Volume 109 — New York Supplement

<p>1. Municipal Corporations—Streets—Use as Highways—Negligence—Actions eor Injuries—Evidence.</p> <p>In an action against a cab company for injuries to a pedestrian at a street crossing, evidence held to sustain a judgment for plaintiff.</p> <p>2. Same—Contributory Negligence.</p> <p>Mere failure of a pedestrian.to observe an approaching cab at a street crossing does not necessarily constitute negligence on his part, where the proximate cause of the injury is the speed of the cab and failure to check its speed at a point where pedestrians are to be expected.</p> <p>3. Damages)—Excessive Damages.</p> <p>Where plaintiff suffered pain during a confinement to his bed for three weeks as a result of injuries, and the doctor’s bill was §41, a verdict for §300 is not excessive.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, §§ 357-371.]</p> <p>MacLean, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Wall Street Exchange Building Association against . the New York & Western Consolidated Oil Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>Pleading—Bill oe Particulars—Injuries to Servant.</p> <p>A complaint alleged that defendant put plaintiff to work at or near a machine without instructing him as to the manner of operating it, and without warning him of the dangers, and that on a specified day, while he was “working at or near one of said machines, he was seriously injured” by a portion of his thumb being cut off; that said injury was caused by reason of a defect in the condition and the ways, works, or machinery connected or used in the business of defendant, field,' that defendant is entitled to a bill of particulars stating how the accident occurred, to the extent of showing in what respect defendant is claimed to have been negligent and on what theory plaintiff seeks to hold him liable.</p> <p>[Ed. Note;—For cases in point, see Cent. Dig. vol. 39, Pleading, § 956.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Jacob M. Leonhardt against the city of New York. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>1. Process—Summons—Delivery for Service—Evidence.</p> <p>Where summons, issued August 2d, was returnable August 14th, an affidavit of him to whom the summons was given for service, made August 13th, four days before an item sued on would be barred by limitation, that after due and diligent search affiant was unable to find defendant, so as to serve him, overcomes an objection that the summons was not actually delivered for service before limitations ran.</p> <p>2. Limitation of Actions—Accounts—Items.</p> <p>One item of an account proven to exist within six years of the bringing of suit will not draw after it other items of more than six years’ standing. so as to prevent a bar by limitations, unless there were mutual accounts and reciprocal demands between the parties.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 33, Limitation of Actions, § 285.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourteenth District.</p> <p>Action by Thomas Denny against Strauss & Co. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Contracts—Action for Services—Evidence—Admissibility.</p> <p>The issue was whether plaintiff had warranted certain results from his performance of work in altering defendant’s engine, and, if so, whether the failure to obtain those results was due to the engine, to the electric plant which the defendant had himself supplied, or to the manner in which the defendant operated the engine. It was shown that the plant did not work properly, and that defendant substituted another engine and another dynamo. Held, that it was error to permit plaintiff to introduce evidence to show that the new dynamo was larger than the old one, as the rejection of the entire plant did not warrant an inference that defendant knew that the old dynamo would not work with a new engine.</p> <p>MacLean, ,T., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by William J. Sageman against Levi C. Weir, as president of the Adams Express Company, on a contract of carriage, From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Action by the Shubert Theatrical Company against Elorenz Ziegfeld. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

