Volume 108 — New York Supplement

<p>Appeal from-Trial Term.</p> <p>Action by Robert J. McDermott against Isidor Straus and another for personal injuries received from a descending elevator while working on the door of the elevator shaft. From a judgment for plaintiff, ánd an order denying a new trial, defendants appeal. Affirmed.</p>

Action by the Wallabout Bank against Albert J. Peyton. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Courts—Municipal Courts—Presumptions—Order for New Trial.</p> <p>Under Supreme Court rule 31, requiring an order granting a new trial, except on exceptions taken during the trial, to specify the grounds on which it was granted, and under Blunicipal Court Act, Laws 1902, p. 1496, c. 580, § 20, making the Supreme Court rules applicable to the Blunicipal Court of New York City, it will be assumed an order of that court granting a new trial was made upon exceptions, where it does not specify the grounds.</p>

Action by the Kéith & Proctor Amusement Company against one Bingham, as police commissioner of the city of New York, to restrain the police authorities of the city from closing or attempting to close plaintiff’s theater, located in such city, etc., on Sundays. On application for continuance of a preliminary, injunction pendente lite. Application granted.

Habeas corpus by the people, on the relation of one Valensi, against one Flynn, as warden, etc. Writ granted. Relator discharged.

<p>Sunday—Desecration—Stereopticon Pictures.</p> <p>An exhibition of stereopticon pictures cast on a canvas on Sunday, and a lecture, consisting of the names and descriptions of the pictures, etc., did not constitute a violation of Pen. Code, g 265, prohibiting ail shooting, hunting, fishing, playing, horse racing, gaming, or other public sports, exercises, or shows on Sunday, and all noise disturbing the peace of the day.</p>

Proceedings for the sale of a lot and building thereon in Lestershire, Broome county, N. Y., for unpaid state and county taxes for the year 1900. From a final order of the county judge declaring the absolute title to the premises vested in Cyrus A. Wheaton, the purchaser in fee, Marsena H. McIntyre and another appeal. Reversed, without costs, and proceedings dismissed.

<p>Appeal from Special Term, Kings County.</p> <p>Application of Sophie Marcháis La Grave to examine Frank J. Herbert and others. From the order made, said La Grave appeals. Affirmed.</p>

Proceedings by the City of New York to condemn land for an approach to Manhattan Bridge No. 3. On motion to confirm the report of commissioners. Confirmation denied, and matter referred to new commissioners.

<p>Action by Dora Wiehorst Bonhoff against William Wiehorst and others. Judgment for plaintiff.</p>

<p>Elections—Ballots—Contents—Intoxicating Liquobs—Local Option.</p> <p>Section 16 of the liquor tax law (Laws 1896, p. 57, c. 112) provides that certain questions regarding the sale of liquors “shall be submitted * * * by ballot * * * upon the face of which shall be printed in full the said questions,” setting them out. The names of the questions, omitting the questions, were printed' on the ballot and voted on. Held, a total omission, not only of all language required, but the idea, substance, and the question itself", warranting the calling óf a special election for a resubmission of the questions to the electors.</p>

<p>Injunction—Permanent Injunction.</p> <p>The court has no power, upon motion and prior to the trial of the action, to make an order granting a permanent injunction, the relief demanded in the complaint.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Injunction, § 409.]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Rebecca Feingold against the New York City Railway Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Master and Servant—Fellow Servants—Who Are.</p> <p>An architectural draughtsman provided by his employer with a room in its building is a fellow servant of one employed by the same company as operator of an elevator in the building used by all the employes therein, as affecting liability for injury to the draughtsman caused by the operator’s negligence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 486-492.]</p>

<p>1. Courts—Municipal Courts — Powers — Reinstating Verdict and JudoMENT.</p> <p>The Municipal Court being of purely statutory creation, every step taken by it must be based upon authority expressly given or clearly to be inferred from the statute; and hence the vacating by a municipal judge of a final order setting aside a verdict and judgment and granting a new trial, and reinstating the verdict and judgment, was error, there being no statutory authority therefor.</p> <p>2. Same.</p> <p>In such a case, whether the opposing party made specific objection was immaterial, as the jurisdiction of the court had been terminated and its powers exhausted when his first order was made, and its right to proceed further in the action can be questioned for the first time on appeal.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Louis Rockmore against Max J. Kramer and another. From a judgment for plaintiff and an order denying a motion for a new trial, defendants appeal. Reversed, and new trial ordered.</p>

