Volume 112 — New York Supplement

<p>Appeal from Special Term.</p> <p>Action by the Asphalt Construction Company against De Witt C. Bouker, Jr., and Andrew A. Bouker, impleaded with another. From an order amending a decision and interlocutory judgment nunc pro tunc, defendants Boulcer appeal.</p>

<p>Action by Elihu B. Taylor against George W. McAdam to restrain a'n encroachment on a certain easement, and to require the removal of</p> <p>a building therefrom, and for damages.</p>

<p>Action by Edward A. Maher against Oswald W. Potter. Demurrer to defense sustained, with leave to amend.</p>

<p>Insurance—Surrender op Policy—Surrender Value.</p> <p>Insured, in a policy stipulating for an annual premium due on June 6th each year, and for a cash surrender value on the surrender of the policy while in force, wrote on June 4th to the insurer that he desired to surrender the policy and withdraw the surrender value, and asked for information whether the value stated in a table in the policy was correct and for the method in making the withdrawal. Insurer, on June 5th, erroneously stated that any cash value was contingent on certain paragraphs of the contract. Insured, not understanding the letter, wrote on June 6th to that effect, and stated that he desired to surrender the policy and take the surrender value. On June 13th insurer replied that the policy had no cash value, but insured could elect to take paid-up or extended insurance. Held that, since insurer’s letter of June 5th was a refusal to pay any cash on a surrender of the policy on the ground that it had no cash value, insured was relieved from the duty of making an absolute offer of surrender and demand for payment, and his right to demand the cash surrender value could not be defeated by a failure to pay the annual premium which fell due June 6th.</p>

Certiorari, on the relation of Charles M. Leet, directed to George L. Heins, as State Architect, commanding him to certify and return all and singular his proceedings in relation to the removal of relator from his position as building inspector.

<p>1. Wills—Undue Influencie—Evidence.</p> <p>Testator disinherited a son, made a favorite daughter the principal beneficiary, and gave to his present wife substantially what the law would have given her in case of his death intestate. The son had taken offense at testator's marriage, and had declared in a letter that he would cut loose from testator. Held, that the will itself did not appear unnatural, and was not evidence that it was procured by undue influence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, -Wills, § 429.]</p> <p>2. Same.</p> <p>Evidence of events occurring prior to and at the execution of a will held not to show that the will was procured by undue influence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, §§ 421-437.]</p> <p>3. Same—Natitbe of Undue Influence.</p> <p>A will executed by one having testamentary capacity and a knowledge of the contents thereof, and while surrounded by the guards prescribed.by statute to prevent fraud and imposition, can be avoided only by influence amounting to force or coercion.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, §§ 875-381.]</p> <p>4. Same—Burden on? Pnoor.</p> <p>The burden of proving that a will executed by one having testamentary capacity and a knowledge of the contents thereof, and while surrounded by the guards prescribed by the statute was procured by undue influence, rests on the party alleging it.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 389.]</p> <p>5. Same—Evidence.</p> <p>Evidence of the conduct of the wife of testator, subsequent to the execution of his will and during his last illness, held insufficient to justify the jury in finding that the will was procured by her undue influence.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 49, Wills, §§ 421-437.]</p>

<p>In the matter of Blanche L. Andrews, an incompetent person. On motion by the acting committee of the estate for instruction as to the payment of certain claims. Claims directed to be paid as stated, and order to be settled on notice.</p>

In the matter of the judicial settlement of the last will and testament of Sarah M. Deming, deceased, in which the executor contends that a certain legacy given by the will has lapsed. Judgment decreeing that the legacy has not lapsed, and ordering same to be paid into court, to be distributed in accordance with the provisions of the will.

<p>Justices of the Peace—Process—Defective Summons.</p> <p>Code Civ. Proc. § 2877, providing that in actions before a justice of the peace the summons must -be returnable at a time therein specified, not less than six nor more than twelve days after the date when issued, is not jurisdictional, and a defendant, to avail himself of any irregularity of such kind, must appear before the justice and object; and 'error in the year in which a summons was made returnable, the year in the summons being 1907, whereas it should have been 1908, did not avoid, for want of jurisdiction, a default judgment entered thereon, where defendant knew that 1907 was intended for 1908, but intended not to appear.</p>

Application by .Cornelia C. Earnshaw and another for appointment of a person to execute the trusts left unexecuted under the will of Joseph W. Corlies, Sr., deceased. A substitute trustee was appointed, and thereafter a motion was made to set aside the appointment and vacate all proceedings thereunder.

