Volume 113 — New York Supplement

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Leonard G. Kirk Company against Gussie Albert and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Summary proceedings for possession of property by Peter P. Cappel against Meyer London.' From a final order for petitioner, defendant appealed.</p>

<p>Peincipal and Agent (§ 190*)—Actions Against Agent—Evidence—Stjbticienct—Negligence.</p> <p>In an action for negligence against an agent to collect accounts due plaintiffs, the evidence held to warrant a finding for defendant.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 190.*]</p> <p>MacLean, J., dissenting.</p>

<p>Guaranty (§ 16*)—Consideration.</p> <p>Where plaintiff had already sold and delivered to S. building material for a building owned by S., the consideration as between plaintiff and S. was no consideration for defendant’s guaranty of payment of the price, though at the time of the guaranty defendant had bought the building.</p> <p>[Ed. Note.—For other cases, see Guaranty, Cent. Dig. §§ 14-17; Dec. Dig. § 16.*]</p>

Action by J. Clarence Davies against Emanuel J. Myers and another for services. From a default judgment, and from an order denying defendants’ motion to open the default, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Ramapo Foundry & Wheel Works against George H. Carey. From a judgment of the Municipal Court in favor of defendant, plaintiff appeals.</p>

Action by Charles Friedman and another against Joseph Guth for commissions. There was a directed verdict for plaintiffs, and defendant appeals.

Action by Emanuel Cohn and another against the Federal Insurance Company. There was a directed verdict for plaintiffs, and defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Samuel Erlanger against Sol. Sprung. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Bnxs and Notes (§ 340*)—Indorsement—Notice.</p> <p>That the maker of a note gave as collateral a note indorsed by him and by a firm of which he was a partner charged the payee to inquire whether the maker rightfully indorsed the firm name; that the note secured was discounted for the maker individually raising the presumption that it was not a partnership affair.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 846; Dec. Dig. § 340.*]</p> <p>2. Partnership (§ 146*)—Securities—Discharge of Individual Claims— Fraud—Presumption.</p> <p>The unexplained fact that a partnership security has been received from a partner to discharge an individual claim against him shows fraud, which the recipient must rebut by showing either that the partner acted with authority, or that he had good reason to believe so.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig; § 251%; Dec. Dig. § 146.*]</p> <p>3. Partnership (§ 146*)—Notes—Receipt for Individual Claim—Remedy.</p> <p>One taking a partnership note from one of the members for the member’s individual debt without consulting or apprising the other members of his intention or obtaining their consent has recourse against the member only.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 251%; Dec. Dig. § 146.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Arthur B. Phelan against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Action by one Flanagan against one MacNutt</p>

<p>1. Eminent Domain (§ 198*)—Acquisition of Right of Way fob Seweb by Village—Issues.</p> <p>A village instituting proceedings to acquire a right of way -for a sewer cannot claim that the lands taken are part of a public highway, but by instituting the proceeding it admits the owner’s right, and the inquiry is as to his damages resulting from a necessary taking of that right.</p> <p>. [Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 628; Dec. Dig. § 198.*]</p> <p>2. Eminent Domain (§ 198*)—Acquisition of Right of Wat for Sewer bt Village—Issues.</p> <p>A proceeding by a village to acquire a right of way for a sewer is not a proper one to test tbe title to the land to be taken as between the village and the individual alleged to own it.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 528; Dec. Dig. § 198.*]</p> <p>3. Eminent Domain (§ 131*) — Acquisition of Right of Wat for Sewer-Damages.</p> <p>Where, in proceedings by a village to acquire a right of way for a sewer, the evidence showed that the property was occupied by a tenant of the owner to the exclusion of all others, and that the village had paid the tenant for his rights, the owner was entitled to the full value of the property taken.</p> <p>[Ed. Note.-—-For other cases, see Eminent Domain, Cent. Dig. § 353; Dec. Dig. § 131.*]</p> <p>4. Eminent Domain (§ 149*) — Acquisition of Right of Wat for Sewer— Damages.</p> <p>A village acquiring by condemnation a right of way for a sewer acquires, not only the right of way for the sewer, but the right to maintain a manhole and the right to enter on the premises at all times to inspect, repair, and re-lay the sewer, and the owner is entitled to substantial damages.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 327; Dec. Dig. § 149.*]</p> <p>5. Eminent Domain (§ 238*) — Award — Determination of Commissioners— Review.</p> <p>A reversal of the determination of commissioners in condemnation is justified only in aa aggravated case showing general disregard or flagrant violation .of the rules of evidence, and, where the commissioners applied the proper principle in ascertaining the damages, the court cannot reduce the award, but must either confirm or refuse to confirm and order a new appraisal.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 238.*]</p>

<p>1. Insurance (§ 335*)—Burglary Insurance—Books of Account.</p> <p>Where plaintiffs kept a book of account and invoices of goods purchased, it was proper to consider both the book and the invoices in determining whether “the books and accounts” so kept were of the character required by a burglary insurance policy, providing that it should be void if the books and accounts of the insured were not so kept that the actual loss might be determined therefrom.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. § 335.*]</p> <p>2. Insurance (§ 335*)—Books of Account—Loss.</p> <p>In a policy of burglary insurance, providing that it should be void if the books and accounts of assured were hot so kept that the actual loss might be determined therefrom, an account book and invoices of purchases kept by assured were sufficient if from both such sources the actual loss was ascertainable.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. § 335.*]</p>

<p>Health (§ 38*) — Offenses — Sale of Medicine Not of Legal Strength ob Quality—Prosecution—Penalty.</p> <p>In a prosecution by the State Board of Pharmacy, under Public Health Law, Laws 1893, p. 1556, c. 661, for selling medicine not of legal strength or quality, where there was a conceded violation, it was the court’s duty, under the express provisions of section 201, to render judgment for the board for the penalty of $25.</p> <p>[Ed. Note.—For other cases, see Health, Dec. Dig. § 38.*]</p>

<p>Appeal from City Court of New York.</p> <p>Action by Beckie Levine against Philip Klein. Prom a judgment for plaintiff and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Evidence (§ 317*)—Hearsay—Bodily Condition.</p> <p>In a personal injury action, testimony by plaintiff’s husband as to the condition of her health and as to the injuries suffered, and by her physician as to declarations by plaintiff of the same character, made several months after the accident, was hearsay and inadmissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1176; Dec. Dig. § 317.*]</p>