<p>Courts—Municipal Courts—Jurisdiction.</p> <p>Where the Municipal Court of New York City does not render judgment in a cause within 14 days from submission of the'cause, as required by Municipal Court Act, Laws 1902, p. 1557, c. 580, § 230, it loses jurisdiction.</p>

<p>Pbincipal and Agent—Liability of Agent—Payments to Agent.</p> <p>Where plaintiff paid money to defendants, knowing them to be agents of another, the payment being free from any wrongful act of the agents, he must look to the principal, and not the agents, for a return of the money, should he ultimately become entitled to it.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 480, 481.]</p>

<p>Action by Letitia J. Galvin against Thomas M. Ryan for an accounting. ' Demurrer to the complaint overruled, with leave to defendant to-answer on payment of costs.</p>

<p>1. Landlord and Tenant—Disturbance of Possession of Tenant by Landlord—Eviction—Action fob Damages by Tenant—Action fob Rent.</p> <p>Lessee’s lease required him to give three months’ notice of intended removal and to allow lessors to enter and show prospective lessees the premises and at any time visit and examine them. Lessors, less than three months prior to the expiration of the lease, wrote lessee, requesting permission to show a prospective lessee the premises, and, receiving no reply in two days, broke in, put on a new lock, and retained the key. Lessee removed forthwith. Held, that while such breaking, being merely a trespass, for which lessee might have damages against lessor, would not justify a refusal to pay rent, yet that the changing of the lock and retaining the key operated as an eviction, so that lessor could not recover for rent subsequently accrued.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 765.].</p> <p>2. Same—Eviction—Act of Landlord.</p> <p>In such a case there was no obligation on lessee to demand possession of the premises; a refusal to restore not being an essential element of an eviction.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant § 765.]</p>

Action by Henry Brody and another against Herman Birnbaum and another. From an order granting a new trial after verdict for plaintiffs, plaintiffs appeal. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Samuel Borchardt against Eliza A. Parker. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ■ordered.</p>

<p>Appeal from Municipal Court,- Borough of Manhattan, Tenth District.</p> <p>Action by the Columbia Bank against Augustus W. Clarke. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>1. Brokers—Compensation—Persons Liable.</p> <p>One who employed a broker to find a purchaser for real estate, and who did not disclose to the broker that he was acting as an agent, and did not disclose his principal until after the broker had found a purchaser, was liable to the broker for commissions.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Brokers, § 62.]</p> <p>2. Contracts—Modification—Consideration.</p> <p>Where a real estate broker found a purchaser ready and willing to contract on the terms stipulated, a subsequent agreement by him not to claim any commissions unless a sale should' be consummated was void, as without consideration.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by. Henry J. Ahrens against the Union Railway Company. Erom a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Attorney and Client—Retainer—Contracts fob Compensation—Construction—Reimbursement of Expenses.</p> <p>A contract to pay a certain sum or percentage to an attorney as compensation for his legal services does not, in the absence of any agreement to the contrary, impose upon the attorney the burden of assuming the disbursements necessarily made in the client’s behalf, and such disbursements may be. recovered from the client.</p>

<p>Appeal from Municipal Court, Borough' of Manhattan, Ninth- District.</p> <p>Action by Jacob Konigsberg against George Davis. From a judg=ment dismissing the complaint at the close of plaintiff's case, he appeals. Reversed, and new trial ordered.</p>

