Volume 111 — New York Supplement

<p>Sales—Payment—Evidence—Relevancy.</p> <p>In an action for goods sold, the defense being payment, defendant offered statements and receipts purporting to be signed by plaintiff per L. N. R., and H. N. Fislce. Mr. Fislce, who had been with plaintiff 15 years, then called by defendant, would not identify the receipt, could not at first recall who “L. N. R.” was, but then said there was a bookkeeper, L. N. Rainey, with plaintiff. His testimony showed considerable familiarity with the transactions in question, and defendant endeavored to prove by him his acts for plaintiff as to making contracts, terms of payment and receipts of money. S., sales manager of plaintiff, called by defendant, was asked about conversations with one of defendant’s officers . concerning the transaction in question and payments. All this was excluded. Held- error, as the proof might have tended to show the authenticity of the receipts.</p>

<p>Chattel Mortgages—Replevin—Evidence—Sufficiency.</p> <p>In replevin for horses alleged to belong to plaintiff under a bill of sale, but which were taken by defendant under a mortgage given by the person making sale to plaintiff, evidence examined, and held insufficient to show change of possession under the bill of sale, so as to defeat the rights of the mortgagee under his mortgage.</p>

- ■ ' • Action by Arthur D. Dee, agent of the Steeplechase Company, etc., against the Revolving Airship Tower Company. There was an order granting conditionally a motion to open defendant’s default in supplementary proceedings and allow it to come in and defend, and it appeals.

<p>Appeal from Special Term, Kings County.</p> <p>Action by Christina Kist against R. M. Haan & Co. From an order denying a motion for a bill of particulars, defendants appeal.</p>

<p>Sales—Contract— Construction.</p> <p>A contract by which a piano company acknowledged the receipt of a certain named piano from the other party to the contract, for which it agreed to allow a stated sum toward the purchase of a “new Pease” piano at regular retail prices, required the piano company to make the allowance only upon the purchase of a new piano of the “Pease” make, in the absence of a showing 'that there was any piano by the name of the “New Pease.”</p>

Action by Jacob Wicks, Jr., against the London & Lancashire Eire Insurance Company. Appeal by plaintiff from so much of a judgment as refused to allow his claim for awnings destroyed by fire.

<p>Appeal from Trial Term,- New York County.</p> <p>Action by Jacob Wicks, Jr., against the London & Lancashire Fire Insurance Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Courts—Municipal Courts—Judgment—Default—Setting Aside—Motions.</p> <p>Under Municipal Court Act, Laws 1902, p. 1562, c. 580, § 253, authorizing the court to set aside a default judgment and set the case down for pleading, when the motion to vacate the judgment asks for “such other and further relief as may be just,” etc., the default, if the facts warrant it, may be opened and the case set down for pleading.</p> <p>2. Same—Remedy by Appeal.</p> <p>Under Municipal Court Act, Laws 1902, p. 1502, e. 580, § 253, authorizing the setting aside of a default judgment and the setting of the case down for pleading, the fact that under section 311 (page 1578) of. the Municipal Court act the time for appeal from such judgment had expired does not preclude the remedy authorized by section 253.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Felix Milman and others against Jacob Levine. From an order of the Municipal Court denying a motion to open a default, defendant appeals.</p>

In the matter of administering the goods, chattels, etc., of Charlotte M. Maccafil, deceased. From an order of the Surrogate’s Court (107 N. Y. Supp. 1115), denying the application of Howard R. Maccafil to vacate or modify letters testamentary issued to Wilbur H. Kirkham, said Maccafil appeals.

