Volume 114 — New York Supplement

<p>3. Contracts (§ 90*) — Consideration — Simultaneous Agreements — Evidence.</p> <p>On an Issue as to consideration, evidence held to show that a lease and an agreement by the lessor to pay a bonus were executed practically simultaneously.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 410; Dec. Dig. § 90.*]</p> <p>2. Contracts (§ 54*)—Consideration—Mutual Agreement.</p> <p>Where there was a dispute over a bonus to be paid for a lease, the mutual agreement of the parties to settle upon terms stated in an independent instrument was sufficient consideration to support the contract.</p> <p>[Ed. Note.—For other eases, see Contracts, Cent. Dig. §§ 237, 291; Dec. Dig. § 54.*]</p> <p>3. Landlord and Tenant (§ 200*)—Bonus tor Lease—Liability.</p> <p>Under a lessor’s agreement to pay a $300 bonus to lessees, $100 down and $100 on each of two dates, if the lessees should then hold the lease, the lessor is not liable for the last installment where the lessees did not hold the lease when the installment matured.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 794, 795; Dec. Dig. § 200.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. .</p> <p>Summary proceedings to recover possession of real property by Stanislaus Ciletti and another against Feliciano Acierno and another. From a judgment for defendants, plaintiffs appeal. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Kalman Silverman against Devi C. Weir, as president of the Adams Express Company. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the People of the State of New York against M. Frank Dennis and another. From a judgment for defendants, the People appeal. Reversed, and new trial ordered.</p>

, Action by John E. Phelan and another against Fred R. Jones. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.

<p>1. Appeal and Error (§ 931*)—Review—Presumptions.</p> <p>In an action on a note for $50, where defendant admitted the making, delivery, and nonpayment, and counterclaimed for $45, and plaintiff introduced an assignment of the note to him over objection, and judgment was rendered for defendant, it will be presumed on appeal that the assignment was wholly disregarded by the court, and that he considered his overruling of the objection to it as error, since, if he had considered it as evidence, it would have been conclusive of plaintiff’s claim, and he should have recovered for at least $5.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. §§ 3765, 3766; Dec. Dig. § 931.*]</p> <p>2. Courts (§ 189*)—Procedure in Municipal Court—Dismissal.</p> <p>In a Municipal Court action on a note, if plaintiff does not. prove his cause of action because of the insufficiency of an assignment thereof to him, the complaint should be dismissed without prejudice to a new action under the express provisions of Municipal Court Act (Laws 1902, p. 1561, c. 580) § 248, subd. 4, and it is error to render judgment against him on the merits.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Joanna Kehoe against Sara Stern. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Albert Mayer was convicted of a crime, and he moves in the Supreme Court for a certificate of reasonable doubt. Motion granted.</p>

Action by Harry W. Baruch against Thomas C. Platt, as president of the United States Express Company, for the wrongful.detention of goods. From a judgment for plaintiff, defendant appeals. Reversed

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Tillie Reitzfeld against Mary Sobel and another. From a judgment for plaintiff, defendants appealed. Reversed, and new trial ordered.</p>

<p>1. Master and Servant (§ 201*)—Injuries to Servant—Proximate Cause.</p> <p>Plaintiff was injured by the act of another employé, ordered by a foreman whose sole duty was that of superintendence. Held that, while the proximate act was that of the employé, the proximate cause of the injury was the negligent direction of the foreman.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 533; Dec. Dig. § 201.*]</p> <p>2. Master and Servant (§ 252*)—Injuries to Servant—Notice of Injury.</p> <p>An objection to a notice, issued under the employer’s liability act, for insufficiently designating the place of the accident, is untenable, where it affirmatively appears that the master had actual knowledge as to the place, and was in no way misled by the informality of the statement in the notice.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent Dig. § 806; Dee. Dig. § 252.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Thomas J. Smith against Patrick A. Geoghegan. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Principal and Agent (§ 21*)—Evidence of Agency—Testimony of Agent.</p> <p>While agency may not be proven by the alleged ¿gent’s declarations, his own testimony to the fact is competent.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 39; Dec. Dig. § 21.*]</p>

<p>Appeal from-Municipal Court, Borough of the Bronx, First District.</p> <p>Action by Raffaele Borrelli against Emilio Magaldi. Judgment for plaintiff, and defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan,- Seventh District.</p> <p>Action by Henry Tannebaum and another, composing the firm of Tannebaum & Bachmann, against Aaron Nikop and another, composing the firm of Nikop & Kellerman. Judgment for plaintiffs, and defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Isaac Zide and another against Abraham Scheinberg and others. From a judgment for plaintiffs, defendants appeal. Affirmed.</p>

Action by Charles B. Walker, as agent of'the estate of Boring P. Hawes, against Jacob Freedman. From a judgment for plaintiff, defendant appealed. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Moritz E. Ernst and another, doing business as M. E. & C. Ernst, against Henry Rathgeber. From a judgment for plaintiffs, defendant appealed. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Paraffine Paint Company against Charles W. Tarbox. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Stipulations (§ 14*)—Effect— Stipulations as to Issues.</p> <p>In an action for money had and received, to recoved money contributed by plaintiff, whom defendant had insured under a casualty policy, towards settling an injury case against plaintiff, where the defense was a general denial, and both parties proceeded upon the theory that plaintiff’s right to recover rested on the policy, and that defendant’s liability thereunder was excused by plaintiff’s violation of a provision therein requiring immediate notice of the accident, a stipulation by the parties that the only issue was whether insured gave immediate notice to the company of the accident in accordance with the policy, was in effect an amendment of the pleadings, and eliminated all questions except that as to the time the notice was given.</p> <p>[Ed. Note.—For other cases, see Stipulations, Dec. Dig. § 14.*]</p> <p>2. Insurance (§ 665*)—Indemnity Insurance—Actions—Evidence—Notice of Accident.</p> <p>Evidence held to support a finding that insured complied with the provisions of a casualty insurance policy requiring immediate notice to the insurer of an accident.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 665.*]</p>

