FIRST DEPARTMENT, DECEMBER TERM, 1896. brought by the came plaintiffs against the Metropolitan Elevated Railroad Company and another with regard to No. 59 Murray street. (See Phillips v. Metropolitan Elevated R. Co., ante, p. 283.) We think the sum allowed for fee value in the present case and also the award for rental damages were fair and reasonable. The questions of law are substantially the same as in the Murray street case, and have been suficiently considered in the opinion above referred to. No other questions calling for special consideration are here presented. The judgment should, therefore, be affirmed, with costs. Rumsey, Williams, O'Brien and Ingraham, JJ., concurred. Elizabeth S. Van Beuren and Others. Appellants, v. Sarah Lazarus and Others. Respondents. -Judgment reversed, and judgment entered as directed in opinion, with costs of the action and appeal. PER CURIAM: For the reasons stated in the opinion of Mr. Justice williams in the case of Van Beuren v. Wotherspoon, decided herewith (see ante, p. 421), the judgment appealed from should be reversed and a judg ment entered appointing a suitable person to appraise and value the lot and building, etc., as prayed in the complaint, with costs of the action and of the appeal. Present Van Brunt, P. J.. Rumsey, Williams, Patterson and Ingraham, JJ. W. Preston Hix v. Edison Electric Light Company. Application denied, with dollars costs. ten PER CURIAM: This is an application made by the respondent, after the reversal of a judg ment, to resettle the case upon which the appeal was heard, in order that there may be incorporated therein a memorandum made by the judge when the case on appeal was settled by him. It is claimed that if that memorandum had appeared in the record a different aspect would have been given to one of the questions considered by this court in its decision of the appeal. That question related to the authority of the General Electric Company to bind the defendant by certain acts, and it is claimed that the memorandum referred to would have established that there was a failure of proof on the part of the plaintiff to show such successorship in interest of the General Electric Company to the defendant, as would enable it to bind the defendant by anything it did. In the opinion of this court it is said that the defen lant claimed the proof failed to show the defendant's connection with the successor company, but that that point was not taken upon the trial, nor was the case disposed of by any defect of proof in that respect, and "On the contrary, what was deemed to be sufficient proof was furnished, and if the plaintiff inopportunely stopped, as defendant contends, it was undoubtedly because the fact as to the relations of the predecessor and successor company were assumed by both sides." The memorandum above referred to appears to be one made by the judge on the settlement of the case, and from which the respondent would infer that a grave misapprehension existed respecting the nature of an admission made at the trial. From the record, as it was settled by consent of the attorneys, and as it came before us upon their consent, it clearly appeared that it was taken for granted that the General Electric Company was the successor in interest of the Edison Electric Light Company, and that it might be inferred that the plaintiff desisted from making any further proof respecting the relations between the companies by reason of statements in the nature of admissions that the General Electric Company received a certain percentage on a contract referred to the on the trial, and that the inference was inevitable that it received such percentage by virtue of its substitution to the contract rights of the Edison Electric Light Company. Upon this record the counsel for the plaintiff was justified in believing that the admission was made; and, if there is any doubt upon this subject, it is clearly a case of misapprehension as to the effect of this alleged admission by counsel on both sides. Mr. Tomlinson, in his affidavit, now presented to us, states that he assumed throughout the entire trial, and he believes that it was assumed by all parties, that the General Electric Company was the successor of the defendant ing the whole case, that it was so assumed It seems to us, on readby everybody connected with the trial, although the memorandum now sought to be brought to the attention of the court would indicate that the learned judge before whom it was tried on the settlement of the case entertained a different view. no doubt of the authority of the court, even We have after the decision of an appeal, to permit the case to be corrected in furtherance of justice. But we do not think that power should be exercised in this case. very involved and exceedingly intricate case. It was a The question of the successorship of the General Electric Company may be a crucial one in the case. But we are convinced that the failure of the plaintiff to produce further proof of the point under consideration was the result of what was understood to be the situation of the record in regard to that point. It is not claimed nor shown in any way that the General Electric Company was not, as matter of fact, the successor of the Edison Electric Light Company in the particular matter under consideration. All that is claimed is that the judge's memorandum referred to would show that there was a failure of proof. Without deciding whether or not there was sufficient proof without the admission to show the relation of the General Electric to the Edison Light Company, we think the purposes of justice will