<p>1. Vendor and Purchaser—Contract—Breach—Recovery of Possession by Vendor—Statutes—“Intruded Into”—“Squatted Upon.”</p> <p>Code Civ. Proc. § 2232, subd. 4, authorizes the maintenance of summary proceedings to recover possession of real property where the defendant had “intruded into” or “squatted upon” any real property without permission of the person entitled to possession thereof, etc. Held, that the words “intruded into” or “squatted upon” in such section refer to the original entry, and do not include an entry by a vendee under contract of sale.</p> <p>2. Same—“Permission.”</p> <p>Code Civ. Proc. § 2232, subd. 4, authorizes summary proceedings to recover real property against a person who has “intruded into” or “squatted upon” real property, and has so continued without permission from the person entitled to possession, or after permission given by him has been revoked by notice. Held, that the word “permission,” as used in the latter part of such subdivision, had reference to permission given to a person to occupy the premises after such person had intruded into or squatted on the same, and not to permission given to a vendee to occupy the premises under a contract of sale.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, vol. 6, pp. 5315-5318; vol. 8, p. 7752.]</p> <p>3. Same—Vendee—Nature of Interest—Breach of Contract—Notice to Quit.</p> <p>A vendee in possession after breach of his contract is not a mere licensee, whose right to possession may be , terminated on notice by the vendor.</p> <p>4. Same—Recovery of Possession—Remedies.</p> <p>- A vendee in possession after breach of contract and notice to quit can be ousted only by action, and not by summary proceedings to recover real property under Code Civ. Proc. § 2232, subd. 4, authorizing such proceedings against a person who has “intruded into” or “squatted upon” real property without the permission of the person entitled to possession, or after a permission given by the person entitled to such possession has been revoked and notice of revocation given.</p> <p>5. Landlord and Tenant—Creation of Relation—Operation of Law.</p> <p>The relation of landlord and tenant cannot be created by operation of law.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 17-23.]</p>

Action by Norris Morey and another against the city of Buffalo to vacate and set aside an assessment roll and assessments levied upon plaintiffs’ premises.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Morris Lakowschowsky against the Utopia Land Company. Judgment of dismissal, and plaintiff appeals.</p>

Action by Louis Gross against Bruno Nitschlce and others for goods sold and delivered. From a judgment for defendant Mueller, plaintiff appeals.

<p>Costs—Dismissal of Counterclaim—Retaxation.</p> <p>Alter an award of judgment for plaintiff and the dismissal of a counterclaim interposed by defendant, the court has no authority to entertain a motion by plaintiff to retax the costs and to allow him extra costs on the dismissal" of the counterclaim.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Standard Fashion Company against Jennie Weinstock. From a judgment for defendant, plaintiff appeals.</p>

Action by Mary Smith against John Doe and the people of state of New York and others. Motion by plaintiff to compel the purchaser at judicial sale to take title upon an action to admeasure dower.

<p>Principal and Agent—Actions for Commissions—Evidence—Sufficienot.</p> <p>In an action by an agent for commissions for making certain alleged sales, evidence examined, and held insufficient to show that the sales for which commissions were claimed were made by; plaintiff.</p>

<p>Appeal and Error—Questions Not Raised in Lower Court—Review.</p> <p>In an action against a carrier for loss of goods In course of transportation, defendant, having admitted plaintiff’s .ownership of the goods by failing to deny such ownership in the trial court, cannot complain on appeal that plaintiff failed to show such ownership.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 2, Appeal and Error, ' § 1066.]</p>

Action by Alexander J. Blumberg against the Sterling Bronze Company for commissions for obtaining certain orders for lighting fixtures. From a judgment for plaintiff, defendant appeals.

<p>1. Landlord and Tenant—Leases—Assignment—Requisites.</p> <p>Where neither the balance of the term of a lease nor the lease itself was for a year, the lessee could transfer it by any act evidencing such purpose.</p> <p>2. Same—Liability op Successor.</p> <p>Where leased premises were actually transferred by the lessee, during the last month of the lease, for which rent had not been paid, the lessee vacating the premises and his successor taking possession, the lessor ■ could, at his option, sue and recover from the lessee for the fhorith’s rent, or from his successor, treated as assignee, for the period of his occupancy under the agreement of transfer, though both the lessee and his successor denied that there was any assignment.</p>

<p>1. Carriers—Injury to Baggage—Burden of Proof.</p> <p>Proof that a person delivered baggage in good condition to a carrier, and that it was delivered in a damaged condition by a transfer company at his residence, casts on the company the burden of showing that the baggage was transferred to it by the carrier in the condition in which it was delivered to the owner’s residence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vpl. 9, Carriers, § 1562.] .2. Same.</p> <p>In an action against a transfer company for injuries to baggage received from a carrier for transportation to the owner’s residence, the owner testified to the damaged condition of the baggage when delivered at his residence, but stated that he was not there at the time of delivery, but arrived about half an hour later. There was no evidence as to who received the baggage, or where it was deposited meanwhile. Held to authorize a judgment in favor of the company.</p>