<p>1. Contracts (§ 349*)—Services—Actions—Evidence—Admissibility.</p> <p>Where, In an action for services, plaintiffs claimed that defendant ordered the work done, but did not state whether he acted on his own behalf or on behalf of a corporation, and the evidence showed that plaintiffs addressed their bid to the corporation, and made out their bill against the corporation, and the letter of plaintiffs Which formed the contract was addressed to the corporation and was approved by one as engineer for the corporation, it was error to exclude the certificate of incorporation of the corporation offered by defendant, tending to show, in connection with the other proof, that the corporation was distinct from defendant, and that it, and not defendant personally, was liable.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 349.*]</p> <p>2. Contracts (§ 350*)—Services—Actions—Evidence—Sufficiency.</p> <p>Evidence, in an action for services, wherein the defense was made that the services were rendered for a corporation, not defendant personally, held not to establish the personal liability of defendant.</p> <p>[Ed. Note.—'For other cases, see Contracts, Dec. Dig. § 350.*]</p>

<p>Sales (§ 445*)—Breach oe Contbact—Action eob Damages.</p> <p>In an action for damages for delivering a defective lot of steel, where the evidence showed that the steel was not of the quality ordered, it was error to dismiss the complaint, since plaintiff was entitled to some damages, if only nominal, even though defendant took back the defective steel.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 445.*]</p>

<p>Tbial (§ 143*)—Taking Case from Juey—Dismissal.</p> <p>Where, in an action for money loaned, plaintiff's testimony supported its cause of action and defendant’s testimony contradicted it, the court’s dismissal of the complaint because plaintiff had not sustained the burden of proof was erroneous, as invading the province of the jury.</p> <p>[Ed. Note.—Por other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p>

<p>1. Carriers (§ 321*)—Street Railways—Subways—Injuries to Passengers at Stations—Actions—Instructions.</p> <p>In an action by a passenger against a subway carrier for injuries from stepping into an opening in the station platform while boarding a car, a charge that, if certain circumstances were found to exist, the carrier was negligent in not providing sufficient light in and about the platform and guards around the opening to avoid injury, “as testified to by the plaintiff,” was erroneous, as requiring a higher degree of care than the law requires; since the carrier was not an insurer of the safety of passengers, but was only required to exercise reasonable care in that respect.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 321.*]</p> <p>2. Carriers (§ 321*)—Street Railways—Subways—Injuries to Passengers at Stations—Actions—Instructions.</p> <p>The charge was also erroneous as making plaintiff’s testimony, rather than the rule of law, the test of the carrier’s liability.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 321.*]</p>

<p>Action by Elmer E. Alexander and others, under the firm name and style of Davis, Reid & Alexander, against the Mosaic Tile "Company.</p>

<p>1. Landlord and Tenant (§ 309*) — Recovery of Possession by Landlord —</p> <p>Summary Proceedinqs — Evidence — Question' fob Jury—Credibility of Defendant.</p> <p>Evidence in a summary proceeding to dispossess a tenant held to present a question for the jury as to the truth of the tenant’s testimony as to the term of the lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 1317; Dec. Dig. § 309.*]</p> <p>2. Landlord and Tenant (§ 310*)—Recovery of Possession by Landlord— Summary Proceedings—Failure to Prove Case—Dismissal.</p> <p>Where a landlord brought summary proceedings to dispossess a tenant, alleging a tenancy from month to month and an agreement to vacate on 5 days’ notice, if he proved only a letting for an indefinite period necessitating a 30-day instead of a 5-day notice, the tenant was at most only entitled to a dismissal of the petition, and not to a final order in his favor.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 310.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Summary proceedings by Carl Franck against Nathan Rabinowitz. From a Municipal Court final order for defendant, plaintiff appeals. Reversed and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Abe Brill against the Metropolitan Surety Company. From a j'udgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Barney Ershowsky and another against Isaac Korn and another. From a judgment for plaintiff, defendant Korn appeals.</p>

<p>1. Principal and Agent (§ 123*)—Authority—Evidence.</p> <p>Plaintiff’s own evidence in an action for services that defendant admitted to him the authority of defendant’s alleged agent and knowledge of promises made by such agent in his behalf was sufficient to sustain a verdict in plaintiff’s favor.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 420, 422, 424; Dec. Dig. § 123.*]</p> <p>2. Appeal and Error (§ 215*)—Presentation of Question Below.</p> <p>Where, in an action for services, neither party objected to an instruc- ' tion in reply to an inquiry by the jury as to whether they might find in a less amount than a certain sum that they might find the reasonable value of the services, reversible error cannot be predicated thereon.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1309; Dec. Dig. § 215.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Morris Gartner against Louis Novick and another, composing the firm of Novick Bros. From a judgment for plaintiff, defendants appeal.</p>

<p>Evidence (§ 571*)—Expekts—Opinion—Conclusiveness.</p> <p>The opinion of experts as to the value of extra work done by plaintiff and of the defects alleged by defendant was not conclusive, but merely advisory, and should be given such weight as the justice saw fit.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2395; Dec. Dig. § 571.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by John N. Brooks and another against Nicholas Schlernitzauer. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Coubts (§ 189*)—Municipal Coubt of New York—Replevin—Judgment.</p> <p>In an action in the Municipal Court to recover chattels, a judgment for plaintiff should award him the possession of the chattels, and, if delivery thereof cannot be made, then for their value, under Municipal Court Act (Laws 1902, p. 1530, c. 580), § 123, relating to final judgments in such actions, and should not award merely a specified sum.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p> <p>2. Coubts (§ 190*)—Municipal Coubt of New Yobk—Replevin—Judgment —Correction on Appeal.</p> <p>A Municipal Court judgment in replevin which erroneously awarded plaintiff a specified sum instead of the possession of the chattels, or their value in the alternative, may be corrected on appeal.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>Food (§ 16*)—Unlawful Sales—Action fob Penalty—Sufficiency of Evidence.</p> <p>Where, in a suit for the penalty for exposing for sale, in violation of Agricultural Law (Laws 1905, p. 364, c. 171) § 70e, the carcass of a calf under four weeks of age when killed, and which was lying on the floor near the wall when seized, about 6 o’clock a. m., in defendant’s place of business, it appeared that carcasses of calves were at times delivered at defendant’s place of business in the nighttime and piled up on the floor between business hours, and that when consignments came it was usual to sort put any small carcasses and leave them on the floor pending the arrival of the city inspectors, who called every day, a judgment for plaintiff was unauthorized.</p> <p>[Ed. Note.—For other cases, see Food, Dec. Dig. § 16.*]</p>

Action by Alexander Bard against Daniel Gluck. From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, he appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. ■</p> <p>Action by the People against Ida C. Secor. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Louis Ecstein and another against Edward Popper. Judgment for plaintiffs, and defendant appeals.</p>

