Volume 115 — New York Supplement

<p>Action by B. T. De Witt Miles against the Casualty Company of America. Motion by plaintiff for a general verdict on facts found by the jury, and motion by defendant for a new trial. Judgment ordered for plaintiff.</p>

<p>Action by James W. Wadsworth against the Board of Supervisors of Livingston County and others. Judgment for plaintiff.</p>

Action by Clarence L. Barber against Charles H. EUingwood and another. From an order directing a compulsory reference, plaintiff appeals. Reversed, and motion denied.

<p>1. Bankruptcy (§ 159*)—Preferences—Conveyance of Land.</p> <p>A trustee in bankruptcy can recover land on showing that bankrupt was insolvent when he deeded it to defendant; that the transfer enabled defendant, as a creditor, to obtain a greater percentage of his debt than other creditors of the same class; that defendant had reasonable cause to believe that the conveyance was intended to give him a preference; and that the petition in bankruptcy was filed within four months after the deed was recorded.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 159.*]</p> <p>2. Bankruptcy (§ 100*)—Adjudication—Conclusiveness.</p> <p>In an action by a trustee in bankruptcy to avoid a deed by the bankrupt as an unlawful preference under the bankruptcy act, an adjudication of bankruptcy on the express ground that, when the deed was made within four months preceding the filing of the petition, bankrupt was insolvent, is conclusive against defendant grantee.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 100.*]</p> <p>3. Bankruptcy (§ 166*) — Preferences — Bankrupt’s Intent — Notice to Creditor.</p> <p>A creditor has reasonable cause to believe that a deed to him by insolvent was intended as a preference over other creditors if he had knowledge or notice of facts sufficient to put a reasonably cautious, prudent person upon inquiry.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 256, 257; Dee. Dig. § 166.*]</p> <p>4. Bankruptcy (§ 4*)—Bankruptcy Law—Purpose.</p> <p>The intent of the bankruptcy law is to equally distribute the assets of insolvents among their creditors and to prevent preferences and favoritism.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec Dig. § 4.*]</p> <p>5. Bankruptcy (§ 303*)—Preferences—Creditor’s Knowledge—Evidence— Sufficiency.</p> <p>Evidence held to show that a creditor had reasonable cause to believe that a deed to him by insolvent was intended as a preference within the bankruptcy law.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p> <p>6. Bankruptcy _(§ 303*)—Preferences—Suit to Avoid—Evidence.</p> <p>In an action by a trustee in bankruptcy to avoid an unlawful preference, defendant creditor could introduce other parts of the record in the bankruptcy proceedings to show that the petition on which the adjudication was based was -not the one received in evidence in such action, but, in the absence of such evidence, the court must assume that the petition acted upon by the bankruptcy court is the one produced; the trustee not being required to produce the whole record to have the benefit of the adjudication proved.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Frederick Salzer against the Sheffield Farms Slawson Decker Company. From a judgment for plaintiff, defendant appealed. ' Affirmed and modified.</p>

<p>Sales (§ 441*)—Warranty of Quality—Evidence.</p> <p>Evidence held insufficient to show a warranty of quality in a sale of canned tomatoes.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 441.*]</p> <p>Dayton, J., dissenting.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Hyland P. Rice against Daniel Neuman. From a judgment for plaintiff, and from an order denying a new trial, defendant appealed. Reversed, and new trial ordered.</p>

<p>Pleading (§ 369*)—Election Between Defenses.</p> <p>, It being incumbent on plaintiff, in an action on an oral contract to perform certain work at an agreed price, to prove both his contract and the agreed price, and that the work had been properly performed, defendant had the right to deny the making of the contract, or that, if made, it was as claimed by plaintiff, and he could further show that the work was not properly performed; and hence a denial of this right by a ruling of the trial court compelling him to elect on which defense he would stand was error.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1201; Dec. Dig. § 369.*]</p>

<p>1. Corporations (§ 672*)—Foreign Corporations—Compliance with Law-Pleading.</p> <p>To establish a cause of action on a contract made in the state, a foreign stock corporation doing business within the state must allege and prove compliance with General Corporation Law (Laws 1890, p. 1063, c. 563) § 15, requiring such corporations to procure a certificate to do business; but, as the prohibition by the statute of the enforcement of contracts made by a foreign corporation extends only to actions on contracts made in the state by a foreign stock corporation other than a moneyed corporation doing business in the state, unless the complaint shows such facts as to the character of the corporation and that it does -business in the state and that the contract was made therein, the complaint is not demurrable because it fails to allege that the required certificatecJwas procured.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2647; Dec. Dig. § 672.*]</p> <p>2. Courts (§ 189*)—Municipal Courts—Complaint—Sufficiency—Jurisdiction of Parties.</p> <p>A complaint in the New York Municipal Court, alleging that plaintiff was a foreign corporation, and failing to show that any of the parties reside in the city, is not demurrable, as showing want of jurisdiction, since Municipal Court Act (Laws 1902, p. 1497, c. 580) § 25, subd. 3, provides that where all of the parties reside out of the city the action may be brought in any district, and it is as inferable from the complaint that all the parties are nonresidents as it is to the contrary.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Isaac Shulman against Rafaelle Damico. From a judgment for plaintiff, defendant appealed. Reversed, and new trial ordered.</p>

Action by Nathan Kleinberg and another against Emil Deutsch for goods sold and delivered. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.

Action by Dudley S. Harde and Herbert S- Harde against Gertrude E. Purdy. From an order denying a motion for an adjournment, and directing the taking of an inquest, defendant appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Maurice Konheim and another against Louis Meryash and Albert London, copartners, for services. From a judgment for plaintiffs, defendant London appeals. Reversed as to him individually, and as to the partnership.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Max Aronson and others against the H. B. Claflin Company. From a judgment for plaintiffs, after trial without a jury, defendant appeals. Reversed, and new trial ordered.</p>

<p>Evidence (§ 598*)—Weight and Sufficiency—Preponderance.</p> <p>In an action by a stenographer for services rendered upon the employment of an attorney, the attorney testified that he engaged plaintiff with the consent of defendant’s representative, which such representative denied. The value of the service was not questioned, nor was the attorney's testimony corroborated. Seld, that the evidence was insufficient to show by a preponderance that defendant authorized the employment of plaintiff, so as to render it liable for his services.</p> <p>[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 598.*]</p>

