App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. quired the payment of said costs and disbursements by the respondent who in that proceeding was the appellant here. The question of the taxation of these costs has, therefore, been twice presented, once at the Special Term and once at the General Term; and this seemingly should have been an end of the matter. After the entry of judgment and the issuance of an execution, an order to examine the appellant in supplementary proceedings was granted. Thereupon, a motion was made to set aside such order upon the ground that the taxation originally made by the clerk was unauthorized, and the judgment founded thereon void. The motion was denied at the Special Term, and on appeal the order denying such motion was affirmed by this App late Division. Thereafter the appellant made this motion to set aside the taxation and the execution upon the ground that Cassidy v. McFarland (139 N. Y. 201) sustains the proposition that no authority or power whatever was conferred upon the clerk to tax the disbursements, and that, therefore, the execution issued had no judicial determination upon which it could rest; and that, under the authority of Kamp v. Kamp (59 N. Y. 212), the appellant has the right at any time to assail the validity of the judgment entered ! upon the clerk's action. We do not intend to examine anew this question, it having been presented and the same authorities examined upon the former appeal, and we must regard the decision then made as an adju lication upon the precise question now presented. The order should be affirmed, with ten dollars costs and disbursements, Present -- Van Brunt, P. J., Williams, Patterson, O'Brien and Ingraham, JJ. Peter B. Olney, Receiver. Respondent, v. Frank W. Goodwin, Appellant.- Order affirmed, with ten dollars costs and disbursements.-PER CURIAM: The order in this case should be affirmed on the authority of Munzinger v. Courier Co. (82 Hun, 575). Order affirmed, with ten dollars costs and disbursements. Present Van Brunt, P. J., Barrett, Rumsey, O'Brien and Ingraham, JJ. Sarah J. Sawyer, Appellant, v. William W. Badger et al., Respondents. - Judgment affirmed, with costs. PER CURIAM: The rulings of the court upon the several exceptions to the admission and rejection of evidence were correct. The single question presented which requires examination is, whether the findings of the trial judge were supported by the evidence. On careful consideration of all the testimony, we are clearly of the opinion that the learned judge was justified in coming to the conclusion that the plaintiff failed to prove that the transfer in question was made with intent to hinder, delay and defraud the creditors of Josephine M. Mack. The judgment should be affirmed, with costs. Present - Van Brunt, P. J., Rumsey, Patterson, O'Brien and Ingraham, JJ. John M. Bemis and Edward J. H. Tamsen, as Sheriff of the City and County of New York, Appellants, v. Collis P Huntington, Respondent.- Appeal dismissed, with ten dollars costs and disbursements. PER CURIAM: We do not see how the appeal in this action can be entertained upon the notice of appeal as served. The notice of motion was addressed to the parties who had made claims upon the defendant, and some of these parties appeared in court. as is shown by the order from which the appeal is attempted to be taken. These parties, by virtue of this order, acquired certain rights; and it is sought to deprive them of those rights by the appeal taken herein. No notice of appeal has been served upon them although they had become parties to the proceeding. The court cannot deprive them of the rights which they had secured, upon an appeal to which they are not parties. The appeal should be dismissed, with ten dollars costs and disbursements. Present Van Brunt, P. J., Williams, O'Brien, Ingraham and Parker, JJ. Henry Diedel, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants. Judgment modified as directed in opinion and as modified. affirmed, without costs.-PER CURIAM: We think that the fee damage allowed is supported by the evidence. The rental damage, however, is too high. That of No. 375 Third avenue should be reduced to $72 a year, and of No. 513 Third avenue to $120 a year. The extra allowance contained in the judgment must be correspondingly reduced. The judgment should be modified accordingly and as thus modified, affirmed, without costs to either party. Present Van Brunt. P. J., Williams, O'Brien, Ingraham and Parker, JJ. William H Price, Respondent, v. The Ohio Falls Car Company, Appellant. - Judgment affirmed, with costs. PER CURIAM: As to the plaintiff's right to recover a broker's commission for the sale of the cars alleged to have been brought about by his procurement, there was a clear cut question of fact, and the judge in his charge, in which every request submitted by the defendant was embodied, and to which no exception was taken, clearly presented the subject to the jury. We do not think that the verdict was so clearly against the law that a direction at the close of the case in defendant's favor would have been proper; and the question having been presented to the jury in an unexceptional charge we find no legal ground for interfering with the verdict. The only exception taken was to the ruling excluding the conversation between the defendant's president and one Matthews. This we have examined, but do not regard the ruling as erroneous. The judgment should, therefore, be affirmed, with costs. Present Van Brunt, P. J., Rumsey, Patterson, O'Brien and Ingraham, JJ. Max Augner v. The Mayor.