<p>1. Courts—Municipal Court—Pleading—Pleading Judgment as Defense— Oral Pleading—Bill of Particulars—Necessity of Pleading Judgment.</p> <p>In an action by plaintiff in the Municipal Court of New York City to recover his salary as tenement house inspector while suspended from duty, where, the pleadings being oral, the complaint was “Salary,” and the answer was “General denial, demand for bill of particulars,” it was not incumbent upon defendant, in order to rely as a defense upon a prior judgment against plaintiff involving the same claim, to anticipate the facts set forth in the bill of particulars and plead “Res adjudicata” in its oral answer.</p> <p>2. Same—Rules of Decision—Precedents—Previous Decisions.</p> <p>In an action to recover his salary as tenement house inspector while under suspension alleged to have been illegal because not having been made by the commissioner, a decision in mandamus proceedings that if the suspension was made by the commissioner it was valid was not binding in the present action, under the doctrine of stare decisis, since the issues in the two suits were different.</p> <p>3. Municipal Corporations—Officers and Employés—Removal of Employé.</p> <p>Where the deputy tenement house commissioner wrote a letter to the chief inspector, directing that plaintiff be suspended as tenement house inspector pending investigation, the letter being countersigned by the tenement house inspector: “O. K. E. J. B.”—his suspension was by the commissioner, and not by the chief inspector.</p>

<p>Appeal from Special, Term.</p> <p>Action by Peter McGarry against the Edison Electric Illuminating Company of Brooklyn. From an adverse judgment and order, plaintiff appeals. Reversed, and new trial granted.</p>

<p>Contracts—Teems—E vidence.</p> <p>Evidence in an action to recover a share of the losses on the purchase, rehabilitation, and sale of a railroad held insufficient to authorize a finding that the contract between the parties was, or at least remained, as contended by plaintiff.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 11, Contracts, §§ 1819, 1820.]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Sigmund Ernst and another, copartners, against Antoinette Loeb and another. Erom a judgment for plaintiffs, and an order denying a new trial, the above-named defendant appeals. Reversed, and new trial ordered.</p>

Action by Isidore Neustaedter and another against Reuben Wiener. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.

<p>Municipal Cobpobations—Pubchase of Goods—Liability.</p> <p>One selling to a city a tripod can recover only the market value, shown by what the city could have purchased it for in the market, at the time plaintiff made the purchase, in order to deliver the same to the city.</p>

Action by Elias Schwartz against the Interurban Street Railway Company. From two orders of the New York City Court, one granting defendant’s motion to dismiss for failure to prosecute, and the other denying plaintiff’s motion to restore the cause to the calendar, plaintiff appeals. Reversed, and case restored to the calendar.

Action by Louis Brown and another against Fannie Grossman and another. From an order of the New York City Court, setting aside a verdict in favor of plaintiffs, and from a judgment dismissing the complaint on the merits, plaintiffs appeal. Reversed, and verdict reinstated.

Action by the James Reilly Repair & Supply Company against Patrick Gallagher and another. From a judgment for plaintiff, and an order denying a new trial, defendant Gallagher appeals. Reversed, and new trial ordered.

Action by Gussie Demby against the New York City Railway Company to recover a penalty for refusal to accept a transfer. From a judgment for plaintiff, defendant appeals) Reversed, and new trial ordered.

<p>Landlord and Tenant—Deposit to Secure Rent—Right oe Lessee to Deposit.</p> <p>Where a lessee deposits $116.67 as security for the rent for the last month of the term, to be forfeited upon failure to comply with any of the covenants of the lease, and he is subsequently dispossessed, and the lessor leases the premises for the balance of the term at a loss to him of $16.66, the lessee is entitled to the balance of his deposit.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 747.]</p>

Action by Ernest Schreiber, administrator of Adolph Schreiber, deceased, against the Keller Mechanical Engraving Company. Erom a judgment for plaintiff, defendant appeals. Reversed, .and new trial ordered.

Action by the Baltimore & Ohio Railroad Company against Charles Da Due and James M. Carmer, doing- business under the firm name and style of La Due & Carmer, to recover freight charges. Judgment for defendants, and plaintiff appeals. Affirmed.

Action by the Box Board & Lining Company against John H. Wiemers, Incorporated. From an order allowing plaintiff to amend the complaint, defendant appeals. Order reversed, and motion granted, on payment of costs.

Action by Owen Toher against the Lochinvar Realty Company and' Others. From an order denying a motion to dismiss the complaint for neglect to prosecute, the Lochinvar Realty Company appeals. Reversed, and motion granted.