<p>■ Appeal from City Court of New York, Trial Term.</p> <p>Action by Samuel Ziegler against Charles E. Smith for services. Erom an order granting defendant’s motion to open his default, plaintiff appeals. Affirmed.</p>

<p>Street Railroads (§ 117*)—Collision with Workman—Contributory Negligence.</p> <p>The question of contributory negligence of one employed by a contracting company to stand between the tracks of a street railroad and warn, with a flag, people against approaching an excavation, who, while waving a flag at a team, got too near one of the tracks and was struck by a car coming, without warning, from the rear, in which direction, having a view for three blocks, he had looked just before commencing to signal the team, is one of fact.</p> <p>[Ed. Note.—For other cases, see Street Sailroads, Cent. Dig. §§ 255-257; Dec. Dig. § 117.*]</p> <p>MacLean, J., dissenting.</p>

<p>Costs (§ 112*)—Security for Costs.</p> <p>In the First department of the Supreme Court the right to security for costs because of nonresidence of plaintiff, as an absolute one, must be asserted before service of answer.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 463, 466; Dec. Dig. § 112.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Samuel Holtzman, an infant, against M. Cohen & Bro. From a judgment for plaintiff, defendants appealed. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Percival Kuhne and others against Alfred Kramer on defendant’s oral promise to pay an existing debt. From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Solomon Katz and another against Levi C. Weir, as president of the Adams Express Company. Judgment for defendant, and plaintiffs appeal. Affirmed.</p>

<p>Appeal frohi Municipal Court, Borough of Manhattan, First District. - -</p> <p>: Action by Benjamin Lasker against Louis H. Guterman; From an order in favor of defendant, plaintiff appeals. Dismissed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Alfred W. Durante against Albert Raimon and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Max Schlesinger against Henry A. Ritchie and another, partners as Henry A. Ritchie & .Co. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>1. Action' (§ 45*)—Joinder—Separate Causes.</p> <p>An action on a contract for labor and materials and an action for extra work, labor, etc., though separate causes of action, may be joined In one complaint, where they are owned by the same party.</p> <p>[Ed. Note.—For other cases, see Action, Cent Dig. § 431; Dec. Dig. § 45.*]</p> <p>2. Action (§ 53*)—Splitting Causes or Action.</p> <p>An action on a contract for labor and materials and an action for extra work being separate causes of action, an action brought by the assignee of the claim for extra work, etc., was not objectionable as infringing the rule against splitting causes of action.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 593-623; Dec. Dig. § 53.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action tiy Arnold Kaiser and another against Lewis W.° Marks. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Reversed, and judgment ordered for defendant.</p>

<p>Bailment (§ 16*)—Conversion by Bailee—Actions—Damages—Evidence.</p> <p>In an action for conversion of unbound books delivered to defendant for binding, evidence as to the retail price of the books, without proof of public demand therefor or net profits per volume, does not constitute a proper measure of damages, so as to authorize a recovery.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. § 74; Dec. Dig. § 16.*]</p>

<p>Street Railroads (§ 99*) — Collision with Team—Contributory Negligence.</p> <p>When plaintiff drove his horse onto a street car track, an approaching car was from 10 to 15 feet distant. The evidence was conflicting as to whether the collision occurred at the intersection of two streets, where the street car company had a preferential right, or a short distance beyond, where the rights of both parties were equal. Held that, whether the collision occurred at the one place or the other, plaintiff was negligent and could not recover.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. § 214; Dec. Dig..§ 99.*]</p>

<p>1. Pleading (§ 367*)—Motion—Bill of Particulars—Sufficiency of Motion. •</p> <p>A motion, In the alternative, to require defendant to make the answer more definite and certain or serve a bill of particulars, was bad in form.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1173; Dec. Dig. § 367.*]</p> <p>2. Pleading (§ 323*)—Bill of Particulars—Affidavit—Sufficiency.</p> <p>Code Civ. Proc. § 531, empowering the court to direct a bill of particulars in any case upon application and notice, by implication requires the application to contain a statement verified upon personal knowledge or from other proper sources, and an affidavit by plaintiff’s attorney, supporting a motion for a bill of particulars of the matters in the answer, stating that he had no personal knowledge of the matters pleaded by defendant, “and neither has the plaintiff, as I verily believe,” was insufficient.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 978; Dec. Dig. § 323.*]</p>

<p>Bbokeks (§ 40*)—Right to Commissions.</p> <p>Defendant, having, before acceptance, withdrawn his offer for purchase of land carried by plaintiff on his books for sale for the owner, no promise or word with reference to payment of commissions by defendant being shown, is not liable for commissions.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 40.*]</p>

Action by Morris -Yudelman against Jacob Eouis. From a judgment for defendant, rendered in the Municipal Court, plaintiff appeals. Reversed, and new trial ordered.

<p>Courts (§ 190*)—Costs (§ 214*)—Excessiveness—Remedy.</p> <p>Where, on dismissal in the Municipal Court, costs were improperly taxed against plaintiff, his remedy is by0motion for retaxation, as authorized by Municipal Court Act (Laws 1902, p. 1589, c. 580) § 342, and not by appeal. . -</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190;* Costs, Dec. Dig. § 214.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Joseph R. Picone against Alfred Freeman. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Elmer E. Johnson and another against Vennette F. Pelletreau and others. Judgment for plaintiffs, and defendants appeal Affirmed.</p>

<p>Corporations (§ 519*)—Liability for Tort of Officer—Evidence.</p> <p>Evidence in an action to hold a corporation liable for the tortious act of its officer held insufficient; it being necessary that there be clear, affirmative, or strong circumstantial evidence that he was acting in the scope of his authority while engaged in its business.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 519.*]</p>

<p>1. Brokers (§ 84*)—Actions for Commissions—Burden of Proof.</p> <p>In an action for commissions for procuring two lessees for certain premises, plaintiff must prove his cause of action, regardless of how few witnesses are produced by defendant.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 104, 105; Dec. Dig. § 84.*]</p> <p>2. Brokers (§ 86*)—Actions for Commisstqns—Sufficiency of Evidence.</p> <p>In an action for commissions for procuring lessees for certain premises, evidence held insufficient to show any value of plaintiff’s services.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.'</p> <p>Action by the Lozier Motor Company against Henry M. Ziegler. From a judgment granting insufficient relief, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by John Yule against Samuel Platt. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>Judgment (§ 588*)—Bar—Actions Not Precluded.</p> <p>An unsatisfied judgment for work, labor, and materials does not preclude a subsequent action for fraud in inducing plaintiff to contract, discovered by plaintiff after obtaining the first judgment; plaintiff being able to tender a discharge of the first judgment on trial or assessment of his damages in the second action.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 588.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Ingomar Goldsmith' and another against Cornelius Crowley and others. From a judgment for defendants, -plaintiffs appeal. Affirmed.</p>

