Volume 103 — New York Supplement

<p>Brokers—Duties and Liabilities to Principal.</p> <p>Where one for whom a broker was carrying stocks on a margin, on being informed by the broker over the telephone that he must put up further margin or take up the stocks, told the broker to sell, he was authorized to do so, irrespective of any former agreement between the parties calling for further or written notice to put up more margin, or of the time and place of sale.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Brokers, § 19.]</p>

Action by one Schradin, as administrator; against the New York Central & Hudson River Railroad Company. Verdict for plaintiff. Motion to set aside the verdict and for a new trial. Denied.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by the Money weight Scale Company against Adolf Loewenstein. Erom a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by Simon'Leiman against David Rosenzweig. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appeals. Affirmed.

<p>Damages—Personal Injuries—Instructions.</p> <p>In a personal injury case, an instruction authorizing recovery on the basis of what the jurors would “want,” if standing in plaintiff’s place, was erroneous.</p>

<p>Appeal from. City Court of New York, Special Term.</p> <p>Action by the Ebling Brewing Company against Philip Adler. Prom an order of the City Court, striking out certain paragraphs of defendant’s answer, he appeals. Modified and affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>"Action by Mandel Finkelstein against William Balkin. .From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Sales—Remedies of Seller—Action for Damages.</p> <p>The buyer, having refused to accept certain beams and channels which he had agreed to purchase, the seller, who had ordered the material from another, was not entitled to recover the difference between the contract price and the cost of the material to him, where no part of the material had been manufactured or paid for, and it did not appear that the seller had incurred any liability on his order.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Anna Vucci against Fgidio Pellettieri and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed.</p>

Action by Dora Reynolds against John M. Strong and another. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Gaetano Frangipane against the Metal Stamping Company. From a Judgment for plaintiff, defendant 'appeals. Reversed, and a new trial ordered.</p>

<p>Appeal-Review—Failure to Present Question Below. ,</p> <p>The admission of oral testimony to vary a written contract was no: ground for a reversal, where the defeated party against whom the evidence was introduced made no objection thereto on the trial.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1263.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Joseph R. McGill against Michael Gargoula. Judgment for defendant, and plaintiff appeals. Reversed and remanded.</p>

<p>Evidence—Heaesay Evidence.</p> <p>The testimony of an officer of defendant bank, receiving a note to discount, on ascertaining the standing of the maker, to prove the loss of the note in the mails, that the cashier of another bank to whom the note had been sent to ascertain the financial standing of the maker told the officer over the telephone that he had received the note and had remailed it, was hearsay, and not binding on the holder, suing for its return.</p> <p>[Ed. Note.—For cases In point, see Cent.. Dig. vol. 20, Evidence, §§ 1174-1192.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Thomas J. Barry against Samuel M. Kurshan and another, copartners. From a judgment for plaintiff for $350, defendants appeal. Affirmed.</p>

Action by John R. Foley and another against Henry Punchard. Appeal by defendant from a judgment in favor of plaintiff. Reversed, and new trial granted.

<p>Sales—Actions fob Pbice—Evidence—Sufficiency.</p> <p>In an action by a dressmaker for services rendered in purchasing materials and making a dress for defendant’s wife, evidence held to show that plaintiff made out a prima facie case, entitling her to recover, where defendant interposed no evidence whatever.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, §§ 1056-1059.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Joseph Morris and another against Alexander Lurie. From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

<p>Oaeriers — Carriage of Goods — Failure to Deliver — Evidence — Sufficiency.</p> <p>In an action against defendants as common carriers for failure to deliver certain goods, evidence examined, and held insufficient to show the alleged failure to deliver.</p>

<p>Gabbiers—Injuries to Passengers—Evidence—Sufficiency.</p> <p>In an action for injuries to a passenger on a street car while riding on a bumper, evidence examined, and held not to sustain a verdict founded on the assumption that the car on which plaintiff, was riding, which was stalled for lack of power to move, did move backwards, whereby plaintiff was squeezed between such car and an express wagon crossing the street, thereby receiving the injury in suit.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action bv Annie J. Zunz agamst the city of New Ymk. Judgment for plaintiff, and defendant appeals. Reversed and remanded.</p>

