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quired the payment of said costs and dis- of appeal has been served upon them albursements by the respondent who in that though they had become parties to the proproceeding was the appellant here. The ceeding. The court cannot deprive them of question of the taxation of these costs has, the rights which they had secured, upon an therefore, been twice presented, once at the appeal to which they are not parties. The Special Term and once at the General Term : appeal should be dismissed, with ten dollars and this seemingly should have been an end costs and disbursements. Present -- Van of the matter. After the entry of judgment Brut, P. J., Williams, O'Brien, Ingraham and the issuance or an execution, an order and Parker, JJ. to examine the appellant in suplementary Henry Diedel, Respondent, v. The New York proceedings was granted. Thereupon, a Elevated Railroad Company and The Manmotion was made to set aside such order hattan Railway Company, Appellants. —upon the ground that the taxation originally Judgment mollified as directed in opinion made by the clerk was unauthorized, and and as modified, atlirmed, without costs.-the judgment founded thereon void. The PER CURIAM: We think that the fee damage motion was denied at the Special Term, and allowed is supported by the evidence. The on appeal the oriler denying such motion rental damage, however, is too high. That of was affirmed by this App iate Division, No. 375 Third avenue should be reduced to Thereafter the appellant made this motion $7% a year, and of No. 513 Third avenue to to set aside the taxation and the execution $120 a year. The extra allowance contained upon the ground that Cassidy v. Ur Farlauud in the judgment must be correspondingly (139 N. Y. 201) sustains the proposition that reduced. The judgment should be modified no authority or power whatever was con accordingly and as thus modified, attirmed, ferred upon the clerk to tax the disburse. without costs to either party. Present ments, and that, therefore, the execution Van Brunt. P. J., Williams, O'Brien, Ingraissued had no judicial determination upon! ham and Parker, JJ. which it could rest; and that, under the William H. Price, Respondent, V. The Ohio authority of Komprkup (59 NY. 212), Falls Car Company, Appellant. - Judgment the appellant has the right at any time to affirmed, with costs.assail the validity of the judgment entered PER CURIAM: As to the plaintiff's right to reupon the clerk's action. Te do not intend cover a broker's commission for the sale of to examine anew this question, it having the cars alleged to have been brought about been presented and the same authorities by his procurement, there was a clear cut examined upon the former appeal, and we question of fact, and the judge in his charge, must regard the decision then made as an in which every request submitted by the deallju lication upon the precise question now fendant was embodied, and to which no expresented. The order should be affirmed, ception was taken, clearly presented the subwith ten dollars costs and disbursements, ject to the jury. We lo not think that the Present- Van Brunt, P. J., Williams, Pat verdict was so clearly against the law that a terson, ('Brien and lugraham, JJ.

direction at the close of the case in defendPeter B. Olney, Receiver. Respondent, v. Frank ant's favor would have been proper; and the

W. Goodwin, Appellant.- Order affirmed, question having been presented to the jury with ten dollars costs and disbursemeuts in an unexceptional charge we find no legal PER CURIAM: The order in this case should ground for interfering with the verdict. The be affirmed on the authority of Munzinger only exception taken was to the ruling exv. Courier Co. (82 Hun, 575). Order affirmeil. cluding the conversation between the dewith ten dollars costs and disbursements. fendant's president and one Matthews. This Present -- Van Brunt. P. J., Barrett, Rum we have examined, but do not regard the Sev, O'Brien and Ingraham, JJ.

ruling as arroneous. The judgment should, Sarah J. Sawyer, Appellant, y. William W. therefore, be affirmed, with costs. Present

Badger et al., Respondents. - Judgment af - Van Brunt, P. J., Rumsey, Patterson, firinel, with costs.