be better subserved by denying this motion and remitting the parties to a new trial, as already decided, and not to have the case reargued upon a record in respect of which the plaintiff may well and justly claim he was entirely misled by what occurred on the trial. The application must, therefore, be denied, with ten dollars costs. Present-Van Brunt, P. J., Williams, Patterson, O'Brien and InThe People of the State of New York, Regraham, JJ. spondent, v. Michael Solomon, Appellant.Judgment affirmed. PER CURIAM: The offense of larceny was clearly made out upon the evidence in this case. The appellant now, for the first time, makes the claim that he was entitled to use the money which he should have paid over to his employer as an offset against deductions made from his salary on p evious occasions. There was no sufficient or credible testimony to justify the court in finding that such deductions had been made. Even if there had been such testimony, there was no evidence of an agreement or understanding with regard thereto such as would have warranted the defendant in retaining the sums which he collected for his employer. It is quite clear that this latter line of defense was an afterthought, brought up for the first time upon this appeal. It was not suggested below. The record clearly shows an intent on the part of this defendant to embezzle the money in question. When charged by his employer with the offense, he made no explanation, but told the latter, in substance, that he regretted that he had not taken 12 627 12ap628 FIRST DEPARTMENT, DECEMBER TERM, 1896. other property belonging to him. His whole course shows a felonious intent. The judgment was right and should be affirmed. Present Van Brunt, P. J., Barrett, Rumsey, Williams and Patterson, JJ. The People of the State of New York, Respondent, v. Moses Solomon, Appellant.Judgment affirmed. PER CURIAM: For the reasons stated in the opinion in the case of The People v. Michael Solomon, decided herewith, the judgment appealed from should be affirmed. Present Van Brunt, P. J., Barrett, Rumsey, Williams and Patterson, JJ. The Farmers' Loan and Trust Company, as Trustee, Respondent, v. The Hotel Brunswick Company, Defendant, and Josiah H. Baker, as Receiver of the Hotel Brunswick Company, Appellant.- Order affirmed, without costs. PER CURIAM: The question which arose between Mr. Baker and Mr. Sturgis, with regard to the property to be sold under the order appealed from, is no longer of any importance. This court takes judicial notice of the fact that it has modified the order appointing Mr. Sturgis receiver by substituting Mr. Baker in his place. The effect of this is that all the money received upon the sale will pass into Mr. Baker's possession under the previous order. The question, therefore, whether property not covered by the mortgage was sold, is unimportant. As Mr. Baker is the receiver of the company, generally, and as such receiver is entitled to the proceeds both of the sale of the mortgaged property (which he will hold for the plaintiff), and also of what may not have been covered by the mortgage, the disputed question which arose at the time of the sale is, at the present time, of no moment. The order should be affirmed, without costs. Present Van Brunt, P. J., Barrett, Rumsey, O'Brien and Ingraham, JJ. Merritt Ames v. Clara Gerrish.- Application denied. Peter Bryer v. Catharine Foerster. -- Motion denied, with ten dollars costs. Bainbridge Colby, as Receiver, etc., of J. B. Brewster & Co., a Domestic Corporation, Appellant, v. The National Broadway Bank of the City of New York and Others, Respondents. -Order modified by reducing the amount of security to be given by the plaintiff to the sum of $250, as required by section 3272 of the Code, and as modified affirmed, without costs. No opinion. Michaelis Hirschberg, as Administrator, etc., of Alfred Hirschberg, Deceased. Appellant, v. The Metropolitan Street Railway Company, Respondent.- Judgment affirmed, with costs. No opinion. In the Matter of Oscar A. De Long.- Motion In the Matter of the Application of J. Walter The People of the state of New York ex rel. Patrick W. Dwyer, Relator, v. James J. Martin and Others, Police Commissioners, etc., Respondents. -- Proceedings affirmed, with costs. No opinion. The People of the State of New York ex rel. John J. Sullivan, Relator, v. James J. Martin and Others, Police Commissioners, etc., [Vol. 12. Respondents. - Proceedings affirmed, with costs. No opinion. The People of the State of New York ex rel. Thomas Jeffers n, Relator, v. Theodore Roosevelt and Others, Police Commissioners, etc., Respondents. Proceedings affirmed, with costs. No opinion. The People of the State of New York ex rel. William W. O'Connor, Relator, v. Theodore Roosevelt and Others, Police Commissioners, etc., Respondents. - Proceedings affirmed, with costs. No opinion. David Ackerman et al. v. Trustees of New York and Brooklyn Bridge.-Motion denied. William G. Davies et al. v. Francis A. Clark.The case of Halliburton v. Clapp (149 N. Y. 183) holds that an appeal may be taken as matter of right. No leave is, therefore, necessary. Farmers' Loan and Trust Company v. Samuel W. Milbank, as Receiver.- Motion granted. Charles W. Gould, Respondent, v. Edward M. McGillin, Appellant, Impleaded with Others. -Order affirmed, with ten dollars costs and disbursements. No opinion. Charles H. Heck, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.