Volume 104 — New York Supplement

<p>Action by Frank L. Dyer and others against August Drucker.</p>

<p>Appeal from Special Term.</p> <p>Action by Deeb Lutfy against Edgar D. Starbuck. From an order denying defendant’s motion for a change of venue, he appeals.</p>

<p>1. Courts—Surrogate’s Court—Jurisdiction—Construction op Will.</p> <p>The Surrogate’s Court has jurisdiction to construe a provision ot a will and determine its meaning and validity, in order to make a proper decree of distribution.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, § 87.]</p> <p>2. Wills—Construction—Precatory Expressions.</p> <p>Precatory expressions in wills will not be given the weight of an absolute command, unless the intent of the testator that such should be their effect is beyond any question.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 1587.]</p> <p>3. Same.</p> <p>A provision in a will directing that testator’s friend, who had been his attorney for many years, should be continued in the management of testator’s estate so far as legal advice should be necessary, was not a trust, and did not create a beneficial interest in the estate in favor of the attorney named, so as to preclude the executors from employing other counsel, or render them liable on such employment to the attorney named for the amount paid by them to other counsel for legal services.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 1587.]</p>

<p>Application by the people, on the relation of James F. Rooney, for a writ of peremptory mandamus, against Luther C. Warner, as clerk of the board of supervisors of the county of Albany.</p>

<p>1. Municipal Corporations—Defective Sidewalks—Liability.</p> <p>A city or village whose trustees are made commissioners of the highway is bound to repair and liable for negligence in not repairing the same.</p> <p>2. Same.</p> <p>In determining whether or not a sidewalk shall be built, the power to determine is judicial, and for failure to exercise that power the village is not liable.</p> <p>3. Same—Duty of Municipality.</p> <p>Where a village exercises its power, and directs that a sidewalk be built, and it builds the walk and a person is injured by its negligent construction, the village is liable.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1612, 1624.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the W. F. Powers Company against the R. E. Gould Company for services performed. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Emanuel Pe.ck against Jennie Kamsler. Erom an order opening a default, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by John Hahn against William G. Watt. , From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Summary ■ proceedings by- William Cohn and others, landlords, against Samuel Hanellin, tenant. From an order setting aside a judgment for the tenant, and granting a new trial, he appeals. Remitted.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Frederick S. Myers against Louis Bernstein. Judgment for plaintiff, and defendant appeals.</p>

<p>Trial—Questions fob Jury — Negligence — Personal Injuries — Judgment Against Weight of Evidence.</p> <p>Where, in an action for injuries to plaintiff through being struck by defendant’s automobile, the facts testified to by plaintiff’s witnesses were uncontradicted, and established a prima facie case, a judgment dismissing the complaint was contrary to the weight of the evidence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 359, 360.]</p>

<p>Replevin—Trial—Instructions.</p> <p>Where, In an action for the return of chattels or their value, attached as the property of plaintiff’s vendor, it appeared that plaintiff had purchased and paid for the chattels, and that he had taken them into his possession and filed his bill of sale In the register’s office before the marshal seized them, and there was no evidence of fraudulent intent on the part of either plaintiff of his vendor, an instruction that if both the party at whose instance the property was attached and the marshal were acting in good faith, and the appearances were such as to mislead them into believing that plaintiff’s vendor was still in possession and the owner of the property, then the verdict should be for defendants, and that it should only be for plaintiff where the evidence would warrant them in finding that the marshal against appearances performed an unlawful act in taking the property, was erroneous.</p>

<p>1. Brokers—Compensation—Commissions from Both Parties.</p> <p>In an action to recover broker’s commissions for negotiating the exchange of defendant’s property for the property of L. & W., a showing that plaintiff was to also receive commissions from L. & W. was sufficient to bar his recovery, unless he acted in his dual capacity with the knowledge and consent of defendant.</p> <p>[Ed. Note.—Por cases in point, see Cent. Dig. vol. 8, Brokers, § 53.]</p> <p>2. Same—Actions—Evidence—Admissibility.</p> <p>In an action to recover broker’s commissions for negotiating the exchange of defendant’s property for the property of L. & W., where there was no evidence that defendant knew that plaintiff was to also receive commissions from L. & W., it was not error to exclude evidence that L. & W. knew he was to receive commissions from defendant.</p>

Action by Ben Blumenthal, doing business under the name of the West End Automobile Palace, against Edwin Stan cliff. From a judgment for plaintiff, defendant appeals.