<p>1. Execution — Supplementary Proceedings — Jurisdiction — Residence op Debtor—Evidence.</p> <p>On motion to set aside an order in supplementary proceedings requiring a judgment debtor to appear for examination, the judgment having been recovered and a transcript thereof filed in A. county in June, 1907, the. evidence showed that the debtor’s family resided at his residence in A. county, and that he frequently visited them there, although he was engaged In business elsewhere, and that he was a regularly registered voter in that county from the years 1902 to 1907, and had voted at general elections therein for the years 1904 and 1908, long after he claimed to have become a permanent resident of another county. Held, that he was, at and prior to the recovery of the judgment, and still continued to be, a resident of A. county, and hence could be compelled to appear for examination in that county.</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 21, Execution, § 1098.]</p> <p>2. Same—Proceedings—Order eor Examination—Authority to Issue.</p> <p>Under Code Civ. Proc. § 2434, providing that proceedings for examination of a judgment debtor may be instituted before a judge of the court out of which the execution was issued, a justice of the Supreme Court in one judicial district had authority to issue an order requiring a judgment debtor in a judgment of that court, to appear for examination in such proceeding before a referee in a county in another judicial district, to which county execution was issued, and in which the debtor resides.</p> <p>3. Same—Reference—Order of Reference—Return of Evidence—Waiver of</p> <p>Objection.</p> <p>An order made by a justice of the Supreme Court in one judicial district, requiring a judgment debtor to appear for examination before a referee in a county in another judicial district, provided that the referee should certify and return to the judge to whom the order was returnable all of the evidence taken before him, but did not name the judge to whom the order should be returnable. The debtor appeared before the referee and objected to the proceeding solely on the ground that he did not reside in A. county, making no objection to the form of the order; nor was any objection made thereto in the papers on motion to set aside the order. Held, that the failure to specify the justice before whom the evidence was returnable was merely an irregularity and did not deprive the court of jurisdiction to make the order, and the debtor, not having raised the objection before the referee or in his moving papers, must be deemed to have waived it.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Joseph M. Huber against the Klebold Press,_ in which defendant filed a counterclaim. From a judgment for plaintiff, and against defendant on its counterclaim, the latter appeals.</p> <p>This action is for the value of printing ink sold and delivered to defendant, the sale and delivery of which were not disputed; but defendant set up a counterclaim, alleging that at plaintiff’s request it agreed to print certain specimen sheets of printing inks for plaintiff, the ink to be furnished by plaintiff, but that by reason of plaintiff’s breach of contract defendant was put to an additional expense over the contract price—the alleged breach of contract being that plaintiff furnished improper and defective inks for use in printing, whereby defendant was compelled to expend more time and labor in printing than would otherwise have been necessary.</p>

<p>Executors and Administrators—Claims—Adjudication.</p> <p>One claiming to be a creditor oí a decedent and setting up an adjudication establishing the existence of a claim, as shown by a former decree settling an administrator’s account, must accept the further adjudication in the decree that the claim had been paid.</p>

<p>Appeal from Justice Court.</p> <p>Action by John T. Loucks against James R. Butcher. From a judgment for plaintiff, defendant appeals.</p>

Action by William Lightfoot against Fitch M. Davis, as administrator with the will annexed of William Bowen, deceased. Plaintiff, having recovered judgment, now moves for an additional allowance of costs.

<p>1. Appeal and Error—Review—Conelicting Evidence.</p> <p>A verdict' of sanity upon conflicting testimony of experts will not be disturbed on appeal.</p> <p>2. Insane Persons—Costs—Costs Against Petitioner.</p> <p>Where there was reason to believe that a person was insane at the beginning of inquisition proceedings, upon a subsequent finding of sanity, costs or disbursements should not be awarded against petitioner.</p> <p>3. Same.</p> <p>Upon a verdict of sanity, petitioner cannot claim costs and disbursements even though there was reason to believe that the party was insane at the beginning of the inquisition, since the finding of sanity deprives the court of jurisdiction over the property of the person against whom the proceedings were taken.</p>

In the matter of James B. Hammond, alleged lunatic. On motion for costs and disbursements. Motion allowed, and costs awarded as stated.

Certiorari by the people, on the relation of Edward A. Maher, to review the act of Oswald W. Potter, a justice of the peace, acting as city judge of Yonkers in causing the restraint of relator. Relator discharged.

Mandamus by the people, on the relation of Richard P. Speyer and another, against Charles Mosier and others, park commissioners of the city of Buffalo, to compel defendants to remove certain obstructions from a public park. On demurrer to the alternative writ.

<p>Criminal Law—Setting Aside Indictment—Inspection of Gband Juby Minutes—Moving Papebs.</p> <p>The court being without authority, on a motion to set aside an indictment, to review the sufficiency of the evidence on which it was found, it not being indicated on the application that there was no legal or competent evidence to sustain the charge, or that defendant was compelled to testify against himself, in violation of his constitutional right, motion for permission to inspect the minutes of the grand jury for the purpose, as indicated by the accompanying affidavit, of moving to set aside the indictment on the ground that it was found on insufficient evidence, will be denied.</p>

<p>1. Indictment and Information—Setting Aside Indictment—Grounds.</p> <p>Under Code Cr. Proc. § 313, providing that the indictment shall be set aside when a person not authorized to attend has been permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, the fact that such a person was present when defendant gave false testimony before the grand jury is not ground for setting aside the indictment for perjury for such false testimony, subsequently found by such grand jury; no unauthorized person being present when the charge of perjury was under consideration.</p> <p>2. Perjuby—Elements of Offense.</p> <p>The fact that a person not authorized is present when one takes an oath and gives false testimony before a grand jury does not render its proceedings extrajudicial and void, and so save the act of the witness from constituting perjury.</p> <p>3. Indictment and Information — Setting Aside Indictment—Moving Papers.</p> <p>Where a grand jury was in session from January 6th, and on January 10th, a witness gave false testimony before it, and after January 20th no unauthorized person was before it, and February 1st it presented an indictment for perjury against such witness, his affidavit does not, as against the presumption that the proceedings of the grand jury were regular, show the grand jury considered the charge embraced in the indictment before January 21st, and so while one unauthorized to attend was present before it, thus rendering the indictment subject to be set aside, under Code Cr. Proc. § 313; the affidavit being that immediately before and after deponent had testified the grand jury summoned persons before it for the purpose of testing the veracity of his testimony, and that during all these examinations and the consideration of the matters out of which arises the charge embraced in the indictment there was present, from January 6th to January 20th, a person unauthorized to attend.</p>

<p>John Welz, having been indicted, moves for permission to inspect the minutes of the grand jury.</p>

<p>Contest of will of Louis Rossignot, deceased. Findings made on the question of marriage of deceased. /</p>

<p>Appeal from City Court of Auburn.</p> <p>Action by H. L. Stevens and another against Joseph Smith. From a judgment for plaintiffs, both parties appeal. Reversed, and new trial ordered.</p>

Action by Julia K. Simpson against the Trust Company of America and others to construe a will. Judgment of invalidity, and plaintiff moves for a new trial. Motion denied.