<p>• Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Daniel Mollease against the James F. Meehan Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the State Board of Pharmacy against William Chapman Bronson. From a judgment for plaintiff, defendant appealed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Adam Ohl against Nathan Coleman and another, copartners under the name of Coleman & Krause. From a judgment for plaintiff, defendants" appeal.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Samuel Fleischman against Morris C. Mengis. From an order refusing to dismiss for want of prosecution, defendant appeals.</p>

<p>Appeal from Municipal Court,- Borough of Manhattan, Eighth District.</p> <p>Action by the City of New York against Jacob Blumberg. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Summary proceeding by J. H. Schneider & Co., landlord, against Gaetano Amendola, tenant. From a final order dismissing the petition, the landlord appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by David Jonap against Abraham Preger and another, a partnership. Judgment for defendants and plaintiff appeals.</p>

<p>1. Carriers (§ 134*)—Delivery to Carriers—Evidence.</p> <p>In an action against an express company for loss of goods, evidence held 'to warrant a finding that the goods were actually delivered to one of defendant’s drivers, whose duty it was to collect packages for transportation.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 588; Dec. Dig. § 134.*]</p> <p>2. Carriers (§ 118*)—Loss of Goods—Carrier’s Agents—Accident—Misconduct.</p> <p>Where goods were delivered to a receiving driver of an express company and were lost, the carrier was responsible, whether the loss resulted from the driver’s negligence or actual fraudulent misappropriation.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 518: Dec. Dig. | 118.*]</p> <p>Hendrick, J., dissenting.</p>

Action by Margaret Rogge against Deo Levinson and another. From a judgment for defendants, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Application of Michael Kaufman to ascertain and enforce an attorney’s lien of Samuel Schwartz and others against Abraham Kipps. From an order in favor of petitioner, defendant appeals.</p>

<p>1. Bbokebs (§ 60*)—Right to Commissions.</p> <p>Under a contract by which a broker was entitled to a commission as soon as a sale was effected, to be paid after delivery of the goods, he was entitled to payment of the commission upon sale and delivery, though the sale, which was enforceable, was afterwards rescinded by the seller and buyer.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent Dig. § 91; Dee. Dig. § 60.*]</p> <p>2. Customs and Usages (§ 19*)—Evidence.</p> <p>Where the terms of a broker’s contract were clear and precise, needing no explanation, evidence of usage was inadmissible to explain their meaning.</p> <p>[Ed. Note.—For other cases, see Customs and Usages, Cent. Dig. § 42; Dee. Dig. § 19.*]</p>

<p>1. Appeal and Ebbob (§ 1002*)—Review—Questions of Fact.</p> <p>A verdict on conflicting testimony will not be disturbed on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>2. Appeal and Ebbob (§ 173*)—Reservation in Lower Coubt of Grounds of Relief—Issues in Lower Coubt—Grounds of Defense.</p> <p>In a suit against indorsers the defense of want of presentation and notice of nonpayment not having been raised at the trial cannot be considered on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1079, 1113; Dec. Dig. § 173.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Rudolph Jacobs against the F. V. Smith Contracting Company. From a judgment for defendant, plaintiff appeals.</p>

<p>New- Trial (§ 100*)—Grounds—Newly Discovered Evidence—Cumulative Evidence.</p> <p>Where part of the evidence upon which a motion for new trial was based was sought to be established by witnesses who were in court at trial, and all of it was either contradictory of the evidence for plaintiff at trial or in impeachment of his witness, it was not newly discovered evidence so as to require a new trial.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 203; Dec. Dig. § 100.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Ikonograph Company against the John Newton Porter Company. From a judgment overruling a demurrer to the complaint, defendant appeals.</p>

<p>1. Stipulations (§ 18*)—Conclusiveness—Detect.</p> <p>In a suit by a contractor against the owner of a building, it appeared that a subcontractor had filed a mechanic’s lien on a claim against the contractor, whereupon it was stipulated that whatever amount might be recovered by the contractor should be turned over to the owner to apply in payment of the lien up to the sum of $373.11. Held, that such stipulation concluded the parties from questioning the validity or amount of the lien.</p> <p>[Ed. Note.—For other cases, see Stipulations, Dec. Dig. § 18.*]</p> <p>2. Stipulations (§ 17*)—Persons Concluded.</p> <p>During the trial of an action by a contractor against the owner it appeared that a subcontractor, not a party to the suit, had filed a mechanic’s lien on the claim against the contractor, whereupon it was stipulated that any amount that plaintiff recovered up to $373.11 should be turned over to defendant to satisfy such lien. Held that, as the subcontract- or was not bound by such agreement, a judgment for the contractor for the whole amount due was erroneous, and should be modified so as only to award the contractor the excess over the amount of the lien.</p> <p>[Ed. Note.—For other cases, see Stipulations, Dec. Dig. § 17.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Peter Londis against Samuel Levin. Judgment for plaintiff, and defendant appeals.</p>

Action by Bellas, Hess & Co. against William Livingston, doing business as William Livingston & Co. From a Municipal Court order granting defendant’s motion to set aside an attachment, plaintiff apperils

<p>1. Limitation of Actions (§ 195*)—Acknowledgment—Burden of Proof.</p> <p>Tlie burden was on one relying upon a payment to save .an account from the bar of limitations to show payment, and that it was accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of a balance due, from which a promise may be inferred to pay the remainder.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. § 716 ; Dec. Dig. § 195.*]</p> <p>2. Limitation of Actions (§ 197*)—Acknowledgment—Evidence— Sufficiency.</p> <p>That a debtor told his creditor to “continue” an old account and that he paid a specified sum “on account” insufficiently shows an acknowledgment by the debtor of a balance due, from which a promise may be inferred to pay the remainder, so as to save the account from the bar of limitations.</p> <p>[Ed. Note.-—For other cases, see Limitation of Actions, Cent. Dig. § 725; Dec. Dig. § 197.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Agnes J. O’Connor against John P. Lamerdin. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal- and Error (§ 1015*)—Review—Orders Respecting New Trials.</p> <p>On appeal from orders granting or refusing new trials upon a claim that the verdict is against the evidence, the trial judge’s decision is of the weightiest influence.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3871, 3872; Dec. Dig. § 1015.*]</p>

Action by Lena Rosenstein against the New York, New Haven & Hartford Railroad Company. From an order vacating a judgment for plaintiff and ordering the return of money collected from defendant on execution, plaintiff appeals.