<p>Principal and Agent—Compensation of Agent—Commissions on Sales—Orders Not Filled.</p> <p>Where a person was employed to sell goods on a written contract for a commission on all net sales which he procured, to be paid only after the goods were paid for, he could recover his commissions, not only on'goods sold by him and paid for, but on goods the orders for which were not filled through the fault of the employer.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 209, 217.]</p>

<p>1. Appeal — Review — Extent — Judgment by Default ob Obdebs Relating Thebeto.</p> <p>Where a judgment was entered by default after defendant had answered, and an order was entered denying his motion to open the default, both the order and judgment are before the court for review on appeal.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3465.]</p> <p>2. Judgment—Opening Default—Waives of Right to Relief.</p> <p>Defendant’s attorney asked to have his case transferred to another court, but refused to state his reasons, whereupon the court marked the case “Ready.” He subsequently moved to open the default on the ground that he had been unable to secure a necessary and material witness, and stated that the justice had refused to send the case to another court. He then refused to try the case and withdrew from the courtroom. Held, that the motion was properly denied.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 257.]</p>

<p>1. Damages—Breach of Contract.</p> <p>Where cloth delivered by plaintiffs to defendant to be sponged was returned in a damaged condition, the measure of damages was the difference between the value of the cloth in the condition in which it was delivered and its value in the condition in which it was returned.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, §§ 320-324.]</p> <p>2. Same—Evidence of Value.</p> <p>Where plaintiffs delivered cloth to defendant to be sponged, and alleged that it was returned in a damaged condition, a paper, purporting to be a receipted bill, showing that certain parties had sold cloth to plaintiffs and the amount which plaintiffs had paid, was incompetent to prove the value of the cloth.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Asher Brodfeld against Isaac Schlanger. From a judgment for defendant, plaintiff appeals.</p>

<p>Damages—Measube of Damages—Bbeaoh of Contbact—Mode of Estimating Damages.</p> <p>In an action for failure to furnish an operator and apparatus for giving a moving picture exhibition, where plaintiff purchased films to be used at the exhibition, defendant is liable for the difference between the cost and the marketable value of the films, but not for the entire cost thereof.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Eirst District.</p> <p>Action by Bernard Campbell against Susan A. Eudin and another, trading as the New York Bottling Company. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Thomas H. McKee against Marie Louise Bigelow Owen-From a judgment for defendant, plaintiff appeals.</p>

<p>Payment—Evidence.</p> <p>Where plaintiff sued as executor to recover $145 alleged to be due his testator and defendant pleaded payment to the extent of $130, held, that the evidence was insufficient to show a payment of more than $100.</p>

<p>Appeal—Presumptions.</p> <p>Where, in an action by an insurer to recover premiums, judgment was rendered for defendant, on appeal by plaintiff, a copy of the policy admitted in evidence on behalf of plaintiff must be regarded as properly proven, irrespective of defendant’s contention that no sufficient foundation was laid for the introduction of the copy.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 3739.]</p>

<p>1. Chattel Mortgages—Lien eor Purchase Price—Identity oe Goods.</p> <p>One who bought furniture, giving a chattel mortgage thereon to cover the price, could not defeat the lien on the ground he selected the furniture from samples and that that delivered was not the furniture bought.</p> <p>2. Same—Foreclosure.</p> <p>Under Municipal Court Act, Laws 1902, p. 1533, c. 580, §§ 139, 141, providing for the foreclosure of chattel mortgage liens, and that the final judgment shall “specify the amount of the lien,” in an action to foreclose, judgment should be for plaintiff, unless it appears from the evidence that nothing was due on the mortgage.</p>