Action by Richard Webber against Wright Gillies and another. Judgment for plaintiff against Wright Gillies, and judgment of dismissal of complaint in favor of defendant Homer R. Gillies.

<p>1. Wills—Probate—Right of Executor.</p> <p>While a person named as executor is not bound to serve, and others interested may seek the probate of the will, it is the right and privilege, and ordinarily the duty, of the executor to offer the paper for probate and to reasonably insist by proof on its validity as a will.</p> <p>2. Same—Expenses—Charges on Estate.</p> <p>Expenses of unsuccessful probate of a will are not debts against the estate, but charges on it.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 879.]</p> <p>3. Same.</p> <p>A testator, in naming one executor, gives him implied authority to do all he reasonably can to prove and carry out the will; and such authority carries with it the right -to charge the estate with the reasonable expenses.</p> <p>4. Same.</p> <p>The expenses of unsuccessful probate of a will, incurred by the executor, are a charge on the estate, provided the executor was justified in incurring any expense; and whether he was so justified is a matter to be determined on the trial of an action by him against the estate for such expenses.</p>

<p>Appeal from Municipal Court of Buffalo.</p> <p>Action by the N. B. Fails Lubricating Company against the Erie Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Catherine Morton, by Catherine Morton, her guardian ad litem, against William Knipe. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial granted.</p>

<p>1. Triad—Calendars—Preferred Causes.</p> <p>An action to determine the validity of the probate of a will, in which the executor individually and in a representative capacity is a party defendant, is entitled to a preference on the calendar, under express terms of Code Civ. Proc. § 791, subd. 5.</p> <p>2. Same.</p> <p>The preference given by Code Civ. Proc. § 791, subd. 5, in an action to determine the validity of the probate of a will, in which the executor individually and in a representative capacity is a party defendant, may be claimed by either party.</p>

<p>Action by the Buffalo Forge Company against the Columbus & Hocking Clay Construction Company. Defendant demurs to. the complaint,- as stating no cause of action.</p>

Certiorari by the people, on the relation of George E. McEachron, against James D. Bashford, as county treasurer of Wayne county, to compel the issuance of a liquor tax certificate. Certificate directed to be issued..

<p>1. Beneficial Associations — Amendment to By-Laws—Notice to Members —Necessity.</p> <p>While a mutual benefit association may make reasonable amendments to its by-laws, an amendment made without notice to a member is unreasonable.</p> <p>2. Same—Benefits—Red cjction oe Amount—Amendment to By-Laws.</p> <p>The certificate of incorporation of a mutual benefit association provided that its object was to aid its members in case of sickness by contributions as the by-laws might from time to time prescribe, and the by-laws permitted amendments to the constitution upon consent of a majority of those present. Plaintiff received benefits to the amount of $781, under his contract with the association, from 1894 to October, 1899, when the by-laws were duly amended, but without notice to plaintiff, stopping all benefits after a member had received $280. Plaintiff received nothing after that time, though paying dues under his contract. From October, 1896, to October, 1899, the treasury diminished annually about $350; the balance on the latter date being $5,378. Held, that the contract under the by-laws neither expressly nor impliedly authorized the reduction of benefits during the contract, and the amendment cutting off plaintiff’s right to benefits was not reasonably necessary to further the objects of the association or perpetuate its existence, and hence was invalid.</p>

Application by Janet McIntosh to compel Charles N. Ironside, an attorney and counselor at law, to pay over certain funds in his possession, alleged to be the property of petitioner.

<p>Action by Kathrine C. Gould against Trank A. McLaughlin. On motion to compel plaintiff to make the amended complaint more definite and certain.</p>

<p>Divorce—Separation—Nonresident Defendant.</p> <p>Under Code Civ. Proc. § 1763 (3), providing that an action for separation may be maintained where the parties, having been married without the state, have become residents of the state and have continued to be residents thereof at least one year and the plaintiff is such a resident when the action is commenced, it is immaterial, in such an action by the wife, that the husband has been a nonresident for the two years prior to the action.</p>

<p>Action by Jessie Cahzin against Mayer Cahzin. Plaintiff moves to punish defendant for contempt of a decree of an order requiring him to pay temporary alimony.</p>

<p>1. Partition—Sale—Right to Relief from Bid—Deficiency.</p> <p>The purchaser at partition sale-may not be relieved from his bid, but may only have an allowance for the deficiency, where the lot is advertised as 102 feet 5 inches deep, and title fails as to 7 inches at the rear.</p> <p>2. Same—Encroachments.</p> <p>The encroachment, at the time of a partition sale, of wooden steps of adjoining buildings on the lot sold, having been removed, will not relieve the purchaser from his bid.</p> <p>3. Same—Lien of Taxes.</p> <p>The lien of taxes on part of a lot as advertised for partition sale will not relieve the purchaser from his bid; title failing as to such part, and he being made an allowance therefor, so that it will not be included in the deed.</p>

Action by Erwina Diepenbroek against the Wove Realty Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>George G. Gassett was indicted for murder in the first degree. On motion for permission to inspect the minutes of the grand jury.</p>

In the matter of the application for a voluntary dissolution of the E. R. Strong Company. From an order granted in the proceedings, the aggrieved party appeals. Reversed.

