance. CONLAN, J. The action was to recover the value of certain alterations and repairs to a building. Certain things which were t be done under the original contract wer claimed by the plaintiff that under a still fur varied by a subsequent contract, and it is ther agreement there were certain extras called for, which were required to be d in compliance with certain rules and regu tions fixed by law. The defendant pleads n performance and alleges a counterclaim. T evidence is conflicting upon the question of BEECHER, Respondent, v. LONG ISLAND extra work and upon the question of perform R. CO., Appellant. (Supreme Court, Appel-case was presented to them under all of the In the charge to the jury the whe late Division, Second Department. July 17, contracts and on all of the evidence, and the 1900.) Action by Anna M. Beecher as execu- claims of the respective parties were fa trix, etc., against the Long Island Railroad explained. That the charge was emine Company. No opinion. Motion for reargu- satisfactory to the parties is evidenced by the ment denied. fact that no exception broad enough to cover any portion of the same was taken, and on y reached to the form of language employed in certain requests made by the defendant. Upc an examination of the record we do not fri any errors which call for an interference with the result reached by the jury, and the jude ment and order appealed from should be a firmed, with costs. BEECHER, Respondent, V. LONG ISLAND R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. July 23, 1900.) Action by Anna M. Beecher, as executrix, etc., against the Long Island Railroad Company. No opinion. Motion for leave to appeal to the court of appeals denied. BEHRENBURG, Respondent, v. FUNK, Appellant. (Supreme Court, Appellate Division, Second Department. July 23, 1900.) Action by Bernhardt Behrenburg against Jacob Funk. No opinion. Judgment of the municipal court affirmed, with costs. FITZSIMONS, C. J., and HASCALL, J. concur. BIEVING, Respondent, v. NASSAU ELECTRIC R. CO., Appellant. (Supreme Cor Appellate Division, Second Department. tober 5, 1900.) Action by Frederick Bieving In re BLAKE. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) In the matter of petition of Catherine Blake for the repayment to her from the estate of Anthony Blake, deceased, of moneys paid out by her for her support. PER CURIAM. Decree of surrogate's court affirmed, without costs to either party. Held, that under the will of Anthony Blake, deceased, the petitioner is entitled to receive during her natural life the income from the trust fund of $4,000 set apart for her support, and such part of such principal sum as may be needful therefor, considering all the circumstances and without reference to what income she may receive from her individual property or from other sources. Held, further, that under the evidence in this proceeding it cannot be said that the surrogate's court did not properly exercise its discretion in fixing the amount to be paid annually to the appellant. In case of any material change in the circumstances of the parties, they are at liberty to apply to the surrogate's court for a modification of the decree. All concur. SPRING, J., concurs upon the ground, only, that the surrogate's court properly exercised its discretion. BLISS et al., Plaintiffs, v. VILLAGE OF BALDWINSVILLE, Defendant. (Supreme Court, Special Term, Onondaga County. May, 1900.) Action by Charles N. Bliss and others against the village of Baldwinsville to foreclose mechanics' liens. C. P. Ryan, J. C. Meldram, and E.. N. Wilson, for plaintiffs. J. W. Shea, for defendant. HISCOCK, J. Judgment is ordered for defendant upon the ground that Baldwin & Ostrander completed the building contracted to be built for defendant by Jennie Van Dusen, under an arrangement with said defendant to so complete it for the moneys unpaid on said contract when abandoned by said Van Dusen, and save themselves from liability as her bondsmen; that defendant had the right under such arrangement to pay to said Baldwin & Ostrander the amount not earned under said contract when abandoned as aforesaid, and which moneys plaintiffs seek to reach in this action. McChesney v. City of Syracuse, 75 Hun, 503, 27 N. Y. Supp. 508. Judgment for defendant. BRADLEY et al. v. BRADLEY. (Supreme Court, Appellate Division, Third Department. September 11, 1900.) Action by Nathaniel L. Bradley and Clarence P. Bradley against Peter B. Bradley. No opinion. Motion for leave to go to court of appeals granted. Order to be settled by PARKER, P. J. See 65 N. Y. Supp. 514. BRENNAN, Appellant, v. BRENNAN, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 10, 1900.) Action by James Brennan against Cora Brennan. No opinion. Judgment affirmed, with costs. BRINCKERHOFF et al. v. FARIAS et al. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) Action by Edwin R. Brinckerhoff and another, as executors and trustees, etc., against Marie C. Farias and another, impleaded with others. No opinion. Motion for reargument denied. See 65 N. Y. Supp. 358. BROWN, Respondent, V. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 12, 1900.) Action by Loretta Brown, an infant, etc., against the Brooklyn Heights Railroad Company. No opinion. Judgment and order unanimously affirmed, with costs. BROWN, Respondent, V. METROPOLITAN ST. RY. CO., Appellant. (City Court of New York, General Term. October 29, 1900.) Action by Sophie F. Brown against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Henry A. Robinson, for appellant. M. P. O'Connor, for respondent. PER CURIAM. Judgment affirmed, with costs. BRUCE v. HURLBUTT. (Supreme Court, Appellate Division, Third Department. September 11, 1900.) Action by De Witt Bruce against Gansevoort De Witt Hurlbutt. No opinion. Order affirmed, with $10 costs and disbursements. BUFFALO NATURAL GAS FUEL CO., Respondent, v. BARBER ASPHALT PAV. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 9, 1900.) Action by the Buffalo Natural Gas Fuel Company against the Barber Asphalt Paving Company. No opinion. Judgment and order affirmed, with costs. BURGIE, Appellant, v. DIME SAV. BANK OF WILLIAMSBURGH et al., Respondents. (Supreme Court, Appellate Division, Second Department. July 17, 1900.) Action by Frederick Burgie, treasurer, etc., against the Dime Savings Bank of Williamsburgh and Anton Kluppel, wrongfully claiming to be trustee of the Journeymen Bakers' & Confectioners' International Union, No. 5. No opinion. Interlocutory judgment affirmed, with costs. BURKHARD, Appellant, v. CROUCH, Respondent. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) Action by Julia Klem Burkhard against Frank P. Crouch. No opinion. Judgment affirmed, with costs. BURNHAM, Respondent, v. DENIKE et al., Respondents (MESNIER, Appellant). (Su and 100 New York State Reporter preme Court, Appellate Division, Second_De- | deza, Gilliams & Co., against Ellen C. Osber partment. October 26, 1900.) Action by Eliz- and another. No opinion. Order affirmed abeth A. Burnham against Charles W. Den- with costs. See 65 N. Y. Supp. 450. ike and others. PER CURIAM. The judgment under which the sale was made having been reversed by this court, the purchaser cannot be compelled to take title. Order reversed, without costs, and motion to be relieved from the purchase granted, without costs. BURTON, Respondent, v. BURTON, Appellant. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) Action by Isabella M. Burton against J. Howard Burton. No opinion. Motion to open default granted, on payment of $10 costs, and on condition that the appeal papers be filed and served within 10 days, and the case brought on for argument at the November term. See 65 N. Y. Supp. 1129. BUSCH, Appellant, v. CUMMINGS, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 9, 1900.) Action by Frederick A. Busch against Lowell M. Cummings. No opinion. Order affirmed, with costs. CARSON v. PRESS CO. (Supreme Court Appellate Division, Third Department. S tember 11, 1900.) Action by Robert Carsel an infant, by David P. Carson, his guard ad litem, against the Press Company. No op ion. Motion denied. CATON, Respondent, v. NEW YORK & Q C. RY. CO., Appellant. (Supreme Court, Appellate Division, Second Department. July 2 1900.) Action by Winfred Caton, an infact BUSH, Respondent, v. DELAWARE, L. & etc., by Adelia Caton, her guardian ad liter W. R. CO., Appellant. (Supreme Court, Ap- against the New York & Queens County Railpellate Division, Third Department. Septem-way Company. No opinion. Judgment u ber 11, 1900.) Action by Lottie Bush, as ad- animously affirmed, with costs. ministratrix, etc., against the Delaware, Lackawanna & Western Railroad Company. No opinion. Judgment and order affirmed, with costs. All concur, except PARKER, P. J., and KELLOGG, J., who dissent. CHASE, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, A pellate Division, Second Department. October 19, 1900.) Action by Harry W. Chase against the Metropolitan Street-Railway Company. PER CURIAM. Judgment and order re versed, and new trial granted, costs to abide the event, unless within 20 days plaintiff stipulate to reduce recovery of damages to the SUE of $1,000, and extra allowance proportionately in which case the judgment, as modified, is unanimously affirmed, without costs of this ap peal to either party. HIRSCHBERG, J., dissents only as to the reduction. CHURCH, Appellant, v. WALSH et al., Re spondents. (Supreme Court, Appellate Divi sion, Second Department. July 23, 1900.) A tion by George W. Church against Elizabeth Walsh and others. PER CURIAM. Upon this motion for re argument it now appears that there is no substantial opposition to the dismissal of the ap peals, but that the real controversy is as to whether any costs shall be awarded on such dismissal. After careful re-examination of al the papers, we are satisfied that both appeals should be dismissed, without costs. The orders heretofore made, denying the motions to dis miss, will be vacated, and new orders made in accordance with this memorandum. In re CITY OF BUFFALO. (Supreme Court, Appellate Division, Fourth Department. October 9, 1900.) Motion by the city of Buf falo to open Delevan avenue across the tracks |