O'Brien and Ingraham, JJ. PER CIRIAM: The rulings of the court upon Max Aigner v. The Mayor.-- Motion denied. the several exceptions to the admission and . The Breckenridge Company v. James D. Perrejection of evidence were correct. The sin; kins et al.-. Motion denied. gle question presented which requires exam. Mary (. Bernard v. Bernard S. McKean - Moination is, whether the findings of the trial tion denied. judge were supported by the evidence. On Samuel Bacharach v Manhattan Railway Comcareful consideration of all the testimony, i pany.-- Motion for resettlement granted. we are clearly of the opinion that the learned 'Colwell Lead Company y. Leander S. Sire.judge was justified in coming to the conclu- Motion denied sion that the plaintiff failed to prove that the Frederick L. Colwell v. Genevieve R. Colwell. transfer in question was made with intent to - Motion denied. hindler, delay and defraud the creditors of Thomas N. Dwyer, Plaintiff. v. James Rorke. Josephine M. Mack. The judgment shouldDefendant.-- Motion granted, unless the be afirmed, with costs. Present -- Van: plaintiff within teu days after notice of the Brunt, P. J., Rumsey, Patterson, O'Brien entry of the order hereon shall give a bond and Iugraham, JJ.

with two sureties in the penalty of $15.000, John M. Bemis and Edward J. H. Tamsen, as conditioned to pay to the defendant the Sheriff of the City and County of New York, whole or such part of the sum of $10,000 Appellants, v. Collis P Huntington, Re. received by the plaintiff from the Central spon lent. -- Appeal (lismissed, with ten dol- Trust ('ompany, with interest thereon from lars costs and lisbursements.

the time of such receipt, as the defendant PER CURIAM: We do not see how the appeal shall be finally adjudged to be entitled to. in this action can be entertained upon the Charlotte W. Gregan v. Charles J. Buchanan. notice of appeal as served. The notice of - Motion granted, with ten dollars costs. motion was addressed to the parties who Charles Hutchinson v. Mary F. Root. - Motion had maile claims upon the defendant, and for resettlement granted. some of these parties appeared in court, as Reuben Krause, Respondent, V. Thomas is shown by the order from which the appeal Hagan, Appellant. Impleaded, etc.-- Judgis attempted to be taken. These parties, by ment affirmed by default, with costs. virtue of this order, acquired certain rights; William Knauss v. G. Kreuger Brewing Comand it is sought to deprive them of those pany. -- Motion granted, with ten dollars rights by the appeal taken hereiu. No notice costs.

Fourth DEPARTMENT, MARCH TERM, 1897. [Vol. 15, App. Div.]

Edward B. Lawler v. William F. Lennon.- Gould Roofing Company, Appellant, v. Peter Motion granted, with ten dollars costs.

L Ryan, Respondent.- Order attirmed, with The People of the State of New York ex rel. ten dollars costs and disbursemeats. No

The International Navigation Company, Re- opinion. spondent, v. Edward P. Barker and others, Charlotte W. Gregan v. Charles J. Buchanan.as Commissioners of Taxes and Assessments Motion granted, with ten dollars costs. of the City of New York, Appellants--- Order Mutual Life Insurance Company of New York affirmed, with ten dollars costs and disburse. v. Mary E. Bailey et al.; Same v. Richardi. ments. No opinion.

son et al.; Same v. Whalen et al.- Motion The People of the State of New York ex rel. denied. Eugene A. Masterson, Respondent, v. The John VeHale. Respondent, v, Fidelity and Board of Police, etc., of the City of Newi Casualty Company, Appellant. - Motion deYork. Appellant.--Order affirmed, with ten nied, with ten dollars costs. dollars costs and disbursements. No opinion. In the Matter of the Petition of Timothr DonoMargaret A. Pooler V. Manhattan Railway van. - Motion granted.

Company. - Motion granted, with ten dollars Jeremiah T. Smith, Respondent. v. Joseph costs.