<p>1. Appeal and Ebbob (§ 127*)—Judgments Not Appealable—Default Judgments.</p> <p>' A default judgment is not appealable, and an appeal therefrom must be dismissed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 885; Dec. Dig. § 127.*]</p> <p>2. Judgment (§ 159*)—Default—Motion to Open—Defective Affidavits.</p> <p>A motion to open a default is properly denied where the affidavits upon which it is based are radically defective.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 312; Dec. Dig. § 159.*]</p> <p>3. Judgment (§ 174*)—Default—Motion to Open—Renewal.</p> <p>A defendant whose motion to open a default judgment has been denied for insufficiency of the affidavits should be permitted to renew it where it does not clearly appear that he'has no defense, or that he acted in bad faith in asking an adjournment, on refusal of which default was taken.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent Dig. § 309; Dea Dig. § 174.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Henry Summerfield against Roger G. Sullivan. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Manhattan Rolling Mill against George Dellon. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Abram V. Smith against the Herring-Hall-Marvin Safe Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Jennie Eazaroff, administratrix, against Isaac Shapiro. There was a default judgment for plaintiff, and, from the judgment and on order denying a motion to open the default, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District:</p> <p>Action by Alexander Braun against Joseph Finger. From a judgment for plaintiff after a trial before the court without a jury, defendant appeals.</p>

<p>Action by Max Altes against Jacob Blumenthal. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales (§ 181*)—Action foe Price—Evidence—Sufficiency.</p> <p>Evidence in an action for the price of goods held sufficient to show that the goods were sold and delivered to defendant corporation.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 181.*]</p> <p>2. Sales (§ 181*)—Action fob Price—Evidence.</p> <p>In an action for the price of goods, an affidavit filed by defendant in support of an application for an adjournment, reciting that an absent witness would testify that the goods were not accepted by defendant, but were held subject to plaintiff’s order, and that certain goods delivered to defendant were inferior and unmarketable, and separate defenses that goods bought by defendant from plaintiff were defective, etc., and that plaintiff refused defendant’s offer to return them, and that defendant had paid plaintiff for goods bought and retained, while not conclusive as admissions in the face of defendant’s general denial, could be considered on defendant’s motion to dismiss, based upon the theory that no sale and delivery to it had been shown.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 181.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Mark Harris against James C. Eargo, as president of the American Express Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and Servant (§ 830*)—Liability for Injuries to Third Person —Actions— Sufficiency of Evidence.</p> <p>In an action by a third person against a master for injuries caused by a servant’s negligence, evidence held to sustain a verdict for plaintiff.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1272; Dec. Dig. § 330.*]</p> <p>2. Appeal and Error (§ 1045*)—Harmless Error—Prejudicial Effect.</p> <p>In an action against a master for injuries by a servant’s negligence, plaintiff’s counsel asked the jury before they were sworn if any of them were stockholders in a certain insurance company, whereupon defendant asked for a mistrial on the ground that the question tended to show that defendant carried employers’ liability insurance, but the question was not pursued further, and the motion for a mistrial was denied. Held that, even if the question was not proper, it was not reversible error; the small amount of the verdict for plaintiff, which was amply sustained by the evidence, showing it was not prejudicial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4124; Dec. Dig. § 1045.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>■ Action by Axel PI. Seadale against William R. Montgomery and the Hamilton Bank of New York City. Froip a judgment for plaintiff, the bank appealed.</p>

<p>Payment (§ 73*) — Mode oe Payment — Note oe Pabtnek—Evidence— Stjeeicienoy.</p> <p>Evidence held to show that a note made by an individual member of defendant partnership for the balance due from the fipm was accepted by plaintiff as payment in full of the firm’s debt.</p> <p>FEd. Note.—For other cases, see Payment, Dec. Dig. § 73.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Thomas H. Morgan against Frank Whalen. From an order denying an adjournment, defendant appeals.</p>

<p>Corporations (§ 414*)—Notes—Liability.</p> <p>A corporation is not liable on a note in the absence of evidence that it by any of its authorized officers executed the note.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1640; Dec: Dig. § 414.*]</p>

<p>1. Contracts (§ 22*)—Acceptance—Sufficiency.</p> <p>If plaintiff communicated Ms assent to defendant’s offer of a certain sum for effecting a loan to defendant’s bookkeeper, who had communicated the offer, it was put in a way to reach defendant in the natural course of things, and was sufficient to consummate a contract.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 22.*]</p> <p>2. Appeal and Error (§ 934*)—Review—Presumptions.</p> <p>In an action for breach of contract, where plaintiff contended that he had communicated his acceptance of defendant’s offer to defendant’s bookkeeper, and the trial judge gave judgment for plaintiff, it will be presumed on appeal that he found that the acceptance was communicated to the bookkeeper.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. § 934.*]</p> <p>3. Contracts (§ 28*)—Action for Breach—Evidence—Acceptance.</p> <p>Evidence held to support a finding that plaintiff communicated, his acceptance of defendant’s offer to defendant’s bookkeeper.</p> <p>[Ed. Note.—Eor other cases, see Contracts, Dec. Dig. § 28.*]</p> <p>4. Brokers (§ 63*)—Right to Compensation—Necessity for Bringing Parties Together—Default of Principal.</p> <p>Where a principal, after hiring a broker to effect a loan, refused to accept it after it was arranged, the broker was excused from' bringing the intending lender into the principal’s presence, or furnishing him with the lender’s name, as a condition precedent to his right to compensation.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 94; Dec. Dig. § 63.*]</p>

Action by Walter A. Mills against the Erie Railroad Company and Frank H. Rice. From a judgment for plaintiff and the defendant Erie Railroad Company, the plaintiff and the defendant Rice appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Cassius M. Lawson against Wells Fargo & Co. Judgment for plaintiff, and defendant appeals.</p>

<p>Frauds, Statute of (§ 23*)—Promise to Pat Debt of Another.</p> <p>The promise by the successor of a buyer under a conditional sale that, if the seller would permit her to retain the property, she would pay the balance due, was an original promise based upon a valuable consideration, entitling the seller to recover thereon.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 18; Dec. Dig. § 23.*]</p>

Action to establish a deed and to determine adverse claims to real estate by Claus Doscher against Maria Wyckoff, individually and as surviving executrix and trustee of Henry L. Wyckoff, deceased, and another. Judgment for plaintiff.

Action by Max Norton against Emil B. Abbott and another. From a judgment for defendant Abbott, and from an order denying plaintiff’s motion for a new trial, he appeals.

