action, stating them by number. He did the same thing in his last complaint. It is only material additions of which the defendant can complain because immaterial matters are mere surplusage and do not change a cause of action.

[6] In substance the plaintiff had incorporated in his first pleading all of the allegations respecting the second cause of action which he incorporated in the amended pleading, except the necessary allegation as to other lienors and the invalidity of their liens, and that no other action had been brought to recover any part of the claim. These latter allegations are not necessary to the second cause of action, which is founded upon a promise alone, and their presence is mere surplusage and does no harm. The allegation set forth in paragraph 12 was permitted to be made when the defendant executor was substituted in place of the deceased defendant, and is proper in any part of the complaint. With respect to the third cause of action, however, it is possible that allegations respecting the filing of the mechanic's lien are material and necessary. In his original pleading the plaintiff had incorporated under Nos. 1, 2, and 3 of the first cause of action all that is now contained in paragraphs 1 to 6, inclusive, of his amended pleading; but he had not incorporated what is now contained in paragraphs 7 to 11 of the amended pleading, both inclusive, and had no right to incorporate them in his statement of his third cause of action in the supplemental complaint.

The Special Term, therefore, should have stricken from the allegations of the third cause of action contained in the supplemental complaint the incorporation of paragraphs 7 to 11 of the amended first cause of action, both inclusive, and otherwise should have allowed the pleading to stand.

The defendant being wrong in his practice in moving to strike out the second and third causes of action entirely, no costs should have been allowed. The equities appear to be largely with the plaintiff, and he should have $10 costs and disbursements of the present appeal to abide the event of his action.

Order modified by striking there from the allowance of the $10 costs, and granting to the defendant the relief only as indicated by this opinion, and as so modified affirmed, with $10 costs and disbursements to the plaintiff to abide the event of the action. All concur.

(73 Misc. Rep. 23.)

HAMILTON v. CRAWFORD et al.

(Supreme Court, Special Term, Kings County. July, 1911.)

PARTIES ($59*)-SUBSTITUTION-PERSONAL REPRESENTATIVES.

Where a party, sued as the executor of a surety on a sheriff's bond, ceases to be the representative of the estate while the action is pending, the administrator with the will annexed will be substituted as a party defendant.

[Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 90-94; Dec. Dig. § 59.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Action by Annie Hamilton against Alice Crawford and others, as executors of Erastus Crawford, deceased, and others. Heard on motion of the Central Trust Company, as administrator with the will annexed and as substituted trustee under the will of John McQuade, deceased, to be made a party defendant. Motion granted.

Charles C. Sanders, for plaintiff.

Joline, Larkin & Rathbone, for Central Trust Company, as substituted trustee.

PAGE, J. This is a motion by the Central Trust Company, as administrator with the will annexed, and as substituted trustee under the will of John McQuade, deceased, to be brought in as a party defendant in this action.

The action was brought against the sureties on a bond of a former sheriff of this county. Edward McQuade, as executor of the estate of John McQuade, was made a party defendant. Pending the action. he ceased to be the executor of said estate, in what manner is not disclosed by the papers before me, and the Central Trust Company was appointed administrator with the will annexed. As such it took the estate where Edward McQuade left it, and its administration is a mere continuance of that commenced by him. Slocum v. English, 62 N. Y. 494, 496. Therefore it seems to me that, if John McQuade's estate is to be held liable and required to pay on the bond, the representative of his estate is a necessary party and should be allowed to appear and resist plaintiff's claim. The obligation being joint and several, the plaintiff could have originally sued the bondsmen separately, or sued one and left that defendant to his action for contribution. But, having elected to sue them all in one action, and having made the representative of the estate of John McQuade a party, the plaintiff cannot object to the estate being represented by the representative which is now charged with the administration of the es

tate.