<p>1. Appeal and Erbob (§ 237*)—Insufficiency op Evidence—Review.</p> <p>Where the insufficiency of the evidence as to minor details, readily supplied, was not made the subject of a proper detailed motion for dismissal, the court on appeal must infer that the evidence was deemed sufficient by the parties.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 237.*]'</p> <p>2. Sales (§ 359*)—Actions—Evidence.</p> <p>In an action for goods delivered pursuant to a contract for their manufacture, evidence held to authorize a recovery.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 359.*]</p>

<p>1. Set-Off and Counterclaim (§ 57*)—Judgment.</p> <p>■ Where, in an action for $300, balance due for work and materials furnished under a written contract, defendant counterclaimed for $285 for the failure of plaintiff to perform the work according to the contract, and the evidence, taken in the most favorable view for defendant, established the claim of plaintiff, a judgment for defendant for the full amount of the counterclaim was erroneous, for plaintiff was entitled to $300, less the amount of the counterclaim.</p> <p>[fid. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. § 128; Dec. Dig. § 57.*]</p> <p>2. Appeal and Error (§ 1178*)—Disposition of Cause on Appeal.</p> <p>While the appellate court has power to ‘modify a judgment, it will grant a new trial where the circumstances require it.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4604, 4605; Dec. Dig. § 1178.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Personal injury action by Phillip Silverman against the City of New York. Judgment of dismissal, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>1. Street Railroads (§ 98*) — Injury at Crossing — Contributory Negligence.</p> <p>Where the motorman had ample opportunity to observe plaintiff in attempting to cross the track where he was injured, plaintiff cannot be charged with contributory negligence because such crossing involved the lessening of the speed of the car.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. § 207; Dec. Dig. § 98.*]</p> <p>2. Street Railroads (§ 103*) —Injury at Crossing — Contributory Negligence.</p> <p>The complaint for injuries' on a street car crossing should not be dismissed, on the ground that plaintiff failed to look at the approaching car after leaving the curb, where the motorman had ample opportunity of observing plaintiff in attempting to make the crossing.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. § 103.*]</p> <p>3. Street Railroads (§ 117*) — Injury at Crossing — Contributory Negligence—Question for Jury.</p> <p>Where there was evidence, in an action for injuries while crossing a street car track, that plaintiff noted the position of the car before leaving the curb, and again as he came to the track, the question whether he was reasonably prudent was for the jury.- •</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. § 257; Dec. Dig. § 117.*]</p>

<p>1. Batiks and Banking (§ 148*)—Payment of Check by Bank—Liability.</p> <p>Where a bank pays a check on another bank, made payable to the order of the payee, to a person who indorsed the payee’s name thereon, if the person had no authority to make the indorsement, the bank is liable to the payee for the face value of the check, with interest. '•</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 441; Dec. Dig. § 148.*]'</p> <p>2. Banks and Banking (§ 155*)—Conversion of Check by Bank—Actions— Burden of Proof.</p> <p>In an action by the payee of a check for conversion thereof against a bank, alleged to have paid the face value to a person who indorsed the payee’s name thereon without authority, the burden was upon the payee to prove that the person had no authority to indorse the check, that the payee never ratified her act in making the indorsement, that he was not estopped by his negligence from claiming that the indorsement was not authorized, and that he suffered damage from the alleged conversion.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 155.*]</p> <p>3. Banks and Banking (§ 155*)—Conversion1 of Ciieok—Action—Evidence.</p> <p>Evidence held to show that a person who indorsed the payee’s name on a check and procured payment thereof at a bank had no authority to make the indorsement.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 155.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by H. M. Rogers & Co. against Joseph Emilio and Joseph Cianco, doing business as Emilio & Co. Judgment for defendants, and plaintiff appeals. Modified and affirmed.</p>

Action by George F. Bingham against Adrian H. Joline and another, as receivers of the New York City Railway Company. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Minnie Brodzak against Solomon M. Robinson. Judgment for plaintiff, and defendant appeals. Reversed.</p>

<p>Shipping (§ 167*) — Transportation of Passengers — Loss of Baggage — Limited Liability.</p> <p>A passenger was bound by a limitation of damages for loss of baggage as expressed in his ticket for an ocean voyage, though the terms of the limitation were not directly brought to his attention.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 554; Dec. Dig. § 167.*]</p>

<p>Courts (§ 189*)—Practice in City Court—Striking Out Pleadings—Placing Cause on Short-Cause Calendar.</p> <p>Where 'it is obvious from the needlessness of amendments that an amended answer in a cause in the City Court of New York is interposed solely for delay, and it is apparent that, if it is permitted to remain and plaintiff is required to give a new notice of trial, he will lose the benefit' of the term for which he had theretofore noticed the cause, an order striking out such answer and placing the cause on the short-cause calendar unless defendant complies with its terms must be affirmed.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

Action by Stark, Rosenthal & Stark against Moe Solomon and others. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by George H. Montrose against Michael Revenson and another on a bond given in the Municipal Court. From a judgment for plaintiff, defendants appeal. Complaint dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Samuel Erankel against the Central Railroad Company of New Jersey. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

Action by John J. Tierney against the Helvetia Swiss Fire Insurance Company and another. From an order striking out a defense, the defendant named appeals. Modified and affirmed.

Proceeding by Solomon L. Pakas against Frank C. Hurley. From an order, defendant appealed. Plaintiff moves to send the return to the trial court for amendments. Denied.

<p>Appeal from City Court of New York.</p> <p>Action on á note by Jennie Becker against Rebecca Horowitz, Isaac Revine, and Harris M. Cohen. From so much of a judgment as dismissed the complaint against defendants Revine and Cohen, plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by George W. Simers against Morris J. Halpern. Judgment-for defendant, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action, by Sowden & Co. against Ethel Murray. From a judgment for plaintiffs, and an order denying a stay of proceedings, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the B. Petzoldt Company against Harry. Cohn and another. . Judgment for plaintiff, and defendants appeal. Reversed.</p>

Actions by James J. Archbold and by Johanna Young against Adrian N. Joline and another, as receivers. From judgments for plaintiffs, defendants appeal. Reversed, and new trials ordered.

