Volume 110 — New York Supplement

<p>Suit by Cyrus B. Gale and others against Theodofe A. Bingham and others, to restrain police interference with the operation of Certain moving picture exhibitions on Sunday. Motion for preliminary injunction denied.</p>

<p>Contracts—Illegality—Contra Bonos Mores.</p> <p>A contract by defendant to pay plaintiff, an unmarried woman, a liberal sum each month for the support of a child if she would consent to sexual intercourse and have a child by defendant, was not an agreement by a putative father to support his illegitimate child, but a contract based on a consideration of plaintiff’s submitting to defendant’s immoral desires, and was therefore unenforceable, as “contra bonos mores.”</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 11, Contracts, § 514.]</p>

Proceedings for the judicial settlement of the accounts of William J. Farrell, as executor under the last will and testament of Leocadie Liado Farrell, so far as they relate to the accounts of the decedent as executrix of the estate of Francisco Liado. From an order vacating an order staying proceedings pending the determination of an action in the Supreme Court, Francisco L. Farrell and others appeal.

<p>Electors—Enrollment of Electors.</p> <p>Primary Election Law, Laws 1898, p. 331, c. 179, and its amendments, provide that an enrollment of electors shall go into effect on the 1st day of January following the days of registration and remain in force for the ensuing year. An elector was enrolled with and participated in a primary election of some other party during the calendar year previous to the enrollment then in progress. Held, not a valid objection to his enrollment, the requirement of the statute that the elector shall declare that he is not so enrolled or has not participated in primary election or convention since the first .day of the last year should be construed to relate to the current political year, and not to the preceding calendar year.</p>

<p>Appeal from Special Term.</p> <p>In the matter of the petition of Maynard N. Clement, as State Commissioner of Excise, for an order revoking and canceling liquor tax certificate No. 24,302, issued to Julius N. Burr. From an order revoking the certificate, the certificate holder appeals.</p>

Charles Flaherty was convicted of practicing medicine without lawful authority, in violation of Laws 1907, p. 646, c. 344, § 15, and applies for a certificate of reasonable doubt, under Code Cr. Proc. § 527.

<p>Bills and Notes—Peesentation fob Payment—Branch Banks.</p> <p>Where a promissory note is made payable at one of several “branches” maintained by a trust company in the same county, presentation at the main office of the company, which receives and retains the note, is sufficient as against an indorser under Negotiable Instruments Law (Laws 1897, p. 736, c. 612, § 133).</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Trial Term.</p> <p>Action by Jane L. Darton, as administratrix of Alfred Darton, deceased, against the Interborough Rapid Transit Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Frauds, Statute of—Oral Agreements—Restatement—Effect.</p> <p>An oral agreement not to be performed within a year is not validated within the statute of frauds by a mere oral restatement of it within the year.</p> <p>2. Same—Pleading.</p> <p>Where a complaint discloses that the contract sued on is invalid within the statute of frauds, defendant need not plead the statute.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 362.]</p> <p>3. Same.</p> <p>An oral agreement not to be performed within a year is invalid under the statute of frauds.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 66.] . ■</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by William Adler, an infant, etc., against Rachel Lesser. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Orazio La Cagnina and another against James Ahearn. From a judgment dismissing the complaint, plaintiffs appeal.</p>

<p>Appeal from • Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Maria Beament against William P. Furniss. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Evidence—Written Instruments—Insufficient Preliminary Proof.</p> <p>Written evidence, executed by one purporting to be defendant’s agent, was inadmissible, without proof of the handwriting .and of his authority.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1602-1606.]</p> <p>2. Same.</p> <p>The contents of a writing are inadmissible in evidence, without its introduction.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 527.]</p> <p>3. Trial—Exclusion of Evidence.</p> <p>It was error to fail to strike out from the evidence declarations by defendant’s alleged agent, where they were received subject to being connected and were not connected.</p> <p>4. Principal and Agent—Authority of Agent—Evidenoe—Sufficiency.</p> <p>That one purporting to act as defendant’s agent in agreeing to pay a commission to procure a contract for defendant was defendant’s brother and salesman is insufficient to show his authority as defendant’s agent.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and. Agent, § 41.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by David Jaffe against the State Bank. From a judgment for defendant,, plaintiff appeals.</p>

<p>Courts—Municipal Courts—Appeal — Decisions Review able — Judgment Overruling Demurrer.</p> <p>No appeal lies from an order on a demurrer, but only from the judgment entered thereon; and where no judgment appears in the record, where a demurrer to a complaint was overruled, no appeal will lie, though the notice of appeal recites that it is taken from the judgment rendered against defendant and from the order overruling the demurrer to the complaint therein, upon which the said judgment was entered, and although there is attached to the return a statement by the justice who tried the .case, but who is now out of office, that he entered judgment on said order overruling the demurrer.</p>

Action by E. Bayard Church against Leslie Stevens. From a judgment imposing costs on plaintiff as a condition of vacating an order dismissing the complaint, plaintiff appeals. Reversed.

