Volume 107 — New York Supplement

<p>Appeal from City Court of New York, Trial Teriri.</p> <p>Action by Jacob Rothman against Abraham Kosower. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>1. Appeal—Review—Harmless Error.</p> <p>That plaintiff recovers on a mistaken view of the character of the agreement upon which the suit is based is not ground for reversal, where he is entitled to recover in any event.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4034.]</p> <p>2. Same—Estoppel to Alleoe Error—Exclusion op Evidence.</p> <p>Defendant owed plaintiff $500, and they agreed that defendant should sue to recover $1,000 due him from another, plaintiff to receive one-half of the amount recovered less expenses of suit, and in case of failure to recover they were to share the costs and defendant was to be released from his debt. Upon defendant’s failure to carry out the agreement, plaintiff sued him for the debt Held that, evidence as to what would have been the expenses of the action defendant was to bring having been excluded as immaterial on his objection, he was estopped to complain that a finding for the full amount of the debt was unauthorized, on the ground that the expenses of the other action were to have been deducted.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3591, 3600.]</p>

<p>Sales—Contract—Performance—Time. Defendant on April 28, 1903, ordered by letter from plaintiff a certain number of frames to be delivered within six weeks. This order was accepted, and on May 8th defendant ordered another lot of frames, writing on the foot of his letter of April 28th: “Note. Increase the above order to 5 M. of each.” Held, that the second order should be construed as made on the' same terms as the first, and that plaintiff was bound to de- • liver all the goods within six weeks.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, §§ 217-223.]</p>

<p>Appeal—Record—Correction—Remitting to Lower Court.</p> <p>Where, on appeal from two judgments of the Municipal Court, the minutes are transposed, so that the minutes ih one case form part of the record in the other, and vice versa, the returns must be sent back to the flies of the Municipal Court for correction; the Appellate Term having no power to change them.</p>

Action by E. Forest Lemon against the Mechanics’ & Traders’ Bank. From the City Court judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.

<p>1. Brokers—Compensation—When Earned. Where a purchaser procured by a real estate broker refuses to accept the contract proposed, and no contract of purchase is executed, the broker-cannot recover commissions, whether defendant, who employed him, had-an option on the property or a mere authorization to sell it.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Brokers, § 55.]</p> <p>2. Same—Evidence—Admissibility. Where, in an action by a real estate broker tor commissions for procuring a purchaser of real estate, it appeared that the terms of sale were-not given by defendant at the time the broker was employed, evidence of occurrences at the meeting of the parties resulting in the purchaser refusing to accept the contract proposed was admissible, whether defendant, had an option on the property, or had mere authority to, sell it.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Herman Josias against Victor Nivois. From an order denying defendant’s motion to set aside a verdict, he appeals. Appeal dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Hapgoods against Morice A. Lynch. From a Municipal Court judgment for defendant, plaintiff appeals. Reversed. Judgment ordered for plaintiff.</p>

<p>Process!—Service—Evidence.</p> <p>Evidence held sufficient to support a finding that process had been duly and personaly served on defendant.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, §§ 202-205.]</p>

Action by Simon Feld against Edward T. Platt, as treasurer, etc., of the United States Express Company. From a judgment for plaintiff for $531.64, and from an order denying a motion to set aside the verdict and for a new trial, and to reduce the verdict to $50, defendant appeals. Reversed, and new trial ordered.

<p>1. Fraudulent Conveyances—Retention oe -Possession—Presumption.</p> <p>Where a picture Is not delivered under an alleged sale, and no written evidence of the transfer of title exists, the sale Will be presumed fraudulent and void as to creditors; and, under the express provisions of Personal Property Law, Laws 1897, p. 511, c. 417, § 25, this presumption will become conclusive, unless the person claiming the property affirmatively shows that the sale was made in good faith, and not to defraud creditors.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 24, Fraudulent Conveyances, §§ 800, 816.]</p> <p>2. Same—Actions—Question eop. Jury—Good Faith oe Parties.</p> <p>In an action against a sheriff for levying upon a picture, claimed by-plaintiff, which was in possession of the execution debtor, the question whether the picture had been sold by the debtor to plaintiff in good faith, and not to defraud creditors, held, under the evidence, a question for the jury.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, §§ 923-932.]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Robert R. Howard against Gustave Sattler, impleaded, etc. Judgment for plaintiff, and defendant Sattler appeals. Appeal dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second Dis-. trict.</p> <p>Action by Giovanni Raims against Raffaele Penza. Erom a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Isaac Gólstein and another against George Korol. Erom a judgment for plaintiffs, defendant appeals. Return remitted to the files of the court.

<p>Judgment—Jurisdiction.</p> <p>A judgment rendered without jurisdiction of defendant by service of a proper summons is void.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 25.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by William A. Hinds against Nathan Calamaras and others. Erom an order refusing to open default, defendants appeal. Reversed, and new trial ordered.</p>

<p>Appeal—Reduction of Judgment.</p> <p>Where the only competent evidence as to the value of fruit, for the conversion of which plaintiff sued, fixed it at a certain amount, a recovery of a greater sum will be reduced to that sum on appeal.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4498-4505.]</p>

Appeal^ from Municipal Court, Borough of Manhattan, Tenth District. Action by Ernest U. Edel against E. Francis Hillenbrand and others. Judgment for plaintiff, and defendants appeal. Reversed, and a new trial ordered.

Action by Meyer Schneider and another, copartners, against Charles Fuchs and another, copartners as Fuchs & Grillo. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered.