<p>Appeal of Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Morris Flocks against Aaron Schlang and another. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>1. Pleading—Motion foe Judgment on Pleadings—Admission in Pleading.</p> <p>Plaintiffs sued for goods sold and delivered, for which the alleged defendants agreed to pay $157.50. Defendants denied the allegations of the complaint, and set up that plaintiffs agreed to sell and deliver a quantity of goods of the agreed price of $157.50; that they did deliver goods of the value of $150, on which defendants were entitled to a discount of 2 per cent, amounting to $3; that before the commencement of the action they tendered the sum of $147, which plaintiffs refused to accept; and that defendants therewith tendered the same into court. At the trial plaintiffs offered no proof, but rested their case, and asked for judgment for the amount paid into court, whereupon defendants moved to dismiss on the ground that plaintiffs had not established a cause of action. Held, that the motion to dismiss should have been granted, as the answer as drawn contained no admission which entitled plaintiffs to a judgment on the pleadings.</p> <p>2. Tendee—Mode and Sufficiency—Check.</p> <p>A creditor ordinarily is not compelled to accept his debtor’s check in payment of the indebtedness, and an offer thereof is insufficient to constitute a tender.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Tender, § 29.]</p> <p>3. Same—Keeping Tendee Good—Tendee Not Accepted.</p> <p>Where purchasers of goods, after return to them by vendors of their check offered in payment, destroyed the same and left the moneys on which it was drawn subject to any other call of their business, there was a failure to keep the tender good, even if the offer of the check should be considered a valid tender.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Tender, §§ 55-58.]</p> <p>4. Judgment—Offer of Judgment.</p> <p>Under Municipal Court Act, Laws 1902, p. 1537, c. 580, § 148, providing that defendant may offer to allow judgment against him for a sum of" money, with costs, and that, if plaintiff shall not accept the offer and fails to recover a more favorable judgment, he cannot recover costs from the time of the offer, but must pay defendant’s costs from that time, where the deposit by defendants was insufficient to cover the amount admitted on the trial by defendants to be due plaintiffs and the costs up to the time of deposit, judgment should have been given for plaintiffs for the amount admitted to be due and costs, the deposit to be credited thereon.</p>

<p>Appeal and Ereob—Review—Conflicting Evidence.</p> <p>The decision of the trial court on conflicting evidence that the account sued on was not included in a receipt in full 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>MacLean, J., dissenting.</p>

<p>Brokers—Commissions—Procuring Purchaser.</p> <p>A broker, by producing a party willing to negotiate on a change of the terms, is not entitled to compensation as for producing a purchaser ready and willing to enter into a contract of sale on the terms stated by the owner.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Brokers, § 97.]</p>

Actions by Catherine Irvin against Meyer Cohen for successive installments of rent. From two judgments for defendant, plaintiff appeals. Reversed, and new trial ordered.

<p>Suit by Harold Swain against Joseph Schonleben to quiet title, in which defendant Schonleben brought a cross-action to restrain plaintiff from inclosing the disputed premises. Judgment for Swain in both actions.</p> <p>The plaintiff Swain sued to quiet title. Defendant Schonleben brought a cross-action to restrain plaintiff from inclosing the disputed premises, claiming title thereto or at least an easement in the same. The disputed premises consisted of that portion of an extinguished street adjoining a lot conveyed to defendant Schonleben by plaintiff Swain. By a statute passed prior to that conveyance it was provided that, upon the extinguishment of a street as therein provided, all public and private easements therein of whatever sort should cease and determine. The deed from Swain’s grantor to him contained a description of the lot in question, and also specifically described the disputed premises which included the land in front of the lot to the middle of the extinguished street. In the deed from Swain to Schonlebens this latter description was omitted. The Schonlebens contended that their deed which recited as one boundary the line of the extinguished street carried inferentially the title to the center line of that street.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Edward P. Eloyd-Jones against Esther Schaan. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>1. Mabbiage—Annulment—Proof.</p> <p>Although an action to annul a marriage be undefended, sufficient proof of the facts alleged to warrant annulment must be offered in order to obtain a decree.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Marriage, § 181.1</p> <p>2. Same—Validity—What Law Governs.</p> <p>A marriage is valid or void according to the laws of the place where it was contracted.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Marriage, § 3.]</p> <p>8. Evidence—Presumptions—Laws of Foreign Countries.</p> <p>In the absence of proof of the law of a foreign country, it will be presumed to be the same as that of the forum.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 102.]</p> <p>4. " Marriage—Annulment—Fraud—Statutory Provisions.</p> <p>Under the express provisions of Code Civ. Proc. § 1743, subd. 4a, marriage may be annulled where the consent of one of the parties was obtained by force, duress, or fraud.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Marriage, §§ 122.. 123.]</p> <p>5. Same—Sufficiency of Evidence. .</p> <p>Though, in an action to annul a marriage on the ground of fraud or duress, the husband or wife is not precluded from testifying against the other, where plaintiff is the only witness in his behalf, and defendant is-in a distant foreign country, where the ceremony, if any, was performed, plaintiff’s uncorroborated testimony, if sufficient at all, should be full and convincing.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 34, Marriage, § 131.]</p>