<p>Process (§ 149*)—Service—Delivery to Defendant—Evidence.</p> <p>On the issue whether a summons was ever delivered to defendant so as to constitute a valid service thereof, evidence held to show delivery.</p> <p>[Ed. Note.—Eor other cases, see Process, Dec. Dig. § 149.*]</p>

<p>1. Appeal and Error (§ 927*)—Review—Evidence.</p> <p>Where the complaint was dismissed at the close of plaintiff’s case, his evidence was entitled on appeal to all favorable inferences that could reasonably be drawn therefrom.</p> <p>[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. § 927.*]</p> <p>2. Master and Servant ($ 40*)—Wrongful Discharge—Prima Facie Case.</p> <p>Where plaintiff proved that he was discharged without cause December 28, 1907, when his written employment contract had yet five weeks to run, and that he was unable to procure employment during that period for which he demanded the salary specified in the contract, plaintiff thereby established a prima facie case.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 40.*]</p> <p>3. Master and Servant (§ 7*)—Contract of Employment—Modification.</p> <p>Plaintiff who was employed under a written contract for a specified time once during the term found $1 more than his contract pay in his envelope, and, on informing defendants thereof, was told that it was a gift. He received it as such, and denied that there had ever been a modification of the contract. Held, that the receipt of such additional pay did not constitute a cancellation of the written contract and a new employment for an indefinite time.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 7.*]</p> <p>4. Contracts (§ 238*) — Oral Agreement — Substitution for Written Contract-Proof.</p> <p>A party relying on a substituted oral agreement for a written contract . must show a meeting of minds as to the new agreement.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1123; Dec. Dig. § 238.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by William Liebowitz against Simon Brinn and others. From a Municipal Court judgment for plaintiff, defendants appeal.</p>

<p>Account Stated (§ 19*)—Evidence.</p> <p>Evidence held insufficient to sustain a judgment for plaintiff on the theory of an account stated.</p> <p>[Ed. Note.—For other cases, see Account Stated, Cent. Dig. § 93; Dec. Dig. § 19.*] •</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by the Wineburgh Advertising Company against the Faust Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Oswald Piering against the Dunham Manufacturing Company. From an order setting aside a-verdict in his favor and granting a new trial, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Frank H. Baker against Benjamin Schwartz and others. From a Municipal Court judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Frank Bernstein against Samuel Feldstein. From a judgment for plaintiff, defendant appeals.</p>

Action by Frossie Scheckter against Julius H. Reiter. From a judgment for plaintiff, and from an order denying defendant’s motion to open his default, he appeals.

<p>1. Courts (§ 190*)—Municipal Courts—Harmless Error.</p> <p>As, under Municipal Court Act (Laws 1902, p. 1561, c. 580) § 248, subd. 2, the court, on plaintiff tailing to appear on the adjourned day, should have dismissed the action, permitting defendant at such time to introduce her testimony, after which the action was dismissed, did not avail either party</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p> <p>2. Courts (§ 190*)—Municipal Courts—Appeal—Default Judgment.</p> <p>A judgment of the Municipal Court of New York City on default of plaintiff is not appealable.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>1. Sales (§ 382*)—Breach by Buyer—Action for Damages—Evidence.</p> <p>In an action for breach of a contract to accept steel beams, evidence of a sale elsewhere was immaterial on the issue as to the extent of the seller’s damage.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig: § 1096; Dec. Dig. § 382.*]</p> <p>2. Appeal and Error (§ 1068*)—Harmless Error—Instructions.</p> <p>Error in instructing as to plaintiff’s measure of damages was harmless, where the jury followed the correct rule and the evidence warranted the verdict.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4225, 4228; Dec. Dig. § 1068.*]</p>

Action by Hyman Korenman and another against Julius Blauner and another. From an order refusing to set aside a default judgment, defendants appeal.

<p>1. Principal and Agent (§ 102*) — Authority of Agent — Incidental Authority.</p> <p>An agent employed to do an act may do It in the way such business is usually done; and where an agent negotiated the purchase of land for his principal and signed the contract, he had incidental authority to engage attorneys to close the title.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 270; Dec. Dig. § 102.*]</p> <p>2. Principal and Agent (§ 155*) — Wrongful Acts of Agent — Fraud—Liability of Principal.</p> <p>If an agent for the purchase of land made a secret agreement with the vendor or his attorneys to influence the sale, contrary to his principal’s interest, such agreement was unconscionable and unenforceable.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 577; Dec. Dig. § 155.*]</p>

<p>Appeal and Erbob (§ 1003*)—Verdict—Conoltjsiveness.</p> <p>A verdict which is not against the evidence and the weight of evidence will not be disturbed on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3938; Dec. Dig. § 1003.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Merritt & Chapman Derrick & Wrecking Company against Benjamin Koronsky and another. From a default judgment in favor of plaintiff, and an order denying a motion to open such default, defendants appeal.</p>

<p>1. Principal and Agent (§ 146*) — Undisclosed Agent — Individual Contract.</p> <p>Where defendant executed a personal obligation to forward plaintiff's watch to Europe, and insure its safe delivery, plaintiff having no knowledge that defendant was acting for any one but himself, the fact that defendant was acting as agent for an undisclosed principal was no defense to defendant’s liability for loss of the watch.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 522; Dec. Dig. § 146.*]</p> <p>2. Appeal and Error (§ 927*)—Review—Presumptions.</p> <p>On appeal from a judgment of dismissal at the close of the plaintiff’s case, he is entitled to have his evidence presumed to be true, and also to all such favorable inferences as can reasonably be drawn therefrom.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. § 927.*]</p>

Action by Harry Woodward and another against J. Henry Neal to recover damages for injuries to a horse. From a judgment in favor of plaintiffs, defendant appeals.

<p>Action by one Bolster against the New York City Railway. Verdict in favor of the defendant, and plaintiff moves to set it aside.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Annie O’Donnell against Howard Caspary. Judgment for defendant, and plaintiff appeals.</p>

Action by Harry Abramowitz against Samuel Abramowitz and another. Motion of defendant for judgment on pleadings.