Action by Max Schimkevitz against Theodore A. Bingham, police commissioner, and others. From an order continuing, during the’ pendency of the action, the temporary injunction granted, defendants appeal.

<p>Corporations—Subscription to Stock—Construction—Withdrawal — Expense Deductions.</p> <p>An installment subscription contract for stock in a proposed trust company provided that the subscribers might withdraw all payments made upon subscriptions up to and including the sixth month, and that, after deducting the expense charge of 8 per cent., the withdrawing subscriber should receive the balance of moneys paid in with interest at a certain rate. The subscription agreement also provided that a certain trust company should be the trustee to act as a custodian of moneys paid on subscription on the terms set forth in the articles of agreement between the promoter and another trust company bearing a date named, and recited that the agreement was lodged with the other trust company and should be deemed a part of the subscription agreement, and was thereby ratified and confirmed by each of the parties thereto. A clause of the agreement referred to provided that the promoter should receive from the trustee 8 per cent, of the subscription price of the stock and surplus as compensation, payable out of the first monthly payment, etc. Hold, that the 8 per cent, deduction mentioned in the subscription contract was to be computed upon the entire subscription, and not merely on the installments paid before withdrawal.</p>

<p>Bills and Notes—“Holder in Due Course.”</p> <p>Defendant gave a check to a person by mistake. The check was delivered to plaintiff as a loan without consideration. Held, that plaintiff was not a holder of the check in due course; Negotiable Instruments Law, Laws 1897, p. 732, c. 612, § 91, subd. 3, providing that to constitute one a “holder in due course” he must have taken the instrument in good faith and for value.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, vol. 4, p. 3320.]</p>

<p>Landlord and Tenant—Action for Rent—Constructive Eviction.</p> <p>Where a tenant covenanted to make and do all repairs required to walls, ceilings, etc., and there was no express or implied warranty by the landlord that the premises were fit for occupation when leased, the fact that a portion of the ceiling in the kitchen of the rented premises fell, and that portions of the ceiling in other rooms were loose and cracked, did not constitute a constructive eviction, which would be a defense to an action for rent.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 765.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Jeannette Besson against Leah Levey. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Courts—New York Municipal Court—Procedure—Dismissal Without Prejudice.</p> <p>Under Municipal Court Act, Laws 1902, p. 1561, c. 580, § 248, providing: that, when a plaintiff does not prove his- cause of action, the action shall be dismissed without prejudice to a new action, and section 249, requiring that an action be dismissed on its merits when at the close of the-whole case the court is of the opinion that plaintiff is not entitled to recover as a matter of law, or where a demurrer is sustained and leave to-plead over is not granted, a dismissal of an action in the Municipal Court for failure of proof should be a nonsuit without prejudice to the new action, and not on the merits.</p> <p>2. Same—Costs—Right of Successful Party.</p> <p>Under Municipal Court Act, Laws 1902, p. 1585, c. 580, § 332, providing that costs shall be allowed the prevailing party if he appeared by at-' torney at law, who files a verified pleading or a written notice of appearance, there can be no recovery of costs against a plaintiff, where there is neither a verified pleading nor a written notice of appearance filed by defendant’s attorney.</p>

Action by Bert Cooper against Vesta Victoria Lawrence, known professionally as Vesta Victoria. From a judgment for plaintiff, and an order denying a motion to set aside the verdict and for a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan.</p> <p>Summary proceedings by the Eagle Tube Company against Henry Holsten and another to recover possession of certain real property. From a final order dismissing the petition, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Samuel Boschardt against Charles I. Scott. Prom a judgment for defendant, plaintiff appeals.</p>

Action by the Sterling Meaker Company against Herman D. Nessler, impleaded with one Mortland. Judgment for Nessler, and for the Sterling Meaker Company against Mortland, and the Sterling Meaker Company appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Louise Eink against the Standard Bread Company. From a judgment for plaintiff, rendered in the Municipal Court, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Joseph Cukor and another against Reuben Wiener. From a Municipal Court judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by David Ostonovitsky and others against Samuel Rosenthal and another. From a judgment of the Municipal Court in favor of plaintiffs, defendants appeal.</p>

<p>Contracts—Building Contracts—Extra Work—Actions—Evidence.</p> <p>In an action for extra work done in the erection of a building, defended on the ground that plaintiff was to do the work in consideration of the payment by defendant of the board bill of plaintiff and his men employed in the building operations, evidence held insufficient to justify a recovery.</p>