<p>Action by Samuel Rilcer, Jr., as trustee in bankruptcy, against Helen S. Gwynne, as administratrix, and others. Dismissed.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Third District.</p> <p>Action by Jennie Schneier against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by the Aldine Manufacturing Company against the West Side Building Company. Prom an order denying a motion to change the place of trial to the county of Monroe, defendant appeals. Reversed.

Proceedings by Tracy C. Smith to require Frank Bogaskie to show cause why He should not turn over the books of a public office. Denied.

<p>1. Judgment—Res Judicata—Foreclosure—Liens—Priorities.</p> <p>Where a party holding a prior lien is made a defendant in a mortgage foreclosure suit under allegations that he is claiming a subsequent lien, and he does not assert his prior lien,, nor submit it to the court for adjudication, the judgment of foreclosure does not cut off the prior lien, but only bars any subsequent lien.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1263-1268.]</p> <p>2. Mortgages—Foreclosure—Judgment— Effect on Second Mortgage.</p> <p>The assignee of a first mortgage who was the mortgagee in a third mortgage sued to foreclose the two mortgages, and made the mortgagee in the second mortgage a party defendant. The complaint alleged that defendants claimed a lien subordinate to the lien of the mortgages. The mortgagee in the second mortgage appeared, and alleged that the indebtedness for which the first mortgage was given was included in the indebtedness for which the third mortgage was given. The judgment foreclosing the first and third mortgages adjudged that the first mortgage, as well as the third mortgage, embraced the entire mortgaged premises. Held, that the judgment was effective against the mortgagee in the second mortgage, to the effect that the first mortgage was a lien on the entire premises, and cut off his lien on the premises.</p>

<p>1. Fraudulent Conveyances—Action to Set Aside Deed—Burden of Proof.</p> <p>Where, in an action to set aside a deed as in fraud of creditors, the evidence showed that the grantor, who was largely indebted to plaintiff, was insolvent except for the property deeded, having nothing left except some trivial balances remaining in bank accounts, the burden of proof was upon the grantee to show a good consideration, and that she had no knowledge of her grantor’s intent to defraud.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, §§ 809-814, 817, 818.]</p> <p>2. Same.</p> <p>In an action to set aside a deed executed by an insolvent grantor as in fraud of his creditors, evidence examined, and held not sufficient to meet the burden of proof on the grantee to show that the conveyance was founded upon a good consideration, and that she had no knowledge of her grantor’s intent to defraud,</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, §§ 896-908.]</p>

Action by Marie Louise W. Brown against Judson A. Brown for a separation. Motions by defendant to vacate or modify a provision for temporary alimony, and to strike out certain allegations from the amended complaint, etc. Motion as to alimony denied. Motion to strike granted in part.

<p>Action by Louis Brown and another against Fannie Grossman and another. Defendants move for a new trial and for a stay. Stay granted.</p>

<p>Release—Scope and Extent.</p> <p>A release, in consideration of an assignment, of any indebtedness then due or that might thereafter become due from the assignors, does not cover notes thereafter executed, arising out of a different and independent transaction, and not contemplated when the release was given.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Release, § 73.]</p>

<p>1. Tbial—Dockets, Lists, and Calendars—Preferred Causes.</p> <p>Under Code Civ. Proc. § 791, subd. 5, authorizing the preference of certain actions by administrators, etc., a motion for preference, made in such an action upon the complaint alone, without any showing by affidavit as to why the action should be preferred, cannot be granted, since to enable the court to exercise its discretion other facts should have been presented.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 46, Trial, § 32.]</p> <p>2. Same.</p> <p>Where an action for the death of an infant was brought by his administrator, the mere fact that the infant was of tender years and was killed while playing in an air shaft into which defendant caused certain material to fall, does not entitle plaintiff to a preference under Code Civ. Proc. § 791, subO. 5, authorizing the preference of certain actions by administrators, etc., since for aught that appears the infant’s estate may be a very wealthy one and in.no immediate need of the judgment prayed for.</p> <p>[Ed. Note.—For cases in point, see Gent. Dig: vol. 46, Trial, § 32.]</p>