<p>Appeal and Ebbob (§ 778*)—Motion to Dismiss—Jurisdiction.</p> <p>Rule 3 of the Appellate Division, governing appeals to the Appellate Term from the City and Municipal Courts, provides that if the appellant fails to file the return in the Appellate Term, and print and serve the same on the attorneys for the respondent, within 10 days after the settlement of the case on appeal, the respondent may move to dismiss the appeal. General rules of practice No. 33 provides that, if a party shall omit to make a case within the time limited by rule 32, he shall be deemed to have waived his appeal. Rule 35 provides that where a party makes a case and fails to procure the signature of the judge or referee thereto, and to file the same within 10 days after settlement, his appeal shall be deemed abandoned unless the time for the doing of such acts is extended by order of the court. Held, that such rules give the trial court power to declare an appeal abandoned, and, while an order declaring an appeal abandoned could not preclude appellant from prosecuting the appeal on the judgment roll, a motion to dismiss for failure to make and serve the case on appeal must be made in the trial court, and not in the Appellate Term.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ Sill-3114 ; Dec. Dig. § 778.*]</p>

<p>Appeal and Ekrob (§ 571*)—Abandonment—Relief Against Order—Jurisdiction of Appellate Term.</p> <p>Where defendant, appealing from a judgment of the City- Court, obtains the settlement of his case, but fails to secure the signature of the trial justice thereon, his proper practice is to ask for an extension of time for filing his case; and, where the trial justice enters an order declaring the appeal abandoned under general rules of practice No. 35, a motion will not lie in the Appellate Term to open his default in having failed to file and serve his printed case.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 571.*)</p>

Action by Frank Zambetti and others against Richard S. Carton. From a judgment for plaintiffs after a trial without a jury, defendant appeals.

Action by Morris Speiser against Joseph B. Greitzer. From an ex parte order of the Municipal Court, vacating an ex parte order denying a motion to open defendant’s default, plaintiff appeals.

<p>Husband and Wife (§ 138*)—Agency of Husband fob Wife—Evidence.</p> <p>Where plaintiff did work and furnished materials on the order of defendant’s husband, that defendant was present when her husband gave the order, and that he consulted with her in reference to it, was not sufficient to charge her with liability for payment therefor.</p> <p>[Ed. Note.—Eor other cases, see Husband and Wife, Cent. Dig. § 527; Dec. Dig. § 138.*]</p> <p>MacLean, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by James T. Barry against the American Locomotive Automobile Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Judgment (§ 255*)—Evidence to Support.</p> <p>In an action against two defendants to recover a deposit made on a soda water stand, a judgment against both of them cannot stand, where the uncontroverted evidence shows that the deposit was made with only one of them and that the other never had it or any part of it.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 255.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Skrillow against Marks Rubonovitz. Judgment for defendant, and plaintiff appeals.</p>

<p>Personal injury action by Margaret Sayfaus against the City of Rochester.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Samuel H. Levy and others against Emil Spier. From an order denying a motion to correct the record, defendant appeals.</p>

<p>Appeal from Special Term.</p> <p>In the matter of the application of the O. J. Gude Company for a peremptory writ of mandamus against Edward S. Murphy, as superintendent of buildings. Erom an order denying a motion for a peremptory writ, relator appealed.</p>

<p>1. Sales (§ 442*)—Breach of Warranty—Measure of Damages.</p> <p>A buyer’s measure of damages for breach of a warranty of quality of the goods was the difference between the market value of the goods as they were and their market value if they had complied with the warranty.</p> <p>[Ed. Note.—For other cases, see Sales, Gent. Dig. §§ 1284r-1294; Dec. Dig. § 442.*]</p> <p>2. Sales (§ 442*)—Breach of Warranty—Damages—Evidence.</p> <p>The price at which a buyer resold goods is immaterial on the question of his damages for breach of warranty.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1289; Dec. Dig. § 442.*]</p> <p>3. Sales (§ 52*)—Evidence.</p> <p>Testimony that plaintiff bought goods and that the sale was concluded in a telephone conversation is not satisfactorily contradicted by plaintiff’s statement that he never talked with witness by phone.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 52.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Singer Sewing- Machine Company against Isidor Leipzig and another. From a judgment for plaintiff, defendant Leipzig appeals.</p>

Actions by Harris Resnick and by Frank Resnick against Adrian H. Joline and another, as receivers of the New York City Railway Company. From Municipal Court judgments for plaintiff in each case, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Benjamin Gershel against the White’s Express Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Sales (§ 17*)—Price—Persons Liable.</p> <p>A purchaser of cigars stated that he wished to have certain labels put on them, and then went himself to a lithographic company and ordered the labels, and thereafter made a payment thereon to the company through the cigar dealer. Held, that the transaction imposed no liability on the cigar dealer for the unpaid price of the labels.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 26; Dec. Dig. § 17.*]</p>

<p>Carriers (§ 356*)—Passengers—Contract of Carriage.</p> <p>A passenger who refuses to pay fare, and only offers an invalid transfer ticket, cannot complain of his ejection on the ground of breach of contract of carriage.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1423; Dec. Dig. § 356.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Kathryn M. Parsons against Archie L. Wisner. From a j'udgment for plaintiff, and from an order denying defendant’s motion to set aside the verdict, he appeals.</p>

<p>1. Appeal and Ereoe (§ 1011*) — Review — Findings—On Conflicting Evidence.</p> <p>The Supreme Court will not retry questions of fact decided on conflicting evidence where the conclusion of the trial court was justified according to the apparent credibility of the witnesses.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3983; Dec. Dig. § 1011.*]</p> <p>2. Pabtnebship (§ 239*)—Dissolution—Notice—Effect.</p> <p>Actual notice of the dissolution of a partnership, and that the remaining partner would continue the business on his own account, was sufficient to put one dealing with the partnership upon inquiring as to the remaining partner’s assumption of partnership debts without notice of the exact terms of the dissolution.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 495-499; Dec. Dig. § 239.*]</p> <p>3. Pabtnebship (§§ 239, 241*)—Retibement—Obligations of Old Fibm—Liability of Retiring Pabtneb.</p> <p>Where one dealing with a firm had actual notice of its dissolution, and that the business would he continued by the remaining partner, the retiring partner would be liable to such person only as surety for firm debts contracted while he was a member.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. «§ 495-499: Dec. Dig. §§ 239, 241.*]</p>

<p>Appeal from Surrogate’s Court.</p> <p>In the matter of the appraisal, under the act in relation to taxable transfers of'property, of the property of James Henry Mergentime, deceased. From an order assessing a legacy to the Metropolitan Museum of Art as subject to taxation, it appeals.</p>

Action by Nathaniel Altmayer against Isaac Lahm and another. From a judgment for plaintiff for less than the relief demanded, on a referee’s report, he appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by William Eisenstein against the Maiden Lane Safe Deposit Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by William Dechnyr against Max Germansky. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by George B. Dowling against Willard I. Twombly. From an order adjudging defendant guilty of contempt of court, he appeals.</p>

