Volume 101 — New York Supplement

<p>Appeal from Special Term.</p> <p>Application by William L- Lazenby for a peremptory writ of mandamus against the municipal civil service commission of the city of Elmira. From an order granting the application, an appeal is taken. Affirmed.</p> <p>See 78 N. Y. Supp. 302.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourteenth District.</p> <p>Action by Nathan Hutkoff against Peter Lauckhardt. Prom a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Barnet Fishman against John Wolf and another. From a judgment for the plaintiff, defendants appeal. Reversed, and new trial granted.

<p>Master and Servant—Injury to Third Persons—Actions—Instruction.</p> <p>In an action for negligent injury, an instruction “that, inasmuch as the driver of the truck was in the employ of defendants, they were accountable for his negligence,” was erroneous.</p> <p>[Ed. Note.—For eases in point, see Cent Dig. vol. 84, Master and Servant, §§ 1217, 1277.]</p>

<p>Appeal—Review—Questions of Fact—Sufficiency of Evidence.</p> <p>Where the pleadings present an issue of fact, and the burden is on the plaintiff, and there is no evidence, and nothing in the nature of a concession, a judgment for plaintiff must be reversed.</p> <p>[Ed. Note.-—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3981, 3982.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Michael Giovanniello against Minnie Horton. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by Morris Vogel against Charles Werner and another. From an order setting aside a verdict in favor of plaintiff, he appeals. Reversed, and verdict reinstated.

<p>Negligence—Contributory Negligence—Questions eor Jury.</p> <p>Evidence in action for injuries to boy run over by defendant's truck held to warrant submission to jury of question of negligence of driver of truck and contributory negligence of boy.</p>

<p>Costs—Allowance to Defendant.</p> <p>Defendant, in whose favor judgment is rendered, is not entitled to costs, where he filed no verified pleading or written notice of appearance.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Costs, § 108.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Charles Hirsh against the Duval Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued before GILDERSLEEVE, DUGRO, and DOWLING, JJ.</p>

Two actions, tried together, by Abbie Pressinger against Harry Sturgis Woodhull. Judgment in favor of defendant, and plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Proceedings by Julian Benedict to dispossess Rose Hoffman. Erom a final order in favor of the tenant, the landlord appeals. Modified.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Rosie Sacks against Aaron Segal and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by the Manhattan Life Insurance Company against George F. Johnson and others to foreclose a mortgage.

Action by the Bender-Martin Company against the Apollo Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from Special Term.</p>

<p>Bailment—Action foe Rent—Evidence—Findings.</p> <p>In an action for rent of a lamp, under a contract by which defendant agreed to use it for 12 months at a dollar a month, payable in advance, evidence held insufficient to sustain a judgment dismissing the complaint.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Morris Greenwald and others against the Petite Cigar Manufacturing Company. Prom a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Herbert E. Hesselgrave against the Butler Bros. Construction Company. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Joseph Schneps against the Fidelity & Casualty Company of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by David Hartman against the Kahn-Feinberg Company. From a judgment for defendant, plaintiff appeals. Record returned for correction.</p>

<p>Contracts—Actions—Evidence—Burden of Proof—Special Meaning oi Words.</p> <p>A party to a contract, claiming, in an action thereon, that the term “six-story building,” as used therein, had some special meaning, understood by the parties, or which they could fairly be charged with understanding, has the burden of proof.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 11, Contracts, §§ 1755, 1756, 1766.]</p>

<p>Certiorari by the people, on relation of Arvesta Gibson, against the board-of assessors of the town of Pulteney, N. Y. Writ quashed.</p>