<p>_L Tbade Unions—Officers—Authority—Contracts—Requisites.</p> <p>At a convention of the central organization of a labor union the question of securing for the members of the subordinate unions a change from a nine-hour to an eight-hour day at the same wages as for a nine-hour day received consideration. The outgoing board of directors recommended that the incoming board be instructed to meet with a like committee of a similar organization representing the employers of members of the subordinate unions, to get some concessions towards an eight-hour day within a reasonable time; the committee to have power to sign an agreement for an eight-hour day if such day could be brought within a reasonable time, and, if not, to report back to the next convention of the union. This recommendation was adopted, and pursuant thereto a committee of the union, consisting of its five chief officers, met a like committee of the other organization and negotiated an agreement therewith which provided for the continuance of the agreement then existing between the two organizations for a term of five years, except that 54 hours, which then was a week’s work, should remain so only until a date 20 months off, after which 48 hours should be a week’s work. The agreement also was made subject to ratification by the convention of the employers’ association. Before this convention met, the next annual convention of the union occurred, and the agreement was there ratified, with the provision that the clause providing for open shop be stricken out and an amendment inserted providing for nine hours’ pay for the eight-hour day. The convention of the employers’ organization refused to accept this amendment and no further understanding between the two organizations was reached. Held, that there was no contract between the two organizations; the agreement negotiated by the committee oí the union not being within their instructions, as not providing against a reduction in pay commensurate with the shortening oí the working day, and not having been ratified, except with amendments which were not accepted.</p> <p>2. Same—Ratification.</p> <p>A tentative agreement, entered into between committees representing a central organization of employers and a like committee of the central organization of a trade union was not ratified by a subordinate union by the act of two of the officers of the central union signing an agreement purporting to be such a ratification with a subordinate association of the employers’ central organization, without authority from the local union or the central organization of which they were officers.</p> <p>3. Same.</p> <p>A tentative agreement, entered into between a committee representing a central organization of employers and a like committee of the central organization of a trade union, was not ratified by the act of two members of a subordinate union signing an agreement purporting to be such a ratification, without authority from the subordinate union to sign such agreement, and especially so where such agreement was signed by the members of the local union under misapprehension as to its provisions, brought about by misrepresentation.</p>

Action by Vincent Newman against the city of New York. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.

<p>Appeal from City Court of New York, .Trial Term.</p> <p>Action by John W. Rothenberg against Ignatz I. Rosenberg. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Hudes Drexler and another against Solomon Cohen for rent. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.</p>

Action by Hudes Drexler and another against Solomon Cohen for rent. From a judgment for plaintiffs, defendant appeals. Reversed, and complaint dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Charles S. Bloch against Israel Rippman. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by the Real Estate Directory & Information Bureau against Ernest A. Turner. Erom a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Templar Saxe against the Shubert Theatrical Company. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Action by Pinkas Tarnofker against Louis Grissler and another. From a judgment for defendant Louis Grissler, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by William D. Tyndall against Robert A. Beatty. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by Bertha Jacobowitz against Samuel Strasbourger and others. From a judgment entered in favor of plaintiff by direction of the court, and from an order denying a motion for new trial, defendants appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth, District.</p> <p>Action by George Renault against the Simpson Crawford Company. Judgment for defendant, and plaintiff appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Diedrich Blendermann against Emma Mann-Wray. Erom a judgment for defendant on the dismissal of the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by the .¿Etna Elevator Company against Richard Beeves and others to enforce a mechanic’s lien. From a judgment for defendants, plaintiff appealed, and the judgment was affirmed (107 N. Y. Supp. 63). On motion for reargument or for leave to appeal. Motion denied.

Action by the Park Laundry Company against John Sassone and others. From a final order in summary proceedings, rendered on default in favor of the landlord, Albert Bonomo, assignee of the lease of Sassone & Rozanes, appeals. Dismissed.