<p>L Insueance—Conditions in Policy—Keeping Books óe Account—Breach.</p> <p>A condition, in a policy to protect against loss by burglary, that the insured shall keep books of account, is intended for the protection of the insurer against an excessive claim; and where the amount of loss sustained by a burglary is not in dispute the insurer is not relieved of liability by the fact that the books were destroyed by fire after the burglary was committed.</p> <p>2. Same—Strict Construction of Contract.</p> <p>The law does not require that an insured shall be held to a strict compliance with the terms of his policy, but to such a compliance as is fair ■ and reasonable under the circumstances of the case.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by the Aristón Realty Company against Harry Bernstein. From a judgment for defendant, plaintiff appeals.</p>

Mandamus by the people, on relation of Peter B. Scanlon, against Charles F. Milliken and others, composing the state civil service commission of the state of New York. From a final order dismissing relator’s application for a writ, he appeals.

Action by Emil Bachmann against the Union Railway Company of New York City- From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by William C. Mains against Edward B. Gethen. From a judgment for defendant, plaintiff appeals.</p>

<p>Aliens—Naturalization—Proceedings—Evidence.</p> <p>Under the naturalization law (Act June 29, 1906, c. 3592, § 4, subd. 2, 34 Stat. 597 [U. S. Comp. St. Supp. 1907, p. 421]), requiring the verification of the petition of an. applicant for naturalization by witnesses who must state that they have personally known the applicant .to be a resident of the United States for five years continuously, and that they each have personal knowledge that the applicant is a person of good, moral character, etc., witnesses who had personally known the applicant for "only two years were incompetent to verify a petition, -though they had acquired information, through correspondence with the applicant and others, as to his residence in the United States for five years.</p>

<p>Appeal from Municipal Court, Bofiough of Manhattan, Fourth District.</p> <p>Action by H. Koehler & Co. against the Brodklyn Heights Railway Company. From a judgment of the Municipal. Court in favor of plaintiff, defendant appeals.</p>

<p>Brokers—Actions fop. Commission—Evidence—Sufficiency.</p> <p>Where defendant, a broker, agreed to give plaintiff, another broker, a certain commission if he found a buyer for property on which defendant had an option, and plaintiff found a prospective buyer, who entered into negotiations with defendant and the owners, but never agreed on terms, plaintiff did not earn the commission.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 8. Brokers, §§ 65-96.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Summary proceedings for recovery of possession of real property by Philip B. Low and another, as executors, against Ezekiel R. Thompson. From a final order for defendant, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Abram Schwartz against the Mutual Alliance Trust Company. Erom an order of the Municipal Court denying a motion to stay proceedings in the action or a dismissal thereof, defendant appeals.</p>

Action by Sam Schiffman and another against Reuben Fine and another From an order granting plaintiffs’ motion to set aside a verdict in favor of defendants, defendants appeal.

<p>1. Husband and Wife—Abandonment—Criminal Peosecution—Evidence— Sufficiecy.</p> <p>Evidence held insufficient to sustain a conviction of accused as a disorderly person for having abandoned his wife without providing for her support, etc.</p> <p>2. Same—Selection of Home—Duty of Wife.</p> <p>It is the duty of a wife to accompany her husband to the home he provides if suitable for their station in life, and if a husband, for reasons of his own, does not choose to reside with his wife and support her while she is staying with her people, it is her duty to go with him to the place where he is willing to support her, and make a home for him.</p> <p>[Ed. Note.—For cases in point see Cent. Dig. vol. 26, Husband and Wife, § 1102; vol. 17, Divorce, § 129.]</p>

<p>Appeal from Court of Special Sessions.</p> <p>George Bowers was convicted of a violation, of Pen. Code, § 572, making a person who sells, pledges, or otherwise disposes of property which he has borrowed guilty of misdemeanor, and he appeals.</p>

<p>1. Trial—Submission of Issues to Jury—When Required.</p> <p>Where the facts are disputed, or undisputed, but of such a nature that reasonable men may differ in regard to the inferences to be drawn therefrom, the issues are for the jury.</p> <p>fEd. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 332.]</p> <p>2. Contracts—Abandonment—Questions for Jury.</p> <p>Whether the failure for four days by defendant to have men at work doing what for a specified sum he had agreed to do, notwithstanding the notice to proceed, was not unreasonable, and therefore not necessarily a refusal to proceed, held for the jury.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, § 1200.]</p>