<p>1. Pleading—Supplemental Answeb—Denial of Leave to Sebve—Attobney and Client.</p> <p>That plaintiff in a personal injury action settled his claim without the knowledge or consent of his attorney, who with defendant and her attorney’s knowledge, had a contingent interest in the recovery, does not warrant a denial of defendant’s motion for leave to serve a supplemental answer, setting up the settlement and a release.</p> <p>2. Same—Conditional Allowance of Leave—Costs.</p> <p>Leave tó defendant in a personal injury action to serve a supplemental answer setting up a settlement and a release should have been conditioned upon payment of all costs from the beginning of the action.</p> <p>[Ed. Noté.—For cases in point, see Cent. Dig. vol. 89, Pleading, § 833.]</p>

<p>1. Judgment—Res Judicata—Conclusiveness.</p> <p>Where rent under a lease was payable on the 1st day of each month in advance, and the landlord recovered possession in summary proceedings in which the final order recited that it was granted by reason of the tenant’s nonpayment of rent for the months of April and May, 1907, such order was conclusive between the parties as to the existence and validity of the lease, the occupation of the tenant, and that the rent was due and unpaid for the months of April and May on the date the order was entered, in an action by the landlord to recover rent for the month of April.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 30, Judgment, §§ 1248-1251.]</p> <p>2. Landlord and Tenant—Action for Rent—Evidence.</p> <p>In an action for rent, evidence held to sustain a finding that the rent sued for for April, 1907, had not been paid.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Earl D. Wright against Henry Puvogel. From a judgment for defendant, plaintiff appeals.</p>

<p>Sales—Delivery of Goods—Evidence.</p> <p>In an action to recover the contract price of certain goods manufactured by plaintiffs for defendants, the issue being whether plaintiffs delivered the goods to defendants on the day required by the cnn!rnot, the first witness’ testimony, though somewhat indefinite as to whether-he offered the goods on the required day or on a subsequent day., tended to show that the offer was on the required day. The second witness testified that on such day he helped the first witness place the goods on the first witness’ wagon, and the first witness swore that he tendered the goods at defendants’ place of business on the day the second ".witness helped him pút them in the wagon. Held, that the evidence was sufficient to support a verdict for plaintiffs.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Roslyn Rock against Joseph N. Carpenter and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Bailment—Negligence of 'Bailee—Damages—Evidence.</p> <p>In an action by plaintiff for damages by reason of defendant having negligently cleaned a dress delivered to her for that purpose, evidence held insufficient to support a finding for plaintiff that the value of the dress was $50.</p>

<p>1. Master and Servant—Wrongful Discharge—Measure of Damages.</p> <p>In an action for wrongful discharge, where there is no evidence as to' how much, if anything, plaintiff earned during the remainder of the contract period, and plaintiff testifies to the length of the contract, the agreed wage, and that he looked for work, but found no other position, he is entitled to recover the full amount of his wages for the unexpired period of the contract.</p> <p>2. Damages—Breach of Contract.</p> <p>In an action for wrongful discharge, plaintiff testified to a year’s contract at $20 per week, and it appeared that he received only $100 for the eight weeks which he worked. There was no evidence that he had earned anything during the remainder of the year, though he testified that he looked for work, but found no other position. Held, that a verdict for $400 could not be sustained, notwithstanding the defendant testified that the wages were $15 per week, since no computation could result in the amount of the verdict, which appeared to be a compromise.</p>

<p>1. Frauds, Statute of—Oral Contract Not Performable Within a Year.</p> <p>Evidence held to show that an oral contract for a year’s employment was fully made between the parties before the employment was begun, and hence was void under the statute of frauds, because not to he performed within one year from the making thereof.</p> <p>2. Same—Necessity fob Pleading as Defense.</p> <p>In an action on an oral contract of employment, where the proof showed a different contract from the one alleged or fairly foreshadowed, and that difference brought the contract within the statute of frauds, defendant might avail of the statute as a defense without pleading it.</p>

<p>Landlord and Tenant—Premises—Injuries from Defective Conditions— Actions for Injuries from Negligence.</p> <p>The wife of a tenant of an apartment house was injured, while in the yard of the premises, by the fall upon her of sheets of tin claimed to have come from the roof of the house. At the time no work was being performed upon the roof, and none had been done thereon since it had originally been put on. No tin was missing from the roof after the injury occurred. The premises at the time of the accident were in the possession of one under a written lease made by defendant and another. It was not shown that the accident was due to any act of omission of duty on the part of defendant, or that he was connected in any way with the sheets of tin. Under the terms of the lease he was obliged to keep the roof in repair. Held, that defendant could not be held liable for the injury on any theory; he not being responsible therefor, even though the accident were due to the negligence of his tenant.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Leopoldine Obendorfer against George B. Mecham. From a judgment granting inadequate relief, plaintiff appeals.</p>

Action by Wilbur R. Kimball and others against John Economopoulos and others. From a judgment for plaintiffs for less than their claim, they appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the Epstein Coal Company against Solomon Solvinsky. From a judgment in its favor, plaintiff appeals.</p>