<p>1. Carriers—Street Railways—Transfers—When Demand Must be Made.</p> <p>Though a street railway company’s rule requiring passengers to de-. mand transfers when they pay their fares is reasonable, it is not essential that the act of paying fare and the demand should occur at the same ' second of time; and hence, where a conductor did not regard such a demand, on a second demand made within a minute the passenger was entitled to a transfer.</p> <p>2. Same—Inadvertence or Mistake—Weight of Evidence.</p> <p>Evidence in an action for refusing a transfer held to show the refusal was not made through inadvertence or mistake, but deliberately.</p> <p>3. Same—Pleading—Variance—Time.</p> <p>In an action against a street railway company, there was no material variance between an allegation that “after having paid his fare the passenger demanded a transfer” and proof that he made the demand “at the time he paid his fare.”</p>

<p>1. Evidence—Presumptions—Failure to Call Witness.</p> <p>While no presumption attaches to the failure to call a witness who might corroborate, the jury has the right to consider the failure to call him or explain his absence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 97.]</p> <p>2. Explosives—Injuries from Blasting—Negligence—Evidence—Res Ipsa Loquitur.</p> <p>Where a person was injured by a stone hurled by a blast exploded by defendant, he is entitled to recover without proof of negligence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Explosives, §§ 9, 10.]</p>

<p>1. Appeal—Jurisdiction—Review.</p> <p>. A levy on defendant’s personal property under an execution Issued on the judgment appealed from did not preclude defendant from having the question as to whether she was ever served with process determined on appeal.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 974.]</p> <p>2. Process—Service—Evidence.</p> <p>On appeal from a Municipal Court judgment, evidence held to establish want of service.</p>

Action by Charles H. Ohly against Maurice B. Mendham and another, From a judgment for defendants, and an order denying a new trial, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by William P. Creager and another against John McGowan, doing business as the Excelsior Transfer Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Henry Rear against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Partnership—Actions Against Partners—Evidence—Admissibility.</p> <p>Where plaintiff sued defendants as partners for goods sold and delivered, and defendants testified that the partnership was dissolved before the date of delivery, and the evidence to establish the partnership was vague and inconclusive, it was error to refuse to permit defendants to call disinterested witnesses to testify that defendants were not partners after the date of the claimed dissolution, and to render judgment for plaintiff before defendants had rested their case.</p>

<p>Appeal from Special Term.</p> <p>Action by Henry Krauss against Samuel N. Wood and others. Erom an order denying defendants’ motion to dismiss the complaint, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourteenth District.</p> <p>Action by the Moneyweight Scale Company against John Deis. From a Municipal Court judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Edgar C. Beecroft against Charles D. Van Schaick. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>1. Courts—Municipal Courts—Time for Taking Appeal—Default Judgment.</p> <p>Municipal Court Act, Laws 1902, p. 1578, c. 580, § 311, provides that, where defendant appeals from a judgment against him in an action wherein he did not appear and the summons was not personally served on him, the appeal may be taken within a specified time after personal service on him of notice of the judgment. Held, that the statute is applicable to a -case where there was no personal service of summons, and where defendant did not appear generally.</p> <p>2. Corporaitons—Foreign Corporations—Service of Process.</p> <p>Service upon a foreign corporation can only be made on the president or head of the corporation, secretary, cashier, or managing agent, or a resident director, and service at the corporation’s office on an employs who was a mere salesman was insufficient to confer jurisdiction.</p>