<p>1. Witnesses—Cbedibility—Change of Testimony on Second Trial.</p> <p>While testimony of a witness at a second trial, which is different from that given by him at the former trial, may. have to be credited in reviewing the findings of a jury, a trial court should be reluctant to credit such a change in the testimony of a leading witness, who is substantially a party, where the change serves to adjust the case to the rule laid down by the appellate tribunal in setting aside the result of a former trial.</p> <p>2. Appeal—Disposition op Case—Proceeding in Lower Court.</p> <p>Where a judgment for plaintiffs is reversed by an appellate court, and a new trial granted, on the ground that plaintiffs had not established their case, and the evidence on the second trial is not essentially different from what it was at the prior trial, the decision of the appellate court will control.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4661-4665.]</p>

<p>Replevin by the Edward Thompson Company against William L. Clark, Jr. Judgment for plaintiff.</p> <p>The following are the findings of fact and conclusions of law of the court:</p> <p>The issues of fact raised by the answer of the defendant, as amended by the order dated February 14, 1903, duly entered herein, coming on to be tried by the court at a term held by the undersigned without a jury, and having been tried on the 5th day of March, 1903, and the allegations and evidence of the parties having been heard, now, after hearing Walter Large, Esq., for the plaintiff,. William L. Marshall, Esq., for the defendant, and due deliberation having been had, I decide and find as follows:</p> <p>Findings of Fact.</p> <p>(1) The plaintiff is, and at all the times mentioned in the complaint was, a domestic corporation, having its principal office and place of business at Northport, county of Suffolk, state of New York.</p> <p>(2) On and prior to April 9, 1900, the defendant was in the employment of the plaintiff at the said village of Northport under a contract by which said defendant had agreed to do such editorial work for the plaintiff as he might be requested by it to do, and to devote his whole time during the regular office hours for the plaintiff to said work, and by which said defendant also agreed that the plaintiff should become the sole owner of the copyright of any and all articles prepared by him under said contract.</p> <p>(3) . At the date above mentioned said defendant had by the direction of the plaintiff prepared and written, or caused to be prepared and written, a certain manuscript or legal treatise on the subject of “Homicide,” consisting of about 1,285 manuscript pages of text on said subject of “Homicide” and also of about 12,000 cardboard or paper slips containing written or printed matter upon the same subject of “Homicide.”</p> <p>(4) At the date above mentioned said defendant had also by direction of the plaintiff prepared and written, or caused to be prepared and written, a certain manuscript or legal treatise on the subject of “Larceny,” consisting of about 1,285 manuscript pages of text on said subject of “Larceny” and also of about 7,000 cardboard or paper slips containing written or printed matter upon the same subject of “Larceny.”</p> <p>(5) The said written matter upon all of said slips had been copied thereon from plaintiff’s books, and the said printed matter on all thereof had been cut from plaintiff’s books and pasted on said slips.</p> <p>(6) The said manuscripts were prepared and written by the said defendant under the contract aforesaid, upon the plaintiff’s paper and by the use of plaintiff’s library, stenographers, typewriters, typewriting machines, and office furniture, appliances, fixtures, and supplies.</p> <p>(7) The value of the said manuscripts at the time of the trial of this action was $450.</p> <p>(8) At all the times in the complaint mentioned the plaintiff was the owner of the said personal property and chattels, to wit, the said manuscripts hereinbefore and in the complaint described, and at the time of the taking thereof hereinafter mentioned the same manuscripts were lawfully in the plaintiff’s possession.</p> <p>(9) On or about April 9, 1900, at the village of Northport, county of Suffolk, state of New York, the defendant wrongfully and unlawfully and without justification therefor took the said goods and chattels, the manuscripts above described, from the possession of the plaintiff, and carried the same away from the said village of Northport, and when this action was begun did still wrongfully and unjustly detain the same.</p> <p>(10) On or about the 3d day of May, 1900, the plaintiff caused the said •chattels hereinbefore and in the complaint described to be duly replevined by the sheriff of the county of Kings, who thereafter duly and lawfully delivered the same to the plaintiff in accordance with the statute in such case made and provided, and said plaintiff still lawfully retains the same in its possession.</p> <p>Conclusions oí Law.</p> <p>(1) The plaintiff is entitled to have and retain the possession of the personal property and chattels, to wit, the said manuscripts hereinbefore and in the complaint described, and to have judgment in this- action accordingly.</p> <p>(2) I therefore direct judgment to be entered herein for the plaintiff against the defendant, with costs of -the action, to be taxed by the clerk, and providing that the said plaintiff have and retain possession of the said personal property, to wit, the said manuscripts hereinbefore and in the complaint described.</p>