<p>1. Insurance—Assignment of Policy—Manner—Effect.</p> <p>Unless otherwise specifically provided, a policy may be assigned in the same manner as any other chose in action, and the assignment may be oral, and by mere delivery, with intent to transfer. No particular form of words is necessary, and the assignment may be either for a valuable consideration or voluntarily as a gift.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, § 484.]</p> <p>2. Same—Actions—Transfer of Policy—Evidence—Sufficiency.</p> <p>In an action on a policy of life insurance, which provided no method or condition of assignment, and which provided for payment to any one connected by marriage to the insured, or equitably entitled thereto by reason of having incurred expense for his burial, or for any other purpose, it appeared that on receipt of the policy the insured delivered it to plaintiff, his wife, saying, “Take this policy and pay on it,” and that plaintiff thereupon took the policy, retained it, paid the premiums until his death, and also paid his burial expenses. Held, that the jury was warranted in finding that there was both a gift and an assignment of the policy, and that the legal title thereto vested in plaintiff, since as a gift the transfer required no consideration, and depended upon no agreement, but upon the insured’s voluntary act, and it was accomplished by delivery of the policy, and as an assignment the.transfer required no specific form of words, either oral or written, and plaintiff was eligible to receive payment of the insurance money.</p> <p>[Ed. Note.-—For cases in point, see Cent. Dig. vol. 28, Insurance, § 484.]</p> <p>3. Same—Actions—Pleading—Assignment of Policy—Gift.</p> <p>The fact that plaintiff alleged an assignment of the policy did not require -an amendment of the pleadings to conform to the proofs, -since a gift is a voluntary transfer from one to another without consideration, and the difference between a gift and any other assignment is merely in the method of proof.</p>

Action by M. Gustine Rieser against the Calvert Construction Company. From a judgment for plaintiff for part of the amount claimed, and from an order denying a new trial, he appeals. Judgment and order affirmed.

Miles McDonnell demurs to -an indictment for unlawfully selling liquors on Sunday. Demurrer disallowed, and defendant permitted to plead to indictment. <

Proceeding by Anton Schultz, landlord, against John Von Der Born, tenant, impleaded with others. From an order vacating a final order by which possession of the premises was awarded the landlord for default in payment of rent, the landlord appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Samuel Bauman against Meinhart Kuhn and others. Judgment for plaintiff, and defendants Dochtermann appeal. Affirmed.</p>

Action by one Allen against one O’Bryan, in which defendant was arrested. The complaint having been dismissed, defendant moves for the return of a deposit as bail. Motion denied.

<p>1. Wills—Testamentary Capacity.</p> <p>Evidence in proceedings to probate a will held to show that, at the time of executing it, testatrix knew the character and extent of her property, and comprehended her relationship to those naturally the objects of her bounty, and the provisions of the instrument, and so had testamentary capacity.</p> <p>[Ed. Note.—For gases in point, see Cent. Dig. vol. 49, Wills, §§ 96-100, 137-161.]</p> <p>2. Same—Undue Influence.</p> <p>To avoid a will on the ground of undue influence, such influence, and not mere opportunity therefor, must be shown.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, §§ 385, 386 ]</p>

Action by the Farmers’ Loan & Trust Company, as ancillary executor, executor, and trustee under George' W. Cummings’ will, against John Cummings and others. Decree directed.

Three actions by the Lucas E. Moore Stave Company against the M. Mosson Company. From judgments for plaintiff, defendant appeals. Reversed, and new trials ordered.

<p>Action by Annié W. Adams against David Howell. Judgment for plaintiff.</p>

<p>Courts—Municipal Courts—New Trial—Proceedings to Procure—Case.</p> <p>Under Municipal Court Act, Laws 1902, p. 1563, c. 580, § 255, providing that the court may grant or deny a motion for new trial on the ground of fraud or newly discovered evidence, and that from the order an appeal will lie, an order granting a new trial, not made upon a case settled, is void.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. x</p> <p>Summary proceedings by Jeruchim H. Simpson, landlord, against Harry Berkowitz, tenant. From a final order in favor of the tenant, the landlord appeals. Return remitted for correction.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by the Stanley Court Realty & Construction Company against William R. Ballard. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Special Term, Westchester County.</p> <p>Action by Roy L. McCardell against the Metropolitan Street Railway Company. From an order denying defendant’s motion to dismiss for lack of prosecution, defendant appeals. Reversed, and motion granted.</p>