-- Motion denied. The Breckenridge Company v. James D. Perkins et al. Motion denied. Mary C. Bernard v. Bernard S. McKean - Motion denied. Samuel Bacharach v. Manhattan Railway Company. Motion for resettlement granted. Colwell Lead Company v. Leander S. Sire.Motion denied. Frederick L. Colwell v. Genevieve R. Colwell. -Motion denied. Thomas N. Dwyer, Plaintiff. v. James Rorke, Defendant. Motion granted, unless the plaintiff within ten days after notice of the entry of the order hereon shall give a bond with two sureties in the penalty of $15.000, conditioned to pay to the defendant the whole or such part of the sum of $10,000 received by the plaintiff from the Central Trust Company, with interest thereon from the time of such receipt, as the defendant shall be finally adjudged to be entitled to. Charlotte W. Gregan v. Charles J. Buchanan. Motion granted, with ten dollars costs. Charles Hutchinson v. Mary F. Root.— Motion for resettlement granted. Reuben Krause, Respondent, v. Thomas Hagan, Appellant. Impleaded, etc.-- Judgment affirmed by default, with costs. William Knauss v. G. Kreuger Brewing Company. Motion granted, with ten dollars costs. Fourth DeparTMENT, MARCH TERM, 1897. [Vol. 15, App. Div.] Edward B. Lawler v. William F. Lennon.- The People of the State of New York ex rel. Gould Roofing Company, Appellant, v. Peter L Ryan. Respondent.- Order affirmed, with ten dollars costs and disbursemeats. No opinion. Charlotte W. Gregan v. Charles J. Buchanan.— Motion granted, with ten dollars costs. Mutual Life Insurance Company of New York v. Mary E. Bailey et al.; Same v. Richardson et al.; Same v. Whalen et al.- Motion denied. John McHale, Respondent, v. Fidelity and Casualty Company, Appellant.-Motion denied, with ten dollars costs. In the Matter of the Petition of Timothy Dono- Martin Reynolds v. Samuel Smyth et al.-Mo- In the Matter of Stanley M. Hatfield.- Motion Willoughby Weston, as Trustee, Appellant, v. FOURTH DEPARTMENT, MARCH TERM, 1897. Frank M. Carle, Appellant, v. Wellington W. In the Matter of Maria Berrus, an Alleged In the Matter of Proving the Will of Nehemiah Denton, Deceased. Motion denied, without costs. All concurred. In the Matter of the Appraisal of the Property of George B. Sherman, Deceased, under the Act in Relation to Taxable Transfers of Property --Order affirmed, with ten dollars costs and disbursements. All concurred. The People of the state of New York, Respondent, v. John F. Dorthy, Appellant. Motion to put case over the term granted.PER CURIAM: It appearing by the papers presented to the court upon an application to postpone the argument of the appeal in this case that there has been great delay in presenting to the court the appeal, both on the part of the prosecution and the defense, and the circumstances being such that it is apparent this record cannot be printed and the briefs prepared so as to properly pre sent this case at the present term of the court, the notion to put over the term is granted. John N. Nichols v. Rilla E. Nichols.- Motion to dismiss the appeal granted, without costs. All concurred. John N. Renninger. Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.- Motion granted and order amended as follows: Ordered, that that part of the order which denies a motion for a new trial made on a case and exceptions, on the ground that the verdict is contrary to the evidence, and that it is for excessive damages, affirmed; and that part of the order which denies a motion for a new trial on exceptions taken, and because the verdict is contrary to law, is, together with the judgment, reversed, and a new trial ordered, with costs to abide the event. All concurred, except Ward, J., dissenting. Johannah Scanlon. Respondent, v. The City of Watertown and John Ryan and Fred Avery Appellants.--Motion denied, with ten dollars costs. All concurred. Anice S. Smith, as Administratrix, etc.. Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Motion denied, with ten dollars costs. All concurred. Charles Tullar, Respondent, v. The Silver Metal Manufacturing Company, Appellant.- Motion denied. All concurred. INDEX. - ABUSE OF LEGAL PROCESS An action for abuse of legal process· In an action of this character it appeared that the defendant, who was an One Dishaw, the plaintiff in the present action, who resided in the town While an execution against his person was still in the hands of a con- Held, that the action could be maintained as one for an abuse of legal That from the evidence the jury might have found that the present That such a use of a subpoena was a perversion and abuse of the process ACCIDENT- Resulting from negligence. ACCOUNTING - By the trustees of a corporation. By executors and administrators. See EXECUTOR AND ADMINISTRATOR. Between partners. See PARTNERSHIP. Between principal and agent. See PRINCIPAL AND AGENT. PAGE. 205 ACKNOWLEDGMENT - An assignment of a bond and mortgage, acknowl- See RECORD. ---- An action by a taxpayer stands in the same position before the court as any other suit. See TRIAL. ADVERSE POSSESSION - Title by.] Where the record title to premises Mere possession for twenty years is not sufficient to establish title by AGENCY Generally. See PRINCIPAL AND AGENT. AGENT Of a 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 a note coid. See WALDORF . SIMPSON. AMENDMENT - Of pleadings. See PLEADING. ANSWER: See PLEADING. - APPEAL Failure to move for a nonsuit or for the direction of a verdict.] STEINAU . SCHEUER... . . . PAGE APPEAL- Continued. PAGE. 2. The objection of double employment of a broker cannot be raised for the 4. Remedy by motion to correct a judgment not following the decision.] 5. Certificate that the case contains all the evidence.] Where there is Stay of proceedings — appeal by the elevated railroads from a judgment 190 276 163 See ENO . N. Y. ELEVATED R. R. Co. 336 Bastardy proceedings upon an appeal from a filiation order — trial de 41 When a party aggrieved is not confined to a remedy by appeal provided See McKECHNIE BREWING Co. v. TRUSTEES... 139 Liquor Tax Law — appeal from an order directing a tax certificate to 290 1 See PEOPLE EX REL. THOMAS 7. SACKETT Judgment-error in calculating damages the remedy is by motion. ARMY Armorers and janitors of the National Guard they are not sub- 2. 3. It need not be covered by the annual legislative appropriation.] The The object of section 3 of article XI was to require the maintenance of the 86 |