Volume 102 — New York Supplement

Action by William W. Appleton and another, trustees under the will of James E. Cooley, deceased, against Max Marx. ■ From a judgment for plaintiffs, entered on- report of a referee, defendant appeals. Affirmed. The opinion of the referee is as follows: It is admitted by the defendant that he has failed to pay to the plaintiffs the sum of $1,000, part of the rent which became due by the terms of the lease on the 1st day of April, 1902.

Petition by Maynard N. Clement, as state commissioner of excise, for an order revoking and canceling the liquor tax certificate issued to Henrietta Martin. From an order denying the petitioner’s motion, and from a judgment for costs, petitioner appeals. Reversed, and motion granted.

<p>Appeal from Special Term, Kings County.</p> <p>Action by the South Shore Traction Company against the village of Patchogue and another. Defendants appeal from an order granting an injunction. Reversed.</p>

Action by William Johnson against Ee Grande Pettit and another to have it declared that plaintiff is the owner of certain property and entitled to an award of damages, and that the city be required to pay to the plaintiff the amount so awarded. Complaint dismissed.

<p>Attachment—Obounus—Affidavits—Sufficiency.</p> <p>An affidavit by .an officer o£ a corporation suing lor goods sold, which avers that the corporation made the sale and extended credit to the buyer on the strength of his false statement of his financial condition furnished by him to a commercial agency and by it. to the corporation, but which fails to show that affiant had any personal knowledge that the buyer made the statement attributed to him, and which is not accompanied by an affidavit of any agent of the commercial agency as to the rendering by the .buyer of the statement, is insufficient on which to base an attachment.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 5, Attachment, § 246.)</p>

<p>Judicial proceedings in the matter of the application of William B. Logan concerning the certificate of nomination of John A. Galvin and others as candidates to be voted for at the election of November 6, 1906, in the city of New York. Orders of the Special Term vacated.</p>

<p>Action by Charles E. Beard against Miles Covill. Motion on order to show cause why an execution issued on a judgment for plaintiff for necessaries, should not be set aside. Order setting execution aside.</p>

<p>Appeal from Justice Court.</p> <p>Action by Stephen S. Benson against the American Illuminating Company. From a. judgment for plaintiff, defendant appeals. Reversed.</p>

Action by the people of the state of New York against Jordan L. Snedecor and others. Judgment for plaintiff, and defendants appeal. Affirmed.

<p>Appeal from Special Term, New York'County.</p> <p>Action by Achille J. Oishei against the Pennsylvania Railroad Company, impleaded with Domenico Farrarelli. From a judgment for plaintiff, defendant company appeals. Affirmed.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Achille J. Oishei against the Pennsylvania Railroad Company, impleaded with Vincenzo Morenna. From a judgment for plaintiff, defendant company appeals. Affirmed.</p>

<p>1. Justices of the Peace—Appeal—Questions Not Raised Below.</p> <p>The objection that a verified complaint in an action before a justice on a judgment rendered against defendant by a justice does not state facts constituting a cause of action, in that it fails to show that the court has jurisdiction of the subject-matter and of the person, cannot be raised for the first time on appeal from the second judgment.</p> <p>[Ed. Note..—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 511.]</p> <p>2. Same—Pleading—Demubreb.</p> <p>An objection that the complaint in an action before a justice on a judgment recovered before another justice does not show that the latter had jurisdiction of the person and of the subject-matter must be raised by demurrer. ,</p> <p>[Ed. Note.—For cases- in point, see Cent. Dig. vol. 31, Justices of the Peace, §§ 97, 223, 309, 324.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Eelix Phillips against Herman Silverzweig. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Cyrus Mark and others against Hugh C. Eox and others. From an order of the City Court of New York granting a motion for a commission to take testimony on oral questions, defendants appeal. Reversed.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by William E. Lennon against Irving S. Charig. Erom a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Dennis Kelleher against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Brokers—Compensation—Evidence of Services.</p> <p>A real estate broker cannot recover compensation for his services to the owner, unless he has procured a purchaser ready and able to buy on the terms laid down by the owner.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Brokers, §§ 69-81.]</p>

Action by Giuseppe Cardinale, as administrator, against the Society' of Civility and Labor. . From a judgment for plaintiff, rendered in the Municipal Court of the city of New York, defendant appeals. Modified and affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Israel Raved against Flora D. A. J. ICibbe. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Sales—Actions eor Price—Amount oe Recovery.</p> <p>Where, in an action to recover for goods sold and delivered, the complaint demands judgment for a certain sum, but on the trial plaintiff admits part payment of the amount claimed in the complaint, a judgment for plaintiff must be limited to the amount remaining unpaid.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, § 1060.]</p>