<p>Appeal—Excessive Verdict—Reversal.</p> <p>Where, in an action for attorney’s services, the amount of the verdict for plaintiffs indicated that the value of the services were overestimated, the judgment should be reversed, unless plaintiffs stipulate to reduce the judgment to a proper amount</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error. § 4464.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Chase & Co. against Max Rosenwald. From a Municipal Court judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. •</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Simon Brinn and another against Julius Cohen. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.</p>

<p>Coubts—Municipal Coubt of New Yobk City—Appeal.</p> <p>Where, on appeal under the provisions of Municipal Court Act, Laws 1902, p. 1578, c. 580, § 311, the undisputed affidavits show that no service was made on defendant, a judgment for plaintiff will be reversed.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Frank E. Walkley, Jr., against Elizabeth M. Cupeta. From a denial of a motion to open a default, defendant appeals. Appeal dismissed.</p>

Actions by Rosario Colderaro and another and by Domenick Colucci against Ralph E. Kempner. From two judgments in favor of the respective plaintiffs, defendant appeals. Judgment in each case reversed.

<p>Contbacts—Sufficiency of Performance—Actions.</p> <p>Where one, who agrees with the owner of a building to repair it as ordered by the tenement house department, the work to be done to the satisfaction of the building and tenement house departments, fails to show due performance of the contract, and produces no certificates from the departments .that the work is satisfactory to them, and does not show that they are unreasonably withheld, there can be no recovery- for the work.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, § 1308.]</p>

Appeal ■ from Municipal Court, Borough of Manhattan, Second District. Action by Max Brill against the New York Edison Company and1 another. From a judgment for plaintiff against defendant the New York Edison Company, it appeals, and from a judgment dismissing the complaint as against defendant the Empire City Subway Company, plaintiff appeals. Reversed on defendant’s appeal, and affirmed on-plaintiff’s appeal.

<p>Trial—Direction of Verdict—Uncontbadicted Evidence.</p> <p>Where defendant’s evidence was neither impeached nor contradicted, and it was neither improbable nor suspicious, and precluded a recovery by plaintiff, the court’s refusal to direct a verdict in defendant’s favor was error.</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 46, Trial, §§ 383, 384.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by the Moss Realty Company against Francesco Di Crisci, Guieseppe Laino, Emanuele Colluci, and others. From a final order, Di Crisci and others appeal. Appeal dismissed as to appellant Colluci, and order reversed as to appellants Di Crisci and Laino.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Tobias Goodman and another against Harris Linetzky. From a judgment for defendant, and an order denying a new trial, plaintiffs appeal. Reversed, and new trial ordered.</p>

<p>Judgment—Failure of Proof—Form of Judgment.</p> <p>Where plaintiff, at the close of his evidence, was not entitled to judgment for failure of proof, and defendant’s motion to dismiss the complaint on that ground was denied, whereupon defendant rested, it was error to give judgment for defendant on the merits; the proper judgment being one of dismissal only.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 359.)</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>■ Action by Daniel Shea against the Hedden Construction Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Sales—Parties.</p> <p>Stockholders were not liable personally for the price of goods ordered by the corporation through one of the stockholders as president, the order being signed, “The B. & M., J. Bloom, Pres.,” though the stockholders’ names were printed on letter heads used in correspondence after the order was given.</p>

Action by William Wilke against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railroad Company for refusing a transfer. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>- Action by Francis H. Wheeler against Ben Blumenthal, doing business under the name of the West End Storage Warehouse. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.</p>

Action by the Reedy Elevator Company against Morris Berman and Joseph Moskowitz. From a judgment for defendant Moskowitz, and an order denying a new trial, plaintiff appeals. Reversed, and. new trial ordered.

Summary dispossess proceedings by Herman Finkelstein and another against John Fabyik and others. From a Municipal Court judgment dismissing the proceedings, plaintiffs appeal. Reversed, and new trial ordered.