Fleischman, Appellant Impleaded with The People of the State of New York ex rel Others.-- Order affirmed, with ten dollars Patrick McElroy v. Theodore Roosevelt and costs and disbursements. No opinion. Others. - Motion for resettlement granted. Charles MacRae . Charles W. Graham.The People of the State of New York ex rel., Motion to amend notice of appeal grantel

Commissioners of Public Charities v. Henry upon payment of ten dollars costs to the D. Garrett - Motion granted, with ten dol i respondent lars costs

In the latter of Stanley M. Hatfield. – Motion Martin Reynolds v. Samuel Smyth et al.-Mo- denied. tion granted, with ten dollars costs.

Willoughby Weston, as Trustee, Appellant, V. The Seventy-thiril Street Building Compan Cornelia P. Goodrich et al., Respondents.

Appellant, v. Francis M Jeneks. Respond Motion granted.
ent.- Order attirmed, with ten dollars costs
and disbursements. No opinion.

FOURTH DEPARTMENT, March TERM, 1897.

Frank M. Carle, Appellant, v. Wellington W. I sent this case at the present term of the Kingsley, Respondent - Motion denied, with court, the inotion to put over the term is out costs. All concurred.

granted. Mary Kiefer, as administratrix of John Kiefer, John W. Nichols v. Rilla E. Nichols,- Motion

Deceased, Respondent, v. The Grand Trunk to dismiss the appeal granted, without costs.
Railway Company of Canada, Appellant. All concurred,
Motion granted. All concurred.

John N. Renninger. Respondent, v. The New Wellington W. Kingsley, Respondent, v. Frank York Central and Hudson River Railroad

M.Carle, Appellant.-Motion denied, without Company, Appellant. - Motion granted and costs. All concurred.

order amended as follows: Ordered, that In the matter of Maria Berrus, an Alleged that part of the order which denies a motion

Incompetent Person. - Motion to dismiss the for a new trial made on a case and excepappeal granted, with ten dollars costs and tions, on the ground that the verdict is condisbursements. All concured.

trary to the evidence, and that it is for exIn the matter of Proving the will of Nehemiah cessive damages, affirmed; and that part of

Denton, Deceased.--Motion denied, without the order which clenies a motion for a new costs. All concurred.

trial on exceptions taken, and because the In the latter of the Appraisal of the Property verdict is contrary to law, is, together with of George B. Sherman, Deceased, under the the judgment, reversel, and a new trial orAct in Relation to Taxable Transfers of dered, with costs to abide the event. All couProperty --Orrier affirmed, with ten dollars curred, except Ward, J., dissenting Custs and disbursements. All concurred. Johannah Scanlon, Respondent, v, The City of The People of the state of New York, Re Watertown and John Ryan and Fred very

spondent, r. John F. Dorthy, Appellant. – Appellants.- lotion denied, with ten dollars Motiou to put case over the term granted.-- costs. All concurred. PER CIRLAM: It appearing by the papers Anice S. Smith, as Administratrix, etc., Represented to the court upon an application spondent, v. The New York Central and Hudto postpone the argument of the appeal in son River Railroad Company, Appellant.this case that there has been great delay in Motion denied, with ten dollars costs. All presenting to the court the appeal, both on concurred. the part of the prosecution and the defense, Charles Tullar, Respondent, v. The Silrer Metal and the circumstances being such that it is Manufacturing Company, Appellant.- Moapparent this record cannot be printeil and tion denied. All concurred. the briefs prepared so as to properly pre

INDEX.

PAGE.
ABUSE OF LEGAL PROCESS – An action for abuse of legal process a
sulpornu issued to coerce payment - the proceeding complained of need not hare
been terminated.] If legal process is willfully made use of for a purpose not
justitied by law, this is an abuse for which an action will lie; in such an
action it is not necessary that the plaintiff should allege or prove that the
proceeding complained of has been terminated.

In an action of this character it appeared that the defendant, who was an
attorney at law at Potseiam, entered into an agreement with Charles M.
Woolward, who resided at Gouverneur, distant about thirty miles from
Potsdam, under which the defendant was to procure accounts against divers
persons to be assigned to Woodward, who was to commence suits, in his
own name as plaintiff, in the Justice's Court at Gouverneur, and, at the time
of having the summons issued in these actions, was also to take out sub.
ponas and have them served upon the various defendants. For his co-ope-
ration in this undertaking Woodward received from the attorney, the present
defendant, a small payment.