<p>1. Partnership—Mutual Rights and Liabilities—Actions—Grounds—Previous Accounting.</p> <p>A partner was given a duebill, not intended to be paid at that time, for labor done for the firm under a contract made before he became a member. As a member he sold property belonging to the firm and received the proceeds thereof, but did not turn it’over. He used some of the firm property for personal purposes, and had promised that whatever was due the company should be applied on the duebill, but no settlement was made. Held, that he could not sue his copartners on the duebill without an accounting.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 157, 160.]</p> <p>2. Assignments—Effect—Bona Fide Assignee.</p> <p>Where the wife took an assignment of a duebill from her husband for the purpose of suing on it, and paid a consideration of only $1, she is in no better position than he to maintain an action on it.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 4, Assignments, § 177.]</p> <p>3. Courts—City Courts—Practice—Appeal—Payment of Costs in Lower Court.</p> <p>The charter of Corning (Laws 1905, p. 290, c. 142) creates an enlarged justice’s court for the city of Corning, under the title of a City Court, which took the place of the formerly existing justices’ courts. Section 97 thereof provides for increased fees to be paid to the judge as court fees, and also fees for a stenographer. Section 98 allows an attorney fee to the successful party, if represented by a registered attorney, in addition to other fees, and the disbursements of the successful party as allowed in an ordinary justice’s court. Section 100 provides that the costs awárded a party under section 98 shall not be included in the cost's required to perfect an appeal under Code Civ. Proe. § 3047, which requires all costs included in the judgment, and $2 for making the return, to be paid at the time of serving notice of appeal. Held, that all costs included in a judgment of the Corning City Court, except the attorney fee, in addition to $2 for making the I return, must be paid at the time of serving notice of appeal from that court.</p>

<p>Affidavits—Affidavit Taken in Another State—Use in Evidence—Statutory Provisions.</p> <p>Laws 1896, p. 609, c. 547, § 249, as amended by Laws 1903, p. 978, c. 419, provides that acknowledgments and proofs in other states, taken by any officer of the state authorized by the laws thereof to take the acknowledgment of deeds to be recorded therein, of which the certificate required by section 260 shall be evidence. Code Civ. Proc. § 844, authorizes affidavits to be taken by persons authorized to take acknowledgments. Held, that where an affidavit purporting to be sworn to before a notary public in another state has a proper certificate annexed, and it appears that the notary was duly commissioned and qualified to take acknowledgments of deeds or conveyances for lands, etc., to be recorded in that state, it may be read as evidence in a New York court.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 2, Affidavits, § 60.]</p>

Action by Mary Dollard against the American Surety Company. Heard on motion to compel plaintiff to separately state and number his causes of action.

<p>Action by Saverio Ferraca against the Aaron Miller Realty Company. Plaintiff moves to advance the cause and place it on the special calendar under City Court of New York rule 2.</p>

<p>Action by Washington L. Jaques against John Willett. On motion to punish for contempt of court.</p>

Action by Jesse Myers against Isaac Harris and another, copartners doing business under the name of the Triangle Waist Company. From a judgment for plaintiff, defendants appeal.

<p>Attorney and Client—Protection Against Settlement Between Parties.</p> <p>Where an action is instituted under an agreement that plaintiff’s attorneys shall have for their services one-half of any recovery, and that neither plaintiff nor his attorneys shall settle the litigation without the consent of the other, but, notwithstanding the refusal of his attorneys thereto, plaintiff settled the case, and the action is discontinued on an order therefor made by the court, and the amount for which settlement is made is paid into court, plaintiff is entitled to have half of such amount paid him ; any remedy of his attorneys for the settlement against their refusal to consent thereto being by action for breach of contract.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 5, Attorney and Client, §§ 407-417.]</p>

In the matter of the judicial settlement of Jeremiah P. Robinson and Isaac R. Robinson, executors. Motion to vacate and set aside a referee’s report.

<p>Estoppel—Executors and Administrators—Payment op Claims.</p> <p>Where all the parties having vested interests in an estate sign a paper protecting the executors in the payment of certain claims and releasing them from any responsibility in connection therewith, such persons are es-topped thereafter to question the propriety of such payment, and it will not be questioned by the surrogate upon the settlement of the executor’s accounts, where there is nothing to show that the claims were unjust, because some other persons may under the will become entitled to contingent remainder therein.</p>

<p>Suit by Mark F. Mantón against the South Shore Traction Company to enjoin the construction of a railway in certain streets of the town of Islip.</p>

<p>Appeal from Municipal Court, Borough -of Manhattan, Eighth District.</p> <p>Action by Isaac B. Miller against Samuel Margulies and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Bernath Tauger against the New York City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Justice’s Court.</p> <p>Action by Ered J. Sherer against Emily Cannon. From a judgment for plaintiff, defendant appeals.</p>