<p>Pleading—Bill of Particulars—Particulars Not Specified in Demand.</p> <p>A motion for a bill of particulars was properly denied as to particulars specified in the notice of motion, but not in a previous demand for a bill.</p>

<p>Action by George H. Neidlinger against William E. D. Stokes. Judgment for plaintiff. Erom an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by the Regulus Cigar Company against John P. Flannery. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p> <p>See 105 N. Y. Supp. 95.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Clara R. Edwards against the Greenwich Savings Bank of the City of New York on an assigned deposit. Erom an order granting defendant’s motion for an interpleader, plaintiff appeals. Reversed.</p>

<p>Carriers—Carriage of Goods—Failure to Deliver—Evidence.</p> <p>In an action by a shipper against an express company for failure to deliver a package to the addressee, evidence examined, and helé insufficient to support a judgment for plaintiff.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 382-385.]</p>

Injunction by John Economopoulos against one Bingham, as police commissioner. Denied. The premises of the plaintiff consist of a store on Broadway, Brooklyn, about 25 feet wide and 100 feet deep, also a large room on the first floor on Park street, 50x100, and connected with the Broadway store. In the Broadway store there is a candy store and soda water and ice cream stand. In the Park street place, beginning at the rear, there are 15 rows of benches.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Edward F. Schubert against George Kaplan. From a judgment of the Municipal Court, dismissing the complaint at the close of plaintiff’s case, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by the John Simmons Company against Piercy & Co., a corporation. Judgment for plaintiff, and defendant appeals. Judgment modified, and, as modified, affirmed.

<p>1. Saxes—Contracts—Breach—Measure of Damages.</p> <p>In an action for a seller’s breach of a contract for the sale of wire, the buyer is entitled to recover the difference between the contract price and what the wire actually cost it in the open market.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, § 1174.]</p> <p>2. Same—Evidence.</p> <p>In an action for a seller’s breach of contract for the sale of wire, the buyer testified that he was required to pay 75 per cent, more for the goods in the open market; that he bought about $800 or $900 worth of Nos. 16 and 18 new code wire during the contract term in the open market, and paid therefor $8.50, $8.75, and $9; that the bills would show about nine different prices; that during the contract term the price of the wire advanced from 40 to 75 per cent. Another witness for plaintiff testified that the market price for No. 16 wire was $8.50 per 1,000 feet, and of No. 18 $7.50 per 1,000 feet. There was no evidence as to how much of each kind of wire plaintiff purchased in the open market, nor how much each lot cost. Held that, if plaintiff was entitled to any recovery, he was entitled to a definitely ascertained sum, and that the evidence was too indefinite and conjectural to sustain a verdict.</p>

Action by John P. Kirwan against Laura Pizer and others. From a judgment for plaintiff, defendants appeal. Reversed as to defendant Laura Pizer, and affirmed as to other defendants.