<p>1. Pleading (§ 121*)—Answer—Denials.</p> <p>Under Code Civ. Proc. § 500, a denial in an answer of any knowledge or information sufficient to form a belief is a proper and sufficient form of controverting a material allegation of the complaint.</p> <p>LEd. Note.—For other cases, see Pleading, Cent. Dig. § 245; Dec. Dig. § 121.*]</p> <p>2. Pleading (§ 358*)—Fbivolotjs Pleading—Remedy.</p> <p>There is no provision for “striking out” a defense as “frivolous”; Code Civ. Proc. § 537, providing only for a judgment thereon.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1097; Dec. Dig. 5 358.*]</p> <p>3. Pleading (§ 358*)—Frivolous Pleading—Remedy.</p> <p>Plaintiff, whose motion is founded on matters in an answer being “frivolous,” cannot invoke the provisions of Code Civ. Proc. § 538, which are only for striking a “sham” answer or defense.</p> <p>[Ed. Note.—For other cases, see Pleading", Cent. Dig. § 1097; Dec. Dig. § 358.*]</p> <p>4. Pleading (§ 93*)—Answer—Inconsistent Defenses.</p> <p>Under Code dv. Proc. § 507, allowing as many defenses in the answer as defendant has, he may put his defense on distinct and even inconsistent grounds.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 189; Dec. Dig. § 93.*]</p> <p>5. Pleading (§ 364*)—Motion to Strike—Irrelevant Matter—“Irrelevant.”</p> <p>The answer, in an action for injury to one while in defendant’s employ, raising the question of the employment by defendant of such person, a material allegation of the complaint, is not “irrelevant,” within Code Civ. Proc. § 545, allowing the striking out of irrelevant matter in a pleading.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1156; Dec.,Dig. § 364*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3771-3772.]</p>

. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by James B. Swing, as trustee of -the creditors and stockholders of the Union Mutual Fire Insurance Company of Cincinnati, against Charles Kaufman and William Strauss. From a judgment for plaintiff for $103.56, defendants .appeal. Reversed.

Action by Nicholas A. McManus against the City of New York and another. From a judgment of dismissal as against the city, and an order setting aside the verdict against the other defendant, plaintiff appeals. Order of dismissal reversed, and new trial ordered as to defendant city; order setting aside verdict reversed, verdict reinstated, and judgment directed against the other defendant.

<p>1. Evidence (§ 400*)—Extrinsic Evidence—Contract fob Sale of Land.</p> <p>Where a contract for the sale of city lots is based on a map which shows the depth of the lots as 71 feet, the purchaser, in a suit to recover the money paid, cannot show that it was represented that the lots were 100 feet deep.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1780; Dec. Dig. § 400.*]</p> <p>2. Vendor and Purchaser (§ 110*)—Contracts—Stipulations—Breach.</p> <p>Under a contract for the sale of a city lot, in which the vendor stipulates to build granolithic sidewalks, the purchaser two years thereafter may not rescind the contract and recover his money back because the walks have not been built, where the lot sold was only one of many comprising a single enterprise, and the stipulation manifestly referred to the whole enterprise.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent Dig. § 196; Dec. Dig. § 110.*]</p> <p>MacLean, J., dissenting.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Joseph Zuckerman against Ignatz Witkowski. From an order of the New York City Court, denying plaintiff’s motion to disr continue the action, he appeals. Reversed. Motion granted.</p>

<p>1. Costs (§ 272*)—Appeal—Dismissal.</p> <p>While an appeal from an order of the Municipal Court denying a motion to compel the giving of costs, from which no appeal lies, will be dismissed, with costs, yet, such court having been without authority to entertain the motion—Code Civ. Proe. § 3347, subds. 13, 14, being inapplicable, and not made applicable by Municipal Court Act, § 20, to such court, it not being one of record—the costs of dismissal should be paid from the costs improperly imposed on denial of the motion, and any balance should be returned.</p> <p>' [Ed. Note.—For other cases, see Costs, Dec. Dig. § 272.*]</p> <p>2. Landlord and Tenant (§ 211*) — Repairs and Care of Lawn—Reduction of Rent.</p> <p>In the absence of reference in an agreement for renting to the matters of repairs and care of lawns, the tenant can have no reduction on account thereof, whatever the provision in a prior lease, expired and of no effect.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 844, 845; Dec. Dig. § 211.*]</p> <p>3. Landlord and Tenant (§ 200*)—Rent—Nonuse of Heat—Exercise of Option.</p> <p>Under an agreement to occupy premises at a certain rent per month, to be reduced a certain amount, optional with the tenant choosing not to use the heating plant service, he is entitled to no reduction, in the absence of proof of exercise of the option.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 200.*]</p> <p>4. Landlord and Tenant (§ 211*) — Renting Agreement — Allowance for Moving.</p> <p>Under an agreement for occupation of premises till a certain date, the tenant to receive notice in case the premises were sold and possession was desired, and, if possession was desired, to receive an allowance for expense of moving, he, having remained in possession till expiration of the period of hiring and made no claim for such expenses, was not entitled to deduction from his rent on account thereof.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 211.*]</p>

<p>Action by one Eagan against the Board of Education to recover balance of salary. Judgment for plaintiff.</p>

<p>Action by one Eagan against the Board of Education. Judgment for plaintiff. On motion, under Code Civ. Proc. § 3245, by defendant for costs: Denied.</p>

Action by Reis & O’Donovan, Incorporated, against the Automatic Mail Delivery Company, Incorporated. From a judgment for plaintiff, defendant appeals. Reversed, and new trial, ordered, unless plaintiff stipulates to accept reduced recovery, in which case, modified and affirmed.