<p>Appeal from City Court of New York.</p> <p>Action by William L- Coggswell against Lewis C. Weir, as president of the Adams Express Cornpany. Erom a judgment of the New York City Court in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal—Recobd.</p> <p>The - appeal purporting to be from a certain judgment, and no such judgment appearing in the record, the questions involved in the appeal cannot be considered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by James W. Whitehead against the Trussed Concrete Steel Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>Money Paid—Work and Labor—Request.</p> <p>Where plaintiffs paid out money and performed services for defendant... in the absence of proof of request or reasonable occasion therefor, defendant is not liable.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 35, Money Paid, §§;■ 1-16; vol. 50, Work and Labor, §§ 1-10.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by J. Fleming Dutch against Orrel A. Parker. From an order, defendant appeals. Dismissed.</p> <p>See 97 N. Y. Supp. 966.</p>

<p>1. Tbusts—Evidence to Establish—Deposit in Bank.</p> <p>Where a person deposits money in a bank in trust for another, and dies, and there is evidence that the depositor stated that she intended the moneys to be for the benefit of the person in whose name it was put in trust, and such intention is consistent with the scheme of her will, a trust is established.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 47, Trusts, § 44.]</p> <p>2. .Same.</p> <p>Where money is deposited in a bank in trust for another, with the statement. “subject to the control of” the depositor, and the depositor has declared that she intended the money to be for the benefit of such person, it is sufficient to establish a trust.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 47, Trusts, § 44.]</p> <p>3. Same.</p> <p>A deposit, with an entry in the book signed by the depositor, “In case of my death pay to the order of (for her own use) E. H. only,” coupled with admissions of the deceased depositor, is sufficient to establish a trust.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 47, Trusts, § 44.]</p> <p>4. Same.</p> <p>Where an indorsement on an envelope containing bonds indicates an intention to make a gift, and it fails for want of delivery, the court cannot construe the transaction as a trust.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 47, Trusts, § 53.]</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Edward P. Hampson and another, copartners, against James A. Smith and others. From a judgment for plaintiffs, defendant Patrick Skelly appeals. Affirmed.</p>

<p>1. Intoxicating Liquors—Tax Certificate—Consents of Adjacent Owners.</p> <p>Under Laws 1896, p. 60, c. 112, § 17, subd. 8, requiring consents of the owners of dwellings within 200 feet of the premises in which traffic in liquors is to be carried on to the issuance of a liquor tax certificate, the consent of the owner of the fee is sufficient, without that of a life tenant.</p> <p>2. Same—Number of Consents Required.</p> <p>Under Laws 1896, p. 60, c. 112, § 17, subd. 8, requiring the consent of the owners of at least two-thirds of the dwellings within 200 feet of the entrance to premises in which traffic in liquors is to be carried on to the issuance of a liquor tax certificate, where a double house had the cellar divided by a lath and plaster partition, and the first and second \ floors were divided by a partition, through which there was a door between the hallways on each side on the first floor, nailed up at the time of the ; application for the certificate, and a husband owned one half and the Í wife the’ other half, the building could only be counted as one in deter- i mining the number of consents necessary. |</p> <p>3. Same—Opinion of Department of Excise—Effect. i</p> <p>That a second deputy commissioner of excise advised that a double house should be counted as two dwellings in determining the number of consents necessary to the issuance of a liquor tax certificate, without having submitted the matter to the legal branch of the department of excise, does not estop the commissioner of excise from bringing a proceeding to revoke the certificate on the ground that a sufficient number of consents was not procured.</p>

<p>Appeal—Record—Defects—Correction.</p> <p>Where the record is conflicting as to who are parties plaintiff and defendant, and as to the cause of action involved, it will be returned to the trial court for correction.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2830-2833.]</p>

<p>Brokers—Employment—Contract—Breach—Memorandum.</p> <p>Defendant, without authority from his wife, employed plaintiff as a broker to sell her real estate, but the written authorization to offer the property for sale was not signed by the wife or her attorney in fact as required by Pen. Code, § 640d. Held that, as plaintiff could not have recovered against the wife by virtue of such invalid writing even if defendant had had authority to place the property for sale, defendant was not individually liable for breach of an implied warranty of authority.</p>