<p>Action by Julius Rabinowitz and another against Leon Pizer. Heard -on demurrer to the complaint. Sustained.</p> <p>The following is a copy of the complaint:</p>

<p>1. Street Railroads—Collisions—Care Required fob Protection of-Travelers.</p> <p>Where a traveler’s attempt to cross a street with a car approaching: one-half to three-quarters of a block away becomes apparent, the duty of the operators of the car to exercise care and the traveler’s right to relyr on the performance of that duty' attaches. ,</p> <p>[Ed. Note.—For cases in point, see Gent. Dig. vol. 44, Street Railroads;. §§ 172-182, 219.]</p> <p>2. Same—Contributory Negligence.</p> <p>A traveler is not negligent in making use of'a street with reliance on the observance of ordinary care by the operators of street cars thereon, though an approaching car is coming rapidly from a more or less distant-point ; he having a right to expect- that care will be exercised in the operation of the car.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads. §§ 204-209.]</p>

<p>■Gobpobations—Saxes—Contbact—Rescission.</p> <p>Where plaintiff purchased stock through defendant broker, under an agreement by defendant to place the stock on the market in a few weeks, and after lapse of that time, with knowledge that the stock had not been placed on the market, accepted.the certificate of stock, though she had had an ample period for disaffirmance of the contract, she could not recover for the price paid on the theory of a rescission and offer to restore.</p>

<p>1. Sales—Actions fob Pbice—Defenses—'Variance.</p> <p>In an action for the price of goods, defendant set up a contract where- ■ by plaintiff agreed not to sell the same kind of goods to any other person during a specified time. The proof given by defendant tended to establish a contract which would be broken by a mere delivery of these goods, and the question of a possible variance was at no time alluded to in the course of the trial. It clearly appeared that plaintiff had made shipments within the reserved dates. Seld, that it was error to take the case from the jury, and direct a verdict for plaintiff on the ground that no proof was furnished to show that the goods so shipped were actually sold, as well as shipped, within the particular period.</p> <p>2. Trial—Directing Verdict-Waiver of Objection.</p> <p>Where, during the argument which immediately preceded the direction of a verdict, defendant’s counsel several times stated that the case was one for the jury, the omission to repeat that statement after the ruling was made was not a waiver of the right to go to the jury.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 983.]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Henry G. Silleck against Isidor Robinson and another. From a judgment for plaintiff, and an order denying a new trial, defendant Isidor Robinson appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Louise Berriman against Hovhannes M. Tashjian. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Beneficial Associations—Dues—Time fob Payment.</p> <p>Where the by-laws of a benevolent association provide that “this society shall derive its income from * * * quarterly dues," without stating when the dues are to be paid, they may be deemed payable at the end of the quarter.</p> <p>2. Same.</p> <p>The by-laws of a benevolent association provided for payment of quarterly dues, without stating when the same were payable. The by-laws also provided that “the last meetings in the months of March, June, September, and December shall be general meetings,” and it was shown that at the general quarterly meetings dues were payable. The by-laws further provided that members who failed to pay their dues within three months should be excluded from voting and from receiving any sick benefit. Held, that the three-months period did not begin to run until the end of the quarter.</p>

<p>Contracts—Substantial Performance—Amount of Recovery.</p> <p>Where there is proof of substantial performance of a contract, judgment is properly rendered for the balance unpaid, less the value of the work omitted.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, § 1361.}</p> <p>MacLean, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District..</p> <p>Action by the Hudson Trust Company against Manuel S. Chappelle to recover the amount of an overdraft. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Master and Servant—Independent Contractor—Liability to Third Persons.</p> <p>An employer of a firm of contractors engaged in furnishing trucks for hire, who has control over the employés of the firm by reason of his right to direct the use of the trucks, the firm having nothing to do with the details, stands toward the employes of the firm as master, and is liable for the negligence of the driver of a truck.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1257, 1258.]</p>

