Volume 105 — New York Supplement

<p>Execution—Supplementary Proceedings—Examination op Debtor—Nature op Proceeding.</p> <p>By Code Civ. Proc. § 2433, each of the three remedies provided for the examination of. a judgment debtor by section 2432 is a special proceeding. Section 3333 defines an “action” as an ordinary prosecution in a court of justice by one party against another for the" enforcement of a right, etc. Under section 3334 every other prosecution by a party for either of the purposes specified in section 3333 is a special proceeding. Under section 3343, subd. 20, the same meaning is to be given to the term “special proceeding,” wherever found in the Code, unless a contrary intent is expressly declared, etc. The commissioners on the revision of the statutes, in a note referring to section 2433, state that it was deemed best to provide that the supplementary proceedings provided by section 2432 should be deemed distinct special proceedings. Held, that each of the remedies provided by section 2432 is a special proceeding, and should he prosecuted as such, and not as proceedings in the action.</p> <p>[Ed. Note.—For cases In point, see Cent. Dig. voi. 21, Execution, § 1091.]</p>

- Action by Charles M. Preston, as receiver of the New York Building Loan Banking Company, against Mary E. Arthur and others. From a judgment entered on the report of a referee, dismissing the complaint, plaintiff appeals.

<p>L Mortgages—Nonpayment of Interest—Right to Claim Forfeiture.</p> <p>Equity will not permit the mortgagee or his assignee to take an unconscionable advantage of the mortgagor, who is willing and able to pay interest at the prescribed time, but without fault on his own part is unable to find the mortgagee after making every reasonable effort to do so; and in such a case the mortgagee’s assignee, not having given the mortgagor notice of the assignment and of his residence, or where payment could be made, could not enforce a forfeiture.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 35, Mortgages, § 1163.]</p>

<p>Trial—Dismissal—Failure of Proof.</p> <p>Where the plaintiff failed in its proof, it was error for the court to deny defendant’s motion to dismiss the complaint.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 46, Trial, §§ 359,. 360.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Jacob Neidenberg against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>New Trial—Determination" oe Motion—Judgment oe Dismissal.</p> <p>Where, in an action for wrongful death, the cause of death was not sufficiently connected with the injury to warrant a finding that the death was caused by it, an order setting aside a-verdict for plaintiff was proper; but a judgment dismissing the complaint was improper, where there was at least a possibility that upon a new trial he could produce sufficient evidence to supply the defective proof.</p>

<p>Bailment—Injuries to Third Person by Negligent Use.</p> <p>The owner of an automobile delivered it to a person not under his control or direction, under an agreement that he was to use it for hire and pay the owner the purchase price out of the money derived from its use. Held, that the owner was not liable for an accident caused by the person’s negligence in operating the automobile.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 6, Bailment,'§ 101.J</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District. -</p> <p>Action for personal injuries by Joseph B. Gomez against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Counterclaim—Cause of Action—Ownership.</p> <p>Under Code Civ. Proc. § 501, and Municipal Court Act, Laws 1902, p. 1538, c. 580, § 151, declaring that a counterclaim must consist of a cause of action existing in favor of the defendant who pleads it, a claim for injury to the wails of a building in which certain work sued for was done did not constitute a valid counterclaim against the agreed price of the work, in the absence of proof that defendant was the owner of the building or showing his relation thereto.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Set-Off and Counterclaim, § 39.]</p>

<p>Vendos and Purchaser—Remedy oe Purchaser—Recovery oe Purchase Money Paid—Misrepresentation as to Amount of Land.</p> <p>Where the purchase price under a contract for certain city lots was $76,000, and the contract described the lots as being 23.3 by 81, 25.2 by 101, and 25.2 by 97, all parcels being the same size front and rear, more or less, while in fact three of the dimensions of one lot were 24 feet 11 inches, 80 feet 1% inches, and 76 feet 5 inches, respectively, two of the dimensions of the second were 25 feet and 97 feet 5% inches, respectively, while two of the dimensions of the third were 24 feet 10% inches and 93 feet 9 inches, respectively, the shortages on these various dimensions were so important in comparison with the size and value of the property that they cannot be disregarded, and the purchaser may recover the amount of his deposit, and have a lien on the premises therefor.</p> <p>(Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 959.]</p>