- Judgment affirmed, with costs. No opinion. Bernhard J. Ludwig et al. v. Sarah Lazarus et al. Motion denied. In the Matter of the Application for the Voluntary Dissolution of the Sheet Metal Works. Order affirmed, with ten dollars costs and disbursements. No opinion. In the Matter of the Estate of Benjamin Lord, Deceased. -- Order affirmed, with ten dollars costs and disbursements. No opinion. Henry P. McGown, Jr., Respondent, v. Mary E. McGown, Appellant. - Order affirmed, with ten dollars costs and disbursements. No opinion. Henry P. McGown, Jr., v. Mary E. McGown.— Motion denied. New York City Baptist Mission Society v. Tabernacle Baptist Church.- Motion denied. The People of the State of New York ex rel. Emil Kasschau, Relator, v. Theodore Roosevelt and Others, Police Commissioners, etc., Respondents. Proceedings affirmed, with costs. No opinion. The People of the State of New York, Respondent, v. Jared Flagg, Jr., Appellant.- Motion to dismiss appeal for failure to serve papers granted. The People of the State of New York. Respondent. v. Jared Flagg, Jr., Appellant.— Motion dismissed. Kate Pendergast v. Union Railway Company. Motion denied. Adolf Prince v. Israel Doushkess.- Motion granted, with ten dollars costs, to be credited upon judgment. The People of the State of New York v. Alex- The People of the State of New York v. Mary The People of the State of New York v. Rob- The People of the State of New York v. Wong The People of the State of New York v. Lucien de Riviere.- Motion granted by consent. The People of the State of New York ex rel. Joseph R. Williams, Appellant, v. Stevenson Constable, as Superintendent, etc., Respondent. Order affirmed, with costs, on the authority of People ex rel. Whitney v. Con 12 6 1358 40 12 628 49 240 App. Div.] FIRST DEPARTMENT, DECEMBER TERM, 1896. Motion Urban Manufacturing Company. granted, with ten dollars costs. Simon Kaplan v. New York Biscuit Company. -Motion to resettle. Order granted. stable, decided by this department Septem- | E. S. Higgins Carpet Company v. Charles ber 9, 1896. (Matter of Whitney, 9 App. Div. 621.) Grace Reals, Appellant, v. Fred C. Whitney, Respondent.-Order affirmed, with ten dollars costs and disbursements. No opinion. Bernard J. Tinney v. Margaretta Pierrepont. -Motion to send record back in order that motion may be made for resettlement granted upon payment of ten dollars costs. Franklin C. Thomas v. Dora M. Thomas.Motion denied. Lena Annus, Respondent, v. George Theiss and John Henry Theiss, Appellants.- Motion to dismiss appeal granted, with ten dollars costs. Lena Annus, Respondent, v. George Theiss and John Henry Theiss, Appellants.- Appeal dismissed. No opinion. Clothilde Bodine and Others, Respondents, v. Ronald K. Brown and Others, Appellants.Motion for new trial denied upon opinion heretofore handed down. (See ante, p. 335.) Clothilde Bodine and Others, Respondents, v. Ronald K Brown and Others, Appellants.Motion for leave to go to the Court of Appeals granted. Yellott D. Dechert v. Municipal Electric Lighting Company.-Motion for reargument denied, with ten dollars costs. Joseph Fleischman, Respondent, v. Jeremiah T. Smith, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion. Joseph Fleischman, Appellant, v. Jeremiah T. Smith, Respondent. Jeremiah T. Smith, Respondent, v. Joseph Fleischman, Appellant, Impleaded with Others.-Order affirmed, with ten dollars costs and disbursements, No opinion. Emile F. Friedell, Appellant, v. Franklin Trust Company et al., Respondents.- Motion granted, with ten dollars costs. David Gideon, Respondent, v. Philip J. Dwyer, Appellant.-Order affirmed, with ten dollars costs and disbursements No opinion. David Gideon, Respondent, v. Philip J. Dwyer, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion. In the Matter of the Petition for the Revocation of the Probate of the Last Will and Testament of Mary Kerfoot, Deceased.- Decree affirmed, with costs, to be paid by the appellant Thompson personally. No opinio In the Matter of the Application of the Mayor, etc. In re Ferdinand Forsch. - Reference ordered. Mechanics and Traders' Bank v. Abraham M. Stahl et al.-Motion granted, with ten dollars costs. The National Life Insurance Company, Appellant, v. Elizabeth Walsh, Individually and as Executrix, etc., of Thomas Walsh, Deceased, Respondent.-Order affirmed, with ten dollars costs and disbursements. No opinion. Mary S. Ostrom, Appellant, v. The Standard Fashion Company, Respondent.-Judgment affirmed, with costs. No opinion. Raffaele Padovani v. Tillie E. Smith and Others, ex parte Arnold H. Wagner, Appellant, v. Frank Menhofer, George Blickendorfer and Others, Respondents.-Order affirmed, with ten dollars costs and disbursements. No opinion. People ex rel. Manhattan Railway Company v. Edward P. Barker et al.-Motion to resettle order granted Clair Pitcher v. William F. Lennon.- Motion denied. Charles Remsen et al. v. Metropolitan Elevated Railroad Company.--Motion to resettle order granted. Judson S. Todd, Respondent, v. George D. Eighmie, Appellant." Motion for reargu ment and for leave to appeal to the Court of Appeals denied, with ten dollars costs. Judson S. Todd, Respondent, v. George D. Eighmie, Appellant. -Motion for resettlement granted. Wescott F. Zittel, Respondent, v. Emma Richter, Otherwise Emma Brocker, Appeliant.Motion granted, with ten dollars costs. ABATEMENT — The right of personal representatives to sue is not a survival See WEBER . THIRD AVENUE R. R. Co.... Dissolution of a foreign corporation under the laws of the foreign presumption of possession under PAGE. ancient deeds-title derived from the State-presumption rebutted by proof of See N. Y. CENTRAL & H. R. R. R. Co. v. BRENNAN.. APPEAL - Injunction granted, with leave to more to vacate it — order not 512 312 103 |