Summary proceedings by Morton E. Robertson against John Birdie- and another to recover possession of real property. From a judgment for defendants, plaintiff appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>• Action by Gussie Hann against Max Brettler and Oswin Stuhmer. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Alexander D. Irving and others against the Royal Exchange Assurance of London. From an order settling interrogatories annexed to a commission, both parties appeal. Reversed on plaintiffs’ appeal, and affirmed on defendant’s appeal.</p> <p>This is an action for breach of contract made between plaintiffs and defendant, a foreign corporation. It was claimed that the contract was made in behalf of defendant by its agent. Plaintiffs sought, through depositions of defendant’s officers and employés and a witness in a foreign country, to prove the authority of the agent to make the contract. Plaintiffs proposed the following interrogatories:</p> <p>Interrogatory 3: “If you state that you have been connected officially with the defendant, the Royal Exchange Assurance Company of London, please state fully in what capacity, and for what length of time, and what duties and powers you have performed and exercised as such officer, and whether you have stated all such duties and powers performed or exercised.”</p> <p>Interrogatory 4: “Please state how you became such officer, whether by election or by appointment, and if the duties to be performed and the powers to be exercised by you as such officer were defined either by a by-law; or a resolution of the board of directors, or trustees, or other managers, howsoever called, or an instrument of appointment, or by any other writing. Please annex to your testimony a copy of each and every such by-law, resolution, instrument, or other writing, and state whether you have done this.”</p> <p>Interrogatory 5: “If you say that there was no such writing of any kind, or if it did not fully and completely fix and define all the duties and powers which you have ever in fact exercised, please state whether any other duties to be performed, and any other powers to be exercised, by you as such officer, were defined in any way, and, if so, in w'hat other way and what such other duties and powers were, and, if in whole or in part by oral instructions from any one else, state from whom, and what those instructions were.”</p> <p>Interrogatory 6: “State what, if any, duties have ever been performed or powers exercised by you, and when, prior to February, 1905, without either written or oral previous instructions or authority, and what the company ever did, and how, in respect to such exercise of power by you, in any instances, in which it did anything.”</p> <p>Interrogatory 7: “Were you aware of a visit made by Mr. Edward B. Hiles to the city of New York, U. S. A., about the end of the year 1904, with reference to the affairs of the defendant company, in that city, or' in the United States? And, if so, state what authority or instructions were given to Mr. Hiles, either before of after he sailed, by whom, and in what form—whether by resolution of the board of directors, or trustees, or managers of the defendant company, or by a written power of attorney, or in the form of a letter, cable message, or any other written form; and annex to your testimony a copy of each and every such resolution, power of attorney, letter, cable message, or other writing, and state whether you have done this.”</p> <p>Interrogatory 8: “If you state that there was no writing declaring Mr. Hiles’ authority, and defining or directing his conduct of the affairs of the defendant company while in New York upon this visit, state what oral instructions or authority, if any, so far as you know, were given to him upon-this subject, and when and by whom.”</p> <p>Interrogatory 9: “State whether a written power of attorney, or any other instrument, or a letter or letters, or cable message or messages, or any other writing or writings, with reference to Mr. Hiles’ action and conduct of the affairs of the company while in New York upon this visit was or was not received from or sent to him, after he sailed, and, if so, by whom, and by whose directions, and what such directions were, and annex a copy of each and every such instrument or writing, and state whether you have done this.”</p> <p>Interrogatory 10: “State whether the constitution or by-laws or other documents of the defendant company refer in any way to the subject of the appointment and removal of agents of the defendant company outside of England, and annex to your testimony a copy of any such constitution, or bylaws, or other documents, so far as they relate to that subject, and state whether you have done this.”</p> <p>Interrogatory 11: “State the usual course of business of the defendant company with respect to the appointment and removal of agents outside of England ; that is, who has the supervision of such agents, who appoints or removes them, and in what way this has commonly been done during the five years preceding July, 1905, and what, If any, action with respect to such removal or appointment has been usually, or ever, taken by the board of directors or trustees, or other managers, howsoever called, of the defendant company.”</p> <p>Interrogatory 12: “If, in any instances of the removal or the appointment of agents outside of England during the five years preceding July, 1905, any action whatever by the board of directors, or trustees, or other managers, howsoever called, with respect to such appointment or removal, appears by the minutes of their meetings, or other entries, to have been taken, please annex to your testimony a true and complete extract of any such minutes, or other entries; that is, with respect to such appointment or removal, unless such minutes or entries are always in the same form, in which case annex to your testimony a copy of some one extract showing that form.”</p> <p>Interrogatory 13: “If you say that there are no such instances to be found, during that period, in the minutes of the meetings of the directors of the defendant company, or other entries of their proceedings, state whether during the five years preceding July, 1905, agents of the defendant company outside of England have been appointed or removed, and, if so, how many, and by whom, and when and how this was done. If there are any writings of any character authorizing or directing such appointment or removal to be made, annex true copies of the same to your testimony, stating who wrote them, and by whose directions, and what such directions were, and state whether you have done this.”</p> <p>Interrogatory 14: “If in response to the last interrogatory you annex any writings, state whether similar, and, if not similar, whether any, writings exist in the case of each such removal or appointment (during that period), or whether there have been some, and, if so, how many, cases of such removal or appointment in connection with which there have been no writings authorizing or directing the same, and by whom in these latter instances' each such appointment or removal has been actually made, and how it has been made, and what action, if any, and how, has afterwards been taken by the company with respect to each such removal or appointment.”</p> <p>^Interrogatory 15: “State who was actually appointed, in the early part of the year 1905, to be the agent of the defendant company for the metropolitan district of New York, and when and how this appointment was made, and when the question of appointing him to be such agent first came up, and by whom it was introduced, and annex hereto copies of any and ail instruments, letters, cable messages, or other writings to or by the defendant company, or to or by any of its officers, or to or by any other person, on this subject, stating whether copies of all such letters and. writings have been so annexed.”</p> <p>Interrogatory 16: “State whether the person so appointed was or was not related to or connected with some one or more of the directors, ,or of the principal officers of the defendant company, or of its trustees, and, if so, which, and how related or connected, and when and by whom an application for his appointment, or any suggestion of his name, was made, and, if in writing, annex a copy of each and every such application or suggestion, and of any reply thereto, and of any and all written communications between the company, or any of its officers, and any one else, upon this subject, and state whether you have done this.”</p> <p>Plaintiff proposed the following interrogatory to witness H. B. Guernsey:</p> <p>Interrogatory 4: “State whether anything, and, if so, what, was said in any such conversation to the effect that a contract had been made by any one, and, if so, by whom, with Mr. Irving and others, and, if so, with what others, to become the agents of the defendant company, and also by whom and in whose presence any such statement was made, and what response, if any, was made by any one, and by whom, to the statement. State fully everything that was said by any one, and by whom, in any such conversation.”</p>

<p>Principal and Agent—Contracts—Proof of Agency.</p> <p>Plaintiff, to recover on a contract made on behalf of defendant, must show authority from defendant of the person making It to do so.</p>

<p>Costs—Offer of Judgment.</p> <p>No special provision is made by the Municipal Court act for a tender, but section 148 (Laws 1902, p. 1537, c. 580) declares that a defendant may either make a written offer of judgment, with costs, or deposit the amount of his offer with the clerk, and that when such an offer or deposit is made, if plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of making the offer, and must pay defendant’s costs from that time. Plaintiff’s claim for $57.50 was conceded, but defendant interposed a counterclaim for $15, and paid into court $42.50. Held, that though defendant’s counterclaim was established at $15.50, defendant’s deposit having included nothing for interest or costs up to the time the deposit was made, plaintiff was entitled to judgment for $42» and costs.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Costs, §§ 137, 142.]</p>

<p>• Brokers—Real Estate—Right to Commission.</p> <p>Where land was listed with a real estate broker under an agreement that his commission should be any sum in excess of $1,500 that he could obtain for the land, and he produced one who was ready, willing, and able to pay $1,800, but who, after raising a cash deposit, canceled his. oral agreement to purchase, because the vendor could not give good title,, the broker was entitled to a commission; he having no reason to suspect that the title was defective, though he did not remember whether he told, the vendor the name of the proposed purchaser or the price agreed upon, and the vendor having received part of the deposit and expressed her gratification as to the proposed sale.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Max J. Conrady and another against the V. Loewer’s Gambrinus Brewery Company. From the judgment, both parties appeal. Reversed on defendant’s appeal, and new trial ordered. Appeal by plaintiffs dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Patrick Kennelly against Gustav Walker and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.</p>

Action' by the city of New York against Benjamin B. Marco and another to recover a penalty. Judgment for plaintiff, and defendants appeal. Reversed.