<p>Application for the probate of the will of Martha M. Diehl, deceased, to which a special guardian filed objections.</p>

<p>Trusts (§ 319*)—Trustees—Compensation—“Received.”</p> <p>Under Code Civ. Proc. §§ 2730, 2802, 3320. prescribing the compensation of trustees, a trustee, succeeding a deceased trustee, is not entitled to commissions on the funds “received” from the representative of the deceased trustee.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 462; Dec. Dig. § 319.*]</p>

Suit by the city of Rochester against Patrick J. Gray, as commissioner of highways of Livonia, to restrain defendant from entering on lands at the foot of Hemlock Lake formerly used as a highway and opening said highway to public travel! On motion to dismiss complaint.

<p>Action by the Buffalo Merchants’ Delivery Company against 'the Frontier Telephone Company. On application for an injunction “commanding and requiring the defendant to furnish the plaintiff with telephone service under the contract between defendant and the city of Buffalo, fixing maximum rates for telephone service upon an independent single wire, unlimited service day and night, at the rate of $48 per year, during the pendency of this action, in the place and stead of the service over the four-party wire” now rendered plaintiff by defendant, pursuant, as it appears from defendant’s affidavits, to a contract entered into between said parties which the court helds to be now in force.</p>

Action by the Witkop & Holmes Company against Ervin G. Boyce for an injunction. A temporary injunction was granted, and defendant moves to dissolve the same.

<p>1. Brokers (§ 53*)—Commissions—When Earned.</p> <p>To recover commissions for sale of real estate, a broker must show that he was the procuring cause of the same.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.*]</p> <p>2. Brokers (§ 53*)—Contracts op Employment—Construction.</p> <p>Under a provision in a contract employing a broker to procure a purchaser of real estate before a designated date that if the property was sold after such date on information obtained from the broker he should be paid his commissions, the broker is entitled to compensation for successful efforts in procuring a purchaser, culminating in a sale on the stipulated terms after the broker’s authority to effect a sale has terminated.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.*]</p> <p>3. Brokers (§ 53*)—Employment—Contract.</p> <p>A contract employing a broker to procure a purchaser before a designated date of real estate stipulated that if the premises were sold after such date on information from him he should receive commissions. The premises were sold subsequent to such date through other brokers for a less price. The purchaser first learned that the property was for sale through the owner’s attorney advertising the same. There was nothing to show that the broker started the negotiations between the purchaser</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes</p> <p>and owner, nor was there anything to show bad faith on the part of the owner. Held, that the broker was not entitled to commissions.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. 53.*]</p> <p>*For other cases see same topic & § number in Dec, & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Associations (§ 13*)—Rules—Reasonableness.</p> <p>Plaintiff Building Trades Employers’ Association was organized for the regulation of industrial disputes between its members and their employés, and adopted a constitution providing for a board of governors, with, authority to decide disputes and regulate the conduct of its members. At the organization of the association disputes were pending between its members and various unions, and an agreement was made with a number of unions to settle controversies by arbitration; but the carpenters’ union repudiated the agreement, whereupon the board of governors adopted a resolution prohibiting recognition of that union by the association, and defendant member of the association discharged its employés belonging to the union, but thereafter re-employed members of the union, though able to secure carpenters from other sources at the "time. .BelcL, that the order prohibiting the employment of the carpenters was not unreasonable, as tending to disrupt defendant’s business or restrict competition.</p> <p>[Ed. Note.—For other cases, see Associations, Dec. Dig. § 13.*]</p> <p>.2, Corporations (§ 378*)—Corporate Powers—Contracts—Associations.</p> <p>An agreement by a corporation to enter an* employers’ association organized to facilitate the business in which the corporation and other members of the association were engaged, and to prevent' labor disputes between its members and their employés, was not beyond its corporate ^powers.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1535-1537; Dec. Dig. § 378.*]</p> <p>3. Associations (§ 13*)—Resolution of Directors—Validity—Public Policy.</p> <p>A resolution of the board of governors of a building trades employers’ association, forbidding members of the association to employ members of</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>a carpenters’ union which had repudiated its agreement with the association to arbitrate labor disputes, was not void as contrary to public policy.</p> <p>[Ed. Note.—Eor other cases, see Associations, Dec. Dig. § 13.*]</p> <p>♦For other oases see same topic & s number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Carriers (§ 14*)—Exclusive Privileges—“Taximeter Cab.”</p> <p>A contract whereby a hotel company agrees to lease to another the privilege of carriage service and taximeter cab service for a specified term, and whereby the latter agrees to furnish carriages for the hotel and pay a specified sum per month, gives to the latter, as an exclusive privilege, the right to operate motor cabs at the hotel; the term “taximeter cab” including, as shown by the evidence, a motor cab.</p> <p>[Ed. Note.—Eor other cases, see Carriers, Dec. Dig. § 14.*]</p> <p>2. Landlord and Tenant (§ 7S*)—Leases—Assignments—Subletting.</p> <p>A contract whereby a hotel company agrees to lease to another for a specified term the privilege of carriage service, and whereby the latter agrees to furnish carriages for the hotel and pay a specified sum monthly, is a lease; and, in the absence of any prohibition against assignment or subletting, the latter may assign or sublet.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 222; Dec. Dig. § 75.*]</p> <p>3. Landlord and Tenant (§ 80*)—Leases—Assignments—Subletting.</p> <p>Where the lessee of the privilege of carriage service for a hotel sublet the privilege, and alleged that the service furnished by the sublessee was adequate, the allegation of the lessor as to the inadequacy of the service, couched in most general terms., without setting forth any specific instances, was insufficient.</p> <p>[Ed. Note.—Eor other cases, see Landlord and Tenant, Dec. Dig. §' 80.*]</p> <p>4. Landlord and Tenant (§ 34*)—Termination of Lease—Burden of Proof.</p> <p>A lessor, relying on the cancellation of the lease by mutual consent, has the burden of showing a valid cancellation.</p> <p>[Ed. Note.—Eor other cases, see Landlord and Tenant, Dec. Dig. § 34.*]</p> <p>5. Landlord and Tenant (§ 103*)—Leases—Breaches.</p> <p>A hotel company leased the privilege of carriage service for the hotel to a lessee, who, with the consent of the company, contracted with a</p> <p>•For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>third person to furnish such service; and said third person entered on the performance of the agreement. The company subsequently, in a communication to the municipal authorities, withdrew its consent to the continuance of the use of the streets at the hotel as hack stands for the lessee and the third person, and the municipal license to them to operate cabs was revoked. Held that, while the consent of the hotel company might be essential to the granting or continuance of such license, the withdrawal by the company of its consent could not defeat the right of the lessee and the third person under the lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 103.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r indexes</p> <p>6. Injunction (§ 136*)—Preliminary Injunction—Grounds.</p> <p>Where a lessee of the privilege of carriage service for a hotel clearly shows his rights in the premises and an invasion thereof by the lessor, an injunction pendente lite will be granted in an action by the lessee against the lessor.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 306; Dec. Dig. § 136.*]</p>