<p>1. Evidence (§ 215*)—Admissions Against Interest.</p> <p>In an action for the price of supplies and work in repairing defendant’s automobile, pursuant to a contract made with defendant’s chauffeur and ratified by defendant, letters written by plaintiff to defendant, stating that plaintiff had allowed the chauffeur a discount on the materials and the work, were admissible against plaintiff as admissions against interest, as showing a violation by him of Pen. Code, § 384r, making one giving a bonus to an agent guilty of a misdemeanor.</p> <p>[Ed. Note*.—For other cases, see Evidence, Cent. Dig. § 756; Dec. Dig. § 215.*]</p> <p>2. Contracts (§ 141*)—Illegality—Evidence.</p> <p>In an action for the price of supplies and work in repairing defendant’s automobile pursuant to a contract made with defendant’s chauffeur, evidence heU to show that plaintiff allowed the chauffeur a discount on the materials and work, in violation of Pen. Code, § 384r.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 141.*]</p> <p>3. Contracts (§ 105*)—Illegality—Violation of Statute.</p> <p>Where plaintiff, who furnished supplies and work in repairing defendant’s automobile pursuant to a contract on defendant’s behalf with his chauffeur, paid to the chauffeur a discount in violation of Pen. Code, § 384r, he could not recover; the contract being void as against public policy.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 477; Dec. Dig. § 105.*]</p>

<p>Motion by the People, on the relation of one Horowitz, for a writ of mandamus against one Coggey, Commissioner of Correction of the City of New York. Motion granted.</p> <p>Order modified on appeal. See 115 N. Y. Supp. 836.</p>

<p>Action by one Benvega and by one Musco against the United States Surety Company. Demurrer to complaint overruled.</p>

<p>Landlord and Tenant (§ 233*) — Action for Rent — Dismissal of Counterclaim.</p> <p>In an action for rent, where the complaint alleged and the answer admitted that defendant as plaintiff's tenant under a lease had not paid the rent for part of the term, and a counterclaim for damages for failure of plaintiff to perform its covenant in the lease to furnish heat on certain days was not made out, it was properly dismissed, and judgment rendered upon the indebtedness under the lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tepant, Dec. Dig. § 233.*] Dayton, J., dissenting.</p>

Action by Samuel Gelb against Louis Waller and others. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

<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. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by John C. Thacke against Louis Hernsheim. From a judgment for plaintiff, defendant appeals. Reversed. - Argued before GILDERSLEEVE, P. J., and MacLEAN and DAYTON, JJ.</p>

<p>Bills and Notes (§ 370*)—Bona Fide Purchases.</p> <p>B. had a lease on a basement for a café and restaurant, the lease prohibiting the lessor from renting any other part of the building for the sale of liquors, and K. subsequently leased the remainder of the building and an adjoining building; and B. being informed that a former waiter was to be the occupant of the adjoining búilding, which was being connected with the building in which B. was located by an opening through a main wall, bought off the possibility of his former waiter’s competition by executing notes to K. It did not appear that IC. knew of the restriction in B.’s lease as to renting for a liquor business, nor whether the premises adjacent to the building in which B. was located were more closely related to it than contiguous. Held, that, B. being conversant with all the surroundings, including the restriction in his lease, and choosing to buy his peace rather than depend upon the restriction in his lease to keep away competition, his notes given for that purpose were valid obligations, even in K.’s hands, and K. gave good title to them when he sold them for what, he was willing to take and his purchaser to give, for a valuable consideration and before maturity, though the purchaser knew nothing of B. and omitted to inquire.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Dec. Dig. § 370.*]</p>

Action by Adolph Schwartz against Annie Smoke. From a judgment for defendant on her counterclaim, and from an order denying a motion to set aside the verdict and for a new trial, plaintiff appeals. Affirmed.

<p>1. Witnesses (§ 268*)—Cross-Examination.</p> <p>In an action by one bank against another to. recover money paid on a check, plaintiff claiming that the payee’s indorsement had been forged, and defendant claiming that the indorsement was made by one W. and ratified by the payee, a witness of defendant testified to conversations with the payee’s president about the check and others indorsed by the payee, and that the conversations were subsequent to the time when plaintiff claimed the check in suit to be a forgery. The payee’s president, on cross-examination by defendant, admitted a conversation with witness. Held, that it was error to exclude questions whether during the conversation the subject of the indorsement of the checks drawn to his company’s order was discussed, whether he had stated that he had an employs named W. who had left his employ, and as to what conversation he had with witness at that time; the questions being proper cross-examination.</p> <p>[Ed. Note.—Por other cases, see Witnesses, Cent. Dig. § 941; Dec. Dig. § 268.*] ‘ '</p> <p>2. Witnesses (§ 330*)—Credibility oe Witness—Cross-Examination.</p> <p>The payee’s president having admitted a conversation with defendant’s witness, and having testified that neither he nor his company had authorized any one to indorse the check, questions asked him on cross-examination as to what the president stated to him at that time in reference to W., as to what he stated in reference to the subject of indorsements on the check, whether he had not stated something in regard to having received the proceeds of checks, indorsements upon which had not been authorized when they were made, and, if so, what his statement was, and what he said as to the indorsement of the check in suit and other checks which had gone through defendant’s bank, were improperly excluded; they calling for declarations against interest and going to the credibility of the payee's president as a witness.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.*]</p>

<p>Trial (§ 2*)—Trial op Cases Together.</p> <p>Plaintiff having brought two actions against the same defendant on the same written guaranty, it was error for the trial court to dispose of both cases on the evidence taken in one, in the absence of any stipulation that both cases should be tried together, or that the one tried should govern</p> <p>the disposal of the other, or that the evidence taken should be considered as taken in both cases.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§- 3-5; Dec. Dig. § 2.*]</p>

Action by John Lutz and another against Philip Kalmus and another. , From an order of the City Court granting the motion of defendant Kalmus to cancel a judgment in favor of plaintiffs, they appeal. Affirmed.