<p>Trial—Taking Case from Jury—Questions of Fact—Evidence.</p> <p>Where there was evidence sufficient to warrant the submission to the jury of the questions of defendant’s negligence and plaintiff’s contributory negligence, it was error to dismiss the complaint.</p> <p>[Ed. Note.—For cases in point, see Cent ‘Dig. vol. 46, Trial, §§ 318-340.]</p>

<p>Trial—Instructions—Credibility of Witnesses.</p> <p>In an action for personal injuries, an instruction that: “When you get stories of the happening of a certain event diametrically opposed to each other, you cannot throw the mantle of charity over them and say that some one is mistaken. You have got to characterize it in harsher and more severe language”—was erroneous, as the jury.should have been permitted to reconcile, if possible, the testimony, without attributing willful perjury to any of the witnesses.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 414, 415.]</p>

<p>Contracts—Action for Breach—Pleading.</p> <p>Plaintiffs 'alleged and proved that they made a contract with defendant to perform work and furnish materials for the alteration of a building at an agreed, price, that defendant canceled this contract, and that the difference between the cost of the work and materials, under the plans and specifications, and the contract price, was a certain sum, which was the amount of their damage. Held, that it was error to dismiss the complaint on the ground that no cause of action had been made out against defendant.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, .First District.</p> <p>Proceedings by Augusta Glanz against Henry Schaefer. From a final order in favor of plaintiff, defendant appeals. Reversed and dismissed.</p>

<p>1. Appeal—Record—Evidence—Sufficiency.</p> <p>Where the essential facts of a case were not shown with sufficient certainty to make it possible to determine if the judgment of the lower court was correct, a new trial will be granted.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4600-4603.]</p> <p>2. Husband and Wife—Goods Furnished Wife—Inability of Husband.</p> <p>Where a husband furnishes a wife with necessaries suitable to her position and money with which to pay cash therefor, he is not liable for the price of other goods sold to her, in the absence of proof of-prior authority or subsequent ratification.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, 'Husband and Wife, % 121.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Two actions by the County Armagh Ladies’ Social & Benevolent Association against Annie Lennon. From both judgments for defendant, plaintiff appeals. Affirmed.</p>

<p>Landlord and Tenant—Landlord’s Duty to Repair.</p> <p>Where a lease of a building provided that the landlord should make all repairs to the roof and not be liable for damage caused by leakage unless he should neglect to repair within a reasonable time after written notice, and a skylight repeatedly became out of order and the repairing was defective and the roof imperfectly protected while the repairs were being made by the landlord, he was liable for damages ensuing to the tenant from leakage.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 648, 649.]</p>

<p>Landlord and Tenant — Injury to Tenant — Negligece — Pleading and Proof.</p> <p>Plaintiff, in an action by a tenant against her landlord, alleging that by reason oí the torn condition of the hall and stairs carpet and the lack of light she tripped and was precipitated down the stairs, does not connect the accident with the negligence charged by testimony that she went out of her room to go down stairs, and was “taken from the top of the stairs and thrown down,” and that she knew nothing more.</p>

<p>• Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Gerson Eederman against Thomas Rahaim and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by J. Fred Pierson against James Hughes and another. Prom a Municipal Court judgment in favor of plaintiff, defendants appeal. Affirmed.</p> <p>See 88 N. Y. Supp. 1059.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Samuel Shtrax, assignee of Jacob Wolf, against Morris Warm. From an order vacating and setting aside a judgment, plaintiff appeals. Affirmed.</p>

Action by Ardashes K. Zambakian, an infant, by John Emanuel, his guardian ad litem, against William H. Werner. From an interlocutory judgment sustaining a demurrer to the complaint, and from a final judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Ida Rogg against Israel Simelowitz and others. From a judgment and order of the New York City Municipal Court, entered against plaintiff on default, she appeals. Order affirmed. Appeal dismissed.</p>

.Appeal from City Court of New York, Trial Term. Action by Lewine Bros, against Harry Potar. From a judgment dismissing the complaint, and from an order denying a motion for a new trial, plaintiffs appeal. Reversed, and new trial granted.