<p>1. Replevin—Gboundst-Title and Right to Possession.</p> <p>Replevin is a possessory action, and to maintain it plaintiff must have title to and right- to possession of the chattels in question.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Replevin, § 45.]</p> <p>2. Same.</p> <p>Defendant contracted with M. for the erection of certain iron work in houses then being erected, and was to pay for the iron furnished at different stages of the work. M. ordered nine iron columns of plaintiff to fulfill the contract. The columns were delivered at the premises, and three were actually put into the building. M. had received more than was due at that stage of the construction, including the columns in question; but, being unable to pay for the six columns, M. authorized plaintiff to take them back, and upon defendant’s refusal to pay for the columns, or allow them to be taken away, plaintiff brought replevin. Held, that plaintiff had lost title and could not maintain the action.</p>

<p>Landlord and Tenant — Leases — Breach — Sufficiency of Evidence — Amount of Recovery.</p> <p>Plaintiff leased an apartment house for $475 per month, and deposited $475 with the lessor as security for the performance of the lease. $76.17 of the rent due June 15th was not paid, and on the 8th day of July a precept in dispossess proceedings was issued, and the warrant was issued on July 20th and executed July 25th. No rent was paid for July. The plaintiff, while claiming a right to recover $70.17 for the June rent and $475 for the July rent, in addition to the right to retain the deposit of $475, sued for $500. The defendant admitted $76.17 to be due for the June rent, but claimed the right to recover the $475 deposit. Held, that on the facts shown a judgment in favor of plaintiff for $100 was not authorized.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action for rent by Sigmund Feust against Horatio Craig. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.</p>

<p>Courts—Municipal Courts — Appeal — Decisions Review able — Default Judgment.</p> <p>No appeal lies from a default judgment in the Municipal Court; defendant’s remedy being-by a motion to open the default.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Joseph Callahan against David M. Oltarsh. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>Evidence—Res Inter Alios Acta.</p> <p>In replevin of a pin received by defendant, a licensed pawnbroker, from a third person, the record of the conviction of the third person of the larceny of the pin is incompetent.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. -</p> <p>Action by Benjamin Perlman against Julius H. Levy. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Charles Root against Alice Spence. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>Action by the J. L. White Furnace Company against the C. W. Miller Transfer Company to foreclose a mechanic’s lien. Foreclosure granted.</p>

Action by Myer Strasburger against Herman Goldenberg and others. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Charles Gachot against Joseph Heidelburger. From an order dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Trial—Direction of Verdict—Conflicting Evidence.</p> <p>Where, at the close of the case, defendant asked to go to the jury on questions of fact, and the only question at issue was whether L., who signed defendant’s name to the note sued on, was authorized to do so, on which the evidence was conflicting, it was error to direct a verdict for plaintiff.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 342, 343.]</p>

<p>1. Master and Servant—Injury to Servant—Defective Appliances—Notice.</p> <p>Plaintiff was handed a defective chain by his employer’s master mechanic, with instructions to use it in removing an armature. While so using the chain it broke, and plaintiff was injured. It sufficiently appeared that the employer had notice of the defect in the chain. Held, that plaintiff could recover under Employer’s Liability Act, Laws 1902, p. 1748, c. 600; he having properly served the notice of injury required thereby.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 806.]</p> <p>2. Same—Action for Injuries—Notice of Injury—Employer’s Liability Act.</p> <p>In an action by a servant for injuries under the employer’s liability act, a notice of injury as follows: “Notice is hereby served upon you, pursuant to chapter 600, p. 1748, of the Laws of 1902, that William Eddington was injured while in your employ at your place of business in the Union Railway Shed, West Farms, on the 16th day of June, 1904, by having an. armature fall on him while working in a pit” is sufficient in form under the statute.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 806.]</p>

Action by A. Lenora White against Ernst Bystrom. Judgment for plaintiff; and defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulate to reduce the amount of judgment, in which event the judgment, as so modified, affirmed.

Action by Charles E. Dana against Mary C. Thaw and another. From an order of the New York City Court, denying defendants’ motion to open their default, defendants appeal. Modified and affirmed. See 56 Misc. Rep. 612, 107 N. Y. Supp. 870.