<p>Master and Servant—Wages—Amount.</p> <p>Plaintiff was employed as a salesman under an agreement “to pay you $50 per week,” all moneys so advanced, including compensation, to be charged to the employe’s account against a commission on net amount df sales. There was a further agreement to give a bonus of $250 if the sales for the year amounted to .$50,000 net. Held, that the commission was to be adjusted at the end of the period of employment, and the provision for weekly withdrawals imported the agreement by the employer to pay $50 from week to week, irrespective of the question whether commissions had accrued for application to each withdrawal.</p> <p>FEd. Note.—For cases in point, see Cent. Dig. vol. 34, Blaster and Servant, §§ 82-8G, 89.]</p>

Proceeding by the,New York Central & Hudson River Railroad Company against the city of Yonkers and others to acquire land contiguous to its right of way for the construction of additional tracts thereon. Judgment for plaintiff.

In the matter of the judicial settlement of the account of Margarethe C. Marx, as executrix of Frederick Marx, deceased, against Sophie L. C. N.usted and others. From a decree of the Surrogate’s Court (99 N. Y. Supp. 334, 49 Mise. Rep. 280), settling the accounts, the executrix, individually and as executrix, appeals. Reversed and remanded.

In the matter of the application of Marie S. Wiggins for letters of administration with the will annexed of Henry A. Sheldon, deceased. From a decree appointing an administrator with will annexed, Isabel D. Burr appeals. Reversed.

<p>Attachment—Affidavits—Allegations—Suiticiency.</p> <p>In an action to recover the price of a locomotive sold by plaintiff to defendant, allegations in an affidavit for attachment that defendant was a foreign corporation organized under the laws of a certain other state were not obviously statements of a mere conclusion, so as to warrant a vacation of the attachment.</p>

Action by Seelye A. Cook and others against the Empire Furniture Company. Motion by defendant to set aside a judgment taken by plaintiffs on inquest, by default, and for leave to serve an amended answer. Motion denied.

<p>Appeal from Municipal Court of Buffalo.</p> <p>Action by William Dethoff against William Gattie. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Action by Guiseppe Priolo against Charles H. Southard and others.. Motion to dismiss complaint denied, and motion to set aside the verdict against one of the defendants and for a new trial granted.</p>

Action by Frederic W. Gardner against The Roycrofters and Elbert Hubbard. Motion to punish defendants for contempt for violation of an injunction order, and to enlarge the provisions of the same. Motion to punish for contempt denied, with leave to make further application, and injunction order modified.

<p>Depositions—Nonresident Witnesses—Statutes.</p> <p>Code Civ. Proe. § 888, subd. 5, provides for issuance of a commission to take depositions without the state, where the testimony is to be used upon the prosecution or defense of issues of fact joined in an action pending in a court of record. Section 894 provides that an open commission can be had where the testimony is “material and necessary in the prosecution or defense of the action.” Held, that an application for a commission to take testimony of nonresident and absent witnesses material to a motion yet to be made to punish a party for contempt, upon which no issues have been joined, must be denied.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Depositions, § 19.J</p>

<p>Cakbiebs—Injukies to Passengebs—Proof of Negligence.</p> <p>In an1 action for injuries to a passenger on a street car, where it was shown that the car, while being driven rapidly on a curve, left the track, whereupon plaintiff was thrown from the platform into the street, receiving the injuries complained of, it was error to dismiss the complaint for failure of proof of defendant’s negligence.</p> <p>[Bd. Note.—For cases in point, see Gent. Dig. voi. 9, Carriers, §§ 12SS, 1307.]</p>

Action by Adam Happel against Isidor Rosenthal. Erom a judgment of the Municipal Court in favor of plaintiff, after a trial before the court without a jury, defendant appeals. Affirmed.

<p>Courts—Municipal Courts—Judgment by Default—Appeal.</p> <p>Under Municipal Court Act, Laws 1902, p. 1578, c. 580, § 311, a defendant against whom judgment was taken by default, and who was never served with summons and never appeared in the action, properly appeals directly to the Appellate Term of the Supreme Court</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Charles H. Meyer against Henry M. Seely. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Thomas J. Nugent against Bartholomew M. O’Connor. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Israel Tuttman against Samuel Trigger. From a judgment for plaintiff, he appeals. Reversed and remanded.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Alfred Cane against Jere Lieberman, interpleaded,- etc. Judgment for defendant Lieberman, and plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Henry Schwarzwalder against Clendenin Eckert. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, First District.</p> <p>Action by Mary Dista, an infant, etc., against the Westchester Electrict Railroad Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Max P. Hohl against the Hewitt Motor Company. From an order setting aside a verdict in favor of plaintiff, he appeals. Reversed, and verdict reinstated.