Action by Ike I. Schneider against the New Amsterdam Gas Company and another. Erom a preliminary order enjoining defendant the New Amsterdam Gas Company from shutting off plaintiff’s supply oí gas by reason of his refusal to pay more than 80 cents per thousand cubic feet, defendants appeal. Reversed and remanded.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Fidelity & Casualty Company of New York against Henry C. Fischer. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Domicile—Transfer Tax—Evidence—Sufficiency—Declaration of Testator.</p> <p>A testator, whose will was admitted to probate in New Jersey, for about 15 years prior to his death had been accustomed to spend his winters in a New York boarding house, returning in the spring to New Jersey, where he owned his home. He had no property in New York, and when he left in the spring preceding his death in August he stated his intention to remain permanently in New Jersey. About four years before his death he had voted in New York and for several years prior to his death he had paid a personal tax in such state, and prior to his final departure therefrom had described himself in several instances as a resident thereof. Held insufficient to support a finding of a New York residence so as to justify an imposition of a transfer tax upon his estate.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Domicile, § 39.]</p> <p>Houghton, J., dissenting.</p>

<p>Appeal from Municipal' Court, Borough of Manhattan, Hirst District.</p> <p>Action by the J. C. Bogert Company against Charles Schmidt. From a judgment in favor of defendant, plaintiff appeals. Affirmed.</p>

Action by Lawrence Bastable against William J. Carroll. From an interlocutory judgment overruling demurrers to certain defenses and counterclaims in defendant’s answer, plaintiff appeals. Demurrer as to first separate defense overruled, and sustained as to the other two.

Judicial proceedings on the appraisal under the act in relation to taxable transfers of property of the property of T. T. Hillman, deceased. Appeal by the executrix from an order of the surrogate denying an appeal of the executrix from an order fixing the tax and an affirming order fixing said tax. Reversed, and remitted with directions to the surrogate to enter an order in conformity with the opinion.

<p>Replevin—Evidence—Admissibility.</p> <p>Where, in replevin, the issue was whether the goods were covered by a chattel mortgage, the exclusion of evidence negativing the claim was reversible error.</p>

Action by Louise Allen Collier against Bernard A. Myers and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Edward Squadrilli against • Michael Ciervo. Appeal by plaintiff from a judgment of the municipal court in favor of defendant. Reversed</p>

Application by Henry Klein, as trustee in bankruptcy of the Buedingen Manufacturing Company, to compel George V. Fleckenstein, an attorney at law, to pay over certain moneys collected by him as attorney for the bankrupt. Order that the attorney pay over a certain sum, with interest.

Action by David Waldman against Louis Mann. From a judgment in favor of plaintiff, defendant appeals. Return sent back to files of court to permit motions for amendment thereof.

<p>Landlord and Tenant-=-Dispqssession—Summary Proceedings—Process-Amendment.</p> <p>Where the process in a summary proceeding to dispossess a tenant in the Municipal- Court was insufficient in the first instance to bring the tenant properly within the court’s jurisdiction, it was error for the court to permit an amendment thereto under Municipal Court act, authorizing amendments in the interest of justice, etc.</p>

<p>Judgment—Res Judicata.</p> <p>Plaintiff sued for two items of $90 and $40 for services. Pending the action be brought a second action for the two items and a third item of $20. The second action was tried first, and resulted in a judgment for defendant, which on appeal was reversed and a new trial ordered. Pending the appeal, the first action was tried and plaintiff recovered for the $40 item only. On a new trial of the second action, defendant pleaded the judgment as res judicata to the claim for the $90 and $40 items. Held, that a judgment for plaintiff should have been limited to a recovery on the third item only.</p>

<p>Judgment—Coneobmity to Pbooe.</p> <p>A contractor, under a contract for tile work, sued for $450 balance due and for $25 for extra work. The owner set up a counterclaim for $500 for breach of contract, and showed that the work was Improperly done, and that doing the same over cost $300. BelcL, that a judgment in favor of the owner for the difference between the demand of the contractor and the • amount of the counterclaim was erroneous, in the absence of evidence sustaining the owner’s claim of $200.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 445.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Henry B. Haller against D. Phoenix Ingraham. From a judgment in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal—Record—Insufficiency.</p> <p>Where the notice of appeal recites that an appeal is taken from a judgment of dismissal, and the record does not contain such judgment, the case will be remitted to the trial court for such action as the parties may deem proper.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2830-2832.]</p>