<p>Trial—Dismissal—When Authorized.</p> <p>When a material fact Is in dispute, the cause must be submitted to tfie jury, and it is error to dismiss the complaint.</p> <p>(Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 342, 343, 359-367.1</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the G. & J. Tire Company against Loring Van Hoff. From a judgment for plaintiff defendant appeals.</p>

<p>Money Lent—Evidence—Sufficiency.</p> <p>In an action for money loaned, a dismissal of the complaint held erroneous, contrary to the weight of evidence.</p>

<p>Evidence—Opinion Evidence—Damages—General Estimate.</p> <p>Defendant’s general estimate of the amount of damages he claimed he had sustained by the negligent manner in which plaintiff performed the work sued for was inadmissible to entitle defendant to recover such damages on a counterclaim.</p> <p>[EM. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 2283.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Percy Clark against the Chilton Paint Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Principal and Agent—Liability of Agent—Money Received.</p> <p>Plaintiff bargained with the clerk of defendant, a real estate agent, for the hire of certain premises for one year, beginning November 20, 1907, signed a lease dated November, 8th, paid the first month’s rental, and deposited as security a sum equivalent to the last month’s rental. By agreement the premises were to be ready for occupancy November 20, 1907. The lease was subsequently signed by the owner, but not offered to plaintiff until after the 20th of November. Plaintiff did not meet the owner, but knew who she was and for whom defendant was agent. The premises were not ready at the agreed time, and plaintiff repudiated the lease and sought to recover his money from defendant as money had and received. Held, that he could not recover, since he knew of defendant’s agency for the owner, and acknowledged it by signing the lease at the time the money was paid.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Blanche E. Seavey against the Ansonia Manufacturing Company From a judgment of the City Court of New York in favor of plaintiff, defendant appeals.</p>

<p>1, Guaranty—Distinguished fbom: Sale.</p> <p>Plaintiff’s salesman, having received a large order for goods from N.,. told one of the defendants, partners, in N.’s presence, that he could not extend credit to him to that extent, whereupon such defendant, after being assured that N. needed the goods and that they were “worth the money,” told the salesman to ship the order and that he would pay for it. Held, that the transaction was not a sale to such defendant, but. if anything, his guaranty, not affecting his partners.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 25, Guaranty, §§ 3-6.]</p> <p>2. Frauds, Statute of—Promise to Answer for Debt of Another—Sales.</p> <p>Where, in an action for goods sold, plaintiff’s evidence showed that the transaction was at most defendant’s oral guaranty to pay for goods sold another, and defendant pleaded the statute of frauds, judgment for plaintiff was improper.</p> <p>3. Courts—Municipal Courts—Review of Proceedings—Questions of Fact.</p> <p>Under Municipal Court Act,- Laws 1902, p. 1583, c. 580, § 326, authorizing the reversal of a judgment against the evidence, the Appellate Term will reverse a judgment for plaintiff in an action for goods sold defendants, partners, where the evidence shows that the transaction at most amounted to a guaranty by one of the defendants to pay for goods sold a third person, and there was no efficient evidence of a delivery of the goods to defendants.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Jessie B. Crommette against Louis Rodney Berg. From _ ’ a judgment in favor of -plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by William Cohen against Joshua H. Barry and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by James E. March against Wycoff, Church & Partridge. From a judgment for plaintiff, defendants appeal.</p>

<p>Payment—Weight and Sufficiency of Evidence.</p> <p>Judgment for defendant, in an action based on plaintiff having through mistake surrendered defendant’s note for $150 on payment of only $100, should be reversed for insufficiency of evidence; plaintiff’s testimony that defendant paid only $100 being positive, and defendant having at first testified that he did not remember at all how much the note was for, but that he knew he paid more than $100, though he did not know how much he paid, and having afterwards, in response to leading questions, said he paid the note in full, and having still later sworn tho-t he knew the note was for $150.</p>

<p>Fbattos, Statute of—Sale of Goods—Obal Contract.</p> <p>Under Personal Property Law, Laws 1897, p. 510, c. 417, § 21, no recovery can be had on an oral agreement to purchase $104 worth of goods, where no portion of the purchase price was paid and not any of the goods delivered, where the statute is pleaded in defense.</p>

