In re AUDUBON AVE. (Supreme Court, General Term, First Department. June 14, 1895.) No opinion. Order affirmed, with $10 costs and disbursements.

BARSE et al., Respondents, v. WILLIAMS, Appellant. (Supreme Court, General Term, Fifth Department. January, 1895.) Action by Mills W. Barse and others against John P. Williams. No opinion. Motion to dismiss appeal granted, with costs.

BECK et al. v. BROOKLYN EL. R. CO. et al. (Supreme Court, General Term, Second Department. June 14, 1895.) Action by Eliza Beck and others against the Brooklyn Elevated Railroad Company and others. No opinion. Order of general term modifying judgment by striking out words "with costs and disburse ments," granted. See 33 N. Y. Supp. 764.

BECKER, Respondent, v. MANHATTAN RY. CO., et al., Appellants. (Supreme Court, General Term, First Department. June 14, 1895.) Action by Louisa Becker against the Manhattan Railway Company and others. J. C. Bushby, for appellant. J. A. Weekes, for respondent.

PER CURIAM. The judgment which was awarded in this case depends largely upon the testimony of the plaintiff. An examination of the evidence given by her shows that she was able to tell the story which she had learned; but, when taken from that which she had evidently committed to memory, she was utterly unable to testify as to circumstances which were as likely to be in her memory as those in respect to which she had given evidence. She testified with great distinctness as to the rents received in 1870, but was unable to remember the names of any of the tenants at other times, or to give the rents of other years with the certainty of those of 1870. When she did attempt to do so, in one instance, at least, she was shown by the evidence of the tenant not to have testified correctly. This obliviousness upon the part of the witness in reference to other periods of time in which rents were collected necessarily rendered all her testimony unreliable. We think, therefore, that no basis was laid for the judgment which was given, and the same should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

BENNETT, Respondent, v. UNITED LIFE INS. ASS'N OF NEW YORK, Appellant. (Supreme Court, General Term, Third Department. July 6, 1895.) Action by Arthur T. Bennett against the United Life Insurance Association of New York. No opinion. Judgment affirmed, with costs.

FREEDMAN, J. This is an action to re cover the possession of certain personal prop erty, or its value, taken by the sheriff from the plaintiffs under an attachment issued to him against the property of one Nathan Silverstei The defendants indemnified the sheriff, and the property was taken upon the strength of the indemnity bond. The plaintiffs claimed title as bona fide purchasers for value from Nathan Si Verstein. The question as to the validity of this purchase was fully litigated at the tria as a question of fact. Both parties gave evidence upon the point, and at the close of the whole case the plaintiffs did not move for the direction of a verdict, but at once went to the jury, and the case was submitted to the jury under a charge to which practically no excep and no reason appears for a disturbance of the tion was taken. The record discloses no error, verdict, which the jury rendered for the de fendants. The judgment and order should be affirmed, with costs.

BLOOM et al. v. NATIONAL UNITED BENEFIT SAVINGS & LOAN CO. (Su January, 1895.) Action by Hymen Bloom and preme Court, General Term, Fifth Department others against the National United Benefit Sav ings & Loan Company. No opinion. Motion to amend the memorandum of decisions by insert ing therein that the reversal of the judgment and new trial were upon questions of fact as well as of law, granted. If, by reason of the amendment, the plaintiffs shall desire to dis continue the appeal to the court of appeals they may do so without costs. See 30 N. Y. Supp 700.

BORDMAN et al. v. KINNEY et al. (Supreme Court, General Term, First Department. June 14, 1895.) Action by John J. Bordman and another against James B. Kinney and atother. No opinion. Motion granted, with $10 costs.

BRADSHAW v. MOORE. (Supreme Court. General Term, Second Department. July 26.

1895.) Action by Herman Bradshaw against Clement C. Moore. No opinion. Judgment modified so as to provide that defendant, his agents and servants are enjoined from taking possession of the property, etc., "except in accordance with the terms of the lease as determined by the court in its second finding," and, as so modified, affirmed, with costs. All

concur.

In re BROOKLYN EL. R. CO. (Supreme Court, General Term, Second Department. June 14, 1895.) In the matter of the petition of the Brooklyn Elevated Railroad Company, relative to acquiring title to real estate or a right of way on Myrtle avenue, in the city of Brooklyn, parcel No. 198. No opinion. Order denying motion to dismiss appeal of plaintiffs from final order confirming report.