<p>1. Words and Phrases—“Engage.”</p> <p>The word “engage” means “to take a part; to devote attention and effort ; to employ one’s self; to enlist; to carry on; to conduct; be busied; to occupy one’s self.”</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, vol. 3, pp. 2392-2394; vol. 8, pp. 7649-7651.]</p> <p>2. Words and Phrases—“Bust.”</p> <p>“Busy” means “actively or attentively engaged; closely occupied, mentally or physically; opposed to idle; in constant or energetic action; filled with active duties or employment.”</p> <p>3. Insurance (§ 748*)—Mutual Benefit—Construction of Policy—Forfei-</p> <p>ture— Change of Occupation—“Engaged.”</p> <p>A by-law of defendant fraternal benefit association barred from admission to the order persons “engaged” in blasting, coal mining, manufacturing explosives, etc., or who were “engaged” in any other occupation deemed extrahazardous by its medical examiner, or who were “engaged,” either as principal, agent, or servant, in the sale of liquor as a beverage, and, should any member “engage” in any of the prohibited occupations, his membership certificate should be void. Before his death, insured and</p> <p>•For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p> <p>his son opened a saloon as copartners; the license being issued in their joint names. Insured was pecuniarily interested therein, but performed no labor in or about the saloon and took no active part in the business. Reid that, giving the word “engaged” the same meaning throughout the clause and construing it most favorably to plaintiff, insured was not “engaged” in the liquor business, within the meaning of the policy; the general intent of the policy being to prohibit members from engaging in occupations which increased the risk.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 748.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes,</p> <p>4. Insurance (§ 726*)—Construction—Construction Favorable to Insured. If a condition in an insurance policy is susceptible of two interpretations, it should receive that which is most favorable to insured, since the company is responsible for the language used in the policy.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1870; Dec. Dig. § 726.*]</p> <p>Smith, P. J., dissenting.</p>

<p>Executors and Administrators (§ 495*)—Temporary administrator—Commissions.</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>A temporary administrator is not entitled to commissions on such money and securities of the estate in his hands as had been in the possession of his predecessor, and as to which the estate of the predecessor had been awarded commissions.</p> <p>[Ed. Note.—For other eases, see Executors and Administrators, Dec. Dig. § 495.*]</p>

<p>Liens (§ 1*)—Liens on Personalty—Enforcement—Evidence.</p> <p>«For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>In the absence of evidence that a person receiving from the owner a piano for repairs had authority to deliver the same to a third person, the latter has no right to enforce a lien against the owner.</p> <p>[Ed. Note.—For other cases, see Liens, Dec. Dig. § 1.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Jacques Pollatschelc against Edward W. Earner. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Ai-peal and Errob (§ 624*)—Time fob Filing Reoobd—Extension-</p> <p>Grounds.</p> <p>Defendant was not entitled to 20 days’ extension to file the record on appeal from an order overruling his demurrer to the complaint becajise a previous appeal from an order denying his motion to dismiss the complaint for failure to give security for costs was pending, and he believed that the latter order would be reversed and that it would be then unnecessary to print the record on appeal from the order overruling the demurrer.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2738; Dec. Dig. § 624.*]</p> <p>2. Appeal and Ebbob (§ 624*)—Time fob Filing Record—Extension-</p> <p>Grounds.</p> <p>Nor was it ground for such extension that, if defendant moved to.open his default and for leave to answer pending his appeal from -the order overruling his demurrer, he would be exercising the inconsistent rights of applying for relief under the order overruling the demurrer and at the same time -appealing from the order as erroneous, or that if he did not move to open the default he would thereafter be charged with laches.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2738; • Dec. Dig. § 624.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Albert Russell Brandley against the American Butter Company. Motion by defendant to vacate a warrant of attachment, and cross-motion by plaintiff to file a supplemental affidavit nunc pro tunc and to amend the recitals in the warrant of attachment nunc pro tunc. Motion to amend denied.