One Dishaw, the plaintiff in the present action, who resided in the town
of Brasher, about twenty-four miles from Potsdam and nearly sixty miles
from Gouverneur, was indebted to a resident of Potsdam in the sum of
about twenty dollars. The claim was assigned to Woodward, who began an
action in the Justice's Court at Gouverneur, and had a summons and subpana
issued against and served upon Dishaw. As the latter failed to appear
upon the return day of the summons, the attorney, the present defendant,
made an affidavit that the testimony of Dishaw was material to Woodward,
the plaintiff in the action in the Justice's Court, and upon proof that
Dishaw had not obeyed the subpæna, an attachment was issued against him;
he was brought before the justice upon the adjourned day, was tined for his
disobedience and was also charged with the expenses of the atachment. At
the same time Woodward, as assignee, recovered judgment against Dishaw,
who, although he was present, was not called as a witness.

While an execution against his person was still in the hands of a con-
stable unserved, Dishaw brought the present action.

Held, that the action could be maintained as one for an abuse of legal
process;

That from the evidence the jury might have found that the present
defendant caused the subpoena and the subsequent attachment to be issued,
not for the purpose of procuring the attendance of the present plaintiff
as a witness in the case, but under the idea that, as the claim was small,
he would pay it rather than submit to the discomfort and expense of
attending court at so great a distance from his residence;

That such a use of a subpoena was a perversion and abuse of the process
of the court, and was calculated to bring the administration of justice into
reproach and contempt. DISHAW 1. WADLEIGHI .........

......... 205
ACCIDENT - Resulting from negligence.

See NEGLIGENCE.
ACCOUNTING - By the trustees of a corporation.

See CORPORATION.
By erecutors and administrators.

See EXECUTOR AND ADMINISTRATOR.
Betireen partners.

See PARTNERSHIP,
Between principal and agent.
See PRINCIPAL AND AGENT.

ACKNOWLEDGMENT - An assignment of a bond and mortgage, acknorrl.
edged before one of the assignees, is a nullity its record is incalid a sub-
sequent assignee bound by the defect.

Sce RECORD.
ACTION — Issuing of attachments in.

See ATTACHMENT,
Relating to corporations generally.

See CORPORATION.
Election of remeilies.

See ELECTION.
Time for commencing.

See LIMITATION OF ACTION.
Misjoinder of causes of action.

See MISJOINDER.
For money received.

See MONEY RECEIVED.
Relating to municipal corporations.

See MUNICIPAL CORPORATION.
Parties to.

See PARTY.
When authorized against a receiver.

See RECEIVER.
- An action by a turpayer stands in the same position before the court as
any other suit.

See TRIAL.
- Proceedings on the trend of.

See TRIAL.
ADJUDICATION :

See JUDGMENT.
ADMINISTRATOR:

See EXECUTOR AND ADMINISTRATOR.
ADVERSE POSSESSION - Title by.) Where the record title to premises
agreed to be conveyed under a contract for the conveyance of real estate is
defective, but the vendor claims that the defect has been cured by adverse
possession, the burden is on him to establish that fact.

Mere possession for twenty years is not sufficient to establish title by
adverse possession, as the possession of land is always presumed to be in
subordination to the legal title. MIXER 0. HILTON.. ..
AGENCY Generally.

See PRINCIPAL AND AGENT.
AGENT- Of a corporation.

See CORPORATION.
- Of an insurance company.

See INSURANCE.
ALTERATION OF INSTRUMENT - Bills and notes --- an unauthorized
alteration by an agent of the payee, does not render (4 note roid.
See WALDORF 0. SIMPSON....

....... 297
AMENDMENT -- Of pleadings.