<p>Master and Servant—Injuries to Servant—Actions—Evidence.</p> <p>Evidence as to the circumstances of an injury to plaintiff, an employé of defendant, while engaged in removing materials from a building, by being struck by a piece of. falling wood belonging to defendant, held insufficient to connect defendant with the happening of the accident.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 913-932.]</p>

Action by James Keane against Theodore A. Liebler and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

Action by Hyman Frank and others, copartners, against Samuel Mandel. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.

<p>1. Malicious Prosecution—Civil Actions—Elements.</p> <p>One suing for malicious prosecution of a civil action must show that the action was malicious, that there was not ground sufficient to justify a belief in its success; that it ended in failure, and that he suffered some special grievance in person or property.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, §§ 17, 56-58, 69, 72-76.]</p> <p>2. Same—Sufficiency of Evidence.</p> <p>Evidence in an action for malicious prosecution of a civil action held not to show that defendant did not have reasonable cause to institute his action.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, § 152.]</p> <p>3. Appeal—Review—Questions of Fact.</p> <p>A verdict against the overwhelming weight of evidence will not be permitted to stand.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §| 3938-3943.]</p> <p>4. Malicious Prosecution—Civil Actions—Evidence.</p> <p>An action for malicious prosecution of a civil action must be supported by very clear and satisfactory proof.</p>

Action by Dudley Butler and another, doing business under the firm name of Butler & Johnston against Robert De Villers. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial •ordered.

Appeal' from Municipal Court, Borough of the Bronx, Second District. Action by Charles Schneider against Morris F. Finkelstein. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Leon Gorlitzer against. Morris Levenson. From a judgment of dismissal of the complaint at the end of plaintiff’s case, he appeals. Modified and affirmed.</p>

<p>Contracts—Failure of Consideration.</p> <p>Plaintiff and D. sold their tailoring establishment to defendant, together with all their stock of goods, good will, and accounts. They represented that the accounts of two persons which had been collected were still owing to the firm and that part of the firm’s goods were in another state. Defendant having refused to pay a claim against the old firm, plaintiff paid it, whereupon he sued defendant therefor, but admitted that the absent goods had never been delivered to defendant, and that their value exceeded the claim sued on, and also failed to deny that he had collected the accounts in question. Held, that plaintiff’s evidence established a failure of consideration, which was a complete defense to the action.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Frank against Nathan Connor. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>1. Pleading—Set-Off and Counterclaim.</p> <p>Where, though defendant pleads “for a * * * distinct defense * * * and as a counterclaim,” no demand for affirmative relief is prayed, plaintiff is relieved from the necessity of replying, and defendant should not be required to separate his pleading into defense and counterclaim.</p> <p>2. Same—Definiteness.</p> <p>Where* an affirmative defense may apply to either of two agreements pleaded by plaintiff, plaintiff is entitled to have the answer made more definite and certain.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1173-1196.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Barnet Siegmeister and others against the Lispenard Realty Company on a check. From a judgment for defendant, plaintiffs appeal. Reversed.</p>

<p>Depositions—Ordeb fob Commission—Sufficiency of Affidavit.</p> <p>An affidavit for a commission, made by plaintiff’s attorney, which does not give any reason why it was not made by plaintiff, and states merely the conclusion of the affiant as to the materiality of the testimony sought, unsupported by any specification of facts, is insufficient, under* Code Civ. Proe. § 887, providing for a commission where it appears by affidavit, on the application of either party, that the witness’ testimony is material to the applicant.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by James W. Dewling against C. W. Klappert’s Sons. Judgment for plaintiff, and defendant appeals. Reversed, and a new trial ordered.</p>

Action by Max Bleiberg against Adolphus Ottenberg. From an order denying a motion to dismiss for want of prosecution, defendant appeals. Reversed, and action dismissed.

<p>Master and Servant—Injuries to Servant—Defective Machine—Notice.</p> <p>A master is not liable for injuries to a servant by an alleged defect in a machine, in the absence of proof that the master had notice that the machine was defective. ■</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 243.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Central Bureau of Engraving against the SchmidtWilckes Electric Company. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Monet Received—Geounds.</p> <p>Where defendant received a check, knowing that part of the amount was intended for plaintiff, but failed to pay it over, it may be recovered in an action.</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 35, Money Received, § 31.]</p>

<p>1. Master and Servant—Indefinite Term—Damages for Discharge.</p> <p>A hiring at so much a day, week, month, or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but only at a rate fixed for whatever time the party may serve; and so, where one was hired at $50 a month, nothing being said about the period of service, the master had the right to discharge him at any time, and incurred no obligation beyond the wages due at the time of such discharge.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 19.]</p> <p>2. Same—Actions for Wrongful Discharge—Burden of Proof.</p> <p>Where a contract of hiring is general or indefinite in its terms, it is prima facie a hiring at will, and the burden rests upon the servant to prove that the hiring is for a definite term.</p>

Action by William L. Bull and others, trading under the name of Edward Sweet & Co., against the Guardian Trust Company of New York. From a judgment for plaintiffs entered on the report of a referee, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Catherine L. Wynne against George I. Bailey. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>1. Money Lent—Presumptions as to Loan—Checks—Payment.</p> <p>Unless it appears otherwise, the giving oí a check is presumed to be in payment of a debt, and not the making of a loan.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Money Lent, § 11.)</p> <p>2. Same—Sufficiency of Evidence.</p> <p>In an action to recover money lent, evidence held insufficient to show the alleged loan.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Money Lent, §§ 11-13.)</p>