<p>1. Evidence (§ 179*)—Best and Secondary.</p> <p>Secondary evidence of the contents of a written contract may be given, where the adverse party has the'original and refuses to produce on notice.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 595-599; Dec. Dig. § 179.*]</p> <p>2. Master and Servant (§ 41*) — Breach of Contract by Master — Measure of Damages.</p> <p>Where plaintiff was ready and able to perform a written contract of employment, but performance was prevented by the other party, plaintiff is entitled as damages to the difference between what she would have earned, if allowed to perform said contract, and what she actually did earn.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 50-53; Dec. Dig. § 41.*]</p>

<p>Master and Servant (§ 80*)—Contract of Employment—Discharge of Employé—Remedies.</p> <p>A contract of employment for a year provided for commissions on sales by the employé and for an advancement of $75 weekly and $100 in addition thereto while on the road, and stipulated that moneys drawn during the year by the employé should be deducted from the earnings at the end of the year on a settlement. The employé whs discharged three months before the end of the year. He had received $5,261.96, of which $1,150 was paid him for traveling expenses and the commissions earned were $3,964.30. Held, that the employé could not maintain an action for the weekly advancements subsequent to his discharge; but his remedy, if any, was to sue for an accounting.</p> <p>[Ed., Note.—For other cases, see Master and Servant, Dec. Dig. § 80.*]</p>

<p>Appeal from Justice Court.</p> <p>Filiation proceedings by Joseph W. Webb, as overseer of the poor of the town of Roseboom, against Luther D. Hill. From an order of filiation, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Jerome W. Rosenthal against Frederick Forman. ' From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of Albany. '</p> <p>Action by the Equitable Trading Company against William J. Stoneman and another. Judgment for plaintiff, and defendants appeal. Affirmed.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Solomon Feist against Weingarten Bros., incorporated. From an order determining which of conflicting orders was the order of the court, defendant appeals. Affirmed, with leave to comply with its terms.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Louisa Cesa against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Justus Frankel against the United States Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Action by John J. Cone against Addie A. Lauer. Judgment for defendant, dismissing the complaint, with costs.</p> <p>Affirmed on appeal, 115 N. Y. Supp. 1116.</p>

<p>Application by the Delaware, Lackawanna & Western Railroad Company against the City of Buffalo for a temporary injunction. Injunction continued.</p>

<p>Costs (§ 149*)—New Trial—Trial Costs.</p> <p>Where a party, successful in the first trial, is also successful on the second trial, after reversal of the judgment, with costs to appellant to abide the event, he is not entitled to tax two items of costs, before and after notice of trial.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. § 576; Dec. Dig. § 149.*]</p>

<p>Work and Labor (§ 3½*)—Expenses Incurred.</p> <p>In an action for services, plaintiff was entitled to recover, in addition to the value of such services, money paid by him for work done for him by another in connection with the services at defendant’s request.</p> <p>[Ed. Note.—For other cases, see Work and Labor, Dec. Dig. § 3%.*] MacLean, J., dissenting in part.</p>

<p>1. Sales (§ 201*)—When Title Passes.</p> <p>On the sale and delivery of a horse, either with or without warranty, the title at once passes to the purchaser.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 529, 530; Dec. Dig. § 201.*]</p> <p>2. Sales (§ 120*)—Breach of Warranty—Remedy of Buyer—Rescission.</p> <p>Where there is an express warranty in the sale of a horse, which is untrue, the warranty is broken at once, and the vendor becomes liable in damages; but the purchaser cannot for that reason refuse to accept the horse or return it.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 294; Dec. Dig. § 120.*]</p> <p>Dayton, X, dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eirst District.</p> <p>Action by James Madden against William Bullock. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Action by Julia Mehrle against the American Bridge Company of New York. From a judgment for plaintiff, and from an order refusing to vacate the judgment, defendant appeals. Affirmed.

<p>1. Courts (§ 189*)—Municipal Courts—Election Between Causes.</p> <p>A bill of particulars, filed in the Municipal Court, setting forth one cause of action for breach of contract and another for fraud, filed after the joinder of issue on an oral complaint and answers for breach of contract, does not require plaintiff to elect on which cause he will proceed, as the bill of particulars does not enlarge the cause of action set out in the complaint.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*]</p> <p>2. Contracts (§ 303*)—Breach of Contract.</p> <p>Defendant agreed for a specified fee to inspect plaintiff’s “electric installation for the purpose of determining the correctness of charges for a current,” and without extra charge to audit bills for one year from date of the contract, and “all bills for past two years, and guarantee to obtain rebates on all overcharged bills to date or refund the fee paid under this contract.” Held, that plaintiff cannot claim a breach of contract in failing to obtain rebate for overcharges, without proof of the presentation to defendant of such bills to be audited.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1425; Dec. Dig. § 303.*]</p> <p>Dayton, J., dissenting.</p>

<p>1. Fish (§ 1*)—Public Property—Nature of Right.</p> <p>Fish running in a river are ferae naturae, and while in their natural element, unconfined, are the common property of the people of the state, in which no person can acquire private rights without reducing them to actual possession.</p> <p>[Ed. Note.—For other cases, see Fish, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>2. Waters and Water Courses (§ 40*)—Rights of Landowner.</p> <p>The water that flows over the land of a person is not his property, he at most having only a usufructuary right therein, and must so use it as not to unnecessarily and unreasonably impair its usefulness by other riparian proprietors.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 32; Dec. Dig. § 40.*]</p> <p>3. Waters and Water Courses (§ 53*)—Dam—Right to Maintain.</p> <p>The right of riparian owners to maintain a dam in a stream is subject to the rights of the public to use the waters in any way they may be practically utilized.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 53.*]</p> <p>4. Fish (§ 8*)—Propagation—Obstruction by Dams—Regulation.</p> <p>A riparian owner’s right to maintain a dam in a river was subject to the right of the Legislature to require the construction and maintenance of fishways therein so as to prevent the obstruction of the free passage of fish up the stream to the detriment of other riparian proprietors or the public within the state’s right to regulate fisheries.</p> <p>[Ed. Note.—For other cases, see Fish, Cent. Dig. § 16; Dec. Dig. § 8.*]</p> <p>5. Fish (§ 8*)—Regulation.</p> <p>The Legislature may regulate the taking of fish from the streams of the state, whether from public or private waters.</p> <p>[Ed. Note.—For other cases, see Fish, Cent. Dig. § 16; Dec. Dig. § 8.*]</p> <p>6. Navigable Waters (§ 1*)—“Navigable River.”</p> <p>A river is navigable if the tide ebbs and flows therein, or if it is in fact navigable during some season of the year for the floatage of boats, lighters, rafts, logs, etc.</p> <p>[Ed. Note.—For other cases, see Navigable Waters, Cent. Dig. §§ 5-9; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4675-4684; vol. 8, p. 7728.]</p> <p>7. Constitutional Law (§ 93*)—Fish—Fishways—Statutes—Vested Rights —Validity.</p> <p>Laws 1828, p. 155, c. 142, authorized the construction of a dam in the West branch of the Delaware river which had been previously declared to be a public highway, limiting the height of the dam to 24 inches above the water level, and providing for a sluiceway which afforded a sufficient fishway. The dam was destroyed, reconstructed, and raised until it was more than twice the height of the original dam,- whereupon the Forest, Fish and Game Commissioner required the owner to construct a fishway therein as authorized by Forest, Fish and Game Law (Laws 1900, p. 60, c. 20) §§ 208, 209. Held, that the owner of the dam had no vested right to maintain the same without providing an efficient fishway, and that the statute, in so far as it applied to such owner, was not therefore unconstitutional.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 93.*]</p> <p>8. Fish (§ 8*)—Regulation—Fishways.</p> <p>Where petitioner under legislative authority constructed a dam in the West branch of the Delaware river, which operated to prevent fish from ascending, but it appeared that the spawning during which the fish usually ascended the river only took place between March 1st and June 16th of each year, an order requiring petitioner to maintain a proper fishway through the dam should be modified so as only to require that the way be kept open for such period.</p> <p>[Ed. Note.—For other cases, see Fish, Dec. Dig. § 8.*]</p>