Action by Abraham Abrams against Samuel Turkel and others. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

<p>Appeal from Kings County Court.</p> <p>William Engeman and others were indicted for keeping a device for gambling. From an order sustaining a demurrer to the indictment, the People appeal. Affirmed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Hans Anderson against Catherine Carell. From a judgment for plaintiff, defendant appealed. Affirmed.</p>

Summary proceedings by the Eagle Tube Company against John McDonald and another to recover possession, of real estate. From a final order in favor of defendant, plaintiff appeals. Reversed.

Dispossess proceedings by Thomas White and others against Joseph Mormando. From two final orders in favor of plaintiffs, defendant appeals. Reversed, and new trials ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Joseph Pfeiffer against Adrian H. Joline and Douglas Robinson, as receivers of the New York City Railway Company. Judgment for plaintiff, and defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Henry J. Weinfeld against Fr. Bergner & Co. From an interlocutory judgment for plaintiff, and from an.order overruling a demurrer to the complaint, defendants appeal. Reversed, and demurrer sustained.</p>

Action by Dora Laschinsky against David L. Tuhna and others. From an order setting aside a verdict rendered for plaintiff, she appeals. Reversed, and verdict reinstated.

<p>Action by Felix McCabe against the New York Central & Hudson River Railroad Company. Judgment for defendant on the merits.</p>

Supplementary proceedings by Charles A. Goldreyer, judgment creditor, against Abraham Shatz and another, judgment debtors. From an order adjudging defendant Vincent C. Corrier guilty of a contempt, he appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Jacob Schlesinger against the Louis Meyer Realty Company and Louis Meyer on a promissory note. From a judgment for plaintiff, defendants appeal. Reversed as to both defendants, and new trial ordered.</p>

<p>1. Evidence (§ 442*)—Oral Agreement Contemporaneous with Writing.'</p> <p>In an action by an assignee for money deposited in escrow for the payment of alleged claims against property, where the escrow agreement is silent as to the disposition of the money in case it is not all used for the purpose specified, parol evidence is admissible to show a contemporaneous agreement that any balance in defendant’s hands after compliance with the agreement might be retained by him and credited on account of his claims against the person making the deposit.</p> <p>[Ed. Note.—For other eases, see Evidence, Cent. Dig. §§ 1874-1899; Dec. Dig. § 442.*]</p> <p>2. Set-Off and Counterclaim: (§ 49*)—Nature of Claim.</p> <p>Contemporaneous with the deposit of money with defendant for the payment of certain claims against the property of the depositor, the latter agreed that any balance of the money remaining after payment of such claims should be retained by defendant to apply on claims by him for services rendered. Meld that, in an action by a subsequent assignee of the fund after the conditions of the deposits had been complied with, defendant may set up his rights under such contract to the money as a counterclaim.</p> <p>[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 107-117; Dec. Dig. § 49.*]</p>

Action by Ella O. Codman and others against William B. Adamson and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Action by Vincent C. Pepe against Maria Curti. From a final order in summary proceedings, entered in favor of plaintiff, as landlord, defendant, as tenant, appeals. Dismissed.

<p>Appeal from Special Term, Queens County.</p> <p>Action by Robert L. Meyer against Lewis Johnston. Judgment for defendant, and plaintiff appeals. Affirmed.</p>

Action by Sam Epstein against Jacob Gordon and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.

<p>Attorney and Client (§ 129*)—Liabilities of Attorney—Actions—Evidence—Sufficiency.</p> <p>In an action against an attorney for breach of his agreement to record an assignment of a liquor tax certificate with power of attorney to surrender it, whereby a subsequent assignee was enabled to surrender the certificate and collect therefor, evidence held to show that plaintiff himself retained the assignment and neglected or refrained from recording it, so that a verdict for plaintiff should be set aside as against the weight of the evidence.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 289; Dec. Dig. § 129.*]</p>

<p>1. Juey (§ 79*)—Drawing Juey.</p> <p>Though Code Civ. Proe. § 2991, provides for the drawing “forthwith” of a jury by a justice of the peace, yet the parties then stipulating that he may draw it later in the presence of the constable, he has jurisdiction to do so, and in their absence.</p> <p>[Ed. Note.—For other cases, see Jury, Dec. Dig. § 79.*)</p> <p>2. Juey (§ 38*)—Definition.</p> <p>The word “jury,” as used in the Constitution, means’ a jury of men possessing such qualifications as the law in force at the time prescribes for jurors serving in the courts and selected from one of the lists in use by the courts.</p> <p>[Ed. Note.—For other cases, see Jury, Dec. Dig. § 38.*</p> <p>For other definitions, see Words and Phrases, vol. 4, • pp. 3889-3894.]</p> <p>3. Juey (§ 82*)—Improper Drawing of Jury.</p> <p>- Even if the drawing of a jury is improper, the justice of the peace does not thereby lose jurisdiction; he having power to draw another jury under Code Civ. Proc. § 2997, if for any cause the venire is set aside.</p> <p>[Ed. Note.—For other cases, see Jury, Dec. Dig. § 82.*]</p> <p>4. Juey (§ 110*)—Drawing—Waives of Objection:</p> <p>Defendant, by appearing on the day of trial, and answering and taking part in the proceeding before objecting to the jury as it had been drawn, waived objection on that account.'</p> <p>[Ed. Note.—For other cases, see Jury, Cent. Dig. § 513; Dec. Dig. § ' 110.*]</p>