<p>Action by the Citizens’ Central National Bank against the New Amsterdam National Bank. Judgment for plaintiff.</p>

<p>Banks and Banking—Deposits—Pleading.</p> <p>In an action by a depositor against a bank, a complaint alleging that defendant, “without the knowledge or consent of plaintiff, deducted from the said bank account of plaintiff sums of money aggregating in all the total sum of $24,” and that plaintiff demanded the return of this sum “deducted as aforesaid, but such demand was refused by the defendant, and instead the defendant has converted to its own use the said sum of $24,” states no cause of action; it neither stating the amount deposited nor the balance, if any, remaining due.</p>

Actions by James Conroy, father and son, against Ottilie Bigg, for personal injuries sustained by the son. From judgments of dismissal and costs, plaintiffs appeal. Reversed in each case, and new trial ordered.

<p>Injunction—Subjects of Protection—Personal Rights—Personal Privacy.</p> <p>Laws 1903, p. 308, c. 132, providing that any person whose name, portrait, or picture is used within the state for the purposes of trade without his written consent may restrain the use thereof and recover damages for injuries sustained, has no application to and does not prevent the publication of a person’s photograph without his consent in a daily newspaper in connection with items of news not in any way libelous.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Injunction, § 167.]</p>

Certiorari by the people, on the relation of William C. Brownell, to review a decision of the board of assessors of the city of Buffalo. On motion to quash the writ. Motion denied.

_Action by Michael Di Menna and others, copartners, against the city of New York and others, to foreclose a mechanic’s lien. Judgment fixing the priority of liens, and for plaintiffs on an accounting.

Condemnation proceedings by the board of water supply of the city of New York. On objection to confirmation of the award of the commissioners appointed to fix compensation for land taken for the Ashokan Reservoir, section 3. Award confirmed in part, and rejected in part.

Action by Josephine Mansell against William B. Conrad and others. From a judgment for plaintiff, and from an order denying a motion for a new trial on the minutes, certain defendants appeal. Affirmed. The action was for damages for negligence. The plaintiff, a 16 year old girl, was employed by the defendant to feed an ironing machine or mangle run by shafting and belt. She had been working on the machine that hurt her for about 10 minutes.

<p>In the matter of the opening of Anthony avenue.</p>

<p>Action by Anna Arnold, an infant, etc., against the National Starch Company.</p>

<p>Action by Charles E. Baldwin against the Schenectady Railway Company.</p>

<p>In the matter of the judicial settlement of the account of John J. Collins, as executor, etc., of David Pearson, deceased.</p>

<p>Action by Jacob Dilcher against Michael Nellany.</p>

Action by the Fidelity Development Company against the New York & Port Chester Railroad Company. From an order denying defendant’s motion for a stay, it appeals. Reversed, and proceedings stayed.

<p>Action by John H. Garvey against the Phoenix Preferred Accident Insurance Company of Detroit, Mich.</p>

<p>Action by Francis J. Lantry, commissioner, against Samuel V. Hoffman and others.</p>

<p>Action by Albert J. Pelow, an infant, etc., against the Oil Well Supply Company.</p>

<p>Proceedings by the people of the state of New York against Charles H. Bennett.</p>

<p>Proceedings by the people of the state of New York, on the relation of James G. Collins, against John F. Ahearn, as president.</p>

<p>Action by the Portland Company against Charles W. Hall and another.</p>

<p>Action by Mary D. Rising against James O. Sebring and others.</p>

<p>Action by Johannes E. Schroeder and another against Albion L. Page, as ancillary executor.</p>

<p>In the matter of the application for the removal from office of John Rodgers, a justice of the peace.</p>

<p>Action by D. Bradley Sweet against Fannie O. Sweet, individually, etc.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Abraham J. Suchar against Marcus Rothenstein and others. Judgment for plaintiff, and defendants appeal. Reversed.</p>

<p>Action by Irene Warden, an infant, by William E. Warden, her guardian ad litem, against the city of New York and others.</p>