<p>1. Municipal Corporations—Defective Sidewalks—Liability of Abutting</p> <p>Owners*—Ownership—Burden of Proof.</p> <p>In an action against one alleged1 to be the owner of premises abutting upon a sidewalk on which plaintiff was negligently injured, the burden was upon plaintiff to prove such ownership.</p> <p>2. Same—Weight of Evidence.</p> <p>Evidence in an action for personal injury caused on a sidewalk in front of premises alleged to be owned by defendant held to show defendant was not the owner. ' •</p>

<p>Appeal—New Trial in Interest of Justice.</p> <p>Defendant gave real estate to plaintiff to sell, with the understanding that it was to receive $44,000 net, and would not be responsible for commissions. On finding a customer for $500 more than that, plaintiff, on the representation that because of the customer being his relative defendant could more easily collect the commission than he, induced defendant’s president and secretary to include the $500 ip the purchase price expressed in the contract, on his promise to give them $25 each. Verdict in an action for the commission, on both parties asking direction of the same, was directed for plaintiff; and defendant’s motion, then made, to go to the jury on “the facts,” the issues of facts, desired to be submitted, not being stated, was denied. Held that, because of the conduct of plaintiff and defendant’s officers in agreeing to share the commission, the best interests of justice would be subserved by granting a new trial on which the issues of fact should be submitted to the jury.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and- Error, §§ 4597-4603.]</p>

Action by Leon Pepper against Michael Price and another. Prom a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

<p>Street Railways—Injury to Vehicle—Negligence—Question fob Juby.</p> <p>Evidence as to the striking of an automobile by a street car helé sufficient to take the question of the company’s negligence to the jury.</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 251-257.]</p>

<p>Appeal—Reversal—Ordering New Trial—Matters Not Litigated.</p> <p>Where, In an action Involving the question whether certain unpaid tax assessments were incumbrances on property conveyed by defendant with covenant against incumbrances, a certificate of sale for such assessments, introduced as evidence that the property was sold therefor within 20 years after the assessments became due, did not show on its face that the property described therein was the property affected, by the covenants, and such question was not litigated on the trial, judgment for plaintiff will be reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Joseph Rosenthal against Eli J. Riesser and another. Judgment for plaintiff, and Riesser appeals. Reversed, and complaint dismissed as to both defendants.</p>

<p>. Appeal -from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Antonio Cebrelli against the Franklin Contracting- Company. From a judgment for defendant for the full amount of his counterclaim, plaintiff appeals. Modified and affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Biagio Guiliano against E. W. Seagrist, Jr., Company for personal injuries. From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals. Reversed, and new trial granted.</p>

Action by Pesach Weinberg against Meyer B. Klauber. From a judgment and order denying a motion to open a default, defendant appeals. Affirmed, with leave to renew the motion.

Action by Samuel Lifshitz against Roas Schwartz for a broker’s commission for the sale of land. Judgment for plaintiff, and defendant moves for new trial. Motion denied.

Action by Arthur S. Cox against Harris Mankin, to recover money deposited to secure performance of a contract. From a judgment for plaintiff, defendant appeals. Reversed.

<p>1. Guaranty—Construction.</p> <p>A guarantor is entitled to stand upon the letter of his contract, and his undertaking is to be construed strictly in his favor, and is not to be extended by implication or inference beyond the scope of its terms.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 25, Guaranty, § 28.]</p> <p>2. Same—Conditions—Breach.</p> <p>In an action on a guaranty of the account of a third person for one year, with a condition that statements were to be rendered to the debtor on the first of each and every month for the account of the preceding month, and settlements to be made monthly, evidence that .plaintiff rendered a statement on the first of the month, and was told that the month was not up till the seventh, and that the debtor would then pay, and that the debtor also stated that the figures were all right, and plaintiff waited until the seventh of the month before notifying the guarantor of nonpayment, did not as .matter of law show a breach of the condition of the guaranty.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 25, Guaranty, § 106.]</p>

<p>1. Courts—New York City Municipal Court—Vacation of Judgment to Permit Traverse of Return of Service.</p> <p>In the Municipal Court of the city of New York, a judgment cannot be vacated to permit a traverse of the return of service of summons.</p> <p>2. Same—Vacation of Judgment—Nonservice of Summons—Statutory Provisions.</p> <p>Prior to the amendment of New York City Municipal Court Act, Daws 1902, p. 1562, c. 580, § 253, by Laws 1907, p. 554, c. 304, no authority was given the Municipal Court to vacate or set aside a judgment for nonservice of summons, and the only remedy therefor was by appeal from the judgment, and serving and submitting affidavits that no service was made, which affidavits the plaintiff had the right to controvert</p> <p>3. Same—Opening Default and Setting for Trial—Requisites of Application.</p> <p>Where a defendant moves to vacate a judgment that he may traverse the return of service, but does not ask that the default be opened, and submits no proposed answer or affidavit of merits, nor declares that he has a defense, it is not an application for relief under New York City Municipal Court Act, Laws 1902, p. 1562, c. 580, as amended by Laws 1907, p. 554, c. 304, § 253, permitting a default to be opened upon motion and the case set down for trial, and the motion is properly denied.</p> <p>4. Same—Appeal—Decisions Review able—Refusal to Vacate Judgment.</p> <p>Under the circumstances, an appeal did not lie from the order of the Municipal Court denying such motion.</p> <p>5. Same—Review—Additional Proofs—Meeting Affidavits Not Served.</p> <p>Where affidavits that summons was not served on defendant, forming part of the return on appeal from a judgment of the Municipal Court against him, have not been served on plaintiff’s attorney, and no notice was given him that defendant intended to rely on them on the appeal, an opportunity to controvert them should be given to plaintiff on appeal, if necessary.</p> <p>6. Process—Service—Return—Impeachment—Evidence—Admissibility.</p> <p>An affidavit of defendant’s wife that she was served with summons in a certain action has no bearing on the question whether defendant was properly served therein.</p> <p>7. Same—Sufficiency of Affidavit.</p> <p>An affidavit of a defendant that “he was never served with a summons and complaint in the action” is a mere conclusion, insufficient to overcome the sworn statement of the person who claims to have made the-service, giving with exactness and particularity the time, place, and manner of service, and stating explicitly that the summons and complaint were delivered to and left with defendant personally.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, § 204.]</p>