Possibly the action might have been severed, but it was not. It would be futile to allow plaintiff to proceed against Edward McQuade as executor after his power has ceased; for, if a judgment were recovered, it would not bind the estate of the deceased, nor the administrator with the will annexed. Code Civ. Proc. § 1830. I am of opinion, therefore, that the Central Trust Company, as administrator with the will annexed, should be substituted as a party defendant in place and stead of Edward McQuade, as executor of the last will and testament of John McQuade, deceased; the liability having devolved upon said trust company pending the action. Code Civ. Proc. § 756. The Central Trust Company takes the place of Edward McQuade, the pleadings remain the same, and all prior proceedings are valid and operative. If the Central Trust Company cannot proceed with the trial of the action when it is reached upon the trial calendar, application should be made to the justice holding the Trial Term for such relief as it deems necessary. See Moore v. Hamilton, 44 N. Y. 666, 672.

Ordered accordingly.

EQUITABLE TRUST CO. OF NEW YORK v. LARSEN.

(Supreme Court, Appellate Term. December 22, 1911.)

BILLS AND NOTES (§ 502*)-SIGNATURE Of Maker-PRIMA FACIE CASE.

In an action on a note, the testimony of defendant, sued as maker, that the signature on the note looked like his signature, but that he had no recollection of signing the note and that his name was similar to that on the note, coupled with an unqualified admission by him out of court that the paper was signed by one with a similar name, established a prima facie case, sufficient to allow the admission of the note in evidence.

[Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 502.*] Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by the Equitable Trust Company of New York against Anton Larsen. From a judgment of the Municipal Court, dismissing the complaint at the close of plaintiff's case, it appeals. Reversed, and new trial granted.

Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ. McLear & McLear (Herbert G. McLear, of counsel), for appellant. Louis Boehm, for respondent.

LEHMAN, J. The plaintiff sues upon a negotiable instrument, which it attempted to introduce in evidence, but which was excluded because the defendant's signature was not properly proven. The plaintiff attempted to prove this signature by the testimony of the defendant himself; but the defendant claimed to have no distinct recollection as to the signing of this document, which, it was claimed, was executed in the year 1904. He would not affirm or deny positively that the signature was his own, but did testify several times that "it looked like" his signature. In addition to this testimony, the plaintiff showed by the process server that, when he served the defendant with the summons, he showed him the instrument and asked him if he remembered signing it, whereupon the defendant said:

“That is the signature of Anton Larsen, but I guess you have got the wrong man. Anton Larsen is my brother."

The process server then asked him how he knew that that was the signature of Anton Larsen, and defendant answered:

"Well, I know it; that is the signature of Anton Larsen, but I am not Anton Larsen. Anton Larsen is my brother."

It was further shown that the person served was Anton Larsen, and that his brother's name was John Larsen. It seems to me that the testimony of the defendant, who certainly must be held to know his own handwriting, that the signature looked like his, coupled with an unqualified admission by the defendant, out of court, that the paper was signed by Anton Larsen, was amply sufficient prima facie proof to allow the admission of the instrument in evidence.

The respondent relies, as authority for the correctness of the ruling of the trial justice excluding this paper, upon the case of Farrell v.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Manhattan Railway Co., 83 App. Div. 393, at page 398, 82 N. Y. Supp. 334, at page 336. That case is, however, no authority for his contention. The witness called in that case was the son of the person whose signature is sought to be proven. He testified that the signature "seems like" his father's signature, but he could not tell, as he had not seen his father's signature in many years. The court there said (83 App. Div. 398, 82 N. Y. Supp. 336):

"The only witness called to prove the signature testified that he had no recollection of having seen his father write, no recollection of his father's signature, and disclaimed sufficient knowledge which would enable him to testify as to the genuineness of the signatures exhibited to him. His belief upon the subject, in the absence of knowledge of his father's handwriting, would be of no consequence."

Here, however, we have the testimony of the defendant himself, who may certainly be presumed to have knowledge of his own handwriting, that the signature looked like his, and testimony of his admission out of court that the signature was that of Anton Larsen. Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

MUSICA et al. v. DI MARCO et al.