<p>Petition of the American Fidelity Company to examine William F. White in supplementary proceedings. Order set aside.</p>

<p>L Bankruptcy — Judgment — Discharge — Schedule of Debt—Notice to Creditor—Burden of Pboof. "</p> <p>On an application to cancel a judgment, as authorized by Code Civ. Proc. § 1268, because the defendant has been discharged from his debts in bankruptcy, the burden is on the bankrupt to establish either that the debt was duly scheduled or that the creditor had notice or áctual knowledge of the bankruptcy proceedings, as provided by Bankr. Act July 1, 1898, c. 541, g 17, subd. 3, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428].</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 840.]</p> <p>2. Same—Statutes—Schedules.</p> <p>Plaintiff, a creditor of defendant, who subsequently became a bankrupt, resided at Oyster Bay, N. Y. The bankrupt’s schedules stated piain- ’ tiff’s residence as “43 Exchange Place, borough of Manhattan, New York City,” which was plaintiff’s office or business address. Plaintiff received no notice of the proceedings and had no actual knowledge thereof. Held, that the debt was not duly scheduled, because of the failure to specify the creditor’s residence, as required by Bankr. Act July 1, 1898, c. 541, § 7, subd. 8, 30 Stat 548 [U. S. Comp. St. 1901, p. 3425], and that the defendant’s discharge did not relieve him from liability for such debt.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 775.]</p>

<p>Judgment—Cobeection—Conclttsiveness.</p> <p>- Where defendants did not plead certain alleged payments as a partial defense, and plaintiffs offered to allow defendants to make proof of any payments which they claimed, but defendants failed to do so, whereupon judgment was rendered against them, which was affirmed on appeal, such judgment was conclusive as between the parties as to all questions determined and necessarily connected with the subject-matter of the litigation, either as matter of claim or defense, and the Special Term had no power thereafter to “correct and revise it” by allowing defendants credit for such alleged payments.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1234-1268.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Christian Jacobs against Samuel Mandel. Judgment for defendant, and plaintiff appeals.</p>

<p>Damages—Personal Injuries—Loss of Wife’s Society.</p> <p>Where, in an action against a railway for loss of the society of plaintiff’s wife, resulting from injuries occasioned by defendant’s negligence, it appeared that after the accident the wife remained in bed for three weeks and abstained from going out of the house for three or four weeks, and no evidence was given as to any loss of services, as to any expense having been incurred, or as to the condition in life of the couple or the occupation of plaintiff, a judgment for plaintiff for $229 was excessive.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, §§ 357-371.]</p>

<p>Trial—Dismissal—Insufficient Evidence.</p> <p>Where, in an action for injuries, no testimony was given on the part of the defendant, and the plaintiff failed to prove that the defendant was the cause of the injury, the judgment should not have been for the defendant, but the complaint should have been dismissed without prejudice to a new action.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. voL 46, Trial, §§ 389-369; vol. 37, Negligence, §§ 277, 278.]</p>

<p>Fraud—Grounds op Action—Giving Worthless Check.</p> <p>Where a check was given in payment tor goods long before delivered, and no property was parted with in reliance upon anything that was said or done at the time it was given and accepted, and there was no proof of false material representations, the fact that the check was not paid by the bank did not give rise to an action for fraud.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Fraud, §§ 17-24.]</p>

<p>Witnesses—Oath—Necessity.</p> <p>The unsworn testimony of a 7% year old child is inadmissible in a civil action.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 97, 798.]</p>

<p>Appeals from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Actions by Jennie Friedman and by Jacob Friedman against Max Horn. From judgments in favor of plaintiffs, defendant in each action appeals. Affirmed in action by Jennie Friedman, and modified and affirmed in action by Jacob Friedman.</p>

<p>Courts—Jurisdiction of Person—Lack of Service.</p> <p>Where a defendant is not served, the court is without jurisdiction as to that defendant.</p> <p>[Ed. Note.—For cases in point, see Gent. Dig. vol. 13, Courts, § 32.]</p>