Action by Charles F. Biele against Aaron E. Levy for goods sold and delivered. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Henry Bennet against Moses Levy. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Domenick Unghero and another against the New York City Railway Company. From a Municipal Court judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.</p>

<p>Contracts—Parties Interested—Evidence—Sufficiency.</p> <p>Evidence In an action to recover for services rendered and materials furnished held to show that defendants were the real parties in interest, notwithstanding the addition of the words “for S., Trustee,” to the signature of one of the defendants to the agreement.</p>

<p>Contracts—Partial Performance.</p> <p>The price which one was to receive for the making of garments for another must be reduced by the amount it cost the latter to complete the work which the former should have done, but failed to do.</p>

<p>Contracts—Partial Performance.</p> <p>Where certain garments on which plaintiff worked for defendant were not completed, and defendant paid for the uncompleted labor thereon, he is entitled to a deduction of such amount from the regular price.</p>

<p>•Costs—Tender—Payment into Court.</p> <p>Payment of money into the Municipal Court is not regulated by Code Civ. Proc. §§ 731-734, and section 3347, subd. 6, relating to tender and payment into court, but is controlled by Municipal Court Act, Laws 1902, p. 1537, c. 580, g 148; and payment into court precludes plaintiff from recovering costs after date of payment, and compels him to pay defendant’s costs thereafter unless he recovers a more favorable judgment, in which case he is entitled to costs and the money paid into court must be credited on the execution.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Costs, §§ 137- ' 164.]</p>

<p>1. Appeal—Adjournments)—Discretion.</p> <p>The grounds of an application for an adjournment, after several had . been granted, not being such as to absolutely require it to be granted, but it being addressed to the favor of the court, the granting or refusal of it is within the courts discretion.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3837, 3845.]</p> <p>2. Judgment—Default of Plaintiff—Right to New Action.</p> <p>The judgment for defendant, on plaintiff being unable to proceed, on the refusal of an adjournment, should be without prejudice to a new action. [Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 1013.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the R. M. Gilmour Manufacturing Company against Harriet W. Johnson. From a judgment for plaintiff, defendant appeals. Modified and affirmed.</p>

<p>1. Sales—Contract—Delivery—Time.</p> <p>In an action for the value of a suit of clothes ordered by defendant.. but not delivered, evidence held insufficient to warrant a finding that it was agreed that the suit should be finished for Easter.</p> <p>2. Same—Place of Delivery—Tender.</p> <p>Where a contract for a suit of clothes to be made .for defendant specified no place of delivery, plaintiff was not required to tender the clothes, which were to be paid for at plaintiff’s store; that being the proper place for delivery.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Harry H. Meyers against David W. Weber and another. From a judgment of dismissal, plaintiff appeals. Reversed, and new trial granted.</p>

Action by Mary Parker Reid against Jackson’s Baggage Express. From an order granting defendant’s motion to open a default, plaintiff appeals. Reversed, and motion denied, without prejudice.

<p>■Contracts—Construction—Conditions Precedent.</p> <p>■ Under a contract whereby one party agreed to make .for the other paper boxes which were to have on them a certain picture or design, and providing that the design was first to be submitted to the party for whom the boxes were to be made for approval, the approval of the design was not a condition precedent to the complete acceptance of the contract, but a mere incident in the carrying out of the contract.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action for rent by Sigmund Feust against Horatio Craig. From a. judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

<p>1. Sales—Contract—Parties to Whom Credit Given—Promise to Answer for Debt of Another.</p> <p>In an action for goods sold and delivered, one of the plaintiffs testified that P., a third person, asked for certain goods, and said that B., one of the defendants, would guarantee payment. The witness went to B., who refused to guarantee at the time, but subsequently sent word that he would be responsible.for §100. Another plaintiff testified that B. agreed to be responsible for §100, but not for more; that it was before any goods were delivered to P.; that B. and his partner, the other defendant, agreed to be responsible up to §100, and if P. did not pay the bill they would pay it. B. testified that he said he would be good for the bill to be sent on a certain date, and that he would pay for any goods P. did not pay for. Held, that the intent of the parties was not a sale and delivery, with credit given to defendants, but that the sale and delivery and credit were to P., and defendants merely contracted to pay the debt in case of P.’s default.</p> <p>2. Frauds, Statute of—Pleading Statute as Defense—Necessity.</p> <p>The statute of frauds is a defense, and must be pleaded.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 363.]</p> <p>8. Sales—Actions for Price—Pleading and Proof—Variance.</p> <p>Where a complaint is for goods sold and delivered, and the evidence establishes merely a promise to answer for the default of another in case he fails to pay for goods purchased by him, the variance is fatal, and defendant is not called upon to controvert the proof offered, or to plead the statute of frauds.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, §§ 1025-. 1043.]</p>

<p>Appeal from City Court of New York.</p> <p>Action by Clara L. Moore against Randolph B. Martine. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by the Universal Cutter Company against Jacob Emden and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.</p>

<p>1. Master and Servant—Action for Wages—Sufficiency of Evidence.</p> <p>Letters introduced in evidence in an action on a contract to pay a salesman an additional sum if his sales were satisfactory, written by the employer in answer to reports sent in by the salesman and containing words of praise for orders taken and encouragement “to keep up the good work,” if competent as tending to prove the employer’s estimate of the value of the whole period of the salesman’s services, are at most the ordinary meS| sages of an employer to his employs, calculated to stimulate him to renewed effort.</p> <p>2. Same—Additional Compensation.</p> <p>Under a contract to pay a salesman an additional sum if his sales were satisfactory, it lay with the employer alone to determine whether the sales were satisfactory.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by James Caufield against Emma M. Blatt. From a judgment in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Samuel Gilbert against Belle W. Williams. From a judgment in favor of defendant, plaintiff appeals. Affirmed.</p>

Action by Jerome Spiegelberg and another against Isaac Schoenberg. From a judgment in favor of defendant, plaintiffs appeal. Reversed, and new trial ordered.