<p>On reargument.</p> <p>For former opinion, see 52 Mise. Rep. 102, 101 N. Y. Supp. 599.</p>

<p>Landlord and Tenant—Actions Against Assignee of Lease—Proof and Variance—Assignment and Taking Possession.</p> <p>In an action for rent, where plaintiff alleged that M., the original tenant under a lease, assigned it to defendant company, and that defendant, as tenant, entered into possession of the premises under the conditions of the agreement, and is still in possession, but the evidence showed that the assignment of the lease was merely to secure an indebtedness, evidence that M. remained in possession for 20 months after the assignment, and then sold his business to K., and that defendant accepted K. as its debtor in place of M., and promised to pay the rent thereafter, and did pay it for 4 years, is not admissible under the allegations of the complaint.</p>

<p>Bbokers—Action fob Commissions—Evidence. .</p> <p>In an action for broker’s commissions, evidence held insufficient to support a counterclaim for money advanced.</p>

<p>Bills and Notes—Indorser Before Delivery—Right to Notice of Protest and Presentation.</p> <p>The obligation of one who indorses a note before delivery is contingent on the failure of the maker to pay at maturity, the due protest of the note, and notice thereof to the indorser; and if he receives no notice of protest or presentment for payment there can be no recovery against him.</p>

<p>Evidence—Competency—Similar Evidence of Adverse Party.</p> <p>Opinion testimony of plaintiff’s witness, though ordinarily inadmissible, was rendered competent by defendant’s cross-examination of plaintiff along the same lines and over plaintiff’s objection.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Louis Flaum against Moritz Sturtz and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Clara Mann against Philip Schneider. Judgment for •plaintiff, and defendant appeals.</p>

<p>1. Brokers—Action for Compensation—Issues and Proof.</p> <p>In an action td recover commissions for the sale of real estate for which plaintiffs had agreed to find a purchaser, where plaintiffs claimed that they had presented a purchaser upon the terms and conditions agreed upon and that defendant had refused to sell, plaintiffs may not recover upon the ground that defendant in fact thereafter sold the property to the partner of their prospective purchaser.</p> <p>2. Same—Compensation—Sufficiency of Services.</p> <p>In an action to recover commissions for the sale of property for which plaintiffs agreed to secure a purchaser, if plaintiffs’ proposed purchaser would not purchase upon the terms agreed upon between plaintiffs and defendant, though defendant thereafter sold the property by a different broker to the partner of plaintiffs’ proposed purchaser, in the absence of bad faith by defendant in making the sale, plaintiffs could not recover any commission.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Brokers, §§ 66, 67, 73.1 -</p>

Action by Frederick St. John and Alfred J. Talley, as copartners, against Patrick H. Bird. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by the New York Evening Journal Publishing Company against the William F. Simpson Advertising Company. From a judgment for defendant, and from an order denying plaintiff’s motion for a new trial, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by the Stonehill Wine Company against Ignazio Lupo. ^Erom a judgment of the Municipal Court in favor of defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Samuel Fleck, Sr., against Joseph Feldman. Judgment for plaintiff, and defendant appeals.</p>

<p>Bonds—Interest Coupons—Negotiability.</p> <p>Interest coupons attacked to bonds secured by a mortgage are mere incidents of the bonds, and their negotiability depends on the negotiability of the bonds; and hence, where interest coupons are attached to negotiable bonds when they are stqlen, and plaintiff in an action on the coupons and his assignors are not chargeable with knowledge of the theft, a- recovery may be had, notwithstanding they were stolen from another.</p>

<p>Courts—Municipal Court of New York—Appeal—Decisions Review able— Sustaining Demurrer with Leave to Plead Over.</p> <p>An order oí the Municipal Court, sustaining a demurrer, but granting plaintiff leave to plead! over, is not appealable.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Alvis C. Ehrman against Robert Simpson. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal—Review—Pbesumptions—Evidence—Reservation of Question of Admission.</p> <p>When a decision is reserved upon the question of admitting evidence, that fact should be announced, in order that both sides may introduce proof which may be necessary in anticipation of an ultimate ruling on its admission; and, where the trial court excluded evidence which was necessary to plaintiff’s right of recovery, it may not be assumed, to sustain a judgment for plaintiff, that the trial court reserved its decision on the admission of the evidence, and afterward decided to admit it, in the absence of anything to show that fact.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourteenth District.</p> <p>Action by Abraham Goldberg against Robert H. Lloyd. From a judgment of the Municipal Court in favor of defendant, plaintiff appeals. Reversed, and a new trial granted.</p>

<p>Action by Joseph Shea against George P. Bergen, executor of Ann Shea, and others.</p> <p>The action in which this motion is made is brought under section '2653a of the Code of Civil Procedure to determine the invalidity of' the probate of the will of Ann Shea, deceased. The motion is made by the guardian ad litem of Samuel J. Campbell, an infant defendant (who by answer joins in the prayer of the complaint), to stay the defendant P. Bergen as executor from distributing or paying out any moneys of the estate to legatees pending the determination of the action.</p>