<p>Appeal from Municipal Court, Borough tif Manhattan, Second District.</p> <p>Action by Edward Mosehauer against Edward T. Jenkins and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Charles Bacigalupo against Vito Parrilli. From a judgment of the Municipal Court in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, First District.</p> <p>Action by William Loeb and another against Isak Tepper and another. Judgment for plaintiffs, and Tepper appeals.</p>

<p>Bills and Notes (§ 351*)—Purchaser After Maturity—Defenses—Consideration.</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>Want of consideration is a good defense against the purchaser of á note after maturity.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 878% ; Dec. Dig. § 351.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by David Stone against Julius W. Stolts, as president of J. & J. W. Stolts. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by David Gabel against the Brooklyn, Queens County & Suburban Railroad Company for personal injuries. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Columbus Circle Hotel Company against Isaac Dobroczynski. Judgment for defendant, and plaintiff appeals.</p>

<p>Warehousemen (§ 34*)—Storage of Automobile—Injury to Machine—Negligence—Evidence.</p> <p>In an action for the1 storage of an automobile, evidence held not to support a counterclaim based on the charge that plaintiff had negligently damaged the machine by filling the cells of the battery with sulphuric acid, instead of distilled water.</p> <p>[Ed. Note.—For other cases, see Warehousemen, Dec. Dig. § 34.*]</p> <p>*For other oases see same topic & § number in Dec. & Am. Digs. 1907 to hate, & Rep'r Indexes</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Charles Schulz and another against Mary Griffith. From an order denying a motion to dismiss the complaint, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Phillip Collins and another against the Star Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Courts (§ 189*)—Municipal Courts—Process—Jurisdiction oe the Person. The fact that an alias summons is issued from a district of a municipal court which is not the district from which the original summons and other aliases were issued does not affect the jurisdiction of the original district of the person of "the defendant, where there is no proof that the last alias summons was the one served on defendant.</p> <p>«For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>1. Trial (§ 243*)—Instructions—Misleading Instructions.</p> <p>An instruction that the jury must draw no inferences from the fact that defendant did hot call any witnesses, and a subsequent instruction, that it is the duty of both parties to call as witnesses all persons whose attendance they can procure, and whose testimony is material, and that the jury may consider the failure of either party to call witnesses on the question whether the evidence of such witnesses would have been favorable to the party, are misleading because inconsistent.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.*]</p> <p>2. Negligence (§ 141*)—Action—Instructions.</p> <p>In an action for negligence, the refusal to charge that negligence, however slight, on the part of plaintiff, if contributory, precludes a recovery, is erroneous.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 386; Dec. Dig. § 141.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Robert W. Hebberd, Commissioner of Public Charities of the City of New York, against Frank Dee, impleaded with Alexander P. McArthur. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Nathan Wertheimer against Wells, Fargo & Co. Judgment for plaintiff, and defendant appeals.</p>

<p>'Evidence (§ 594*)—Sufficiency—Uncontroverted Evidence.</p> <p>Where defendants counterclaimed for damages and their testimony in support thereof was uncontradicted, it was error to give judgment for plaintiffs for the full amount claimed.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2431; Dec. Dig. § 594.*]</p> <p>•For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Landlord and Tenant (§ 152*)—Agreement to Repair—Breach—Tenant’s Right to Recover.</p> <p>Defendant having agreed to repair premises- if plaintiff would take a lease, and plaintiff having refused to take one though he moved in, plaintiff cannot recover for defendant’s refusal to repair.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. $ 152.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Rena Swartz against Louis Rosseau. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Sales (§ 24*)—Option to Purchase—Consideration—Objection.</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p> <p>The owner of certain fixtures valued at $1,800 agreed to sell them for that amount to defendant J., who deposited with defendant C. $100 to be paid to the owner if J. did not purchase as agreed, and the owner deposited an equal amount to be paid to J. if the owner did not sell the fixtures as agreed. The owner also agreed not to change the situation of the fixtures during the period for which the option was given, and to give J. the exclusive option to purchase. Held, that there was sufficient consideration for the promise of J. that the money deposited with C. should be paid to the owner on J.’s failure to carry out the contract.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 49; Dec. Dig. § 24.*]</p> <p>2. Frauds, Statute oe (§ 84*)—Sale op Goods.</p> <p>The owner of certain fixtures valued at $1,800 agreed to sell them for that amount to defendant J., and deposited with defendant C. $100 to be paid to the owner if J. did not purchase the fixtures as agreed, and the owner deposited an equal amount with C. to be paid to J. if the owner did not sell the fixtures as agreed. The owner also agreed not to move or change the situation of the fixtures during the period for which the option was given, and to give J. the exclusive option to purchase. Held, that the contract was an option, and not one for the sale of goods, and was not within the statute of frauds.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 155; Dec. Dig. § 84.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the New York Mail Company against Adrian H. Jo-line and another, receivers of New York City Railway Company. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Paul Segelman, an infant, by Adolph Segelman; his guardian ad litem, against the Interborough Rapid Transit Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Judgment (§ 143*)—Vacating Judgment—Grounds—Sufficiency.</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p> <p>The depositions in support of a motion to vacate a default judgment against movant on the ground that he was not served, and was not a partner of the codefendant served, showed that the movant never knew of the contract sued on, or of the action until after judgment, that he was not a partner of the codefendant, but that his wife was a copartner. Movant and the codefendant and their witnesses had a limited knowledge of English, and movant needed an interpreter to understand papers presented to him. Held to require the setting aside of the judgment.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 272, 289; Dec. Dig. § 143.*]</p>