<p>Sales—Action fob Pbice—Parties Liable.</p> <p>Judgment against a corporation for goods sold and delivered cannot be sustained, the evidence showing that plaintiff's claim existed against its president individually, and was evidenced by his promissory note, several months before defendant was incorporated, and that defendant never dealt with or incurred liability to plaintiff.</p>

<p>Pleading—Frivolous Answer.</p> <p>While an answer setting up fraud and misrepresentation in defense of an action on a contract may be demurrable, because it does not allege that defendant upon the discovery of the fraud rescinded, or returned or offered to return any benefits it had received under, the contract, it is not frivolous, since it does not indicate bad faith upon bare inspection.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 45, 1096-1098.]</p>

<p>1. Judgment—Conformity to Proof—Judgment fob Amount Impossible Un-deb Evidence.</p> <p>Where plaintiff sued for $94.50, and defendant introduced a receipted bill for $37.50 of the amount, together with a bill of $76 for medical services rendered plaintiff and a claim of $10.60 overcharges made by plaintiff, and defendant’s evidence was substantially undisputed, a judgment of $20 for plaintiff was erroneous, since by no combination of the sums given in evidence could that amount be arrived at.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 243-245, 452.]</p> <p>2. Appeal—Reservation of Grounds of Review—Failure to Make Objection—New Trial.</p> <p>Where no objection is made in the trial court that the motion for a new trial was not made in time, the question cannot be raised on appeal.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1333-1337.]</p>

<p>Appeal—Appealable Order.</p> <p>An order amending the summons in the Municipal Court by changing its date of issue is not an appealable one, and can only be reviewed by appeal from the judgment, taken after appearance and due objection made to its being granted, which appeal is provided for by Municipal Court Act, Daws 1902,. p. 1578, c. 580, § 311.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, 5 654.]</p>

Action by Jacob Solomon against the New York City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, unless plaintiff stipulate to reduce the judgment, in which case the judgment, as modified, to be affirmed.

Action by Jacob N. Osorio and others against the Burlington Realty & Construction Company. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.

Action by Carrie De Veaux against John F. Holliday^ and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

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

Action by Louise Blair against the M. McCormack Construction Company. Erom an order setting aside the verdict, plaintiff appeals. Reversed, and verdict reinstated.

. Action by Samuel Flock against Louis Kaufman. There was a verdict for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

<p>Accord and Satisfaction—Evidence.</p> <p>Some eight or ten cases of goods purchased of plaintiff by defendant having been delivered February 14, 1906, two of the cases were returned on the succeeding day as not the goods ordered. On May 29th defendant sent plaintiff a check on which he indorsed the words: “The amount of this check, $481, in payment of all bills to date.” Plaintiff, on receiving the check, struck out the indorsement without notice to defendant, deposited the check to his credit, and collected the money. He also wrote a note to defendant, saying that defendant still owed $1.60 for interest and that he had credited the amount of the check against defendant’s account, but said nothing as to the eases returned. Held, that such check constituted an accord and satisfaction, relieving defendant from any liability for the goods returned and of all claims, except as to the $1.60 interest.</p>

Action by Kalman Gilman and another against the New York City Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered.

Action by Charlotte Wagner for personal injuries against the New York City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

<p>Appeal—Appealable Order.</p> <p>An appeal lies from an order of the Municipal Court denying a motion to open a default, on which plaintiffs have obtained and entered a judgment, andi it is unnecessary that defendant should appeal from the judgment.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 766, 767.]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Percy P. Hopp, doing business under the name of the Bronx Window Shade & Awning Company, against William H. Mc-Whirter and another. Judgment for defendants, and plaintiff appeals. Reversed, and a new trial ordered.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Joseph Friedman against Harry D. Fertel. Judgment for plaintiff. Defendant appeals. Reversed..</p>

<p>1. Master and Servant—Discharge of Servant.</p> <p>Testimony of plaintiff that he told defendant’s foreman that he felt bad and wanted to go home, and that the foreman said to him, “You,don’t need to come to-morrow; they are going to move,” whereupon plaintiff left, and did not return to work, shows, not a discharge, but that plaintiff left voluntarily.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 49.]</p> <p>2. Same—Wages—Abandonment of Employment.</p> <p>One employed at a certain amount per week, with a provision that from, his wages $2 per week should be retained as a guaranty that he would not leave during the busy season, by leaving without the master’s consent, in the middle of a week, and during the busy season, forfeits both the amount retained and his wages for the part of the week he worked.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 94-96.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Charles Tankins against Bernard Berger for conversion. From a judgment for plaintiff, defendant appeals. Reversed and remanded.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, First District.</p> <p>Action by Achilles Carpenter against Frank W. Pirner. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Leon Vanoni against Mark'Alter. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Ida Feinstein and another against Elias Gottfried. From a Municipal Court judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh. District.</p> <p>Action by Amanda McMann against Harvey N. Bloomer. From a judgment in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Execution—Vacation—Stay Pending; Appeal.</p> <p>Where a notice of appeal from a judgment and undertaking were not served until after the expiration of a stay granted by the trial justice, a levy on personal property would be discharged only on condition that the appellant pay the sheriff’s and keeper’s fees, under Code Civ. Proc. § 1311.</p>

Action by Herbert R. Miles and another, copartners doing business under the firm name of Miles Bros., against James D. Barton. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.

