We think the judgment and order appealed from should be reversed. There is no evidence to support the verdict, except as to the sum of $35, and as to the rest the verdict is against the weight of evidence.

The only possible recovery, justified under the evidence, would be the sum of $35, and the right to have even that, being denied by defendant, and plaintiff not having charged to Sagor the goods furnished to Cooper, the transaction was not taken out of the control of the Statute of Frauds, and was void. If this were not so, and the statute did not apply, still the verdict was against or not supported by the weight of evidence and would have to be set aside. 11 Misc. Rep. 340; 138 N. Y. 517; 145 N. Y. 408.

Judgment and order appealed from reversed and new trial ordered, with costs to appellant to abide the event.

FITZSIMONS, Ch. J., and MCCARTHY, J., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.

HENLY ST. JOHN HENLY, Respondent, v. THE DELAWARE, LACKAWANNA & WESTERN RAILROAD Co., Appellant.

APPEAL from a judgment in favor of plaintiff, entered upon a verdict.

Hamilton Odell (Hammond Odell, of counsel), for appellant.

Arthur Furber, for respondent.

HASCALL, J. This appeal brings up two principal questions for review, viz.: Whether the verdict is against the weight of evidence, and whether error was committed at the trial in refusing to dismiss the complaint.

We find, upon a careful reading of the case, that the defendant has good grounds for feeling aggrieved and for appeal to this court.

It was for the trial court alone to construe the contract between the parties and to instruct the jury as to its meaning. 103 N. Y. 341. The terms being undisputed and unambiguous, the question thereon was solely one of law (122 N. Y. 247; 143 N. Y. 649) and should not have been left to the jury.

It was error, upon the uncontradicted evidence, not to find that the acts, done by persons complained of by plaintiff, were not committed by the defendant or its servants (King v. N. Y. C. & H. R.

R. R. Co., 66 N. Y. 181), and so to instruct the jury, or to dismiss the complaint.

For these reasons the judgment and order appealed from must be reversed, and the verdict set aside, and a new trial ordered, with costs to the appellant.

FITZSIMONS, Ch. J., and MCCARTHY, J., concur.

Judgment and order reversed and new trial ordered, with costs to appellant.

GEORGE S. BAXTER et al., Respondents, v. GILSON, COLLINS & Co., Appellant.

APPEAL from a judgment in favor of plaintiffs.

John Jay McKelvey, for appellant.

Allan Lee Smidt, for respondents.

HASCALL, J. Exceptions taken to questions calling for immaterial testimony may be disregarded in considering this appeal. The actual terms of this contract, for supply of materials, existing between vendee and a third person, do not affect the merits of this cause, until we arrive at consideration of defendant's counterclaim.

It is the knowledge of plaintiffs of the existence of such a contract with a stranger, and the disposition of the goods which defendant was to make after delivery to it by plaintiffs, that should have determined the court below in making its rulings. Such special knowledge was a feature that might indicate, to all the parties, the use to which defendant was to put the goods and became an element of the contract between plaintiffs and defendant, to be considered in establishing damages, if any, suffered by the vendee for the nondelivery, or late delivery, of the lumber in question.

We think that the defendant should have had opportunity to substantiate its alleged counterclaim, and this being withheld, by erroneous rulings of the trial court, a new trial must be ordered. Judgment and order appealed from reversed and new trial ordered, with costs and disbursements to appellant to abide the

event.

FITZSIMONS, Ch. J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.

DANIEL F. PRINTZ et al., Appellants, v. HERBERT M. CAMPBell, Impleaded, Etc., Respondent.

APPEAL from a judgment dismissing the complaint.

William C. Reddy, for appellants.

William E. Stewart, for respondent Campbell.

HASCALL, J. The plaintiffs clearly shaped their own course as to dealing with the respondent and his codefendant Hotchkiss. They sold and delivered goods with eyes open as to whom they were actually dealing with, and the record but confirms this statement. We find no error committed by the court below and think the complaint properly dismissed.

Judgment and order appealed from affirmed, with costs.

FITZSIMONS, Ch. J., and MCCARTHY, J., concur.

Judgment and order affirmed, with costs.

OTTO J. BUEB, Respondent, v. ANNIE M. GERATY et al., Appellants.

APPEAL from a judgment in favor of plaintiff.

E. T. Oldham, for appellants.

E. F. Stern, for respondent.

MCCARTHY, J. The Connery mortgage was certainly void, it not having been filed in Kings county where one of the firm resided. This said mortgage was void as against creditors of the mortgagors and against subsequent purchasers in good faith. Laws 1833, chap. 279, § 1. See, also, 101 U. S. 731.

The direction of the trial justice in plaintiff's favor was correct.

SCHUCHMAN and OLCOTT, JJ., concur.

Judgment affirmed, with costs.

CHARLES NEELY, Respondent, v. HENRY MUNNICH, Appellant.

APPEAL from an order of Special Term.

Hastings & Gleason, for appellant.

A. A. Joseph, for respondent.

MCCARTHY, J. The judgment having been satisfied, the order appealed from was justifiable and is affirmed, with costs.

SCHUCHMAN and OLCOTT, JJ., concur.

Order affirmed, with costs.

GEORGE WHITMAN, Respondent, v. WILLIAM SEIBERT, Appellant.

J. H. Damnholz, for appellant.

F. Solinger, for respondent.

MCCARTHY, J. In view of the circumstances surrounding this transaction, I think the order appealed from was right. Particularly for the reason assigned by the Special Term justice, in his opinion appearing on page 16 of printed record. Order affirmed, with costs and disbursements.

SCHUCHMAN, J., concurs.

Order affirmed, with costs and disbursements.

CHANE HURWITZ, Respondent, v. THE HAMBURG-AMERICAN PACKET CO., Appellant.

APPEAL from a judgment in favor of plaintiff.

Julius J. Frank, for appellant.

Mashbir & Cukor, for respondent.

Per Curiam. It was error for the trial justice to refuse the defendant's seventh request to charge. It was, no doubt, the duty of the plaintiff to demand from the defendant her baggage within a reasonable time after her arrival; besides, it was error to allow testimony concerning the value of the books bought by plaintiff for her husband out of money sent her by him for the purchase of such books.

They certainly constituted no part of her baggage, and she had no right to recover, in this action, their value.

Judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Present: FITZSIMONS, Ch. J., and O'DwYER, J.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Matter, Etc., of the PENNSYLVANIA GLASS Co., Judgment Creditor, for the Examination of MICHAEL FOEHRENBACH, Judgment Debtor.

WEST SIDE BANK, Judgment Creditor, v. MICHAEL FOEHRENBACH et al., Judgment Debtors."

APPEAL from an order in supplementary proceedings.

A. S. Luria, for appellant.

Deyo, Duer & Bauerdorf, for respondent.

W. H. Klinker, for respondent.

Per Curiam. Orders affirmed, with costs. The order appointing Mr. Hyatt receiver was made after due notice to the judgment debtor and other judgment creditors having proceedings pending. The only right which the Pennsylvania Glass Company had after the appointment of such receiver was to have such receivership extended so as to protect its interests.

It was, therefore, proper for the Special Term justice to deny its motion to vacate such receivership.

Present: FITZSIMONS, Ch. J.; CONLAN and SCHUCHMAN, JJ. Orders affirmed, with costs.