<p>1. Insurance (§ 603*)—Accident Policy—Release—Setting Aside.</p> <p>Where a release from liability under an accident policy, is shown to have been procured by fraud, the mere fact that insured has not tendered back the consideration of the release is of no importance; the amount due him under the policy being greater than what he has received.</p> <p>[Ed. Note.—For other eases, see Insurance, Dec. Dig. § 603.*]</p> <p>■2. Insurance (§ 603*)—Accident Policy—Release.</p> <p>That an accident insurance company made a hard bargain with insured in procuring a release from liability under his policy is in itself no reason for setting aside the release, in the absence of fraud.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 603.*]</p> <p><$. Fraud (§ 16*)—Concealment of Facts.</p> <p>Where parties deal at arm’s length, failure by one party to disclose what he knows does not ordinarily constitute fraud.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 15; Dec. Dig. § 16.*]</p> <p>•4. Fraud (§ 13*)—Fraudulent Representations.</p> <p>If statements, however literally true, were calculated to mislead, they were as fraudulent as if they were false.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 3; Dec. Dig. § 13.*]</p> <p>5. Insurance (§ 603*)—Accident Policy—Release—Setting Aside.</p> <p>Where the medical examiner and claim adjuster of an accident insurance company knew that insured had been permanently disabled, which insured did not, he believing that his disablement was only temporary, and sought him out and obtained a release from liability from him on the basis that he had been but temporarily disabled, insured is entitled</p> <p>■ to rescind the release and recover the full amount under the policy for permanent disablement.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 603.*]</p> <p>6. Insurance (§ 228*)—Accident Policy—Cancellation—Estoppel.</p> <p>Notwithstanding an accident policy, provided for a cancellation at the option of the insurer, the insurer is estopped to cancel the policy after injury to insured on the ground that he had become an extrahazardous risk, where the injury itself rendered the risk more hazardous.</p> <p>[Ed, Note.—For other cases, see Insurance, Dec. Dig. § 228.*]</p>

<p>1. Mortgages (§ 257*)—Foreclosure—Equities.</p> <p>Equities existing between the mortgagor and mortgagee at the time of the assignment of the mortgage, if adequate, are available against the assignee, though he had no actual notice when he took the assignment.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 678; Dec. Dig. § 257.*]</p> <p>2. Bills and Notes (§ 395*)—Notice of Dishonor of Check—Necessity.</p> <p>One accepting a check from the drawer and depositing it for collection takes it subject to the general rules affecting negotiable instruments, and Negotiable Instruments Law (Laws 1897, pp. 739, 741, c. 612) §§ 160, 174, require him to give to the drawer notice of dishonor, or he must show as a fact that the drawer was not entitled to notice under section 185, because he had no funds at the bank to meet the check when he gave it.</p> <p>[Ed. Noté.—For other cases, see Bills and Notes, Cent. Dig. § 1010; Dec. Dig. § 395.*]</p> <p>3. Mortgages (§ 256*)—Foreclosure by Assignee—Equities.</p> <p>A mortgage gave the mortgagee the right to elect to treat the whole debt due on interest and installments remaining unpaid after 10 days from the date fixed for payment. The mortgagor delivered to the mortgagee his check for interest and installments due January 1st. The mortgagee accepted it as conditional payment and deposited it for collection. The check was returned dishonored January 7th. ■ Notice of protest was'not mailed to the mortgagor until January 21st. The mortgagee assigned the mortgage on January 13th, and on the following day the assignee sued to foreclose. The mortgagor tendered the installments, with interest, on being served with the papers in the action. Held, that the mortgagee was responsible for the technical default of the mortgagor, because he failed to give notice of the dishonor of the check, and equity would relieve the mortgagor from the default as against the assignee.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 678, 679; Dec. Dig. § 256.*]</p>

<p>Action by Samuel Heyman against John Steich. Judgment for plaintiff.</p>

<p>Action by Charles R. Macaulay against George Holsten. Motion to set aside directed verdict for plaintiff denied.</p>

<p>Action by Otto M. Doppmann against Helena M. Doppmann, individually and as executrix, and another. Judgment for defendants.</p>

Action by Louis Leavitt against David Matzkin and others, in which action an attachment issued. From a judgment for plaintiff, and an order denying a motion to vacate the attachment, defendants appeal. Reversed, and complaint dismissed.

In the matter of the claim of Charles F. Johns against the Village of Salamanca and another for damages for a change in the grade of a street. From an order affirming in part and disaffirming in part the report of commissioners appointed to ascertain the damages suffered by the petitioner, Charles F. Johns, both parties appeal. Reversed and report of commissioners vacated and a rehearing ordered before new commissioners.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Wilkes-Barre Realty Company against Harry Levy. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>1. Costs (§ 254*)—Appeal —Stenographer’s Minutes.</p> <p>The amount paid for a copy of the stenographer’s minutes, obtained for the purpose of properly preparing amendments to the case on appeal, is a taxable disbursement.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. § 974; Dec. Dig. § 254.*]</p> <p>2. Appeal and Error (§ 533*)—Record—Opinion of Trial Court.</p> <p>Under the rule that appellate courts can only consider those papers which the order itself by its recitals shows were before the lower court, the' opinion of the lower court was no part of the record on appeal from an order striking out an item from the bill of costs.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2339; Dec. Dig. § 533.*]</p>

<p>Appeal from Special Term, Queens County.</p> <p>Action by Henrietta Adler against the Brooklyn Heights Railroad Company. From an order allowing plaintiff costs, defendant appealed. Affirmed.</p>

<p>1. Trusts (§ 34*)—Deposits m Banks in Trust.</p> <p>One depositing in a savings bank his own money in trust for his children, unaccompanied by any contract obligation with reference to the deposit, or by a transfer to the children of the bank book, retains the Ownership of the deposit for life, with the right of withdrawal; and the children surviving him are only entitled to the balance of the deposit remaining at his death.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 44; Dec. Dig. § 34.*]</p> <p>2. Taxation (§ 879*)—Transfer Taxes—Gifts.</p> <p>One depositing his own money in a savings bank in trust for his children thereby grants to them interests taking effect in possession or enjoyment at his death, and such interests are taxable under the transfer tax law.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1702; Dec. Dig. § 879.*]</p> <p>3. Taxation (§ 895*)—Transfer Taxes—Property Subject.</p> <p>Where the provisions in a will in favor of testator’s widow are stated to be in lieu of dower, and the widow elects to accept them, the estate is not to be diminished for purposes of taxation under the transfer tax law, by the value of her dower right.</p> <p>[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 895.*]</p>

<p>1. Taxation (§ 865*)—Transfer Taxes—Property Subject.</p> <p>A joint deposit in a savings bank, made up of sums previously given by decedent to his wife, is not taxable under the transfer tax law.</p> <p>[Ed. Note.—Eor other cases, see Taxation, Dec. Dig. § 865.*]</p> <p>2. Taxation (§ 865*)—Transfer Taxes—Property Subject.</p> <p>A deposit in a savings bank in trust for another is taxable, after the death of the depositor, under the transfer tax law, so far as the deposit represents deposits made by the deceased depositor out of his own funds. [Ed. Note.—Eor other cases, see Taxation, Dec. Dig. § 865.*]</p> <p>3. Taxation (§ 895*)'—Transfer Taxes—Property Subject.</p> <p>A claim in favor of a decedent, which has no present value, must be deducted from the taxable estate for the purpose of taxation under the transfer tax law.</p> <p>£Ed. Note.—Eor other cases, see Taxation, Dec. Dig. § 895.*]</p>

. Proceedings by William D. Bllwanger for the probate of the will of George Bllwanger, in which Helen C. Ellwanger and another contested the probate of the second codicil to the will. Will and first codicil admitted to probate, and probate of second codicil denied. The answers of the contestants alleged that the decedent was not of sound mind and memory when he made the said codicil, and that the same was procured by undue influence and fraud.