See PLEADING.
ANSWER:

See PLEADING.
APPEAL Failure to more for a nonsuit or for the direction of a verdict.)
1. Where, upon the trial of an action, no motion is made for a nonsuit or for
the direction of a verdiet for the defendants, they thereby concede that a
question of fact is presented for determination by the jury, and cannot upon
appeal be heard to say that the verdict is without evidence to support it.

STEIXAU 0. SCHEUER...

PAGE

.....

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PAGE.

APPEAL- Continued.

2. - The objection of double employment of a broker cannot be raised for the
first time upon appeal - irhat objection is insufficient to raise it.] Where in an
action by a broker against his principal to recover compensation for his serv-
ices the objection of double employment is not pleaded nor raised on the
trial, it cannot be raised for the first time upon appeal; it is not raised by a
motion made at the close of the plaintiff's case to dismiss the complaint upon
the ground that no cause of action has been made out. ABEL 1. DISBROW... 536

3. — Not dismissed because of the absence of papers, not filed by the
respondent.) Where the certificate of the clerk shows that the appeal book
contains all the papers in an action which had been filed in the clerk's office,
the respondent is not entitled to have the appeal dismissed, because of the
absence from the appeal book of papers which it was his duty to, and which
he did not, file. ROSSKAM V. CURTIS. ..................................... 190

4. — Remedy by motion to correct a judgment not following the decision.]
A motion to amend a judgment, which does not follow the decision made in
the action, is in accordance with proper practice, and the Appellate Division
may, upon an appe:al from an order denying such a motion, grant the proper
relief. FOLEY 1. FOLEY....

276
5. - Certificate that the case contains all the evidence. Where there is
no certificate that the case contains all the evidence, the Appellate Division
is not in a position to determine whether there was error below in submitting
to the jury the question of the plaintiff's damages or that of the plain-
tiff's contributory negligence. CAVEN 1. CITY OF TROY................. 163

- Stay of proceedings -- appeal by the elevated railroals from a judgment
for past damages, and enjoining the road unless fee damages be paid security
required.
See Exo 2. N. Y. ELEVATED R. R. Co....

... 336
- Baxtardy proceedings upon an appeal from a filintion order trial de
novo in the County Court right of appeal to the Appellate Division.

See BOARD OF ('OMRS. 1. MCCLOSKEY............................ 41
- When a party aggriered is not confined to a remedy by appeal prorided
by the statute.

See MCKECINIE BREWING ('0. v. TRUSTEES..
- Liquor Tor Lar -- appeal from an order directing a tax certificate to
issue - restitution.

See PEOPLE EX REL. THOMAS 7. SACKETT ........................ 290
- Judgment - error in calculating damages the remody is by motion.

See LOY ". METROPOLITAN ELEVATED RAILWAY CO................ 1
ARMY - Armorers and janitors of the National Guard they are not sub-
ject to civil service rules.] 1. Armorers and janitors of armories of the
National Guard belong to the military service of the State and are not sub-
ject to the civil service regulations. MATTER OF GOEDEL 1. PALMER....... 86

2. -- Their compensation is a county charge 1 Prior to the adoption of
the Constitution which went into effect January 1, 1895, their compensation
was a county charge, and it still remains such. Id.

3. - It need not be cocered by the annual legislative appropriation. The
provisions of section 179 of the Military Code, as amended by chapter 8.53 of
the Laws of 1896, declaring that their compensation “shall be a county
charge upon the county in which such armory or arsenal is situated, and
shall be levied. collected and paid in the same manner as other county
charges are levied, collected and paid," does not conflict with the final clause
of section 3 of article XI of said (onstitution, which section, after providing
for the organization of the militia, closes with the statement, “and it shall
be the duty of the Legislature, at each session, to make sufficient appro-
priations for the maintenance thereof."

The object of section 3 of article XI was to require the maintenance of the
National Guard and to oblige the Legislature to make sufficient appropria-
tions for its maintenance, but there was no intention to forbid any money's
being applied to the support of the militia other than those annually appro-
priated by the Legislature for that purpose. Id.

...... 139

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