In re BROOKLYN TRUST CO. (Supreme Court, General Term, Second Department. June 14, 1895.) In the matter of the accounting of the Brooklyn Trust Company, as executor of John G. Kimm. No opinion. Order affirming order made by surrogate, without costs.

V.

BROWN, Respondent, NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, General Term, Third Department. July 6. 1895.) Action by Catharine J. Brown against the New York Central & Hudson River Railroad Company. No opinion. Judgment affirmed, with costs and disbursements.

BROWN, Respondent, v. REMINGTON, Ap pellant. (Supreme Court, General Term, Fifth Department. January, 1895.) Action by M. Fillmore Brown against Harvey F. Remington. No opinion. Interlocutory judgment appealed from affirmed, with costs against the defendant Remington, with leave to him to answer within 20 days, on payment of the costs of the demurrer and of this appeal.

BROWN, Respondent, v. REMINGTON et al., Appellants. (Supreme Court, General Term, Fifth Department. January, 1895.) Action by M. Fillmore Brown against Harvey F. Remington and another. No opinion. Motion to dismiss appeal granted, with $10 costs against the defendant Remington.

BRYAN v. GRANT. (Supreme Court, General Term, Second Department. July 26, 1895.) For former opinion, On rehearing. Denied. see 33 N. Y. Supp. 957.

DYKMAN, J. There is a motion for a reargument in this case, but no sufficient reason appears in favor of the application, and the motion should be denied, with $10 costs and disburse ments. All concur.

BRYAN v. GRANT. (Supreme Court, General Term, Second Department. June 14, 1895.) Action by Emma Bryan against Louis J. Grant. No opinion. Proposed order denying the proposed order is in accordance with the decree of the court, and is settled in accordance there with. See preceding case.

BURNS. Respondent, v. CITY OF YONKERS, Appellant. (Supreme Court, General Term, Second Department. July 26, 1895.) Action by Mary E. Burns, by Edward McNichol, her guardian ad litem, against the City of Yonkers. James M. Hunt, for appellant. John C. Harrigan, for respondent.

PRATT, J. We do not find that the facts on the present trial vary in any important particular from those shown on the previous trial, discussed 83 Hun, 211, 31 N. Y. Supp. 757. That case determined that the plaintiff had a right to go to the jury on the question of defendant's negligence. The verdict establishes the liabiltiy of the city. It is entirely clear that the accident resulted from the absence of a fence between the traveled road and the declivity down which the plaintiff went. In the light of the event, it is easy to see that a fence should have been provided. We cannot say the jury are wrong in finding that the necessity of a fence should have been apparent before the accident. There were no errors in the admission of evi

dence, or in the charge, and the judgment must be affirmed, with costs.

BROWN, P. J. (concurring). This action was first tried at a circuit at which I presided, and the complaint was dismissed. Upon an appeal to a general term composed of Justices Dykman and Cullen, the judgment entered upon the order dismissing the complaint was reversed, and a new trial ordered. Upon the second trial the plaintiff recovered a judgment, from which the here to its former decision, unless the facts are present appeal is taken. essentially different from what they were on the first trial. I do not think they differ to such an extent as to make inapplicable the rule ap plied in the opinion of Justice Cullen (83 Hun, 211, 31 N. Y. Supp. 757), and I therefore vote to

affirm.

DYKMAN, J., dissents.

The court should ad

BURROWS, Appellant, v. MCMURRAY et al., Respondents. (Supreme Court, General Term, Second Department. July 26, 1895.) Action by George W. Burrows against James McMurray and others. Oscar E. Langer, for appellant. Hirsh & Rasquin, for respondents.

an appellate court. Neither do we discover any error in the rulings of the surrogate upon the trial. There was no merit in the point that witnesses did not subscribe the will in the presence of the testator. In re Phillips, 98 N. Y. 267. It was not prejudicial to contestants to permit the doctors who examined the testator long previous to the making of the will, to wit, August 20, 1890, to look at the certificate they had made, as they testified to their present recollection. The rule is that in appeals of this kind the error must appear to have prejudiced the appellant to warrant a reversal. Code Civ. Proc. § 2545; In re Smith, 95 N. Y. 516. I do not think this case can be properly classed as doubtful. Judgment affirmed.