Proceedings by Maynard N. Clement, as State Commissioner of Excise, for the seizure of certain intoxicating liquors, wherein Thomas E. Harden appeared and answered as defendant. Motion by defendant for costs. Motion denied.

Action by Nathan J. Packard and another against Julius Figliuolo. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered.

<p>Courts (§ 189*)—Municipal Courts—Bill of Particulars.</p> <p>A justice of the Municipal Court has no power to dismiss a complaint for plaintiff’s failure to file a bill of particulars on demand. Proper practice requires that the penalty for the failure be dependent on an order.</p> <p>• [Ed. Note.—For other cases; see Courts, Dec. Dig. § 189.*]</p>

<p>1. Mechanics’ Liens (§ 73*)—Right to Lien—Owner’s Consent to Repairs— “Consent.”</p> <p>Where a tenant was required by a lease to make repairs at his own expense, a mere general consent by the owner that the tenant should make certain temporary small repairs did not constitute “consent,” within the mechanic’s lien law (Laws 1897, p. 514, c. 418)..</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. § 101; Dec. Dig. § 73*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1437-1441; vol. 8, p. 7612.]</p> <p>2. Husband and Wife (§ 25*)—Acts of Husband—Agency fob Wife.</p> <p>The mere relation of husband and wife does not make the husband agent for the wife, so as to bind her by his acts.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 148; Dec. Dig. § 25.*]</p>

<p>Appeal from City Court of New York.</p> <p>Action by Gilbert Ray Hawes against Edward D. Birkholz. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Ernest D. Kahn against Charles M. Guggenheimer. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial ordered.</p>

<p>Execution (§ 377*)—Supplementary Proceedings—Statutes—Residence op Debtor.</p> <p>Code Giv. Proc. § 2458, provides that a judgment on which supplementary proceedings may be based must have been rendered on the debt- or’s appearance or on personal service for a sum not less than $25, and execution must have been issued out of a court of record, either to the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceedings, a place for the regular transaction of business in person, etc. Held, that an affidavit under such provision, made October 26, 1908, alleging that execution was issued on October 14, 1905, to the sheriff of New York county, where the judgment debt- or at the time had its office and place for the transaction of its business, it being a domestic corporation, and that it never had any place of business outside of New York, and had none “now,” was insufficient, for failure to show that the debtor had a place for the regular transaction of business in New York county at the commencement of the proceedings.</p> <p>[Ed. Note.—For other cases, see Execution, Dec. Dig. § 377.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by C. A. Duerr & Co. against J. B. Craven. . From a judgment for defendant, plaintiff appeals. Affirmed..</p>

Action by the Reedy Elevator Company against Silberstein & Silver, Incorporated, and others. From a judgment for plaintiff, defendants •Max Silberstein and Hyman Silver appeal. Reversed as to appellants, and new trial granted.

<p>1. Appeal and Ebbob (§ 882*) — Questions Review able — Questions Not Raised in Tbial Court.</p> <p>A party to a written contract, who first ottered parol evidence of the custom of the trade to which the contract related, and who made no objection to the rebuttal evidence of the adverse party, could not, on appeal, complain that the evidence of custom was inadmissible, as varying the written contract.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3597; Dec. Dig. § 882.*]</p> <p>2. Sales (g 52*)—Contbacts—Passing op Title—Evidence.</p> <p>Evidence held to support a finding that plates engraved specially for a cústomer did not, after the completion of the work, remain the property of the manufacturer, but became the property of the customer.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. g 52.*]</p>

<p>1. Courts (§ 190*) — Municipal Courts—Appeal—Time for Taking—When Time Begins to Run.</p> <p>Under Municipal Court Act (Laws 1902, p. 1578, c. 580) § 311, providing that an appeal must be taken within 20 days after the entry of the judgment, the time within which an appeal may be taken begins to run from the time the judgment is actually entered in the docket book, and' not from the date of the decision on which the judgment was entered.</p> <p>[Ed. Note.—For other cases, see Courts, Dee. Dig. § 190.*]</p> <p>2. Judgment (§ 215*)—Rendition—What Constitutes.</p> <p>Indorsement of the decision of the trial justice on the papers in the case is not a rendering judgment.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 215.*]</p> <p>3. Courts (§ 189*)—Municipal Court—Entry of Judgment.</p> <p>. When the justice of the Municipal Court orally or in writing communicates his decision to the clerk, he has fulfilled his judicial duty, which is imperatively to be performed within the time fixed by statute, and the entry or recording of the decision as a judgment is merely ministerial, and may be validly performed afterwards.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. .§ 189.*]</p> <p>4. Courts (§ 190*)—Municipal Court—Appeal—Notice of Appeal—Time for Serving.</p> <p>Where judgment was entered in the Municipal Court on August 3d, a notice of appeal dated December 26th was too late.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p> <p>5. Trial (§ 387*)—Trial by Court—Time for Rendering Decision.</p> <p>Where defendant’s attorney was given until a certain date in which to file his brief, the justice was not compelled to wait until that time before giving Ms decision, provided defendant filed his brief prior thereto.</p> <p>[Ed. Note.—For other cases, see Trial, Dec. Dig. § 387.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>■ Action by Victoria Nathan against Julia Morgenthau. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Harry Alexander against Mary A. Costello. From a judgment and order dismissing the complaint, plaintiff appeals. Affirmed.</p>

Action by Robert L. Deslie and another against Rae Ginsberg and others. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered.