<p>1. Bbokebs (§ 40*)—Compensation—Services—Actions—Defenses.</p> <p>It is a good defense to an action for procuring a contract for defendant that the services were rendered without any effort or influence of plaintiff’s assignor, and that the agreement relied on by plaintiff was induced by his assignor’s fraudulent representations.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 38-40: Dec. Dig. § 40.*]</p> <p>2. Pleading (§ 214*)—Admission by Demurbeb.</p> <p>The allegations of a counterclaim must be taken as true on demurrer thereto. . .</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 525; Dec. Dig. § 214.*]</p> <p>3. Set-Off and Counterclaim (§ 49*)—Assigned Causes of Action—Ac-</p> <p>tion fob Services—Employé’s Negligence.</p> <p>In an action by an employe’s assignee for services, a counterclaim for loss sustained by the employer through the employé’s neglect and unskillful performance of the service is proper.</p> <p>[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. § 107; Dec. Dig. § 49.*]</p> <p>4. Pleading (§ 195*)—Demurbeb—Subjects.</p> <p>A counterclaim demanding affirmative relief is not demurrable because insufficient in law on its face.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 447; Dec. Dig. § 195.*] -</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Isaac Sturza against the Interborough Rapid Transit Company. From a judgment for plaintiff, defendant appealed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Ada Forman against Joseph Berson. From an order denying a motion to vacate a default judgment, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Lennox D. Barnes against the Summit Silk Manufacturing Company. From a judgment for defendant, plaintiff appeals. .</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Frank Glazer and another against the Old Dominion Steamship Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Morris Weissman against Edward Robertson for wages. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Wolf Smith against Isaac Levine and another. Judgment for plaintiff, and defendant Nathan Lacher appeals.</p>

<p>New Trial (§ 29*)—Misconduct of Counse]>-Yituperation and Indecency.</p> <p>Misconduct of counsel for plaintiff in using coarse and vituperative language and in making indecent references to defendant, to influence the jury and prejudice the verdict, which references are not warranted by anything in the record, requires vacation of a verdict for plaintiff.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 44; Dec. Dig. § 29.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Hudson Companies against John Briemer. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Benjamin Zippert and another, doing business under the firm name of Zippert & Drucker, against the Acme Advertising, Engraving Sc Printing Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Alfred Weiss against Isidor Leichter. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the De Witt Allen Auto Company against David P. Canavan and others. From an order denying defendants’ motion for a new trial, they appeal.</p>

<p>1. Contracts (g 278*)—Performance—Prevention by Other Party.</p> <p>In an action to recover for preventing performance of a contract to alter defendant’s house, where plaintiff’s failure to secure a permit from the building department as agreed was due to defendant’s omission to take steps to take the building out of the jurisdiction of the tenement house commission, which he was to do, plaintiff was not responsible for his failure to secure a permit, so as to bar a recovery.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 278.*]</p> <p>2. Contracts (§ 349*)—Actions—Admissibility oe Evidence.</p> <p>In an action for damages for preventing the performance of a building contract, evidence that defendant’s son, who was in charge of the premises under defendant’s control, ordered the work stopped, was admissible, though he had no special authority to stop the work, being an act of obstruction by one placed in charge of the work and under defendant’s control.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. g 349.*]</p>

<p>Sales (§ Í66*)—Remedies of Buyer—Rescission—Breach of Contract.</p> <p>If a dress sold to defendant was not in accordance with his order when delivered, he had the right to reject it.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 391-400; Dec. Dig. § 166.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Nathan J. Packard and another against George S. Abell. Judgment for defendant, and plaintiffs appeal.</p>

<p>Cabbiebs (§ 3*)—Who Abe Cabbiebs.</p> <p>Where a course of dealings between parties extending over a great number of years showed that one of the parties had always been a forwarder and not a carrier for the other, such party will not be considered a carrier in a particular instance merely because in that instance the special contract was not delivered, in the absence of evidence that the parties had entered into a contract different in character from those they had been In the custom of entering into.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1, 468; Dec. Dig. § 3.*]</p>

<p>1. Courts (§ 190*)—Municipal Courts—Default—Judgments—Appeal. A Municipal Court judgment taken by default is not appealable.</p> <p>[Ed. Note.—For other cases, see Courts Dec. Dig. § 190.*]</p> <p>2. Courts (§ 189*)—Municipal Courts—Stay—Extent.</p> <p>Under Municipal Court act (Laws 1902, p. 1486, c. 580), limiting stays to five days, a stay granted for a longer time was properly disregarded. [Ed. Note.—For other eases, see Courts, Dec. Dig. § 189.*]</p> <p>3. Courts (§ 189*)—Municipal Courts—Default-Vacation.</p> <p>Where defendants relied on an invalid stay, and therefore were unprepared to proceed to trial when their default was taken, the default should be opened on terms to be fixed as prescribed by Municipal Court Act, § 326 (Laws 1902, p. 1583, c. 580).</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Appeal from Municipal Court, Borough of The Bronx, Second District.</p> <p>Action by Adolph D. Ackerman against Matthew W. Berriman and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal- from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Alexander Gieger against Morris Levin. From a judgment for defendant, plaintiff appealed.</p>

<p>1. Landlord and Tenant (§ 154*) — Repairs—Action—Evidence Admissible Under Píeadings.</p> <p>A complaint in an action to recover for repairs made by a lessor alleged a written lease requiring the lessee to make all repairs ordered by the municipal authorities, the order of the authorities requiring the repairs, and the expense of complying with the order on the lessee’s failure to do so. The lessee’s answer merely put the lessor to his proof. Held, that evidence on the part of the lessee that the repairs were necessitated by the failure of the lessor to make repairs as he was bound to, during plaintiff’s tenancy under an earlier lease, was properly excluded as not relevant to the issue.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 154.*]</p> <p>2. Landlord and Tenant (§ 152*)—Repairs—Covenants—Municipal Orders —“Order.”</p> <p>Under a covenant in a lease requiring the lessee to make repairs on “order” of the municipal authorities, a notice from a health department, proved to be official and in customary form, though on a printed form, with merely a printed signature, is an “order,” within the covenant.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 152.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5017-5023; vol. 8, p. 7739.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Rose Plesser against Barnett Appel. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Christian Koch against Charles Cohen. From an order of the Trial Term of the City Court of New York granting a new trial and setting aside the judgment for plaintiff in an action in the City Court, plaintiff appeals.</p>

<p>Brokers (§ 88*)—Compensation—Actions—Question for Jury.</p> <p>In an action for commissions for procuring a contract for the purchase of defendant’s property, where plaintiff claimed that defendant again promised to pay the commissions after the contract was procured, though it was unenforceable until approved by the court, which defendant denied, a jury question was raised, so that it was error to direct a verdict for defendant.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 128; Dec. Dig. § 88.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Actión by Daisy D. Moran against J. Romaine Brown and another, as copartners. From a judgment for plaintiff, defendants appealed.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Isidore Giltman against the Brooklyn Heights Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

'Appeal from Municipal Court, Borough of Manhattan, Second District. Summary proceedings to recover possession of real property by Ray Altschuler against Abraham Dipschitz. From a judgment in the Municipal Court in favor of plaintiff, defendant appeals.