<p>Judgment—Evidence to Sustain—Carriers—Loss oe Goods.</p> <p>In an action against a carrier to recover for the failure to carry and deliver certain goods, it was error to enter judgment against the defendant, in the absence of any evidence of the value of the goods.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Herman Meyers against the New York City Railway Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Affirmed.</p>

<p>1. Principal and Agent—Cause of Action—Liability of Party.</p> <p>Defendant's brother engaged plaintiff to render certain services as an accountant for his own benefit, and made all the payments that were made on account of the work. There was no proof that defendant directed, authorized, or was benefited by the services, or that he had ever held out his brother as authorized to act for him, or ratified or adopted his acts. Held, that defendant was not liable for the services so rendered.</p> <p>2. Same—Holding Out.</p> <p>The fact that defendant’s brother was a guest in defendant’s family . apartment, having no home of his own in New York, and transacted the business in question largely from such residence, did not constitute a holding out by defendant of the brother as his agent.</p>

Action by George H. Abelson against Julius Goldstone and others, From a judgment in favor of defendants, plaintiff appeals. Affirmed in part, and in part reversed.

Action by Bettie Schechwitz, an infant, against the New York City Railway Company. From a judgment for plaintiff, after a trial before the court and jury, defendant appeals. Reversed, and new trial granted.

Action for personal injuries by John Schnupp against the Interurban Street Railway Company. Appeal by plaintiff from an order overruling a motion to reinstate the cause on the day calendar. Reversed.

<p>1. Monet Lent—Evidence—Sufficiency.</p> <p>In an action for money lent, evidence examined, and. held insufficient to meet the burden of proof on plaintiff to establish the fact of the loan. '</p> <p>2. Appeal—Review—Questions of Fact.</p> <p>Where the appeal record fails to disclose a single fact or circumstance from which corroboration of the plaintiff’s testimony maj" be inferred, a judgment in his favor in the face of strong contradictory evidence will be reversed.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error,</p> <p>§§ 3990-3992.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Percy I. Ansorge against John L- Moriarty and another. Judgment for plaintiff, and defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second • District.</p> <p>Action by Louis Michels against Michael A. Studnitz. Appeal by defendant from a judgment .in favor of plaintiff. Reversed, and new trial ordered.</p>

Action by the West Side Laundry Company against the Calumet Hotel Company. From a judgment for plaintiff after a trial without a jury, defendant appeals. Affirmed.

Action by St. Paul’s Church in the Town of Eastchester, in the county of Westchester and state of New York, against the Mt. Vernon Suburban Land Compaq. From an order denying defendant’s motion to dismiss the action for unreasonable neglect to proceed therein, it appeals. Reversed.

<p>Eminent Domain—Compensation—Fixtures.</p> <p>Where a tenant erected on the leased land a building designed for a factory, and placed machinery therein, on the taking of the property by the city for street purposes, so far as the machinery had become a part of the building, tl tenant was entitled to receive the reasonable value of the ■ machinery in use in connection with the leasehold, but as to such machinery as could readily be removed, and would have a substantial value disconnected from the building, he was not entitled to compensation.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Eminent Domain, § 358.]</p>

Judicial settlement of the accounts of Marian Davis and another, administrators of William H. Davis, deceased. From an adverse decree, Florence E. Mayer and others appeal; the administrators being the respondents. Modified and affirmed.

<p>Mandamus—Health—License to Sell Milk.</p> <p>Where an ordinance provided that no person should carry on the business of milk dealer without a license from the health bureau, mandamus would not lie to compel the issuance to relator of a license to sell milk, refused on the ground that relator was found to have been selling unclear, milk.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 33,'Mandamus, §§ ISO-192.]</p>

<p>Appeal from Special Term, Kings County.</p> <p>Mandamus by the people, on the relation of the Brooklyn Heights Railroad Company, against Edward M. Grout, as comptroller of the city of New York, and another, to compel defendants- to deduct from relator’s franchise tax the local public charges. From an order denying the relator’s application in part, it appeals. Modified and affirmed.</p>