<p>Stipulations—Construction—Evidence—Affidavits—Admissibility.</p> <p>Where, in an action against a bank by a depositor to recover money which he claims should stand to his credit, the parties rested with a stipulation that the bank might submit to the court deposit slips covering a certain period, the court subsequently improperly received and considered ail affidavit of the bank’s teller, who did not testify at the trial, explaining the bank’s inability to produce the slips, giving important and material additional testimony in the bank’s behalf, and going far beyond the scope contemplated by the stipulation.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 44, Stipulations, §§ 24r-54.]</p>

<p>Appeal—Review—Findings—Conclusiveness.</p> <p>Findings on conflicting evidence will not be disturbed on appeal.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3983-3989.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Aaron Adler against Herbert L. Miles and another, composing the firm of Miles Bros. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Timothy J. Kieley against Louis Reinhardt. Judgment for plaintiff, and defendant appeals. Dismissed.</p>

Action by Israel Eisenstein and another against the Old Dominion Steamship Company. From a judgment for plaintiffs after a trial before a jury, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>■ Appeal from Municipal Court, Borough of Manhattan, Seventh ¡District.</p> <p>Action by Pío Bolanos against Cesare Zumeta. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action for personal injury by Patrick Crane against Benjamin C. Miller and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan,-Tenth District.</p> <p>Action by-Andrew J. Kerwin, Jr., against Genevieve MacMaster. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by John J. O’Shea and another against Edward E. Brill on a brokerage contract. Erom a judgment for plaintiffs, defendant appeals. Affirmed.</p>

<p>Carriers—Penalties—Refusal to Give Transfers—Bona Fide Passengers.</p> <p>Whether one suing a street railway company for the statutory penalty for its refusal to carry him without further payment of a fare was a bona fide passenger is material on his right to recover, and the exclusion of evidence on the issue is reversible error.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Morris Klotz against Max Frolich. From an order denying a motion to open a default judgment rendered against plaintiff, and to vacate a judgment entered in defendant’s favor, plaintiff appeals. Modified and affirmed.</p>

Action by the American Seeding Machine Company against James Slocum. Verdict having been found for defendant, plaintiff moves for a new trial. Motion denied conditionally.

Morris Tack was adjudged guilty of contempt for violating an order restraining him from disposing of property subject to execution, and appeals. Affirmed.

<p>1. Trial—Nonsuit—Motion for—Construction of Proof.</p> <p>For the purpose of ruling on a motion for a nonsuit, the evidence must be taken favorably to plaintiff.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 374.]</p> <p>2. Same.</p> <p>Where plaintiff’s testimony alone was produced, and it was so far in-firmed by the probabilities of the case as to warrant the trial court in declining to find for him, and defendant rested without proof, judgment upon the merits, and not a nonsuit, was proper.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 360.]</p> <p>3. Appeal—Records—Opinions of Municipal Justice—No Pabt of Keoobd.</p> <p>The opinion of the justice of the Municipal Court is not such part of the record that it may be used to reverse an apparently correct judgment.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 2339.]</p> <p>4 Judgment—Nonsuit—Prejudice to New Action.</p> <p>Municipal Court Act, Daws 1902, p. 1561, c. 580, § 248, authorizing a nonsuit when plaintiff does not prove his cause of action, does not require a judgment for defendant to be without prejudice to a new action merely because defendant rests upon plaintiff’s proofs.</p> <p>MacDean, J., dissenting.</p>

<p>1. Judgment—Conclusiveness of Adjudication—Matters Concluded — Issues on Pleading.</p> <p>A judgment for the plaintiffs in a previous action for services in dyeing skins, is a bar to a subsequent action against them by the defendants therein for damages for negligence in dyeing the skins, since the care used in doing the work was an element in the claim for the value of the services.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1254-1258.]</p> <p>2. Same—Judgments Conclusive—Judgment on Default.</p> <p>A prior judgment by default may operate as a bar to a subsequent action.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. voi. 30, Judgment, § 1012.]</p>