<p>.Bboicebs—Compensation—Completion of Negotiations.</p> <p>Under a contract providing that a broker, on securing a purchaser, shall ’receive a commission “when a contract for the sale is signed,” the broker is not entitled to the commission on securing a paroi offer, which is accepted by the principal, where no contract .of sale is signed, and the person making the offer fails to complete the purchase.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. yol. 8, Brokers, §§ 70-73.1</p>

<p>Coubts—Municipal Couets—Appeal—Motion fob New Tbial—Settled Case —Review.</p> <p>An order of the Municipal Court of the city oí New 'York denying a new trial, not made on a settled case, as required by the rules of practice, cannot be reviewed by the Appellate Term.</p>

<p>1. Appeal and Ebbob—Appealable Obdeb.</p> <p>An order, on a motion to open a default, that the motion be granted on condition of a deposit by defendant, if treated as one opening a default, is not appealable.</p> <p>2. Coubts—Municipal Couets—Judgment—Default—Condition eoe Opening.</p> <p>By express provision of Municipal Court Act, Laws • 1902, p. 1563, c. 580, § 250, the court may, as a condition for opening defendant’s default, order him to deposit the amount of the judgment with the clerk as security.</p>

<p>Appeal and Error—Record—Return for Correction.</p> <p>The record on appeal from a judgment, claimed to be void because not rendered within the time directed by Municipal Court Act, Laws 1902, p. 1557, c. 580, § 230, not showing when it was rendered, will be returned for correction, to show if and when it was rendered.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2830-2833.]</p>

Summary proceeding by Edward W. Browning, landlord, against the New York Leasing Company, tenant. From a final order in default, and an order denying a motion to open the default, the tenant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Bartholomew M. Donovan against the Gillies Coffee Company for injuries sustained by falling into an open cellarway. From -a judgment for plaintiff, defendant appeals.</p>

<p>Trial—Instructions—Invading Province oe Jury. •</p> <p>An instruction in an action for negligence that if the jury believe plaintiff’s testimony, though it be not corroborated, they “shall” find for him, is erroneous, as an invasion,of the province of the jury; some portions of his testimony, on cross-examination, being of such a nature as to warrant a finding of contributory negligence, and in any event it being for the jury to determine whether or not he acted as would a man of ordinary prudence under the circumstances.</p> <p>[Ed.' Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 413, 439, 441.]</p>

Action by Abraham Rosenstein, by Philip Rosenstein, his guardian ad litem, against the New York, New Haven & Hartford' Railroad Company. Plaintiff had judgment, and defendant appeals. Record returned for resettlement and correction.

<p>Action by Richard A. Gray, a resident, citizen, and taxpayer of Broome county, against Arthur W. T. Back, clerk of the board of supervisors of the county, David B. King, county treasurer, and others, for the misappropriation of county moneys.</p> <p>The following was the prayer of the complaint:</p> <p>“Wherefore the plaintiff demands judgment for an accounting of said matters against all of the defendants, and that the plaintiff on such accounting have judgment against the defendants David B. King and Arthur W. T. Back for the sum of $195,719.40, with interest from the respective dates of said payments, and against the defendant the /Etna Indemnity Company of Hartford, Conn., for the sum of .$100,000, with interest froni the dates of said respective payments, and for such other and further relief as may be just, with the costs of the action.”</p>

<p>New Trial—Setting Aside Verdict—Insufficiency of Evidence.</p> <p>A verdict for plaintiff, where he was the only witness on his own behalf and the witnesses for defendant were also interested, should not be set aside on the ground that plaintiff failed to make out his case by a preponderance of evidence, where his testimony was credible, as the jury had - the right to believe him, rather than defendant’s witnesses, though the trial justice might have reached a different conclusion.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 87, New Trial, §§ 142, 148.]</p> <p>MacLean, J., dissenting.</p>

<p>Landlord and Tenant—Liability fob Water Charges.</p> <p>A lessee, under a lease binding him to pay a proportionate part of the water charges, is not liable for such charges for months he did hot occupy the premises after abandonment thereof, as such water charges are determined by meter, and he could not have used any water during the months he did not occupy the premises.</p>

Action by David Schumer against Nathan ICohn and others. From an interlocutory judgment overruling his demurrer to the amended complaint, defendant appeals.