<p>Contracts (§ 228*)—Construction—Added Clause.</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>An agreement by an actor with resident theater managers provided for his employment for 25 weeks at a stated salary, to which agreement was interpolated a clause fixing the liability of the parties as to railroad fare. The actor was immediately put on the road under their direction. During the itinerary he had no engagement for two weeks. Held, in an action for his compensation for the two weeks, that the agreement construed with the interpolated clause showed that the managers intended to utilize and direct the actor on the road, and hence they were liable for the compensation, as it would be presumed that his recess was at their instance.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1042; Dec. Dig. § 228.*]</p> <p>Seabury, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Kate M. Sproule against Charles Gulden. From a Municipal Court judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Honna Herman against David Hyman. From a judgment for plaintiff after an inquest in the Municipal Court of New York City, and from an order denying a motion to vacate the judgment, defendant appeals.</p>

Action by Jacob Granit against Louis Abramowitz and Samuel Sherlip. Judgment for plaintiff, and from an order denying a motion to vacate the judgment as to him, defendant Sherlip appeals.

Action by Frank Carroda against the Foundation & Contracting Company. From a judgment' for plaintiff, and, from an order denying a new trial, defendant appeals.

<p>• Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Jacob Hellerman against 'Harry Schantz. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and Erbob (§ 864*)—Review—Questions. Considered.</p> <p>*For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>Upon an appeal from a judgment alone nothing but questions of law can be considered.</p> <p>[Ed. Note.—For o.ther cases, see Appeal and Error, Cent. Dig. §§ 3456-3461; Dec. Dig. § 864.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Frederick JV Ogden and another against William L-Sergeant. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. •</p> <p>Action by the James Autler Company against William H. Rankin. From a judgment for plaintiff, defendant appealed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Meyer Stein against Julius G. Kremer and Irving I. Kremer. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Joseph Catzer against the Brooklyn, Queens County & Suburban Railroad Company'. From a judgment for plaintiff, defendant appealed. Reversed, and hew trial ordered, unless plaintiff accepts the judgment as reduced, when it will be affirmed as modified-.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth' District.</p> <p>Action by the Hartridge School against- James Riordan. From a judgment in favor of plaintiff, it appeals.</p>

Action by Adolph Shapiro against the Thomas B. Leahy Building Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulate to reduce the verdict to a certain amount, in which event the judgment, as so modified, to be affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by J. Currie Wilmerding and others against Rose Strouse and others. Brom a judgment for plaintiffs, defendants appeal.</p>

<p>Warehousemen (§ 34*)—Conversion—Owner’s Right to Recover.</p> <p>One cannot recover from a warehouseman for conversion of goods where it does not appear that he was ready or willing to pay the charges for which the goods were deposited by a carrier, and was not identified and did not afford the warehouseman “a reasonable time to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to interplead,” as provided by Laws 1907, p. 1711, c. 732, § 18.</p> <p>[Ed. Note.—Por other cases, see Warehousemen, Dec. Dig. § 34.*]</p> <p>*For other cases see same topic & 5 number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Bills and Notes (§ 209*)—Actions—'Transfer and Ownership.</p> <p>Where a check was not indorsed by the payee, it was not negotiable, ■ and an action thereon by a transferee could not be maintained.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 423, 497: Dec. Dig. § 209.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Insurance (§ 292*)—Life Insurance—Policy Avoided—Previous Medical Attendance.</p> <p>Under a provision in a life policy that the policy should be void if insured before its date had been treated for any serious disease, or had had any disease of the heart, kidneys, etc., and that the proofs of death should be evidence of the facts therein stated, no recovery could be had on the policy where it appeared from the proofs that insured had been previously treated for nephritis, and that delirium tremens and chronic nephritis were, respectively, the primary and secondary causes of. the</p> <p>«For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>death; claimant certifying Bright’s disease as the cause, and where such evidence was not contradicted.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 691, 692; Dec. Dig. § 292.*]</p>

<p>. Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by William L. Pierce against the Cleveland Motor Car Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Tbial (§ 165*)—Dismissal of Complainant—Power of Coubt.</p> <p>Where plaintiff’s claim was admitted and the defense to a counterclaim for alike amount was alone litigated, it was error to dismiss the complaint and render affirmative judgment for defendant on the counterclaim.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 373; Dec. Dig. § 165.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Principal and Agent (§ 3*)—Relation.</p> <p>Every servant is an agent, though the converse is not true.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 4; Dec. Dig. § 3.*]</p> <p>2. Principal and Agent (§ 145*)—Relation—Undisclosed Principal.</p> <p>Where a contract between defendant and a third person did not show that defendant should prescribe what the third person should do, and that the third person should give his time exclusively to defendant, de-</p> <p>•For other case» see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>fendant was not liable as an undisclosed principal to one rendering services to the third person on the theory that the third person was defendant’s agent.</p> <p>[Bd. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. § 145.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. •</p> <p>Action by Rettie Glover against John G. Duffy and another, doing business as Kammerlohr & Duffy. From a judgment of the Municipal Court in favor of plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third' District.</p> <p>Action by Joseph Callahan against the David M. Oltarsh Iron Works. From a Municipal Court judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Philip Bologh and another against the Roof Maintenance Company. Judgment for plaintiffs, and defendant appeals.'</p>

_ Summary proceedings by Simon Davis, tenant, against Isaac Shapiro and another, landlords. From an order in favor of the tenant, the landlords appeal.