Action by the Iroquois Realty Company against the Iroquois Hotel & Apartment Company. From a judgment for plaintiff, and an order denying a motion to set aside the verdict and for a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by the New York Metal Ceiling Company against Louis Minsky. Erom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Edward C. Potter and another, composing the firm o-f E. C. Potter & Co., against William H. Malcolm. Erom a judgment for defendant, plaintiffs appeal.</p>

Action by John A. Dixon, administrator, against Elizabeth Marlow. Cross-appeals by plaintiff from a judgment dismissing complaint without prejudice and by defendant from an order denying a motion to modify the judgment by striking out qualifications.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Arthur Cary against Joseph Gaynor, otherwise known as Joseph Gonorovsky. Judgment for defendant, and plaintiff appeals.</p>

<p>Sales—Rescission—Recovery of Price Paid.</p> <p>In an action for the rescission of a contract and the return of the purchase price, where plaintiff had. paid part cash and had given notes for the balance, which were past due and in defendant’s hands at the time of the action, Instructions that plaintiff could recover for the full amount of the purchase price, including the amount of the unpaid notes, ór nothing, were erroneous.</p>

<p>Process—Service—Evidence.</p> <p>Evidence held to show that service of process was made.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, §§ 202-208.]</p>

<p>Trover and Conversion—Acts Constituting Duress oe Property—Evidence.</p> <p>In an action for duress of goods left with a tailor to be made into coats, the general statement by the plaintiffs that “we had to have the goods immediately,” or that “we did not replevin the goods, as it would cost too much money,” was insufficient to show duress, where there was no evidence showing that the coats were made for any special purpose, or to supply any immediate demand, nor that it was specially necessary that the plaintiffs should have the immediate possession for any reason at the time they demanded them, nor that their retention would have inured to plaintiff’s damage, and no evidence as to when the defendant was to complete the work.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, §§ 232, 236, 239.]</p> <p>Goff, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Ernest Zeigler against the Interborough Rapid Transit Company. From a judgment in favor of defendant, dismissing the complaint, plaintiff appeals.</p>

Separate actions by Carrie C. Davis, administratrix of E. Louise Davison, deceased, against the Citizens’ Savings .Bank and against the Seamen’s Bank for Savings, in which Emma L. Davis was inter-pleaded. Judgment for plaintiff in both actions.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Samuel Gelb against Charles E. Murtagh and another. From a judgment for defendant, plaintiff appeals.</p>

Action by Abraham J. Danziger against the Interborough Rapid Transit Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by James F. Ryan and another against George Brown. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Abraham Gertner against Yetta Merker and another. From a judgment for defendants, plaintiff appeals.</p>

Action by Sam Barth, an infant, against the Borden’s Condensed Milk Company. From a judgment for plaintiff, and from an order denying defendant’s motion for new trial, defendant appeals.

Action by Camille Weidenfeld against Henry W. Tillinghast. From an order (104 N. Y. Supp. 713) denying a motion to cancel the judgment for plaintiff on the ground that defendant was discharged from the debt in bankruptcy, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Israel Friedman against the Erste Kaiser Franz Joseph Unterstutzungs Verein. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Cotjbts—Municipal Coubts—Default—Opening.</p> <p>In an action in the Municipal Court, where defendant appeared on the return day, the jurisdiction of the court was complete, and the denial of plaintiff’s motion to open his default upon the ground that the court was without jurisdiction was error.</p>