<p>1. Criminal Law (§ 938*)—New Trial—Grounds.</p> <p>The power of a trial court to grant a new trial is limited to the provisions of Code C-r. Proc. §§ 463, 465, that newly discovered evidence must be such as will probably change the result; must have been, discovered since the trial; must be such as could not have been discovered before the trial by the exercise of due diligence; must be material to the issues; not cumulative, impeaching or contradicting.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2307; Dec. Dig. § 938.*]</p> <p>2. Criminal Law (§ 938*)—New Trial—Discretion.</p> <p>A motion by accused for a new trial for newly discovered evidence is addressed to the sound- discretion of the court, the granting or refusal thereof involving the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 938.*]</p> <p>3. Criminal Law (§ 941*)—New Trial—Newly Discovered Evidence—Cumulative Evidence.</p> <p>Newly discovered evidence offered in support of a motion by accused for a new trial is cumulative, where it is of the same nature as that previously produced to establish defendant’s alleged insanity.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2329; Dec. Dig. § 941.*]</p> <p>4. Homicide (§ 237*)—Insanity—Evidence.</p> <p>Evidence held insufficient to show that accused was so deficient or perverted that he could not distinguish the character of his acts at the time he committed the homicide in question.</p> <p>[Ed. Note.—For other cases, see Homicide, Dec. Dig. § 237.*]</p> <p>5. Criminal Law (§ 456*)—Opinion Evidence—Insanity.</p> <p>Mere opinions, characterizations, and conclusions of a nonexpert witness as to the insanity of accused are incompetent.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1045; Dec. Dig. § 456.*]</p>

<p>In the matter of the petition of the Association of the Bar of the City of New York against Everett T. Chappell, an attorney, for disbarment. Motion granted, and respondent disbarred.</p>

<p>Habeas Corpus (§ 99*)—Custody of Infant.</p> <p>Where a child about five years old was boarded with one O. for a certain compensation, which C. was unable to obtain, a transfer of the child on the payment of the money due by a third party was illegal, and on a proper showing the care of the child will be transferred to its uncle.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99;* Parent and Child, Cent Dig. §§ 4r-32.]</p>

<p>Action by one Kahn against one Coles. Judgment for plaintiff. On motion to punish officers of corporation for contempt. Motion denied.</p>

<p>Action by one Licari and others against one McMonigle. Judgment for defendant.</p>

<p>Appeal from Special Term, Westchester County.</p> <p>Action by Connello Gaspero against Frederick S. Myers. From an interlocutory judgment, defendant appeals. Affirmed.</p>

Action by one Allen against one Gray and others to set aside a transfer of property by a bankrupt as fraudulent. Complaint dismissed.

Action to partition real property located in Monroe county, brought by Henry H. Van Meter against Mary V. M. Kelly and others. Interlocutory judgment for partition ordered.

<p>1. Fraudulent Conveyances (§ 66*)—Intent to Defraud Creditors—Transfer Pending Actions.</p> <p>Where one o£ defendants transferred to her daughter all of her property subject to execution, pending plaintiff’s action against her, in consideration of the daughter supporting her and her husband during her lifetime, the transfer was fraudulent and void as against existing creditors.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 169; Dec. Dig. § 66.*]</p> <p>2. Equity (§ 43*)—Grounds of Equitable Relief—Absence of Legal Remedy.</p> <p>Equitable relief will not be granted, unless it is shown that complainant has exhausted his legal remedied.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. § 121; Dec. Dig. § 43.*]</p> <p>3. Fraudulent Conveyances (§ 241*) — Proceedings to Set Aside —Conditions Precedent—Issuing Execution.</p> <p>Plaintiff recovered judgment against two defendants residing in different counties, and issued execution against both of them only in the county where one of them resided, which was returned unsatisfied. Held, that plaintiff could not sue to set aside the fraudulent conveyance by defendant until he had exhausted his legal remedy against the other defendant by at least issuing execution against him in the county in which he resided.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 714; Dec. Dig. § 241.*]</p>

<p>Action by the Shubert Theatrical Company against one Coyne. Plaintiff moved for an injunction pendente lite. Motion denied</p>

<p>1. Executors and Administrators (§ 111*)—Accounting—Expenses of Litigation.</p> <p>Under Code Civ. Proc. § 2730, providing that an administrator may be allowed such nécessary expenses actually defrayed by him as appears just and reasonable, a litigation can be treated as necessary when it has been prosecuted not only in good faith but also in the exercise of a reasonable judgment.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 449; Dec. Dig. § 111.*]</p> <p>2. Executors and Administrator's (§ 111*) — Expenses of Litigation—Reasonableness.</p> <p>Evidence considered, and field, that an administrator, after a judgment In his favor had been reversed, should have taken his defeat at the third trial as final, and not have prosecuted a third appeal, in view of the practice of appellate courts not to keep on ordering new trials against repeated verdicts, and hence the administrator was not entitled to the costs of litigation after the third trial.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 449; Dec. Dig. § 111.*]</p> <p>3. Appeal and Ebbob (§ 266*)—Reservation of Grounds of Review—Exception to Refusal of Referee to Make Findings.</p> <p>Where a referee was not duly requested to make findings on a matter, an exception to his refusal to make such findings does not present for review his failure to do so.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 266;* Reference, Cent. Dig. § 133.]</p>