<p>1. Appeal and Error—Harmless Error—Exclusion of Evidence.</p> <p>Any error in excluding a memorandum from evidence was harmless to the party offering it, where the contents had been testified to.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4194-4199.]</p> <p>2. Same—Findings—Conclusiveness.</p> <p>A finding upon a disputed question of fact 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>Giegerich, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Gertrude De Graffenried and another against Edward Miller, Jr. From a judgment for defendant, plaintiffs appeal.</p>

<p>Master and Servant—Discharge—Failure to Pay Employé.</p> <p>Failure by an employer to pay Ms employé as required by contract is not tantamount to a discharge, so as to entitle the employé, who left his employment because of such failure, to maintain an action as for a wrongful discharge.</p>

<p>1. Street Railroads—Injuries to Persons on Tracks—Contributory Negligence.</p> <p>Though a pedestrian has a right to cross a street at a point not a crossing, a street railway has a paramount right to the use of its tracks, and it is incumbent on the pedestrian to prove that he exercised due diligence to discover the approach of a car.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 193.]</p> <p>2. Same.</p> <p>The mere fact that at the time a pedestrian left the curb he thought he had time to cross ahead of a street car did not relieve him of the obligation to again look for the car after he left the curb and before he reached the track.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 208.]</p> <p>3. Same.</p> <p>A pedestrian, who, after he leaves the curb and before he reaches the track, does not again look for a car, is guilty of contributory negligence as a matter of law.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 208.]</p> <p>4. Same—Children.</p> <p>Though the same degree of care is not expected of a child of 13 years as from one of maturity, yet this rule would not absolve the child from again looking for a car after it left the curb and before it reached a street railway track.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 208, 217.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Hyman Stone against Adolph Schlesinger. From a Municipal Court judgment for plaintiff, defendants appeal.</p>

<p>Certiorari by the people, on the relation of the New York, Ontario ■& Western Railroad Company, to review a determination of the Board of Railroad Commissioners in granting a certificate of public convenience and necessity to' the Hancock & East Branch Railroad Company.</p>

<p>Appeal from Surrogate’s Court, Westchester County.</p> <p>In the matter of the accounting of Martin J. Keogh and the United States Trust Company of New York, as trustees under the will of David Jones, deceased. Erom the decree of the Surrogate’s Court, there was an appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Emanuel J. Myers and another against Abraham Bachrach. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Infants—Actions—Guardian Ad Litem—Proceedings for Appointment-Service—Order—Summons.</p> <p>Under Code Civ. Proc. § 471, requiring an infant defendant to appear by guardian appointed upon the application of the infant, if he is 14 years old and applies within 20 days after personal service of the summons, or, if under that age or he neglects to apply, upon the application of any other party, etc., and section 473, providing that, where an infant resides outside of the state or is temporarily absent therefrom, the court may make an order designating a person as his guardian ad litem, unless he or some one in his behalf procures the appointment of a guardian within a specified time after service of a copy of the order, the service of the order mentioned in the latter section and of the summons mentioned in section 471 is merely a means of procuring the appointment of a guardian by the plaintiff, and neither is necessary when some one other than a plaintiff applies for a guardian.</p> <p>2. Same—Substitution of Infants fob Deceased Defendant—Continuance of Action After Death of Party.</p> <p>Code Civ. Proc. § 471, requiring an infant defendant to appear by guardian appointed upon application of the infant, if he is 14 years old: and applies within a certain time after service of summons, or, if not of that age or he neglects to apply, upon the application of any other party, ánd section 473, permitting the court in its discretion to appoint - a guardian for an infant defendant where the infant resides out of the state or is temporarily absent, unless he or some other person procures an appointment within the specified time, do not provide the only means for making infants parties defendant, as section 758 provides that the estate of a person shall not be discharged by his death, and the court may make an order to bring in the proper representatives of decedent when necessary; and where a defendant died, leaving two infant children, and plaintiff procured an order under this section, on notice to all parties, substituting the infants as defendants, before judgment and without prejudice to former proceedings, and the summons and all the papers were properly amended, the infants were properly made parties defendant; and section 760, providing that, where an application to bring in a decedent’s representatives as defendants is made by plaintiff, the court may direct a supplemental summons issued, is not mandatory in such case, and section 453, providing that, where the court directs a new defendant to be brought in on an order not made upon his own application, a supplemental summons must issue, is mandatory, but applies only to original parties, and not to substituted parties.</p> <p>3. Same—Notice on Application for Appointment of Guardian Ad Litem.</p> <p>Under Code Civ. Proc. § 471, providing- that an infant defendant must appear by guardian, who must be appointed on the application of the infant, if he be 14 years old, or, if less or he neglects to so apply, on the application of any other party in the action, and, where the application is made by one other than the infant, notice thereof must be given to his guardian, if he has one in the state, or, if none and the infant is under 14 years of age and within the state, to the person with whom he resides, where the petition for the appointment of a guardian for an infant was made by a friend, pursuant to a request‘by his father, and showed that the infant was under 14 years old, without the state, and had no general guardian, no notice to any one was necessary under the statute.</p> <p>4. Same—Service of Summons—Necessity.</p> <p>Under Code Civ. Proc. § 424, making a voluntary general appearance of a defendant equivalent to personal service of the summons upon him, infant defendants, having voluntarily served an answer in a pending action by a duly appointed guardian ad litem, became parties without service of summons upon him, and service of the guardian was also unnecessary.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Infants, §§ 258-260, 273-276.]</p>