Action by R. Johnson Held against Delia Broadbelt. From a judgment for defendant and an order setting aside an order of substituted service, plaintiff appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Abraham Berrent against William Simpson. From an order denying a motion for a retaxation of the bill of costs, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Aaron Bloch against Gregory Weinstein. From an order vacating a default judgment, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Charles E. Dowdall against George Borgfeldt & Co. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the People against Ada V. Dobbins. From a judgment for the People, defendant appeals.</p> <p>Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the People against Elias Gottfried to recover a penalty for defendant’s alleged violation of the agricultural law by the use of a substance claimed to resemble oleomargarine in his business as a baker. Judgment for the People, and defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Supplementary proceedings by the William A. Thomas Company against Louis Lowenthan and others. " From an order directing the defendant named to execute an assignment, of a judgment, he appeals.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Marcus O. Anthony, against the United Machine & Supply Company. From an order of the City Court requiring defendant to file a verified bill of particulars, it appeals. Modified and affirmed. Stephen Van Wyck, for appellant. Nathan Burkan, for respondent.</p>

<p>Appeal from City Court of New York, Special Term. Action by Bern-hard Baron against the National Surety Company. From orders denying his motion to be made a party defendant, Darius Y. Moses appeals. Affirmed. Darius V. Moses, in pro. per. Kendall & Herzog, for respondent Baron. William J. Bolger, for respondent National Surety Co.</p>

<p>Action by the city of Buffalo against the Buffalo Gas Company.</p>

<p>Appeal from Municipal Court, Borough of Blanhattan, Sixth District. Action by Harris Cohen against the Commercial Advertiser Association. From a judgment for plaintiff, defendant appeals. Affirmed. Frank V. Johnson, for appellant. Morrison & Sehiff, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Joseph De Lawrence against Charles Bacigalupo. From a judgment for defendant, plaintiff appealed. Reversed, and new ‘ trial ordered. Claude W. Gibson, for appellant. Albert W. Duckworth, for respondent.</p>

Action by Jacob Eichwald against the Royal Bank of New York. From a judgment for defendant, after a trial without a jury, plaintiff appeals. Reversed, and new trial ordered. Ward V. Tolbert, for appellant. Samuel Packhard, for respondent.

<p>Action by William F. Irwin, as administrator, etc., against the Grand Trunk Railway Company of Canada.</p>

<p>In the matter of Mary Lewis, deceased.</p>

<p>Action by Grace M. Lake against L. Frank Lake.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Adolf ICovacs against Ackley C. Schuyler. From a judgment for plaintiff, defendant appeals. Affirmed. U. W. Tompkins, for appellant. J. C. Brand, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Catherine Leopold against David M. Baum. From a judgment for defendant, plaintiff appealed. Affirmed. See, also, 110 N. Y. Supp. 1054. Theall & Beam, for appellant. Isaac V. Schavrien, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District. Action by Otto Luppe and others against the Moore & Hunger Company. From a judgment of the Municipal Court in favor of defendant, plaintiffs appeal. Affirmed. Mark Eisner, for appellants. L. E. Warren, for respondent.</p>

<p>Appeal"from City Court of New York, Trial Term. Action by Lucius H. Mellóse against the Grueby Faience Company. Judgment for plaintiff, and defendant appeals. Affirmed. Cary & Robinson, for appellant. C. A. Wilson, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Gerson Neuwirth against Mary Lavery. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered. Michael J. Sweeney, for appellant. Leon Kronfeld, for respondent.</p>

<p>Action by Guiseppe Priolo against the C. H. Southard Wrecking & Trucking Company, impleaded with others. H. J. Hindes, for appellant. F. V. Johnson, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Personal injury action by Abraham Rosenstein against the New York, New Haven & Hartford Railroad Company. From orders and a judgment for plaintiff, defendant appeals. Judgment affirmed. Appeal from orders dismissed. See, also, 111 N. Y. Supp. 718. William Greenough, for appellant. J. W. Block, for respondent.</p>

<p>Appeal from Trial Term, New York County. In the matter of the transfer tax upon the estate of Peter Lorillard Ronalds, deceased. Appeal from an order of the surrogate, affirming an order imposing a tax. Reversed, and assessment vacated. Edgar J. Phillips, for appellants. Henry A. Miller, for respondent.</p>

Action by Jacob Schenkel against Samuel Langweil. From the judgment rendered, plaintiff appeals. Reversed, and new trial ordered. Max Schleimer, for appellant. Henry A. Friedman, for respondent.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Gertrude T. Rothschild against the Empire State Garage. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered. Kneeland, La Fetra & Glaze (Edward B. La Fetra, of counsel), for appellant. Page, Crawford & Tuska (Benjamin Tuska and Abraham Tulin, of counsel), for respondent.</p>

<p>Action by Josephine Strauss against Margaret Thoman. J. A. Delehanty, for appellant. M. Strassman, for respondent.</p>

Action by Jacob Thaler and Isaac Thaler against Julius Blauner and Isidor Blauner. Judgment for defendants, and plaintiffs appeal. Affirmed. B. Breitbart, for appellants. J. Wilkenfeld, for respondents.

<p>Action, by Melvin D. Tucker and another against the Supreme Tent of the Knights of the Maccabees of the World.</p>

<p>1. Shipping (§ 167*)—Carriage of Passengers— Baggage—Actions—Proof.</p> <p>In an action against a steamship company for damage to baggage en route, the printed passage ticket, containing the terms of the contract, was admissible under the general denial.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 554; Dec. Dig. § 167.*]</p> <p>2. Shipping (§ 167*)—Carriage of Passengers— Contracts—Construction.</p> <p>In determining whether a passenger had a cause of action for damage to baggage under the contract for passage, the contract must be construed as a whole.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 554; Dec. Dig. § 167.*]</p> <p>3. Appeal and Error (§ 832-)—Rehearing—Grounds —Defects Relating to Record.</p> <p>Though a judgment of the Supreme Court limiting recovery for loss of baggage to the amount stated in the passage ticket was based upon allegations _ of limited liability in an amended answer contained in the record on appeal, when the amendment had in fact been disallowed below and the original answer did not allege a limited liability, a motion for reargument on that ground will be denied, where there was no objection to the presence of the amended answer in the record, and in view of the fact that an amendment alleging a limited liability would doubtless be allowed on retrial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3215; Dec. Dig. § 832.*]</p>