Volume 100 — New York Supplement

Judicial settlement of the accounts of the United States Mortgage & Trust Company, as substituted trustee under the will of Matthew Byrnes, deceased. From a judgment permitting the trustee to file an amended and supplemental account by eliminating from the original account all items of receipts and disbursements of a hotel business conducted by it, and by including therein and charging itself with the amount of profits of the business as the only item, Byrnes appeals.

<p>1. Schools and School Distbicts—Resignation of Teacher—Duress.</p> <p>The by-laws of the board of education of the city of New York provided ■ that the marriage of a female teacher vacated her position and that she could be removed therefor. The attention of a teacher who had recently been married was called to this regulation by the principal of the school in which she was teaching and also by the district superintendent. Upon their assurance that it would be necessary to do so, she resigned. Held, that such resignation was not obtained by fraud or duress, though the regulation in question was subsequently held by the Court of Appeals illegal and void.</p> <p>2. Same—Mandamus—Laches.</p> <p>A delay of nearly a year in applying for reinstatement after the decision of the Court of Appeals constituted such laches as would justify the denial of her application for mandamus against the board.</p>

<p>Appeal from Special Term, Queens County.</p> <p>Action by Robert Crecelius against the city of New York. From a judgment for defendant, and an order denying a new trial, defendant appeals. Modified and affirmed.</p>

In the matter of the estate of Clara.Lowenguth, deceased. From an order overruling the objections of Emil J. Lowenguth and another, administrators, to the jurisdiction of the court to hear the proofs of the petitioners, Christopher C. Werner and another, praying that the surrogate fix the value of their services as attorneys rendered to the estate, the administrators appeal. Dismissed.

In the matter of the judicial settlement of the account of the substituted trustee of the estate of Andrew Froelich, deceased. Decree rendered.

Action by Oscar Van Cise against Stephen L. Peterman. Heard on motion of defendant. Motion granted. The plaintiff recovered a judgment against the defendant for $30 damages and $30 costs, making $60, in an action for assault, which judgment was entered on or about April 9, 1904, from which an appeal was taken by the plaintiff to the Appellate Division.

Action by George Killisch Van Horn against Augustus Van Horne Stuyvesant to enforce a vendee’s lien for money paid on a contract to convey land. Judgment f<pr specific performance granted on defendant’s counterclaim.

<p>1. Glebes of Courts—Time fob Payment of Fees.</p> <p>Consolidation Act, § 1278, Laws 1882, p. 335, c. 410, providing that the clerk of the city court of the city of New York shall collect and receive a stenographer’s fee of a specified amount for every trial had, does not . authorize the collection of the fee at the time of filing notes of issue.</p> <p>2. Same.</p> <p>Consolidation A<:t, § 1249, Laws .1882, p. 330, c. 410, providing that on issuance of any attachment or warrant from the city court of New York City if a trial be had plaintiff shall pay the clerk a certain fee, does not ■ authorize collection of the fee at the time of filing the note of issue.</p> <p>3. Sheeiff’s Fees—Notifying Jubobs.</p> <p>Laws 1890, p. 940, c. 523, relative to the fees of the sheriff of the city and coiinty of New York, provides that he shall receive a certain sum for notifying jurors to attend a trial term of a court of record, and Laws 1896, p. 713, c. 725, requires the commissioner of jurors to notify jurors to attend trials. Held, that under the latter statute the sheriff is hot entitled to the fee.</p>

Petition of George C. Simpson, administrator with the will annexed of William H. Simpson, deceased, on an order against Catherine A. Maney, executrix of Anna Elizabeth Simpson, deceased, to pay over certain money. Heard on motion to settle a proposed case on appeal. Time within which appellant may prepare a case. Granted.

<p>Vendos and Pubchaseb—Performance by Vendee—Compliance with Contract.</p> <p>Plaintiff agreed to purchase real estate from defendant, plaintiff to take the property subject to a mortgage running for three years, and permitting him to pay off the same at any time on 30 days’ notice. The mortgage was not in existence at that time, and subsequently he was tendered a mortgage which permitted the holder to demand and compel its payment within 30 days, contingent on the passage of any law changing the laws then in force as to taxation of mortgages or mortgage debts. Held, that plaintiff was justified in refusing to take the property subject to such mortgage.</p> <p>[Ed. Note.—For cases in point, see vol. 48, Cent. Dig. Vendor and Pur- ■ chaser, §§ 250-254.]</p>

<p>Action by Sally Ann Russell against William A. Wales. Complaint dismissed.</p>

Action by Annie Heim against Anthony Schwoerer and another. From an order of the Supreme Court (99 N. Y. Supp. 553), relieving Rudolph L. Blumenthal from liability as purchaser at a judicial sale, plaintiff and defendants appeal. Affirmed.

<p>Appeal from Justice Court.</p> <p>Action by Charles B. Stratton against the Hunt Sullivan Company. Judgment for defendant, and plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Henry H. Jackson against the Brandon Realty Company and another. From a judgment in favor of plaintiff, defendants appeal. Reversed, and new trial ordered.</p>

<p>Vendos and Purchases—Incumbrances—Unexpired Lease.</p> <p>A lease which does not terminate until after the time fixed in a contract of sale of the premises for the delivery of a deed thereof is an incumbrance.</p> <p>[Ed. Note.—For cases in point, see vol. 48, Cent Dig. Vendor and Purchaser, § 252.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Louis Ruderman against Jacob Schwartz. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Damages—Breach of Agreement—Nominal Damages.</p> <p>One suing for a breach of an agreement entered into on a compromise of a substantial controversy between the parties is, in the absence of evidence of substantial damages, entitled to nominal damages.</p> <p>[Ed. Note.—Eor eases in point, see vol. 15, Cent. Dig. Damages, § 31.] Dowling, J., dissenting.</p>

<p>Appeal from City Court of New York.</p> <p>Action by George Schenfeld against Max Hochman. Erom a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Trial—Refusal to Charge on Issue.</p> <p>There being some evidence tending to establish the defense of usury, it was error for the court to refuse to charge thereon, and to state, “I will not charge as to usury at all.”</p> <p>[Ed. Note.—For cases in point, see vol. 46, Cent Dig. Trial, §§ 613-616.]</p>

Action by Stephen E. Coles against the International Bank Note Company. From a judgment for plaintiff, and from an .order denying a motion for new trial, defendant appeals.' Affirmed.