<p>1. Trial—Motion to Dismiss Complaint—Evidence—Effect.</p> <p>On motion to dismiss a complaint on plaintiff’s testimony, such testimony is entitled, not only to belief, but to all favorable inferences that can reasonably be drawn therefrom.</p> <p>[Ed. Note.-—For cases in point, see Cent. Dig. vol. 46, Trial, § 374.]</p> <p>2. Bbea-ch op Marriage Promise—Evidence—Taking Case prom Jury.</p> <p>In a breach of marriage promise case, the court was not warranted in taking the case from the jury because of a letter written by plaintiff to defendant after the date of the alleged promise, and stating in effect that defendant was perfectly safe from matrimony, that when plaintiff , married she would not thrust herself on the man, and that she would like defendant to feel safe to call without any matrimonial traps being set for him, etc.; such letter being evidence that should have been submitted with the other testimony as bearing on the credibility of plaintiff’s testimony as to the promise of marriage, or as to her claim that she was always ready and willing to marry defendant, and had not released him from his promise.</p>

<p>Appeal from Municipal Court, Borough of' Manhattan; Fifth District.</p> <p>Action by Sarah F. Kent against Henry C. Ward. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by John Mullen against Adrian H. Joline and another, as receivers of the New York City Railway Company. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Charlotte 5. Callahan against the Keith & Proctor Amusement Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Erkob— Questions Review able—Waived op Objections.</p> <p>A party to an action in the Municipal Court, who by stipulation waives his right to urge objections to the method by which some evidence was taken and to the fact that the case was not decided within 14 days, cannot on appeal rely on such objections.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1008-1014.]</p> <p>2. Husband and Wipe—Liability op Wife—Improvements on Wipe’s Real Estate.</p> <p>Where a married woman was personally liable for plumbing work done on her premises, to remove violations filed by a department of the government of the city in which the premises were situated, the fact that the plumber was ordered to do the work by the husband was immaterial, on the issue of the liability of the vendor of the premises, contracting to remove all violations.</p> <p>[Ed. Note..—For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 148, 149.]</p> <p>MacLean, J., dissenting.</p>

<p>1. Master and Servanop-Torts op Servant—Liability of Master—Willful AND BlALICIOUS ACTS OF SERVANT.</p> <p>If a servant goes outside of his employment, and, acting maliciously or in order to effect some purpose of his own, wantonly commits a trespass or causes damage to another, the master is not responsible.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1230-1232.]</p> <p>2. Same'.</p> <p>Plaintiff had delivered goods at defendant’s place of business. While his wagon was being unloaded by his helper, or just after it had been unloaded and plaintiff was about to drive out of the yard, a driver, assumably in the general employ of defendant, who had become angered because plaintiff would not allow him to unload first, stepped forward and kicked plaintiff’s horse, causing it to jump and start to fun. Plaintiff, in attempting to stop the horse, was kicked and injured by-it. Held, that the act of defendant’s driver was a malicious and willful one, not done in furtherance of his master’s business, and in no way connected with or incident to the performance of duties intrusted to him, and defendant was not responsible therefor.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1230-1232.]</p> <p>3. Same—Questions for Jury.</p> <p>In an action against a master for the tort of a servant, the question as to whether the servant was acting within the scope of his employment is not a question for the jury, where the evidence discloses nothing from which an inference might legitimately be drawn that the servant was so acting.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1275.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Knickerbocker Guide Company against Harry W. Fairfax. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Trial Term.</p> <p>Action by Sidney C. Chambers against Alexander S. Bacon. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Samuel Feinstein and another against Jacob Hindes and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal and Error—Reversal—Conditions.</p> <p>Where the facility with which a defendant has repeatedly permitted defaults to be taken, and the feebleness of excuses therefor, suggest the suspicion that the real object in view is delay, an order denying a motion to set aside a default will be reversed only on terms more severe than usual.</p>

Action by Albert A. Peters as executor, etc., of Charles A. Peters, deceased, against Amelia L. Smith, individually and as executrix of Charles A. Peters, deceased. On motion for a new trial on the minutes, after verdict for plaintiff.