<p>Appeal from Municipal Court/ Borough of Manhattan, First District.</p> <p>Action by Kumberger & Vreeland against Edward V. Hartford. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Gaetano Fosullo against Giovanni Bonjiorno. From a judgment for plaintiff, defendant appeals.</p>

<p>Judgment—Res Judicata—Matters Concluded.</p> <p>Where a person, suing for the breach of a contract for the sale of land, obtains a judgment impressing a vendee’s lien for the amount of deposit paid, but not for his expenses incurred in examining the title, though there was sufficient proof to establish that item, for the reason that there was no authority in law for extending the lien so as to cover it, he is not precluded by the judgment from bringing a separate action for that expense.</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 30, Judgment, § 1267.]</p>

<p>Contracts—Action—Part Performance.</p> <p>Where it was admitted: that plaintiff’s assignor furnished defendant gas fixtures, but did not hang them as he agreed to, it was error to award judgment against defendant for the contract price; defendant having expended money in hanging the fixtures.</p> <p>I'Ed. Note.—Eor cases in point, see Cent. Dig. vol. 11, Contracts; §§ 1477, 1502.]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second Dis- . trict.</p> <p>Action by William G. McCrea against Nathan Burnstine. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Title Guarantee & Trust Company against Ellis L. Withers and another. From a Municipal Court judgment in favor of defendants on a counterclaim, plaintiff appeals..</p>

<p>Injunction proceedings by Asa J. Brown against John A. Cole. On final hearing.</p>

<p>1. Vendor and Purchaser—Contracts—Breach—Burden of Proof.</p> <p>Defendant sold certain premises to plaintiff and another, agreeing that the vendees should have the rent for November, 1905. B., a former lessee, had executed a release of his interest, and, the vendees claiming that some of the tenants had paid the November rent to B., defendant agreed to make good any rents collected1 for that month. Held, that the burden was on plaintiff, who had acquired the interest of his co-vendee in the contract, to show that B. had collected, rent for November, and the amount collected.</p> <p>2. Evidence—Admissions—Statements of Third Persons.</p> <p>Defendant, having sold certain premises to plaintiff and another, agreed that they should have the rent for November, 1905, and that he would make good to the vendees any rents collected by B., a former lessee, who had released his interest. Plaintiff, having obtained the interest of his co-vendee in sucli contract, claiming that B. had collected rents to which he was entitled, obtaining six receipts for rent signed by B. from the tenants, and, in a suit to recover the same from defendant, testified that he had shown two of the receipts to B., who had admitted that he had collected the rent shown thereon; hut neither B. nor the tenants were produced. Held, that neither the receipts nor B.’s unsworn admissions were binding on defendant; B. being in no sense defendant’s agent.</p>

Action by Walter B. Solinger, an infant, etc., against the Brooklyn Heights Railroad .Company, to recover the penalty provided.for a violation of Railroad Law, Laws 1892, p. 1406, c. 676, § 104, requiring defendant to carry a passenger for a single fare over certain lines and to give him a transfer for that purpose. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Whitehall & St. John’s Towing & Transportation Company against Dolpli Fish. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>. Action by the Whitehall & St. John’s Towing Sr Transportation Company against Dolph Fish. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York.</p> <p>Action by the Lobel-Andrews Company against the P. J. Carlin Construction Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Sale—Contract—Time of Delivery.</p> <p>A contract of sale of a certain amount of the bonds of a certain street railway corporation, “deliverable when, as and if issued,” which does not entitle the purchaser to any particular bonds, is made with reference to the agreement, between those interested in the corporation and those having the matter' in charge, under which the bonds are to be subsequently issued; and the issue thereof, on which delivery of the Bonds sold must be made, is the general issue of the bonds as a class, so that, under such agreement, the managers of the issue having till a certain time to issue them, the persons making such contract of sale are not liable for failure to deliver before that time, it not appearing that the general issue has been made before then, though the managers have sold and issued a small fraction of the bonds.</p> <p>Patterson, P. X, dissenting. ■</p>