DEPIRRO, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Superior Court of Buffalo, General Term. July 30, 1895.) Action by Geremia Depirro against the New York Central & Hudson River Railroad Company. McMillan, Gluck, Pooley & Depew, for appellant. Charles Oishei, for respondent.

TITUS, C. J. This action is brought to recover damages for an injury received by the plaintiff while riding as a passenger on a beltline train of the defendant's railroad. The plaintiff, with several other laborers, got onto the train at the Terrace station for the Military Road station. When the train arrived at that point, the passengers commenced getting off, and before all had got off the train started, and while on the lower step of the car platform the plaintiff claimed that the car gave a sudden rk, und threw him to the ground, and he received injuries, for which this action is brought. The facts are not very much in dispute. The defendant claims that the train did not start with a sudden jerk, and that the plaintiff jumped from the train. The case was submitted to the jury on a charge by the court, which, to say the least of it, was not unfair to the defendant. No exception was taken to the charge, or to any ruling of the court in the admission or rejection of evidence. The only exceptions are to the court's refusal to nonsuit the plaintiff, and to direct a verdict for the defendant at the close of the case. These exceptions present a single question. Was there sufficient evidence to justify the jury in the conclusion reached by An examination of the record satisfies me that there was an abundance of evidence to warrant the jury in coming to the conclusion which it reached. The court could not have granted the defendant's motion, as the case presented a question of fact, pure and simple, for the jury to determine, and their findings cannot be disturbed. The judgment and order appealed from should be affirmed, with costs.

it?

HATCH, J., concurs.

DONAHUE, Appellant, v. DRAKE et al., Respondents. (Supreme Court, General Term, Third Department. July 6, 1895.) Action by David Donahue against John H. Drake and William D. Stratton. No opinion. Judgment affirmed, with costs.

In re DUNNE. (Supreme Court, General Term, Second Department. July 26, 1895.) In

the matter of application of John Dunne for a writ of mandamus. No opinion. Order a firmed, with $10 costs and disbursements. A concur.

DURLAND v. DURLAND. (Supreme Court General Term, Second Department. June 14 1895.) Action by Mary Ann Durland agains Jesse Durland, as executor, etc. No ope Ordered that the order of this general ter dated December 10, 1894, be amended by its ing therein after the word "reversed" the w "on both questions of law and questions fact." See 31 N. Y. Supp. 596.

In re DUSENBURY. (Supreme Court, Gen eral Term, Second Department. June 14, 186 In the matter of the judicial settlement of accounts of Josephine T. Dusenbury, etc., sé ministratrix. No opinion. Appeal dismissed with $10 costs, and case stricken from calendar Order signed. See 32 N. Y. Supp. 820.

EASTMAN v. MAYOR, ETC., OF CITY OF NEW YORK. (Superior Court of New Y City, General Term. July, 1895.) Action Franklin P. Eastman against the mayor, a men, and commonalty of the city of New Y Both parties appeal. Hatch & Wickes, fr plaintiff. Francis M. Scott, for defendants.

PER CURIAM. This action was brought t recover damages for the breach of a contra by which the defendants granted to the plainf the right to collect all the wharfage and cra age of a certain bulkhead. The defendants claim any liability whatever, while the plain contends that the verdict directed in his fav is insufficient in amount. An examination the case has satisfied us that the views -I pressed by the learned trial judge on directin: the verdict were correct, and that upon the et dence before him the verdict was proper'y é rected. The judgment should be affirmed both appeals, but without costs to either part

EMPIRE STATE SAV. BANK OF BUT FALO v. BEARD et al. (Supreme Court, G eral Term, Fifth Department. January, 1 Action by the Empire State Savings Bank Buffalo against Daniel Beard and others. A opinion. Motion for certificate to enable the e fendant to appeal to the court of appeals grat ed. See 30 N. Y. Supp. 756.

ENSCOE v. NEW YORK & R. B. RY. CO. (Supreme Court, General Term, Second Der ment. June 14, 1895.) Action by John Es against New York & Rockaway Beach Eds way Company. No opinion. Appeal from it ment entered February 21, 1894, dismissed, wa costs.

FALLOWS, Appellant, v. HOYT et al. E spondents. (Supreme Court, General Term. First Department. June 14, 1895.) Action by Rh ard C. Fallows against James C. Hoyt sn other. T. E. Hodgkins, for appellant. W. P Rowe, for respondents. No opinion. Order f firmed, with $10 costs and disbursements.