Action by Harry Rosenbaum against Hannah Paletz, Rebecca Siegel, and Sarah Barr. From a judgment for plaintiff, defendants Siegel and Barr appeal. Reversed, and' new trial ordered.

<p>1. Contracts (§ 322*)—Actions foe Beige—Defenses—Beeach of Warranty —Evidence.</p> <p>In an action for services and material furnished in the removal of a gas engine from certain premises, altering the same into a gasoline engine, and installing it in defendant’s residence, evidence held to show breach by plaintiff of a guaranty by him that the engine would work satisfactorily.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 322.*]</p> <p>2. Conteacts (§ 316*)—Performance—Warranty—Beeach—Waives.</p> <p>The breach of a guaranty that an engine removed from one place and altered and installed in another would work satisfactorily was not waived by a letter, written by the person in whose favor the guaranty was made, in which he promised to pay for the engine although he knew it was not running according to contract, where the letter was induced by unperformed promises of the guarantor to fix the engine.</p> <p>[Ed. Note.—Eor other cases, see Contracts, Cent. Dig. § 1480; Dec-Dig. § 316.*]</p> <p>3. Contracts (§ 171*)—Construction—Separate Clauses.</p> <p>A contract to transform a gas engine into a gasoline engine and install it, accompanied with a guaranty that it would furnish a certain amount of power and that it would not vary more than 5 per cent, in its running, was a single and entire contract, though separate quotations were given on the cost of transforming and- the cost of installing, and hence did not entitle the person making the guaranty to recover either for the transformation or the installation, where the engine did not work according to the guaranty.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 754; Dec. Dig. § 171.*]</p>

<p>1. Sales (§ 364*)—Action fob Pbice—Instbuctions—Applicability to Evidence.</p> <p>In an action for the price of a fur coat purchased upon approval, which defendant claimed was not approved by his wife and was returned to plaintiff by one of her employes, wjiere the evidence authorized a finding that the coat was called for by the employé on plaintiff’s authority, it was error to instruct that defendant must connect plaintiff with the redelivery of the coat directly or by circumstances justifying an inference that she was a party to obtaining the coat from defendant to defraud him.</p> <p>[Ed. Noté.—For other cases, see Sales, Dec. Dig. § 364.*]</p> <p>2. Mastbb and Sebvant (§ 6*)—Employment—Sufficiency of Evidence.</p> <p>In an action for the price of a coat sold subject to return on disapproval, where defendant claimed it was returned on disapproval by a boy in plaintiff’s employment, evidence held to justify a finding that the boy was employed by plaintiff when he received the coat and called for it on her authority.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 6.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Samuel Levine and another against Laura G. Field and another. From a judgment for plaintiffs, defendants appeal. Reversed.</p>

Action by the Boston Excelsior Company' against the Continental Asphalt Paving Company, impleaded with the City of New York. From a judgment for plaintiff, defendant Paving Company appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Max Greenbaum against Jacob Greenfield and others. Judgment for plaintiff, and defendants appeal. Affirmed.</p>

<p>1. Estoppel (§ 87*)—Representations.</p> <p>Where plaintiffs and defendant employed an agent to sell goods for them on their separate accounts, each party to pay a portion of the agent’s commissions, and, on the agent threatening suit for services, defendant told plaintiffs to charge him (defendant) with sales to a certain amount, whereupon plaintiffs, relying on the statement, settled with the agent on that basis) defendant was estopped, in an action by plaintiffs to recover the amount of commissions paid by them in excess of their share, to claim that the agent sold less than the amount stated.</p> <p>[Ed. Note.—For.other cases, see Estoppel, Cent. Dig. § 230; Dec. Dig. § 87.*]</p> <p>2. Accord and Satisfaction (§ 9*) — Compromise and Settlement (§ 6*) — Part Payment — Check Conditioned * on Acceptance as Payment in Full.</p> <p>If there was a dispute as to the amount due plaintiffs, the acceptance and use by them of a check to their order, reading “in full to date for all claims,” constituted an accord and satisfaction, and that plaintiffs thereafter wrote defendant, acknowledging receipt of the amount of the check in part payment and requesting payment of the balance claimed by them, was immaterial.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Dec. Dig. § 9 ;* Compromise and Settlement, Cent. Dig. § 36; Dee. Dig. § 6.*]</p>

Action by Anna Gross against Nathan F. Rivkin and others. From á judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Katherine Dalton against the New York Taxicab Company. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Lee G. Lawrence and another, as trustees, against the Edwin A. Denham Company. From two final orders in summary proceedings in favor of plaintiffs, defendant appeals. Reversed.</p>

<p>Judgment (§ 197*)—Dismissal for Failure of Proof.</p> <p>Failure of plaintiff to connect defendant with the ownership of the cab which collided with defendant’s carriage does not entitle defendant to a dismissal “on the merits,” so that, on motion, the judgment should be amended by striking out such words.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 359; Dec. Dig. § 197.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Barbara Patocka against the Prudential Insurance Company of America. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>1. Insurance (§ 606*)—Burglary Insurance—Action on Policy—Evidence —Settlement with Customers.</p> <p>In an action by an express company on a policy of burglary or larceny insurance, assuming to indemnify for the value of goods lost, Insurer could not show the plaintiff’s settlement with the consignors whose property was stolen, since the benefit of any arrangement between the express company and the consignors whereby the company’s liability was limited would not accrue to insurer.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 606.*]</p> <p>2. Evidence (§ 186*)—Judgment Roll in Another Action—Admissibility.</p> <p>The judgment roll in another action between the same parties was admissible as the best existing evidence to show the existence of an exhibit which had been lost, and which was material to the cause of action at bar.</p> <p>[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 186.*]</p> <p>3. Insubance (§ 560*)—Proofs of Lo'ss—Sufficiency—Waiver.</p> <p>Insurer against burglary and larceny waived the sufficiency of proofs of loss by retaining them, and passing some of, the claims for payment, without objecting to the sufficiency of proof.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1393-1396; Dec. Dig. § 560.*]</p> <p>4. Insubance (§ 623*)—Time bob Suing—Waives.</p> <p>Insurer against burglary and larceny waived a provision of the policies requiring suit to be brought within a specified time where the claims were passed for payment.</p> <p>[Ed. Note.—For other eases, see Insurance, Cent. Dig. §§ 1551-1553; Dec. Dig. § 623.*]</p> <p>Ford, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Jefferson Bank against the Montifiore Realty Company and others. From a Municipal Court judgment by inquest upon defendant’s default, and an order, defendant appeals. Dismissed.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Clement H. Smith against the Guarantee Dental Compány. From a judgment for plaintiff, defendant appealed. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Aaron Kuflick and another against Abraham Glasser and another. From a judgment for plaintiffs, defendants appeal. Reversed,- and new trial ordered.</p>