<p>Appeai>-Review—Findings of Jury—Preponderance of Evidence.</p> <p>Where the evidence is not, as a matter of law, preponderating on either side, the determination of the jury will not be set aside as contrary to the weight of evidence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3935.]</p>

<p>Sales—Action fob Price.</p> <p>Plaintiff alleged and proved the sale and delivery of goods to defendant at an agreed price. There was a conflict of evidence as to whether or not the goods were defective. Defendant showed no offer to return, but, on the contrary, kept the goods. Held, that plaintiff was entitled to recover the value of the goods upon a quantum meruit.</p>

<p>Coepokations—Liability on Contracts—Acts of Officers.</p> <p>Where the president of a corporation employed public accountants to go over the company’s books, the corporation was liable for their services, performed with the knowledge of the officers, although the president concealed from certain new directors, who were elected just after the accountants’ services commenced, and who constituted a majority of the board, that the accountants had been employed.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1615-1G10.]</p>

In the matter of the application of the city of New York to acquire title to piers old Nos. 19 and 20, East river, occupied by Elbridge T. Gerry and others. From an order confirming the report of the commissioners in condemnation proceedings and to review an order (100 N. Y. Supp. 626) sending the report back to the commissioners, the city appeals. Reversed.

<p>Appeal from City Court of New York, Trial Term</p> <p>Action by John Darners against Morris S. Sternberger. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Peter C. .Kelly against the New York City Railway Company. From a judgment for defendant, plaintiff appeals. Third persons move to dismiss or postpone hearing of appeal. Motion denied.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Frederick Loew against the New York City Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and rendered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Moses Plaut against the New York City Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before GILDERSLEEVE, MacLEAN, and AMEND, JJ.</p>

<p>Judsment—Evidence to Sustain.</p> <p>In an action on a contract, according to plaintiffs’ evidence they were entitled to recover $150, while according to defendant’s evidence they should recover nothing. Held, that there was no authority under the evidence for a judgment for $75.</p>

<p>Appeal—Findings of Fact—Review.</p> <p>Whether plaintiff agreed to make and deliver certain garments, so that his failure to do so was a breach of the contract, was a fact to be determined by the trial justice, and his finding thereon will not be disturbed.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3955-3969.]</p>

<p>Appeal from Municipal- Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Thomas D. Bayles against Mary L. Robinson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.</p>

<p>Landlord and Tenant—Recovery of Possession by Landlord—Summary Proceedings—Process—Service—Jurisdiction—Appeal.</p> <p>On an appeal from a final order in a summary proceeding in the Municipal Court of New York, the defendant presented affidavits, which had been duly served, showing that no service of the precept was ever made on him, and no opposing affidavits were presented. Held, that the final order should be reversed.</p>

Twelfth District. Action by Isaac Stern against Joseph F. Murphy for rent and injuries to property. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Bonwit, Teller & Co. against George E. Lovett. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.</p>

<p>Accobd and Satisfaction—Past Payment—Effect of Receipt in Full.</p> <p>Defendant, as plaintiff’s attorney, collected money in a suit and retained a certain per cent, for services in the trial court and $500 for services on appeal. Plaintiff objected to the fee of $500, and defendant gave it a check for $225, which was indorsed in full of all demands. Plaintiff now sues to recover the overcharge on the $500 fee and overcharges for disbursements, etc., in all amounting to $389.80. Defendant admitted that plaintiff was entitled to recover $43.4!, hut set up the defense of accord and satisfaction to plaintiff’s entire claim. Held, that the defense of accord and satisfaction was good only as to the $500 fee, and the plaintiff was entitled to recover the balance of his claim.</p>

Action by Lorenz Reich against William F. Cochran, in which Eva S. Cochran and others were substituted as executors of defendant who died pending the action. Judgment in favor of defendants.

<p>Eminent Domain — Condemnation Proceedinqs — Commissioners — Allowances.</p> <p>Chapter 658, p. 1684, Laws 1906, which prevents the granting of extra allowances to commissioners in condemnation proceedings prior to its adoption, and which provides that its provisions shall apply to all pending proceedings where the duties imposed by the act have not been performed, does not apply to proceedings pending at the time of its passage, in which steps have actually been taken by the commissioners; and hence, where the commissioners entered into the discharge of their duties before the adoption of such act, they were entitled to the extra allowances.</p>

<p>Motion by commissioners, in proceedings to acquire title to certain lands lying between Twenty-Seventh and Twenty-Eighth streets and Ninth and Tenth avenues in the city of New York for park purposes, for additional allowance under section 998 of Greater New York Charter (Laws 1901, p. 425, c. 466). Granted.</p>

Application by Dominick Dalessandro, for, an order to strike the name of James O’Brien from the enrollment book of the Sixteenth election district of the First assembly district, in the county of New York. From an order denying the application, applicant appeals. Affirmed.

Application by Bernard Giles for an order to strike the name of Henry Titus from the enrollment book of the Twentieth election district of the Twenty-Fifth assembly district in the county of New York. From an order denying the application, applicant appeals. Affirmed.