<p>Master and Servant—Contract op Employment.</p> <p>Certain cablegrams and communications between plaintiff and defendant field too indefinite and insufficient either to terminate an existing contract of employment or to constitute a new contract.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Leon Zeigler against Henry Schmall. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Assignments—Notice of Assignment—Payment of Claim After Notice-Liability of Debtor.</p> <p>A debtor who pays the original creditor after due notice of the assignment of the claim to another makes such payment at his peril.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 4, Assignments, § 159.]</p> <p>2. Partnership—Assignment of Account Due Firm—Power of Single Partner.</p> <p>A single partner may make an assignment of an account due the firm.</p> <p>3. Assignments—Action—Evidence—Sufficiency.</p> <p>In an action on an assigned claim, evidence examined, and held so confused, meager, and indefinite as to make it almost impossible to determine the real circumstances surrounding the making of the assignment and the payment of the amount of the assigned claim by the defendant to the original creditor, and' hence to require a new trial in the interest of justice.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Edward A. Siegel against Frederick Oehl and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Bills and Notes—Actions—Failube of Consideration—Evidence.</p> <p>In an action on notes, evidence held to establish prima facie a defense of failure of consideration.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Abraham Click against the William Horne Company. From a judgment for defendant on a counterclaim, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by James W. M. Newlin against the Carbon Steel Company. From a judgment for plaintiff, defendant appeals.</p>

Summary proceedings by Peter Costello, landlord, against Jacob M. Seidenberg, tenant. From a final order in favor of the landlord, the tenant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Alphons Custodis Chimney Construction Company against Frank Breaker. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Peter Costello against Jacob M. Seidenberg. Judgment for plaintiff. From an order denying a new trial on the ground of newly discovered evidence, defendant appeals.</p>

<p>1. Pleading—Partial and Complete Defenses.</p> <p>In an action for rent, defendant counterclaimed damages for alleged misrepresentations and breach of warranties, to which plaintiff replied by an alleged first separate defense, repeating the allegation and denials of the reply “as if here specifically set forth,” and then alleged that when the lease was executed plaintiff allowed defendant, and defendant accepted as an allowance from the rent demanded by plaintiff, the sum of $600 in satisfaction and compensation for all loss of rent from vacant apartments to exist during the term of the lease. Held, that such allegation was but a partial defense,' and should have been so pleaded, but, when taken in connection with the denials reiterated in the defense, constituted a complete defense, and was not demurrable.</p> <p>2. Same.</p> <p>An allegation, in a reply to a counterclaim, of a complete waiver by defendant of its entire cause of action pleaded in the counterclaim and a ratification of the lease sued on with full knowledge on defendant’s part of all the facts alleged in the counterclaim, constituted a complete defense thereto.</p>

<p>1. Master and Servant—Contracts—Employment—Evidence.</p> <p>Evidence held to support a finding o£ a contract of employment for a specified period, authorizing the employe to recover for breach thereof.</p> <p>2. Damages—Breach of-Contract—Damages.</p> <p>Where one, engaged to do all the pressing of garments made by another during a specified period, sued for. breach of contract, based on the failure of the latter to comply with the contract, evidence that the former would have made a profit of a specified sum per week showed the measure of damages.</p>

Action by Aaron Engel against Herman Sontag. Erom a judgment for plaintiff,- and from an order denying defendant’s motion for new trial, he appeals.