<p>1. Vendor and Purchaser (§ 261*)—Vendor’s Lien—Right.</p> <p>The assignee of purchase-money notes was not entitled to a vendor’s lien to satisfy notes given for the land and personalty thereon, where the part of the debt representing the land was not shown.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 680; Dec. Dig. § 261.*]</p> <p>2. Vendor and Purchaser (§ 266*)—Vendor’s Lien—Waiver.</p> <p>The transfer of the purchase-money notes waived the vendor’s lien on the land, so that his transferee would not be entitled to a lien.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 687; Dec. Dig. § 266.*]</p> <p>3. Fraudulent Conveyances (§ 312*)—Proceedings—Relief.</p> <p>In an action by a vendor to set aside an alleged fraudulent conveyance by his vendee, or in the alternative to establish a vendor’s lien on the land, plaintiff could not recover an amount paid his vendee by the alleged fraudulent transferee as a part of the purchase price and afterwards given to the latter as a gift.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 905; Dec. Dig. § 312.*]</p> <p>4. Fraudulent Conveyances (§ 300*) — Sufficiency of Evidence—Payment of Consideration.</p> <p>In an action to set aside a conveyance to defendant as in fraud of creditors, evidence held to show that defendant agreed to pay §3,000, in addition to the other consideration named in the deed, and actually paid that amount two months after the deed was executed.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 896; Dec. Dig. § 300.*]</p> <p>5. Fraudulent Conveyances (§ 80*) — Transfers Invalid—Consideration— Future Support.</p> <p>The owner of land valued at §8,000, of which §2,000 of the purchase price, represented by a note, had not been paid, in January, 1902, transferred it to defendant in consideration of §3,000 cash and his agreement to provide a home, board, clothing, and medical and personal attendance for the grantor during his lifetime, give him" the use of a horse and carriage, and pay his funeral expenses, and on the same day executed a bill of sale for personalty thereon, valued at §500 or §600, in consideration of the payment to him of an annuity of §100. The grantor owed no other debts at the time, and made all payments on the purchase-money note which became due in his lifetime. Held that, since the §3,000 the grantor received on making the conveyance was sufficient to pay all his debts, including the note, the provision for his future support remained valid, at least until the grantor ceased to have sufficient property to pay the note, so that the conveyance was not fraudulent as to his vendor.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 207; Dec. Dig. § 80.*]</p>

<p>Action by Byron S. Blake against Mary E. McCarthy and others. Judgment for plaintiff.</p>

<p>Action by William F. Niccloy against James H. Treasure, impleaded’ with Charles H. Mann and another. Complaint dismissed as against principal defendant.</p> <p>-Action to foreclose a chattel , mortgage for $540 made by the defendant Charles H. Mann to the defendant Anna Ready on the 21st day of December, 1907, upon the furniture, etc., in the hotel known as the Wilcox House in the village of Honeoye Falls, 'N. Y„ which mortgage defendant Ready assigned to the plaintiff on the 16th.of January, 1908, as collateral security. The only issue brought to trial is that made by the answer of the defendant Treasurer. It does not appear whether the other -defendants answered or are in default.</p>

<p>Appeal from Municipal Court', Borough of Manhattan, Third District.</p> <p>Action by the Revel Realty & Securities Company against Perry H. Maxwell and others. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.</p>

Action by ICaty Lieberman and another, doing business as the Standard Crockery Company, against the Baltimore & Ohio Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed, and a new trial ordered.

<p>1. Corporations (§ 447*)—Power of Corporation to Incur Indebtedness.</p> <p>• As all corporate acts which the Legislature has not authorized are prohibited, a corporation has no power to incur indebtedness, except that conferred by the act under which it is incorporated.</p> <p>[Ed. Note.—Eor other cases, see Corporations, Cent. Dig. §§ 1786, 1788, 1807; Dec. Dig. § 447.*]</p> <p>2. Corporations (§ 440*)—Corporate Powers and Liabilities—Construction of Charters and Acts of Incorporation.</p> <p>Laws 1851, p. 234, c. 122, § 1, authorizes corporations formed thereunder to accumulate a fund for the purchase of real estate, the erection of buildings, or the making of other improvements on lands, or to pay off incumbrances thereon. Section 5 grants all corporations formed thereunder power to borrow money for temporary purposes not inconsistent with the objects of their organization, but forbids any loan for such purposes for longer than two years, or that such indebtedness shall exceed one-fourth of the aggregate amount of the shares and parts of shares and the income thereof annually paid in and received. Held, that a purchase-money mortgage by a corporation would be enforceable.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1775-1777; Dec. Dig. § 440.*]</p> <p>3. Corporations (§ 237*)—Liabilities of Stockholders—Corporate Debts— Mortgage Deficiency.</p> <p>Laws 1851, p. 234, c. 122, § 1, authorizes corporations formed thereunder to accumulate a fund for the purchase of real estate, the erection of buildings, or the making of other improvements on lands, or to pay off incumbrances thereon. Section 5 grants all corporations formed thereunder power to borrow money for temporary purposes not inconsistent with the objects of their organization, but forbids any loan for such purposes for longer than two years, or that such indebtedness shall exceed one-fourth of the aggregate amount of the shares and parts of shares and the income thereof annually paid in and received. Held, that the shareholders of a corporation are not individually liable for a deficiency on a purchase-money mortgage, where it is not shown that the mortgage was for an indebtedness authorized by the statute.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 907-910, 914-918, 923-929, 931-933; Dec. Dig. § 237.*]</p> <p>4. Corporations (§ 268*) — Actions to Enforce Stockholder’s Liability — Complaint.</p> <p>A complaint in an action to enforce a stockholder’s liability, which does not show that the debt was one which the corporation was authorized to contract, is demurrable.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1133, 1134; Dec. Dig. § 268.*]</p>

Action by Frederick A. Reed against David Landau and another. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal. Reversed, and leave to amend granted on terms.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Rollin L. Morgan, receiver of the Diamond Soda Water Manufacturing Company, against the Onward Construction Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.</p>

<p>Replevin (§ 72*)—Sufficiency of Evidence.</p> <p>In replevin to recover possession of certain chattels, alleged to have been wrongfully taken and withheld, evidence held to establish a prima facie case for plaintiff.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. § 292; Dec. Dig. § 72.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Viscardo Barbieri against Andrew Casazza. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered;</p>