<p>Bills and Notes (§ 471*)—Actions—Pleadings—Statutoey Pbovisions.</p> <p>•For other cases see same topic & § numbee in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>A complaint in an action on a note drawn under Code Civ. Proc. § 534, which omits any allegation that there is a specified sum due plaintiff from defendant, as expressly required by the section, is fatally defective.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 1469; Dec. Dig. § 471.*]</p>

<p>1. Master and Servant (§ 80*)—Wages—Action—Issues.</p> <p>«For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>• Where, in an action for services and expenses, defendant answered by a general denial and bill of particulars and at the trial conceded the employment, and amended his plea by alleging that plaintiff had been paid all that he was entitled to receive, this, with plaintiff’s testimony that he had been paid for all other weeks than those sued for, raised the issue of payment.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 80.*]</p> <p>2. Master and Servant (§ 80*)—Action for Services—Payment.</p> <p>In an action to recover wages at $15 a week from April 1 to June 3, 1907, and for the week ending January 31, 1908, evidence held to establish defendant’s plea of payment.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § SO.*]</p>

<p>Appeal and Error (§ 1177*)—Determination—Reversal.</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.</p> <p>The evidence being so unsatisfactory that it is difficult to understand the real situation between the parties, a new trial will be awarded.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4599; Dec. Dig. § 1177.*]</p>

<p>1. Bills and Notes (§ 480*)—Defenses—Pleading.</p> <p>A denial of a transfer before maturity and an ownership of the notes sued on was nullified by defendant’s admitting, by not denying, plaintiff’s specific allegation that no part of the notes had been paid, and that there was due and owing by defendant to plaintiff $800, with interest.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1526, 1527; Dec. Dig. § 480.*]</p> <p>2. Pleading (§ 349*)—Judgment on Pleadings—Defenses—Payment.</p> <p>Where defendant admitted, by not denying, that he owed plaintiff $500 on the notes sued on, plaintiff was entitled to a judgment on the pleadings, notwithstanding defendant’s allegation that he had fully paid and discharged the obligation contained in the notes which was involved with allegations showing that such result was claimed because of a failure to perform a transaction inter alios acta.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§"1067-1069; Dec. Dig. § 349.*]</p> <p>•For other oases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Philip B. La Roche against Max J. Mulhall for rent. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Joseph M. McNiece and another against Jacob Sapan. From a judgment for plaintiffs, defendant appeals.</p>

<p>Husband and Wire (§ 83*)—Necessaries—Wife’s Liability.</p> <p>"While a husband’s common-law duty to support his wife has not been changed by statute, and he is presumptively and primarily liable for necessaries furnished, she is nevertheless authorized by the domestic relations law (Laws 1896, p. 215, c. 272) to bind herself therefor by express contract.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 325; Dec. Dig. § 83.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Philip Goerlitz and another against Nathan T. Schwartz and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Action by George N. Amos against the International Railway Company.</p>

<p>Action by Lawrence Bastable against William J. Carroll. W. Armstrong, for appellant. R. W. Crawford, for respondent.</p>

<p>In the matter of Belmont street.</p>

<p>Action by Audley Clarke against Max Matzkin and others.</p>

<p>Action by William J. Clarke against the New York Central & Hudson River Railroad Company.</p>

<p>In the matter of the accounting of Charles S. Collyer, as administrator of Elizabeth Collyer, deceased.</p>

<p>Action by Alice M. Colvin against Sophia Shaw, impleaded with others.</p>

<p>Action by the De La Vergne Company against the Anthony & Scovill Company.</p>

In the matter of the application of Andrew Dittrich, as executor under the last will and testament of Mary Dittrich, deceased, for the removal of Ellen C. Duffy, as executrix and testamentary trustee under the said last will and testament.

<p>Action by the Economic Power & Construction Company against the city of Buffalo and others.</p>

<p>In the matter of the application for a voluntary dissolution of the E. R. Strong Company.</p>

<p>Action by Bartolo Famulato against the Oil Well Supply Company.</p>

<p>Action by Amelia A. Finucane against Chas. G. Warner.</p>

<p>Action by Roger Foster and another against the American Fidelity Company.</p>

<p>Action by Emily H. Hathorn and another against the Natural Carbonic Gas Company.</p>

<p>Action by Johanna Kenney against the South Shore Natural Gas & Fuel Company.</p>

<p>In the matter of the application of George B. Knollin, for a writ of mandamus.</p>

<p>Action by the Knickerbocker Investment Company against Foster M. Voorhees and others.</p>

<p>In the matter of the application of Albert B. Miles for a writ of mandamus.</p>

<p>Action by Thomas S. Napier against Charles Spielman.</p>

<p>Action by Andrew A. Myrup, as treasurer, etc., against Mary Friedman.</p>

<p>Action by_ the One Dollar Skirt Company against Sidonie Gluck. From an order denying an injunction pendente lite, plaintiff appeals. Affirmed.</p>

<p>Action by Arthur C. Platt against Seymour W. Bonsall and another.</p>

<p>Action by Frank Rich against the Pennsylvania Railroad Company.</p>

<p>Action by Joseph Schlegel and others against the Roman Catholic Church of the Most Holy Trinity, in Montrose Avenue, Brooklyn, and others.</p>

<p>Action by Annie Shelley against the Westchester Lighting Company.</p>

<p>Action by John A. Smith and others against Elmer A. Holden and another.</p>

<p>In the matter of the application of the city of New York to acquire certain real estate at Massapequa, in the towns of Hempstead and Oyster Bay, in the county of Nassau, for purposes of water supply.</p>

<p>In the matter of the application of the trustees of the village of White Plains to condemn land for sewerage purposes.</p>

<p>Action by Samuel Wilner, as administrator, against the Independent Order Ahawas Israel.</p>