<p>In the matter of the estate of Sarah E. Rosenblatt. Objections to proceedings for enforcement of claim overruled. Motion of claimant granted.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District. , Action by Charles F. Coppins against Emma Lowe. From an order setting aside a verdict for plaintiff, he appeals. Reversed. Henry C. Hunter (S. John Block, of counsel), for appellant. Semple & Liebeskind, for respondent.</p>

<p>Appeal from Municipal Court, Borough, of .Manhattan, First District. Action by Julia Coogan, by Catherine Coogan, her guardian ad litem, against the Interborough Rapid Transit Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Charles A. Gardiner (J. Osgood Nichols, of counsel), for appellant. John B. Doyle, for respondent.</p>

<p>Action by the C. S. Tapley Company against the E. L. Hasler Company.</p>

<p>Appeal from Municipal Court. Borough of Manhattan, Eleventh District. Action by George Daiker against Edwin B. Hutchinson. From a judgment in favor of plaintiff, defendant appeals. Affirmed. McLaughlin & Stern, for appellant. Simon Sultan, for respondent.</p>

<p>Action by Charles D. Cords against Edward Ruth.</p>

Action by Christian Dages against George AV. Bryant and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted. Leidy & Goodstein, for appellant. AATheeler & Nekarda, for respondents.

<p>Action by Edouard De Reszke against John S. Duss.</p>

<p>In the matter of the annual election of the Empire State Supreme Lodge of the Degree of Honor, a corporation, etc.</p>

<p>Action by Charles Hart and others against Sarah Hart and others. J. J. Crawford, for appellants. C. F. Brown, for respondents.</p>

<p>Appeal from City Court of New York, Special Term. Action by Arthur Hamill against the Interurban Street Railway Company. From an order denying plaintiff’s motion to restore the cause to the day calendar, he appeals. Modified. John F. Foley (William J. Martin, of counsel), for appellant. Henry A. Robinson (Bayard H. Ames, of counsel), for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. Action by Mendel Gurvitz against the New York City Railway Company. From an order setting aside a verdict recovered by plaintiff, he appeals. Return sent back to the files for such action, as counsel may advise. David Goldstein, for appellant. William E. Weaver, for respondent.</p>

<p>Ap~eal from Municipal Court, Borough of the Bronx, Second District. Action by Frederick Hitchcock against Michael Accardo. From a judgment for plaintiff, defendant appeals. Affirmed. Goldf ogle Cohn & Lind (I. Balch Louis, of counsels, foi- appellant. . Charles Stein, for respondent.</p>

<p>Action by James Henry, an infant, against the Interurban Street Railway Company. B. H. Ames, for appellant. •H. W. Unger, for respondent.</p>

<p>Action by Agnes E. Killian against Katherine E. Heinzerling, as administratrix. E. Miehling, for appellant. J. E. Donnelly, for respondent.</p>

Appea' from Municipal Court, Borough of Manhattan, Seventh District. Action by Simon Moritz against John Rachow and another. Judgment for p1ainti~, and defendant Rachow appeals. Affirmed. Michael J. Horan, for appellant. Hnth & Baker, for respondenh

<p>Action by Louis W. Olms against Theodore A. Bingham, individually, etc., and others,</p>

<p>Action by Margaret Shea, as administratrix, against the city of New York. T. Connoly, for appellant. S. E. Whitehouse, for respondent.</p>

<p>Action by the Seal'oard National Bank against the Bank of America. C. E. Rushmore, for appellant. IL Aaron, for respondent.</p>

Action by Berry B. Simons and others against William Cohen and others. From a judgment for plaintiffs, defendants appeal. Affirmed. George J. Greenberg, for appellants. Alexander & Ash (Mark Ash and William Ash, of counsel), for respondents.

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Theodore IV. Siemon against James C. Fargo, as president of the American Express Company. From a judgment for plaintiff, defendant appeals. Modified. Carter, Ledyard & hlilhurn (J. Yimont Lyle, of counsel), for appellant. Hunt, Hill & Betts, for respondent.</p>

Action by the Title Guarantee & Trust Company against Alexander S. Marcuson and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Modified and affirmed. Samuel J. Rawak for appellants. Albert A. }Iovell, for respondent.

<p>Action by Joseph C. Young aeainst the Mason Stable Company. J. C. Robinson, for plaiutifi~. A. Stickney, for defendant,</p>