Action by Wallace Allison against Albert Luedermann. From a judgment for the plaintiff, defendant appeals. Modified and affirmed. Truax, Watson & Roberts, for appellant. Benjamin F. Edsall, for respondent.

<p>Action by Seward Baker, as trustee, etc., against Alexander J. F. Hamilton, and others.</p>

<p>Action by Mary Bahr against John J. Clarke.</p>

<p>In the matter of the application of _ Nathaniel M. Brown for admission to the bar.</p>

<p>Action by Catherine J. Brown, Individually, etc., against Sara G. Bronson and others. J. A. Straley, for appellant. JT. B. Candler, for respondents.</p>

<p>Action by Edward W. Brown and James W. Shaw against the Retsof Mining Company.</p>

<p>Actions by the Central Trust Company of New York against the Pittsburg, Shawmut & Northern Railroad ComPany and others, and Frederick B. Cochran and others, etc., against Frank Sullivan Smith, as, etc.</p>

<p>Action by the city of Mt. Vernon against John H. Brett and others.</p>

<p>Action by the city of Middletown against the 2Etna Indemnity Company of Hartford, Conn., and others.</p>

<p>Action by the city of Watertown against Lillian Rodenbaugh.</p>

<p>Actions by Mary E. Pagan against Charles 10. McDonnell and others.</p>

<p>Action by Henry E. Frey, as administrator, etc., of Frederick Frey, deceased, against Frank A. Barnaby and William H. Van Schaick, etc.</p>

<p>Action by Marcus D. Gage against Otto L. Bloomquist and another.</p>

<p>Action by James C. Gowdey, as administrator, etc., of Harriett L. Gowdey, deceased, against the Erie Railroad Company.</p>

<p>Action by Anna Halsey against William Hollands, as administrator, etc., and others.</p>

<p>Action by James Hartley against the Pioneer Iron Works.</p>

<p>Action by Emma F. Heidrich against the Rochester & Suburban Railway Company.</p>

<p>Action by Benjamin Johnson against David Ravitch and others.</p>

<p>Action by Eva Kohn against David Meyer.</p>

<p>Action by Ellen Lane against the Yonkers Railroad Company.</p>

<p>Action by Angelo Mark, as, etc., against the Rochester & Eastern Rapid Railway Company.</p>

<p>Action by Frank Messina, sometimes known as Frank De Cola, against the United States Mortgage & Trust Company, as receiver of the Brooklyn Wharf & Warehouse Company.</p>

<p>In the matter of the transfer tax upon the estate of Veronica Mock, deceased.</p>

<p>Action by the National Contracting Company against the Hudson River Water' Power Company. R. L. Hand, for appellant. L. L. Kellogg, for respondent.</p>

<p>Action by the Ovington Bros. Company against Cornelia M. Henshaw, individually, and as executrix, etc., of Sarah Grace, deceased.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Emma Ostrander against the New York City Railway Company. From an order of the New York City Municipal Court setting aside a verdict in favor of plaintiff, she appeals. Reversed, and judgment reinstated. Robert H. Ernest, for appellant. James A. Quackenbush, for respondent.</p>

<p>Proceedings by the people of the state of New York against Gustave Dinser.</p>

<p>Proceedings by the people of the state of New York, on the relation of Henry Hurlbut, against Theodore A. Bingham, as police commissioner.</p>

Application by the people, on the relation of the city of Geneva, for a writ of mandamus to the board of supervisors of Ontario county. From an order granting the writ, the board appeals. Affirmed. Anson L. Gardner, for appellant. W. Smith O’Brien, for respondent.

<p>Proceedings by the people of the state of New York, on the relation of Edward H. Litchfield and others, against James L. Wells and others, as commissioners of taxes and assessments.</p>

<p>Action by George W. Reeves, as, etc., against James F. Converse and another.</p>

<p>Action by George Schneck against Lena Danziger.</p>

<p>Action by George J. Schroeder against Elder Meyer.</p>

Action- by Nathan A. Seidin against Samuel Liebowitz. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted. Einsohn & Siegel, for appellant.

<p>Action by Carrie N. Spaulding against Harry Wolfe.</p>

<p>Action by Oscar D. Thompson against the Supreme Tent of the Knights of the Maccabees of the World.</p>

<p>Appeal from Special Term, New York County. Action by the United States Casualty Company against Theresa A. S. Sheridan. From an order denying a motion for inspection of books and papers, plaintiff appeals. Reversed, and motion granted. Carl Schurz Petrasch, for appellant. Raphael Link, for respondent.</p>

<p>Action by Charles A. Van Nostrand against the New York & Queens County Railway Company.</p>

<p>Action by the United States Fidelity & Guaranty Company against Max Schiff and Gus Moos.</p>

<p>Action by Joseph Watkins and another against Darius 0. Mills, iinpleaded. J. A. Garver, for appellants. G. W. Murray, for respondents.</p>

<p>Action by George Wittschen and other against the Manhattan Railway Company and others. J. 0. Nichols, for appellants. E. M. Felt, for respondents.</p>

<p>Action by Hildo C. Yeoman against William McClenahan and others.</p>