<p>Action by Robert K. Richards and another against the Citizens’ Water Supply Company and others. Demurrer overruled.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Charles Lotz and another against Simon Levy. From a judgment for plaintiffs, defendant appeals.</p> <p>The action was to recover a broker’s commission of $385 for services rendered by the plaintiffs to the defendant in getting a purchaser for a lot of real estate in New York City owned by him. The defendant resided at Sea-bright, N. J., and the plaintiffs had their place of business in New York City. The case rests in a series of letters between the plaintiffs and the defendant, xtheirs from the said city and his from Seabright. There was no oral employment. On January 3, 1906, the plaintiffs wrote to the defendant they had a customer for his lot at $37,500, and asking for an answer. The defendant sent some answer which does not appear; and on February 5th the plaintiffs wrote acknowledging receipt of it, and asking him for his lowest price, and saying they have a “client” for his lot. On February 5th the defendant answered that his price was $38,500, which could stand until March 1st, and that if their client wanted it at that price they must inform the defendant previous to that date. The plaintiffs answered on February 16th that their client deemed the price too high, but that they would see their client on Monday and learn definitely; and asked if the second mortgage could be paid off. The defendant answered on February 19th that he did not know whether the second mortgage could be paid off. On February 26th the plaintiffs wrote that they were working to get their client up to $38,500, on condition that the second mortgage can be paid off, and asking the defendant to come to New York- City and meet him at their office on Wednesday next, so the principals could make mutual concessions. Defendant did not come to New York or answer the letter. On March 27th the plaintiffs wrote that their client would pay $38,500 “over existing mortgages.” The defendant answered accepting, providing they did .business at once, as the offer would not be open after April 1st. The plaintiffs telegraphed or wrote the defendant to come to their office on a day stated, but he did not come. The plaintiffs then sent a lawyer to the defendant at Seabright who asked why he had not come to New York as requested-.and meet the buyer. The defendant answered that his wife was in the lunatic asylum and she could not join in the deed.</p>

<p>1. Libel—Complaint—Sufficiency.</p> <p>Where a libelous article referred to Wm. Pitt Rivers’ “suit for divorce,” and spoke of “his divorce complaint,” showing that he was the-plaintiff in the divorce suit, a complaint in a suit against the publisher for libel which alleged that the plaintiff at the time of the publication was and still is the wife of Wm. Pitt Rivers sufficiently showed that the defamatory words were published concerning the plaintiff, and it was not necessary to allege that it was published concerning her in the-express words of the statute; Code Civ. Proc. § 535, providing that a general statement is sufficient.</p> <p>2. Same—Publication Libelous Per Se.</p> <p>The publication of a statement that a woman was a defendant in an action for divorce, which could only be brought upon the grounds of adultery, was libelous per se.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 71, 72.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District, Action by the Alborak Auto Company against Jacob J. Shubert. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourteenth District. Action by Edward H. Beck against Michael Krochinsky. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>In the matter of the judicial settlement of the account of James J. Cozine, as administrator, etc., of Cornelius Cozine, deceased.</p>

<p>Appeal from Municipal Court, Borough of Manhattan; Sixth District. Action by John Dougherty against the M. Zimmerman Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by John I. Dougherty against Alexander J. McCullom.</p>

<p>In the matter of the judicial settlement of the account of the Farmers’ Loan & Trust Company, as trustee, etc., and others.</p>

<p>Action by Alfred Hughes against the New York Times Company.</p>

<p>Action by William Kirby, an infant, by Anna Kirby, his guardian ad litem, against the Lock-port Paper Company.</p>

<p>In the matter of the estate of Stephen Losee, deceased, Estelle Losee Hurd, as administratrix, etc., of Cornelius Losee, deceased, and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sec; end District. Action by Michael Magnom against Joseph Gifuni. Appeal by defendant from a judgment in favor of plaintiff.</p>

<p>Action by Robert A. Pelin, as administrator, etc., of Ernest D. Pelin, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Daniel H. Tolman against Helen Thompson.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District. Action by Charles H. Turno against the Sportsmen's Exhibition Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by James W. Thayer, an infant, etc., against the Utica Knotting Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by the W. F. Burns Company against Einanuel Fellman. From a judgment for defendant, plaintiff appeals.</p>

In the matter of the appraisal of the estate of Robert R. Willets, deceased, under the acts relative to the taxable transfers of property.

<p>Action by Abraham Wolfson against the Metropolitan Street Railway Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Mary A. Yeandel against the Prudential Insurance Company of America. From an order setting aside a verdict for plaintiff, she appeals.</p>