<p>Appeal from Special Term, New York County.</p> <p>Application by Lándon T. Davies for an order striking the name of John McGuire from the enrollment book of the Twenty-Seventh Election District of the Twenty-Fifth Assembly District, in the county of New York. From an order denying the application, applicant appeals. Affirméd.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Maurice Sullivan against the Bankers’ Surety Company. Erom an order granting plaintiff’s motion for leave to serve a reply to the counterclaim set up in defendant’s answer, defendant appeals. Affirmed.</p>

Action by Sarah A. O’Reilly, as executrix, against Patrick Skelly and others. Prom an order directing plaintiff to serve an amended complaint, separately stating and numbering the causes of action attempted to be alleged in the complaint, plaintiff appeals. Affirmed.

<p>Action by Clarence L. Lowther against William H. Rader and others. Complaint dismissed.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Annie L,. Quinlan against the city of New York. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Trial Term, New York County. Action by Ellen Coffey, as administratrix of the estate of Patrick Coffey, deceased. From an order setting aside a verdict for plaintiff and directing a new trial, plaintiff appeals. Affirmed. Frederick Hulse, for appellant. Joseph F. Daly, for respondent,</p>

<p>Ac-, tion by Maynard M. Clement, as state commissioner of excise of the state of New York, against the Federal Union Surety Company, impleaded with Thomas Lunan.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Clara Cohen against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Action by Della Dornar. in infant, etc., against the New York Central b Hudson River Railtoad Company.</p>

<p>Action by the department of health of the city of New Yor against the Hecker-Jones-Jewell Milling Con: pany.</p>

<p>Action by Mariarosa Dipietri against the Delaware, Lackawanna & Wester, Railroad Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Fidelity & Casualty Company of New York against William C. W. Child for premiums alleged to be due under certain policies. From a judgment for plaintiff, defendant appeals. Reversed, and a new trial ordered. George E. Brower, for appellant. Nadal, Carrere & Jones ~I-Iarold S. Recknagel, of counsel), for respond-ant.</p>

<p>Appeal from Muaicipal Court, Borough of Bronx, Second DisLrict. Action by John J. Fox against the White Clover Dairy. From a judgment for plaintiff, defendant appeals. Affirmed. So]. A. Hyman, ~or appellant. Corbin & O'Ryan, for respondent.</p>

<p>Appeal from Municipa Court, Borough of Manhattan, Fourth District Action by Simon Handman and others agair.s Joseph Louis. From a judgment of the Mu nicipal Court of the city of New York in. favo: of defendant, plarntjfih appeal. Reversed, am new trial ordered. Jacob Friedman, for appel lants. Harry M. Goldberg, for respondent.</p>

<p>Action by Harry Howell against the New York Central & Hudson River Railroad Company.</p>

<p> Appea from Municipal Court, Borough of Manhattan Eighth District. Action by Roy S. Knaggi and otbers against the R. ID. Gould Company From a judgment for plaintiffs' defendant ap peals. Reversed, and new trial ordered. Alex' ander Thain, for appellant. Adolph M. Schwari (ID. Merriam Ragg, of counsel), for respondents~ </p>

<p>Ac lion by Edwin C. Lamed against Oliver Wat son.</p>

<p>Action by William V. McCormack agivins' Robert F. Leffia and another.</p>

<p>Action by Irving Moyer against the `illage of</p>

<p>Action by Patrick J. O'Connor against llk~nry P. Burgard.</p>

<p>Action by Fred ID. O~!emus against John K. Fellows, as, etc.</p>

<p>Proceedings by the people 01 the state of New York, on the relation 01 George Lodes, against the department 01 Eealth of the city of New York,</p>

<p>Proceedings by the peoplE of the state of N~ew York, on the relation o~ Betsy Pullman, as, etc., against R. Fentor Seeley and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Marion P. Peterson against Earle P. Uuff. Prom a judgment for plaintiff, defendant appeals. Affirmed. Charles LaRue, for appellant.</p>

<p>Action by Theresa Rossenbach against the Supreme Court of Independent Order of Foresters.</p>

Action by the V. Loewer’s Gambrinus Brewery Company against James McGinn Bros, and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed as to defendant Ficke, and otherwise reversed. Paskus & Cohen, for appellant. Frank Verner Johnson, for respondents.

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Thomas S. Walker and others against Carl Thomsen and another. From a judgment for defendants, plaintiff appeals. Affirmed. W. E. Dressier, for appellant. Strasbourger, Weil, Bschwege & Schallek, for respondent.</p>

<p>Action by Ellen J. Wynn against the Provident Life & Trust Company of Philadelphia, Pa.'</p>