<p>Insurance (§ 666*)—Actions—Amount of Recovery.</p> <p>Where the policy provided that the amount to be paid on it should not exceed three-fourths of the cash value of the horse at its death, and such cash value was $125, plaintiff was only entitled to $93.75.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 666.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Rose Maloney against Samuel J. Silberman. From an order setting aside a verdict for plaintiff, and granting a new trial, plaintiff appeals. Reversed, and verdict reinstated.</p>

<p>Accord and Satisfaction (§ 12*)—What Constitutes.</p> <p>Where, after an assignment for benefit of creditors was made, the assignee sold goods to a creditor of the assignor, and an employe sent the creditor a statement of the amount of the purchase, with a credit of the amount of his claim against the assignor, and he paid the balance shown to be due, receiving back the statement, marked “Paid,” the payment was in full satisfaction and discharge of the entire indebtedness, in the absence of fraud or mistake, or a showing that the deduction of the creditor’s claim was a preference as against other creditors.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 92-97; Dec. Dig. § 12.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the St. Dunstan Society against Alfred J. Picard. Judgment for defendant, and plaintiff appeals. Reversed, and a new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Jacob Yalovitz against Valentine A. Schütz. From a judgment for defendant, plaintiff appeals. Modified and affirmed.</p>

<p>1. Partnership (§ 213*)—Services—Action—Pleading.</p> <p>One, suing two persons on their agreement to pay him a certain price for the performance of certain work, may recover on an oral complaint alleging the promise, but not.alleging that the two are partners.</p> <p>[Ed. Note.—For other cases, see Partnership, Dec. Dig. § 213.*]</p> <p>2. Partnership (§ 54*)—Action on Firm Liability—Evidence—Sufficiency.</p> <p>Where, in an action against two persons on their promise to pay plaintiff for work, defendants testified that one of them was the owner of the business and that the other was the foreman thereof, that plaintiff testified that both told him the price, and that he would get it for the work, did not authorize a recovery against defendants on the theory that they were partners, in the absence of evidence that plaintiff was deceived as to their relationship.</p> <p>[Ed. Note.—For other cases, see Partnership, Dec. Dig. § 54.*] -</p>

<p>Landlord and Tenant (§ 285*)—Recovery of Possession by Landlord— Actions—Evidence.</p> <p>Evidence, in an action by a landlord to recover possession of the leased premises on the' ground that the house was being used by the tenant as a disorderly house, held not to show such use.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 285.*]</p>

<p>Work and Labor (§ 2*)—Services Preliminary to Contract—Right to Recover Therefor.</p> <p>Though plaintiff may have a right of action on an agreement to award him a carpenter contract, no recovery can be had for services which he performed preliminary to the contract, which defendant refused to award to him as agreed, and which were not to be paid for, in the contemplation of either party, if the contract had been awarded him.</p> <p>[Ed. Note.—For other cases, see Work and Labor, Cent. Dig. §§ 1, 2; Dec. Dig. § 2.*]</p>

<p>1. Dismissal and Nonsuit (§ 60*)—Want of Pboseoution—Excuse fob Delay.</p> <p>An action should be dismissed for delay of Sy2 years after issue joined in bringing it to trial, where the only excuse for such delay is that “offers of settlement have been made, commencing prior to the service of the summons, and renewed frequently from time to time,” and the uncontradicted counter affidavit alleges that “whatever negotiations were had in this matter were concluded before the filing of an answer.”</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.*]</p> <p>2. Appeal and Erbob (§ S35*)—Reargument—Matters Considebed.</p> <p>New affidavits, which form no part of the return on appeal, cannot be used on a reargument of the appeal to strengthen respondent’s position.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 835.*]</p> <p>3. Dismissal and Nonsuit (§ 60*)—Want of Pboseoution.</p> <p>The fact that a cause has been placed on the trial calendar in good faith is not a sufficient reason for denial of a motion by defendant to dismiss for want of prosecution.</p> <p>[Ed. Note.—FOr other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.*]</p> <p>4. Dismissal and Nonsuit (§ 71*)—Want of Prosecution—Proceedings— Evidence.</p> <p>Plaintiff has the burden of showing a reasonable excuse for his delay in bringing the action to trial, and without such excuse the court has no discretion to deny defendant’s motion to dismiss.</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 165; Dec. Dig. g 71.*]</p> <p>MacLean, J., dissenting.</p>

Action by William J. Hendrick and others, copartners, against Stanley G. Silver. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered.

Action by Herman Goldberg against Henry Weinberger and others. From a City Court judgment in favor of plaintiff, and from an order denying defendants’ motion for a new trial, they appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Henry R. Steele against Jacob Lippman. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Harry Cohen against the Brooklyn, Queens County & Suburban Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Fraud (§ 12*)—Actionable Representations.</p> <p>It was alleged in a complaint for fraud that defendant represented it “could and would” procure charges which plaintiff paid for electric current to be cut in half, and that it “could and would” recover for plaintiff rebates of at least a certain amount. Held, that these representations were not statements of existing facts, and were not of themselves actionable, and did not furnish basis for the action, though the fact that defendant broke its promise may justify an action for breach of contract.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 14; Dec. Dig. § 12.*]</p>

<p>Action by the Arlington Company against the Empire City Fire Insurance Company. G. Richards, for appellant. A. L. Davis, for respondent.</p>

<p>Action by Maynard N. Clement, as excise commissioner, against the Federal Union Surety Company. C. S. Mackenzie, for appellant. H. H. Kellogg, for respondent</p>

<p>Action by John Frank against the village of Warsaw.</p>

<p>Action by Armin Frankel against Jonathan Friedman. S. H. Stiles, for appellant. A. C. Weil, for respondent.</p>

<p>Action by Herman Ganss against the J. M. Guffey Petroleum Company. L. J. Vorhaus, for appellant. H. A. Poor, for respondent.</p>

<p>Action by Andrew Langdon against the Northwestern Mutual Life Insurance Company.</p>

<p>Action by Charles Mead and another against Isaac W. Turner, as president of the village of Mt. Kisco, the city of New York, and others:</p>

<p>Action by Agnes S. Miller against Henry W. Simpson, impleaded with others. E. E: Wheeler, for appellant. H. W. Simpson, for respondent.</p>

<p>Action by Edwin P. Shattuck, as receiver, against the Guardian Trust Company. H. M. Bellinger, Jr., for appellant. G. Glenn, for respondent.</p>

<p>Action by Nellie Stone against the Pennsylvania Railroad Company, impleaded with others.</p>