<p>Appeal from City Court of New York, Special Term..</p> <p>Action by Solomon Feist against Weingarten Bros., Incorporated. From two orders and a final judgment of the City Court of the city of New York, plaintiff appeals.</p>

<p>Mortgages—Foreclosure—Referee’s Report.</p> <p>The report of a referee appointed to sell on foreclosure will not be set aside because he allowed the purchaser to deduct the amount on a prior mortgage, where the judgment of foreclosure recognized the existence of the prior mortgage and directed that that portion of the premises covered by it be sold as one parcel, the notice of sale stated that that parcel would be sold “subject to a prior mortgage,” it was announced at the sale that bids would be received for the full value of the parcel, and that the purchaser would be permitted to deduct from the purchase price the amount of the prior mortgage, the report shows the amount bid, the deduction allowed, and the cash received, and no objections to the report were filed, though notice of the presentation thereof was served on defendant’s attorney, the report was confirmed after notice.to all parties who appeared in the action, there is no suggestion of fraud or collusion, nor inadequacy of price, and the rights of no party were sacrificed or injured, no exceptions to any of the proceedings have been filed, and no appeal has been taken from judgment or order; the sale having become absolute as to. the parties and their representatives.</p>

Application by Tracy C. Smith for an order directing Frank Bogaskie to deliver to applicant all books, papers, and property in his possession or under his control belonging to the city clerk of Johns-town, or in any way pertaining to the city clerk’s office.

William Travers Jerome, James W. Osborne, • and Edward M. Shepard make application for the removal of Joseph M. Deuel from the office of justice of the Court of Special Sessions of the City of New York for the First Division.

Action by the Benevolent & Protective Order of Elks against the Improved Benevolent & Protective Order of Elks of the World and another to restrain the imitation of the former by the latter in the use of its name, by-laws, etc.

<p>Application by the people, on the relation of Edward J. Reardon, for a writ of habeas corpus against William Elynn, warden of the city prison of New York.</p>

<p>Andrew A. White was indicted for perjury, and files a motion to dismiss the indictment.</p>

<p>Action by Experience M. Conover against George W. Palmer and another, executors of James W. Elwell, deceased. Judgment for plaintiff.</p>

<p>Action by Mary Clonen against Isaac Michaels, sued as Michael Bros.</p>

<p>Action by George A. Dunnigan against H. R. ICathan.</p>

<p>Action by Mary Finnigan, administratrix, etc., against the New York Contracting Company, Pennsylvania Terminal.</p>

<p>Action by Julia Henry against Griffith M. Jones.</p>

<p>Action by Sarah J. Harway against the Harway Improvement Company and another.</p>

<p>Action by Charles Hickey against the Corson Manufacturing Company.</p>

<p>Action by the John Lackner Company against the Simpson Crawford Company.</p>

<p>Action by Rita Lidzy, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by James S. McDougall against Mary Ann White, impleaded with others.</p>

<p>Action by .Thomas L. Martin against Alfred H. Smith and others.</p>

<p>Action by Samuel Nease against the New York Central •& Hudson River Railroad Company.</p>

<p>Action by Harry Paul against Westinghouse, Church, Kerr & Co.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Edgerton Parsons against Prank C. Clark. From a judgment for plaintiff, defendant appeals.</p>

<p>In the matter of the application of the city of New York relative to acquiring title to the lands, etc., required for the purpose of opening Seventy-Seventh street, from Shore Road to Seventh avenue, in the Thirtieth Ward of the borough of Brooklyn, city of New York.</p>

<p>Proceedings by the people of the state of New York against Dr. Weeks’ Medical Office.</p>

<p>Action by Fred F. Pfeiffer, as sole trustee of the estate of James W. Hennessy, a bankrupt, against John M. Roe.</p>

<p>In the matter of the judicial settlement of the account of Anton Popp, as one of the executors of the last will and testament of Marianne Kempf, deceased.</p>

<p>Action by John D. Retter against the Olean Street Railway Company.</p>

<p>Action by Anadee Spadone against Harry D. Warren.</p>

<p>Action by Ralph M. Snell against the Niagara Paper Mills.</p>

<p>Action by Harry G. Soper against Edward H. Butler.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Walter V. Ullner against</p> <p>John R. Doran. From a judgment for defendant, plaintiff appeals.</p>

<p>Action by Harry G. White against the New York Central & Hudson River Railroad Company.</p>