<p>1. Landlord and Tenant—Failure to Keep Tenement Lighted—Negligence.</p> <p>The failure of a landlord to have a light in the halls of a tenement house is evidence of his negligence, being a violation of the Tenement House Act, Laws 1901, p. 889, c. 334.</p> <p>2. Same—Injury to Third Person—Action—Negligence—Questions fob Jury.</p> <p>Whether a person injured while descending the unlighted stairs of a tenement house was negligent held to be for the jury.</p> <p>3. Appeal and Error—Reservation of Grounds of Review.</p> <p>Where a motion for disinissal was made upon specific grounds therein set forth, appellant cannot on appeal urge a new ground.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Louis Wolfsheim and another against the Ammann Manufacturing & Construction Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Matilda Banner against Maurice O’Meara. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Joseph Galowitz against Minnie Blyn. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>1. Damages—Measure of Damages—Breach of Executory Contract.</p> <p>One who has been deprived o£ the profits of an executory contract may recover by way of damages the difference between the contract price and the amount which it would have cost him to perform the contract.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, §§ 285-338.]</p> <p>2. Action—Single Cause—Quantum Meruit and Prospective Profits.</p> <p>A complaint for work and material furnished under a contract and for prospective profits, where defendant refused to permit the completion of the contract and had paid nothing thereon, states but a single cause of action, and a motion to separate and number the causes of action is properly denied.</p>

Action by Edmund B. Van Horn against the New York Pie Baking Company to recover for boarding horses. From a judgment for plaintiff dismissing defendant’s counterclaim, and from an order denying a new trial, defendant appeals. Judgment and order reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Solomon Lindenborn against Lillian B. Vogel. Judgment for defendant, and plaintiff appeals. Reversed, and motion to open default denied.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Chief Publishing Company against Charles F. Schneier. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Actions by Simon Berger against Bernhard A. Buge for work and labor and for services rendered. Erom a judgment for plaintiff in both actions, defendant appeals.</p>

<p>Landlord and Tenant—Rent—Defenses—Execution—Burden of Proof.</p> <p>In an action for rent, where the defense was eviction, defendant must show an eviction by a preponderance of the evidence.</p>

<p>Process—Service—Sufficiency of Evidence.</p> <p>Evidence examined, and held to show that defendant was not personally served with the summons, although the officer’s return showed personal service.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, §§ 202-205.]</p>

Court of New York, Special Term. Action by Julius Jaffe against Henry Mindlin and another for breach of contract. From an order advancing the cause for trial on the short-cause calendar, and an order denying a motion for a reargument, plaintiff appeals.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Fannie Brumberg against Max Lipman and another. From an order vacating the taxation of costs, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Moses Prager against Abraham Glanzer and another. From a Municipal Court judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Eugene P. Calugerovich against Nicolo Yuzzolino. From a judgment in the Municipal Court in favor of plaintiff, defendant appeals.</p>

<p>)</p> <p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Lena Du Bois against the New York, Ontario & Western. Railway Company.</p>

<p>Brokers—Right to Commissions—Evidence.</p> <p>Evidence held to show that services rendered by a broker were solely for the purpose of enabling him to sell defendant property as a broker out of which he could realize a commission from the vendor, and that defendant made no absolute promise to pay the broker for his services.</p>

<p>1. Limitation of Actions—Partial Payment—Burden of Proof.</p> <p>One suing on an account for services rendered more than six years before the commencement of the action has the burden of establishing by clearly preponderating evidence a partial payment on account within six years, and thereby removing the bar of limitations.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 716.]</p> <p>2. Same.</p> <p>In ah action for services rendered more than six years before the commencement of the action, evidence held not to establish a partial payment therefor, essential to remove the bar of limitations.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the New York Leasing Company against Mary E. O’Brien. From a judgment of the Municipal Court in favor of plaintiff, defendant appeals.</p>

<p>Teial—Misconduct or Counsel—Cure by Withdrawal.</p> <p>• Misconduct of plaintiff’s counsel in stating to the jury that defendants were wealthy and that plaintiff was poor was cured by a withdrawal of the remark and by the court directing the jury to disregard it.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 315.] Gerard, J., dissenting.</p>

■ Action by Louis Lowenthal, doing business under the firm name of D. J. Lowenthal & Son, against Max Resnick. Judgment for plaintiff, and defendant appeals.

<p>Vendob and Pubohaseb—Remedies of Pubohaseb—Recovebt of Earnest Monet.</p> <p>A plaintiff is entitled to recover a cash payment made on signing a contract for the purchase of real estate, where defendant has not offered to complete the contract.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 973.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Emilie Seiner against Martin Lyons. Judgment for defendant, and plaintiff appeals.</p>

<p>Tboveb.and Conversion—Acts Constituting.</p> <p>Plaintiff kept her vans and wagons in defendant’s livery stable, a portion of which was destroyed by fire. The wreckage of the vans and wagons was left as it was, pending an adjustment of the fire loss. The building department ordered defendant to clear up his premises, whereupon he-asked plaintiff to remove the wreckage of her vans and wagons. The-'building department having issued a second notice, plaintiff was again notified to remove the wreckage, and defendant employed a wrecker to clear up the premises, who sold the wreckage, but not for the account of defendant. The wrecker testified that he told plaintiff he had been employed to clear up the premises, and that plaintiff told him to do what he liked with the wreckage of the vans and wagons. Held, that plaintiff was not entitled to recover of defendant as for a conversion of the wreckage of her vans and wagons.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by William Budd and another against McCann’s Tours. From a judgment for defendant, plaintiffs appeal.</p>

Action by Antonio Prinzi against Sebastiano Cataldo. From an order granting a new trial on the ground of newly discovered evidence, plaintiff appeals.