<p>Maebiage—Kbaud—Relief .</p> <p>Where defendant went through the form of a marriage ceremony with a man impersonating plaintiff, plaintiff, though not entitled to an annulment of the certificate of marriage filed with the bureau of vital statistics, nor to an annulment of the marriage, was entitled to a judicial determination that he was not at the time and place stated in the certificate married to defendant, and to an injunction restraining her from claiming to he his wife.</p>

<p>Action by Fred E. Sweetland against the Bankers’ Life Insurance Company to recover the surrender value of a life insurance policy.</p>

Application by Walter R. Mason and others for an order fixing the amount of transfer tax in a certain estate. Erom an order fixing the amount of the tax, Mason and others appeal.

<p>Appeal from Special Term, Richmond County.</p> <p>William F. Eckett was charged with a misdemeanor, and from an order denying his application for a certificate that it was reasonable that the charge against him should be prosecuted by indictment, he appeals.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Second District.</p> <p>Five actions by Joseph H. Harkow against the New York City Railway Company. From a judgment for defendant in each, plaintiff appeals. Affirmed.</p>

<p>Eminent Domain—Leasehold Interests—Method- of Assessing Damages— Ascertainment of Values.</p> <p>Where land subject to a lease is taken under the right of eminent domain, the proper method of estimating damages is to ascertain what interest the tenant has in the lease as a whole, considering the rent he pays, the obligations that he has and will assume under the lease, and what that interest is worth and its market value, and after this amount is ascertained, awarded the tenant, and deducted from the total value of the property, the balance belongs to the landlord.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol.’ 18, Eminent Domain, § 421.)</p>

<p>Action by Frank Colon against Robert W. Hebbard, as commissioner of public charities of the city of New York, and others. Judgment for plaintiff.</p>

<p>Action by the New York Central Iron Works Company against Michael M. Brennan and others. On motion by defendants to dissolve a temporary injunction.</p>

Application of W. J. Redmond to lay out and alter a highway in the town of Greenwood and assess the damages therefor. Jesse T. Atkins moves to vacate the decision of commissioners appointed for that purpose.

<p>Action by James E. Carroll, committee, etc., of Ferris Mead, an incompetent person, against Asa Adams, impleaded with others, to construe a will. Judgment for plaintiff.</p>

<p>Action by one Geffin against one Schneidler and another. Motion to set aside a verdict in favor of plaintiff and grant a new trial granted.</p>

<p>Action by Annie Theresa Hearne Heise and another against the Selected Securities Company. Finding for plaintiffs.</p>

<p>1. Master and Servant—Liability of Master—1Torts of Servant—Test.</p> <p>The test of the master’s responsibility for the act of his servant is not whether the act was done according to instructions of the master, but ' whether it was done in the prosecution of the work that the servant was employed to do.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1217.]</p> <p>2. Same—Burden of Proof.</p> <p>The burden of proof is on one seeking to recover from a master for a negligent act done through a servant to show that the servant was acting within the scope of his employment.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1270.]</p> <p>3. Same.</p> <p>Evidence, in an action by one injured in being struck with a piece of iron coming from- defendant’s factory, held not to support a finding that it was thrown by a servant acting within the scope of his employment.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1272.]</p> <p>4. Nuisance—Harboring Persons so as to Create Nuisance.</p> <p>A manufacturer cannot conduct its business, nor for a long time harbor persons on its premises, so as to create a nuisance.</p> <p>5. Same.</p> <p>Where the damage done is the necessary consequence of carrying on defendant’s business or incident to the business itself or the manner in which it is conducted, the law of negligence has no application, and the law of nuisance applies.</p> <p>6. Same—Private Nuisance Defined. .</p> <p>Anything is a private nuisance done unlawfully or tortiously to the hurt or annoyance of the person or property of another.</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 37, Nuisance, § Í-]</p>

<p>Action by William S. Morton and others, as the board of health of the town of Great Valley, county of Cattaraugus, against the St. Patrick’s Roman Catholic Church Society of Salamanca, to restrain defendant from using certain real estate in Great Valley for cemetery purposes. Judgment for defendant.</p>