<p>Auctions and Auctioneers (§ 11*)—Actions by Auctioneers—Evidence— Admissibility.</p> <p>In an action by auctioneers for the difference between the amount of defendant’s original bids for the goods and the sum they brought upon a resale on a refusal by defendant to take the same, evidence as to the relation between the auctioneers and the firm on whose account the goods were sold, relative to the ownership of the goods, was improperly excluded, notwithstanding the only defense was a general denial, as it was essential to plaintiffs’ recovery that they show either ownership in themselves or that the goods had been intrusted to them under such circumstances as would constitute them trustees of an express trust, and thus enable them to bring the action in their own name.</p> <p>[Ed. Note.—For other cases, see Auctions and Auctioneers, Dec. Dig. § 11.*]</p>

Action by Charles P. Braitsch against the Kiel & Arthe Company. From a judgment dismissing the complaint, at the close of plaintiff’s evidence, on a trial without a jury, plaintiff appeals. Affirmed.

<p>1. Bills and Notes (§ 351*)—Transfer After Maturity—Bights of Indorsee.</p> <p>An indorsee of a note after maturity acquired only such rights against the makers as his indorser had.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 878; Dec. Dig. § 351.*]</p> <p>2. Bills and Notes (§ 317*)—Transfer After Maturity—Rights of Indorsee.</p> <p>An assignment of a note by the payee after its maturity and dishonor gives the transferee no rights superior to the payee’s.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Dec. Dig. § 317.*]</p> <p>3. Bills and Notes (§ 49*)—Accommodation Notes—Maker’s Liability.</p> <p>The payees of a note made for their accommodation had no rights against the makers.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 66; Dec. Dig. § 49.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Domenico Caseri against August Wogelsong. Judgment for plaintiff, and, from an order granting a new trial and vacating an order of arrest, and releasing the sureties on the bail bond, and from another order denying a motion to resettle such order, plaintiff appeals. Reversed, and motion denied.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Proceedings by Lewis Kressner against Aniello Manganaro. From a final order for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Bbokees (§ 66*)—Compensation—Actions—Defenses.</p> <p>In an action for a commission for securing a loan, it is no defense that plaintiff was bound to divide the commission with another, where the agreement for the commission was made with plaintiff alone, for whether such other is entitled to share it is solely a question between him and plaintiff.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 51; Dec. Dig. § 66.*]</p> <p>2. Appeal and Ebbob (§ 1050*)—Harmless Ebbob—Admission of Evidence.</p> <p>The admission, in an action for a commission for securing a loan, of an unsigned application, even if erroneous, was not prejudicial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1050.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Frank Galli against Fortunato Scatena and others. Judgment-for plaintiff, and defendants appeal. Affirmed.</p>

Action by Ernest V. Edel against E. Francis Hillenbrand and another, partners as Hillenbrand & Nassoit. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

<p>1. Vendos and Purchases (§ 17*)—Contract—Conditions Precedent.</p> <p>A vendor upon agreeing to sell property, and accept a mortgage on other property as a part of the price, could require the delivery of the mortgage to his attorney for examination as a condition precedent to his agreement to sell.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Dec. Dig. § 17.*]</p> <p>2. Brokers (§ 54*)—Compensation—Sufficiency of Services—Ability of Purchaser to Perform.</p> <p>It was not necessary, in order to entitle a real estate broker to commissions for land sold, that the purchaser should be able to perform at the time the contract was signed, but only at the time fixed for passing title.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 76; Dec. Dig. § 54.*]</p> <p>3. Evidence (§ 121*)—Res Gestas—Conversations.</p> <p>In an action by a real estate broker for commissions for procuring a purchaser for property, conversations between plaintiff and the intended purchaser were admissible as a part of the res gestee to show what plaintiff did toward procuring a purchaser.</p> <p>[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 121.*]</p> <p>4. Brokers (§ 85*)—Actions for Compensation—Admissibility of Evidence —Willingness of Purchaser.</p> <p>In an action by a real estate broker for compensation for procuring a purchaser for property where defendant denied liability, the intended purchaser was properly allowed to testify that he. was ready and willing to take the property upon defendant’s terms.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 85.*]</p> <p>5. Trial (§ 62*)—Reception of Evidence—Rebuttal Evidence.</p> <p>In an action for commissions for procuring a purchaser for property, where defendant denied liability because part of the price was a mortgage on other property which was held by a third person when the contract was made, the court properly exercised its discretion in allowing plaintiff to testify in rebuttal that the particulars respecting the mortgage were given defendant, though the testimony was not strictly in rebuttal.</p> <p>[Ed. Note.:—For other cases, see Trial, Dec. Dig. § 62.*]</p>

Action by Jacob Kaplan, an infant, by Mary Kaplan, his guardian ad litem, against Louis Sher. From an order granting a motion to punish defendant for contempt, he appeals. Reversed.