<p>1. Vendor and Purchaser—Right to Rent.</p> <p>Where a lease provides for payment of rent monthly in advance, the tenant is justified in paying such rent in advance, as against a purchaser of the premises who takes title during the month.</p> <p>2. Landlord and Tenant—Action for Rent—Evidence of Payment.</p> <p>In an action for rent for a certain period, evidence held sufficient to show payment by the tenant.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Summary proceedings by Koppel Friedland against Henry Nichols-burg. From a final order in the landlord’s favor, the tenant appeals.</p>

Action by Frederick H. Kellogg against the Nassau Cottage & Realty Company. From an order setting aside a verdict and vacating the judgment entered thereon, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Jacob Davis against Ferdinand Jacobson and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by John H. Goetschius against Maria De Barbieri. From a judgment for defendant, plaintiff appeals.</p>

Action by Le Roy G. Freeman against Horace E. Demorest. From a judgment for plaintiff, and from an order refusing to vacate the judgment, defendant appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Le Roy G. Freeman against Horace E. Demorest. Judgment for plaintiff. From an order denying a motion to vacate the same, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Isaac Shonberg against Hans U. Green and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Jefferson Bank against Alexander Frankenstein and others. From a judgment of the Municipal Court in favor of plaintiff, defendants appeal.</p>

<p>1. Appeal and Error—Dismissal—Appeal prom Nonexistent Judgment.</p> <p>Where no judgment has been entered below, an appeal from a supposed judgment must be dismissed.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 875.]</p> <p>2. New Trial—Grounds.</p> <p>A verdict for defendant in an action for two months’ rent was properly set aside, where the alleged constructive eviction relied on as a defense did not occur until after one month’s rent was due, assuming that defendant’s counterclaim was properly withdrawn by the trial court, and if it was improperly withdrawn the withdrawal afforded good ground for vacating the verdict.</p>

Action by Simon Feld against Edward T. Platt, as treasurer of the United States Express Company. Heard on motion to set aside a verdict for plaintiff and for new trial.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by William V. Brown against Terence Smith. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>Action by Mary Burke, an infant, by George J. O’Keefe, her guardian ad litem, against the London Guarantee & Accident Company.</p>

<p>Action by George E. Craft against the Peekskill Lighting & Railroad Company.</p>

<p>Action by John P. East against the Brooklyn Heights Railroad Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Robert G. Fowler against George T. Titzel. From a judgment dismissing the complaint on the merits, plaintiff appeals. Affirmed.</p>

<p>Action by Patrick A. Geoghegan against Bertha W. Chatterton and another.</p>

<p>Action by Augustus H. Grote against Ida F. Grote.</p>

<p>Appeal from Appellate Term. Action by James S. Herrman against Joseph Laemmle and others. From a judgment of the Appellate Term, reversing a judgment of the City Court of Hew York (107 N. Y. Supp. 73), setting aside a verdict in favor of plaintiff and dismissing his complaint on the merits, defendant Laemmle appeals. Affirmed, without opinion.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by William P. Hight and Ernest W. Merrill, copartners as Hight & Merrill, against Adolph Hauptman, on a contract. From a judgment for plaintiffs, defendant appeals. Modified and affirmed.</p>

<p>Action by Franklin B. Lord, Jr., and others, as executors, etc., of Franklin B. Lord, deceased, against the Equitable Life Assurance Society of the United States, impleaded with others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Edmund H. Norwood against the G. & W. Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.</p>

<p>Proceedings by the people of the state of New York, on the relation of the Brie Railroad Company, against the board of supervisors of Erie county.</p>

<p>Preceedings by the people of the state of New York, on the relation of the Williams Engineering & Contracting Company, against Herman A. Metz, as comptroller.</p>

Action by Dankman Schiller against the New York, New Haven & Hartford Railroad Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial ordered.

<p>Action by Herman Schrier against Fanny Shaffer.</p>

<p>Appeal from Blunicipal Court, Borough of Manhattan, Second District. Action by Emil Schlaepfer, doing business under the name and style of Schlaepfer & Co., against Nathan Abend and another, partners doing business under the firm name and style of N. Abend & Co. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>In the matter of acquiring title by the city of New York to certain lands under water at Second avenue and Thirty-Sixth street, in the borough of Brooklyn, in the city of New York.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Albert I. Silberstein against the Ocean Steamship Company of Savannah. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial granted.</p>

<p>In the matter of the judicial settlement of the account of John D. Snedecker, as executor, etc., of Leffert L. Bergen, deceased.</p>

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