<p>Action by" Elihu Ackerman against the New York Central & Hudson River Railroad Company. -</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the Aleolm Company against Charles Bacigalupo. From judgment for defendant, plaintiff appeals. Affirmed. Harry J. Sondheim, for appellant. David W. Roekmore, for respondent.</p>

<p>Action by R. Ross Appleton, receiver, against the Citizens’ Central National Bank. J. W. Hutchinson, Jr., for appellant. J. A. Garver, for respondent.</p>

<p>Action by Catherine Bannister against the Michigan Mutual Life Insurance Company.</p>

<p>Action by Oscar B. Bergstrom and another against the Ridgway-Thayer Company. C. J. Shearn, for appellants. O. B. Bergstrom, for respondents.</p>

<p>Action by Susan T. Bullock against the trustees of the diocese of Albany and others.</p>

<p>Action by Harry B. Davis against William Rosenzweig, impleaded. II. H. Maass, for appellant. J. Frenkenheimer, for respondent.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Koppel Friedland against David Vogel. From a judgment for plaintiff, defendant appeals. Modified and affirmed. H. Schieffelin Sayers, for appellant. Abr. A. Silberberg, for respondent.</p>

<p>-In the matter of the probate of the will of Martha Gates, deceased.</p>

<p>Action by Hannah Goldsmith against the Interborough Street Railway Company.</p>

<p>Action by Josephine A. I-Iabirshaw against Thusnelda Isler and others. J. A. Donnelly, for appellants.. G. L. Stamm, for respondent.</p>

<p>Action by George Hall against the New York, Chicago & St. Louis Railroad Company.</p>

<p>Action by David W. Hamilton ■against the Niies-Bement-Pond Company.</p>

<p>Action by Mary Hoag against the South Dover Marble Company.</p>

<p>Action by ICittie Jones against the Delaware, Lackawanna & Western Railroad Company.</p>

<p>Action by John K. Jones, individually, etc., against the New York Elevated Railway Company and another. S. Babcock, tor appellants. C. H. Strong, for respondents.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Peter Khouri against Eddy S. Elkhouri. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Adolphus D. Pape, for appellant. Warner & Williams, for respondent.</p>

<p>Action by Henry A. Koelsch against Bella Rodman and others. L. M. Berkeley, for appellant.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Isifore Kraus against Charles Weinblatt. From a judgment in favor of defendant, plaintiff appeals. ■ Reversed. Hyman Bouker, for appellant. Charles Weinblatt, pro se.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Thomas W. Kinney against the Quick Transit Realty Company for commissions alleged to have been earned in the sale of real estate. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Wilmot L. Morehouse, for appellant. Eugene L. Richards, for respondent.</p>

<p>Action by Frederick W. Kuehn against the Syracuse Rapid Transit Railway Company.</p>

<p>Action by Emily Linden against Ferdinand M. Tliieriot and others. L. L. Kellogg, for appellant. Ó. II. Ayres, Jr., for respondents.</p>

<p>Action by Rose Littner, an infant, against the Intel-urban Street Railway Company. O. Horwitz, for appellant. H. G. Smyth, for respondent.</p>

<p>Actions by John McICie, as tax collector, etc., against J. Ilenry Metcalf and another, impleaded.</p>

<p>Action by Mary E. Manners against Samuel Friedman and another. L. M. Berkeley, ,for appellant. G. W; Files, for respondents.</p>

<p>Action by Sarah Middleworth against Mary M. Ordway.</p>

<p>Actions by Margaret O’Connor and by John O’Connor against the city of New York. D. A. Holmes, for appellants." T. Connoly, for respondent.</p>

<p>Action by the Pennsylvania Steel Company against the Title Guarantee & Trust Co., and others. H. S. Marshall, for Pennsylvania Steel Co. E. E. Sprague, for Title Guarantee & Trust Co. B. N. Cardozo, for Star Holding Co. and others.</p>

Action by Anton Spandovio and another against Jacob Rubino. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial granted. Elenry A. Doellinger, for appellants. Untermyer, Stine & Stiefel, for respondent.

<p>Action by Henry L. Springer against the McCurdy & Norwell Company.</p>