<p>Action by Franklin P. Davis against Lunette E. Van Tassel, administrator of Wilford Van Tassel, for broker’s commissions on a sale of real estate. Complaint dismissed.</p>

<p>1. Municipal Cobpobations—Employes — Discharge — Civil Service Regulations.</p> <p>Plaintiff was appointed temporary investigator of complaints under regulation 34 of the municipal civil service commission in force in 1898, providing that where there is no eligible list for °a position a temporary appointment may be made, and that the right of the appointee to retain the position shall cease within five days of the receipt by the appointing officer of an eligible list. No eligible list was ever certified. Regulation 34 of the municipal civil service rules, promulgated July 11, 1899, under express provisions of Laws 1899, p. 795, c. 370, provides that any temporary appointment shall not continue for longer than one month. Held, that plaintiff’s appointment was temporary, and he could be summarily discharged in one month -from the promulgation of the new rules.</p> <p>2. Same.</p> <p>The fact that no eligible list was certified to the appointing officer did not make the temporary appointment permanent.</p> <p>3. Same—Public Exigency Authorizing Suspension oe Rules.</p> <p>The public exigency under which the civil service laws and regulations yield is such a public necessity as amounts to an emergency, and they may not be disregarded where an appointee’s services are merely clerical, consisting in the main of making entries and filing papers in connection with the preparation of a city map, with the completion of which he was not charged.</p> <p>4. Same—Action fob Salary—Title to Office.</p> <p>The title to a position within the civil service laws cannot be tried In an action for salary.</p> <p>5. Same—Right of Recovery—Quantum Meruit.</p> <p>A person discharged from a position in the civil service of a city to which he was not entitled under the civil service rules cannot recover, in an action for salary, on a quantum meruit for services rendered.</p>

<p>Action 'by the Brie Railroad Company against the Rochester-Corning-Blmira Traction Company for injunction. Defendant’s demurrer sustained, and complaint dismissed.</p> <p>On or about the 22d day of August, 1906, the defendant presented to the Board of Railroad Commissioners of the state of New York its petition, alleging that it was a domestic street surface railroad corporation organized for the purpose of building and operating a street surface railroad from the city of Rochester, N. Y., to the city of Elmira, N. Y., and prayed for the issuance of a certificate of public convenience and necessity, pursuant to section 59 of the railroad law of the state of New York (Laws 1892, p. 1395, c. 676). The board appointed a time and place for a public hearing upon said application, and at the time and place appointed the plaintiff appeared and opposed the granting of the certificate. Thereafter, and on the 5th day of December, 1906, the said board decided that the application be denied and the certificate refused. Subsequently this order of the Board of Railroad Commissioners was reviewed by the Appellate Division of the Supreme Court in and for the Fourth Department, and on the 5th day of March, 1907, that court granted its order directing the Board of Railroad Commissioners to issue such certificate of public convenience and necessity. The plaintiff immediately appealed to the Court of Appeals from said order, giving the undertaking required by section 1326 of the Code of Civil Procedure, and due notice of the taking of the appeal and the giving of the undertaking, was served upon the Board of Railroad Commissioners on or about the 22d day of March, 1907. Afterwards and on the same day the Board of Railroad Commissioners met and granted the certificate of public convenience and necessity, pursuant to section 59 of the railroad law. Briefly these are the allegations, and all the allegations, contained in'the complaint, excepting an allegation of a legal conclusion to the effect that the certificate was illegally issued.</p>

<p>Appeal from Trial Term.</p> <p>Action by Charles G. Conn against William P. Chambers. Erom a judgment on a directed verdict in favor of plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals. Reversed and remanded.</p>

Action by Martin Bernreither against the city of New York. Judgment in favor of plaintiff, and defendant appeals. Reversed, and new trial ordered.

<p>Action by George A. Bergmann against Frances L. B. Leavitt, individually, etc. C. F. Brown, for appellants. J. M. Harrington, for respondent.</p>

<p>Action by Susan F. Colgate and others, as trustees, etc., of James B. Colgate, deceased; and James C. Colgate and Austen Colgate, as executors, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Georgia B. Dickinson, as administratrix, etc., against Thomas O. Platt, as president, etc.</p>

<p>Action by Harry L. Day against Nancy J. Day.</p>

Action by Louis Lese against Anna Lamprecht, individually and as executrix of the estate of Hugo Lamprecht, deceased, for the specific performance of a contract. From a judgment for defendant, plaintiff appeals. Affirmed. John D. Connolly, for appellant. Arthur J. Westermayr, for respondent.

<p>Action by Samuel L. Matthews against Alfred Hoffimeister.</p>

Action by Charles Meimann against Jacob I. Le Bowski. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Henry Fluegelman, for appellant. I. Henry Harris, for respondent.

<p>Action by the Mechanics’ '& Traders’ Bank against Ludwig Stettheimer. C. Strauss, for appellant. S. H. Guggenheimer, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourteenth District. Action by Ralph B Nix-son against John J. Reilly. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. R. W. Keene, for appellant. Breen Bros., for respondent,</p>

Eugene Christian was convicted of unlawfully practicing medicine, and appeals. Reversed. Gardenheier & Wetmore (Samuel M. Gardenheier of counsel), for appellant. Wm. Travers Jerome, Dist. Atty. (Robert S. Johnstone, of counsel), for respondent.

<p>Appeal from Municipal Court, Borough of the Bronx, First District. Action by Moses Schlansky against Pincus Harrison and Barney Somergrad. Judgment for plaintiff, and defendants appeal. Judgment as to Somergrad reversed, and as to Harrison affirmed. Meyer London, for appellants. Willoughby B. Dobbs, for respondent.</p>

<p>Action by John Sticht against the Buffalo Cereal Company.</p>

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