<p>Evidence (§ 420*)—Parol Evidence—Note—Condition Precedent.</p> <p>In an action on a note given for certain saloon fixtures, evidence that plaintiff was to use the note only in the event defendant should dispose of the fixtures or ruin them, that defendant had not disposed of them, but had offered to return them, what defendant had paid for his place of business, and the business relation which had existed between plaintiff and those from whom he purchased, was not admissible, under the rule that parol evidence may be received to show that a written instrument sued on was not to be binding until the performance of a condition precedent.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1943; Dec. Dig. § 420.*]</p>

Action by George Wright against Emil Berger. From a judgment for plaintiff, and from an order denying a motion to set aside the verdict, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Saratoga Auto Top & Body Company against Howard C. Whitney. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court,' Borough of Manhattan, First District.</p> <p>Action by Harry Tobenkin against Gustav M. Piermont and others to foreclose a mechanic’s lien. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed, with leave to plead over.</p>

Proceedings for the settlement of John Frankenheimer and another, as executors of the last will and testament of Louis Gans, deceased. From a decree of the Surrogate’s Court (60 Mise. Rep. 282,112 N. Y. Supp. 259) settling the accounts of the executors, Sara G. Hackes and others appeal. Modified.

Action by Paul Muller against Sarah Shufeldt and another. Judgment for plaintiff, and defendants appeal. Reversed, and a new trial ordered.

Application by the City of New York respecting an unsafe building owned by Jacob Levy and leased by Morris Somach. From an order vacating a notice of lis pendens, the City appeals. Affirmed.

<p>Action by the Salvation Army in the United States against the American Salvation Army. Complaint dismissed.</p>

<p>1. Appearance (§ 9*)—Special Appeabance—Objections to Jurisdiction.</p> <p>A defendant may appear specially to deny the court’s jurisdiction over him, and, by doing so, does not lose the right to contest the court’s jurisdiction. • i i” .</p> <p>[Ed; Note.—For other cases, see Appearance, Cent. Dig. § 43; Dec. Dig. § 9.*]</p> <p>2. Judgment (§ 818*)—Foreign Judgments—Judgments op State Courts— Want of Jurisdiction—Impeachment.</p> <p>A judgment of a court of another state may be impeached for want of jurisdiction over the person or subject-matter, when drawn into question in the courts of this state.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1458; Dec. Dig. § 818.*]</p> <p>3. Process (§ 83*)—Service—Personal Service—Service Without State.</p> <p>Process of the tribunals of one state will not run into another state to summon parties there domiciled to answer proceedings against them in the state of the forum.</p> <p>[Ed. Note.—For other cases, see Process, Dec. Dig. $ 83.*]</p> <p>4. Judgment (§ 17*)—Default Judgment—Process to Sustain—Service by Publication—Service on Nonresidents.</p> <p>A nonresident cannot be summoned by service by publication in the state of the forum so as to impose a personal liability upon him.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 28; "Dec. Dig. § 17.*]</p> <p>5. Process (§ 48*)—Actions In Rem—Personal Service—Necessity.</p> <p>Personal service is only necessary in actions in personam, and where the action is in rem, and the court has jurisdiction over the res, service to obtain jurisdiction of the person of the-owner of the res is unnecessary. .</p> <p>[Ed. Note.—For other cases, see Process, Cent. Dig. § 46; Dee. Dig. § 48.*]</p> <p>6. Actions (§ 16*)—Nature—Actions in Rem and in Personam Distinguished-Actions in Personam.</p> <p>An action in personam is one against a specified person, while an action in rem is one to establish the status or condition of a thing without respect to any person, and in its strict sense is applied to proceedings directly against property, but is also applied to actions between parties, the direct object of which is to affect property in which they have an interest</p> <p>[Ed. Note.—For other cases, see Actions, Cent. Dig. § 91; Dec. Dig. § 16*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3479, 3481-3483 ; vol. 8, p. 7684.]</p> <p>7. Trusts (§ 167*)—Actions Against Trustee—Process—Necessity of Personal Service.</p> <p>An action against a trustee personally to divest him of title in the trust property is an action in personam, and not in rem, so that personal service upon him is necessary to support the judgment.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 219; Dec. Dig. § 107.*]</p>

<p>Action by Helen M. Barnes, an infant, etc., and another, against Arthur H. Waterman, individually and as sole surviving executor, etc., of Robert T. Hicks', deceased.</p>

In the matter of the application of the Board of Rapid Transit Railroad Commissioners for the City of New York for the appointment of three commissioners, etc. Brooklyn and Manhattan Loop Lines, Brooklyn Sections.

<p>Action by Louis Brown against Fannie Grossman.</p>

<p>In the matter of the accounting of Albert Bodine, administrator, etc., of Mary A. Bodine, deceased.</p>

<p>Action by Lorenzo Duncan against the Nassau Electric Railroad Company and another.</p>

<p>Action by John J. Fish against Henrietta Hahn.</p>

<p>Action by Fred W. Giegerich against August Kuhnla.</p>

<p>Action by George Ringler & Co. against Henry Mohl. J. A. Hodge, for appellant. D. M. Neuberger, for respondent.</p>

<p>In the matter of the application, etc., of William H. Hodgins against Theodore A. Bingham, etc.</p>

<p>Action by William L. Johnson against the Wellington Copper Mining Company. M. E. Harby, for appellant. C. A. Boston, for respondent.</p>

<p>Action by Frank Logerto against the Central Building Company.</p>

<p>Action by Louis F. McFadden against John A. Innes. T. D. Rambaut, for appellant. E. W. Persons, for respondent.</p>

<p>In the matter of the application of Henry H. Moses for letters of administration of the goods, chattels, and credits of Caroline H. Cook, deceased.</p>

<p>Action by Celia Reilly, as administratrix of David Reilly, deceased, against the Troy Brick Company.</p>

<p>Application for injunction by Alfred Seton and others, as trustees under the will of Peter Lorillard, against the City of New York and William R. Willcox and others, as the Public Service Commission for the First District of the State of New York, and another. Injunction granted. Reversed in Appellate Division (114 N. Y. Supp. 565).</p>

<p>Action by Joséph Strauss against the St. Louis County Bank.</p>

<p>Action by John F. Tolson against the National Provident Union.</p>

<p>Action by Frank W. Wilson against Mary Ewald, as executrix. With this case has been consolidated in this court cases bearing titles as follows: Heuer v. Sire; Fleischman v. Mengis; Granit v. Sherlip; Hawes v. Berkholz; New York Mail Co. v. Joline et al.</p>

<p>Action by Albert Brandly against the American Butter Company. B. N. Cardozo, for appellant. J. P. Everett, for respondent.</p>