(Supreme Court, Appellate Term.

1. COURTS (§ 190*)-DISMISSAL-JURISDICTION.

November 24, 1911.)

After an appeal from a judgment of a City Court, that court has jurisdiction of all matter connected with the settling of the case, and until this is done the Appellate Term, as provided by rule 3, will not dismiss the appeal.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 190.*]

2. COURTS (§ 190*)-APPEAL FROM CITY COURT-DISMISSAL-JURISDICTION.

After an appeal from a judgment of a City Court, the appeal is not pending in the City Court, though that court has power to settle the case; and hence it has no jurisdiction to dismiss the appeal. [Ed. Note. For other cases, see Courts, Dec. Dig. § 190.*]

3. COURTS (§ 190*)-APPEAL FROM CITY COURT-DEFAULT-DISMISSAL.

Where, after appeal from the City Court, the appellant does not settle his case within the time limited, the City Court, acting under general practice rule 33, providing that, if the party shall omit to make a case within the time limited, he shall be deemed to have waived his right thereto, can terminate the proceedings by declaring the case abandoned, after which an application to the Appellate Term to dismiss the appeal will lie.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 190.*]

4. COURTS (§ 190*)-CITY COURTS-DISMISSAL OF APPEAL-COURT RULES-RE

PEAL.

Repeal of a City Court rule, under which the court had power to declare an appeal abandoned, does not confer jurisdiction to dismiss the appeal then pending before the Appellate Term.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 190.*]

Appeal from City Court of New York, Special Term. Action by Anthony Musica and another against Nicola Di Marco and another. From an order of the New York City Court, dismiss

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ing an appeal by defendants from a judgment in favor of plaintiffs, and also dismissing appeals from an order reducing the amount of the judgment and an order denying a motion for a new trial, defendants appeal. Reversed.

Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ. Achille J. Oishei, for appellants.

Nathaniel N. Holzer, for respondents.

LEHMAN, J. The plaintiffs appeal from an order dismissing their appeals from a judgment made and entered in the City Court and certain orders connected therewith. The right of appeal from judgments is expressly conferred by statute upon the unsuccessful suitor, and, if the requirements of the statute and rules of the court are complied with, he cannot be deprived of this right. If these requirements are not complied with, the successful party may move to dismiss the appeal.

[1] After an appeal is taken from a judgment of the City Court, that court has jurisdiction in all matters connected with the settling of the case; and until the case is settled the Appellate Term, under rule 3 of the rules of practice of the Appellate Term, will not dismiss an appeal. It does not follow, however, that because this court should not, until the case is settled, dismiss the appeal, the trial court has up to that time a power to dismiss it.

[2] The appeal is not pending in the City Court, and it would be an anomalous rule that would permit a trial court to dismiss a proceeding that is not pending there. The jurisdiction of the trial court, in the absence of authority specifically conferred upon it, should be confined to proceedings connected with the making of a proper return to the appellate court.

The trial court, however, has complete jurisdiction over the proceedings leading up to the making of the case, and until those proceedings are terminated it is proper that the appellate court should not assume the right to dismiss the appeal because of delay in these preliminary proceedings. These proceedings cannot be terminated, except by the settlement of the case, if the appellant proceeds according to the statute and rules of practice to perfect the appeal. [3] If, however, the appellant is in default under the statute and rules, he loses the right which the law allowed him to proceed with his appeal, and under the jurisdiction which the trial court has maintained over the proceedings to perfect the return, it may terminate the proceedings before it by declaring the appeal abandoned. Rule 33 of the general rules of practice provides in part:

"If a party shall omit to make a case within the time limited, he shall be deemed to have waived his right thereto.

Under this rule, after the expiration of the time limited, an order may be entered giving effect to this waiver and terminating the proceedings by declaring the case abandoned. After such an order is made by the trial court, then the appellate court may properly dismiss an appeal which can never be perfected. The procedure outlined