<p>Appeal—Notice—Description of Judgment.</p> <p>Where notice of appeal recited that it was taken by a landlord from a judgment rendered in favor of the tenant on June 18, 1906, and the only judgment in the record was in favor of the landlord and against the tenant, rendered October 18, 1906, the appeal will be dismissed.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 2145, 2146.]</p>

<p>Appeal—Review—Discretion op Court—Continuing Preliminaby Injunction.</p> <p>An order continuing a preliminary injunction till trial will not be disturbed; sufficient facts being presented to the court to call for exercise of its discretion in determining whether the existing conditions should be preserved till trial.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3818.]</p>

Proceedings to restrain Edward K. Jones from acting as executor and trustee of the estate of Ferdinand Hirsch, deceased, pending an application for the revocation of his letters testamentary. From am order continuing an injunction granted, Jones appeals. Dismissed.

<p>Appeal from Special Term, New York County.</p> <p>Action by Emanuel J. Myers and others against Harris' Seff and others. From an interlocutory judgment sustaining demurrer to the complaint, on the ground that causes of action have been improperly united, plaintiff appeals. Affirmed.</p>

Action by Carrie J. Clarendon, as administratrix of William S. Clarendon, deceased, against Milliken Bros., incorporated, to recover damages for the death of plaintiff’s intestate by reason of defendant’s negligence. From an order denying defendant’s motion to require plaintiff, a resident of the state of New Jersey, of which state decedent was also a resident, to give security for costs, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by W. Anson Barnes against the New York City Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed. E. V. R. Ketchum, for appellant. Henry F. Gannon, for respondent.</p>

<p>Action by the Buffalo Loan, Trust & Safe-Deposit Company against Seward Webb.</p>

Action by John A. Burt against the Gem Bottle & Supply Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed. John G. Simpson, for appellant. George N. Boehm, for respondent.

<p>Action by Florence B. Friedlander, appellant, against William T. Friedlander and another.</p>

<p>In the matter of John J. Fitzgerald.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District. Action by George R. Read & Co. against Margaret Y. Orr. From a judgment for plaintiff, defendant appeals. Affirmed. David Orr, for appellant. Wentworth, Lowenstein & Stern, for respondent.</p>

<p>Action by Jules Constant Caritey against Frederick H. Eggers and another.</p>

<p>In the matter of the application of Charles H. Gardner, individually and as general guardian of Gustav Gardner, an infant, for an order directing the city chamberlain to pay over certain moneys.</p>

<p>Action by Margaret Gleason, as, etc., against the Delaware, Lackawanna & Western Railroad Company.</p>

<p>Action by Calogero Manzella, as, etc., against the Rochester Railway Company.</p>

<p>Action by Robert Maynicke against the Central Realty Bond & Trust Company.</p>

<p>Action by Daniel O’Shea against the Lehigh Valley Railroad Company.</p>

Action by William O. Ritter and another against David M. Torrey and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed. Henry J. Morris, for appellants. Samuel D. Lasky, for respondents.

<p>Action by Henry Shoemaker against the Security Mutual Life Insurance Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Tobias W. Stapleton against the M. J. Sage Company. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered. William H. Newman, for appellant. S. C. Sugar-man, for respondent.</p>

<p>Action by George L. Strohman against the Frederick J. W. Bursch Company.</p>

<p>Action by Oscar H. Sweet against Charles H. Perkins and others.</p>

Action by Mary S. Young, a stockholder and policy holder of the Equitable Life Assurance Society of the United States, who sues on behalf of herself and all others similarly situated against the Equitable Life Assurance Society of the United States and others.