<p>1. Evidence—Self-Serving Declaration—Brokers—Actions for Compensation.</p> <p>In an action for commissions by a real estate broker on a contract under which It had earned its Commissions when the contract of sale was signed, defendant’s self-serving declaration that the payment of commissions was to await the delivery of the deed was of no effect.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1068-1104.]</p> <p>2. Same—Admissions.</p> <p>In an action by a real estate broker for commissions, defendant’s admission that plaintiff procured the sale, as expressed in the contract between the vendor and purchaser, was evidence for plaintiff.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig: vol. 20, Evidence, §§ 786-808.]</p> <p>MacLean, J., dissenting.</p>

<p>Appeal from Municiual Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Carl Callman against Israel Bruckenfeld. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>1. Municipal Corporations—Streets—Use as Highway—Negligence—Persons Liable—Sufficiency of Evidence.</p> <p>The testimony of a witness that “I saw the wagon with the name ‘Beam, 331 Lafayette Street,’ ” is insufficient to identify Walter Beam as the owner of such wagon, which injured plaintiff while being drawn by a horse running without a driver.</p> <p>2. Trial—Dismissal—Evidence to Identify Defendant.</p> <p>Where plaintiff sued for injuries, and failed in the evidence to connect defendant therewith, a motion to dismiss should be granted.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 332, 333.]</p>

<p>1. Sales—Remedies of Seller—Actions fob Price—Evidence—Sufficiency.</p> <p>In an action for the price of a horse, evidence examined and held to show that defendant was entitled under the terms of the agreement to keep the horse on trial only 48 hours before accepting or returning it.</p> <p>2. Same—Operation and Effect—Transfer of Title as Between Parties.</p> <p>Where defendant took a horse on trial for 48 hours, his retention of it for a longer time transferred the title to himself, though it was retained but a short time beyond that period; and on the death of the horse thereafter he was bound to pay its reasonable value.</p>

<p>1. Highways—Vacation—Decisión—Motion to Set Aside—Notice—ConTENTS.</p> <p>Under Highway Law, Laws 1890, p. 1194, c. 568, § 89, requiring motions to vacate the decision of the commissioners in a proceeding to vacate a highway to be made on service of papers on adverse parties in proceedings in court according to the usual practice of the court, and General Rules of Practice, 37, requiring the notices of motion on the ground of irregularity to specify the irregularity complained of, the irregularities relied on in a motion to vacate the commissioners’ decision must be stated in the notice of motion as well as in the affidavits.</p> <p>2. Same—Discontinuance—Abandonment—Grounds.</p> <p>Under section 86 of the highway law (Laws 1890, p. 1194, c. 568), providing that a highway may be discontinued when a majority of the commissioners shall determine that it is useless, a highway should be discontinued where it is substantially abandoned by the general public, or where some other highway will better accommodate the public.</p> <p>3. Same—Vacation—Proceedings—Commissioners’ Decision—Review by Court.</p> <p>In a proceeding to discontinue a highway, the amount of damages allowed will not be changed on motion to set aside the commissioners’ decision, in the absence of any suggestion of misconduct on the part of the commissioners.</p>

<p>Action by Alfred P. Boiler against the city of New York.</p>

<p>Action by Michael Dowdall against the Supreme Council, C. M. B. A.</p>

<p>In the matter of the proceedings for the disbarment of Wilson H. Gardenier, an attorney and counselor at law.</p>

<p>Action by Stephen M. Hoye against the Pennsylvania Railroad Company and another.</p>

<p>Appeal from Special Term. Application by William T. Keleher for an order-issued to the board of elections of the city of New York to compel it to strike from the enrollment book of the Fourth Election district of the Twenty-Third assembly district the name of William Heineman. From an order granting such relief, the board of elections appeals. Reversed, and motion denied.</p>

<p>Action by Frederick Kindorf against Philip J. Hoellerer.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by the Omega Chemical Company against the O. J. Gude Company. From a judgment for plaintiff, defendant, appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by William F. Norton against Henry L. Thwaite. From a judgment in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Action by Charles Bichardson against the New York Central & Hudson Biver Bailroad Company.</p>

<p>Action by Barnett Schnitzer against Joseph Price.</p>

<p>Action by the Trust Company of New York against the Universal Talking Machine Company and others.</p>