Volume 116 — New York Supplement

<p>Action by one Riker, as trustee in bankruptcy, against one Gwynne. Judgment for defendants. On motion by plaintiff, a trustee in bankruptcy, to vacate an ex parte order, made ,at the instance of defendant, requiring plaintiff to furnish $250 security for costs, to secure costs that may accrue on an .appeal by the trustee in bankruptcy from a judgment in favor of defendant in an action by the trustee in bankruptcy to set aside a transfer of real estate, on the ground that it was made with the intent to hinder, delay, and defraud creditors. The ■ex parte order for security for costs was based on an affidavit that showed that the principal creditor of the bankrupt had obtained judgments on which executions were returned unsatisfied before adjudication in bankruptcy.</p>

<p>Couets (§ 190*)—Municipal Couets—Pboceduee—Review.</p> <p>The record will be returned to the trial court for amendment, if one can be properly made, where there was an attempted substituted service of the summons and complaint, in which case Municipal Court Act (Laws 1902, p. 1501, c. 580) § 34, provides the order and papers on which it was granted shall be filed six days before the return day of the summons, and the record, while not showing this was done, not showing it was not done.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

Action by Morris F. Pfaelzer against Leopold Gassner for services. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by William Wetstgin against Frank Grieco. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Samuel London, Jr., against Melody Attis. From a default judgment, Max F. Attis appeals.</p>

Action by James McCreery & Co. against Sidney Ollendorff and others, as copartners doing business under the firm name of Ollendorff & Co. From a judgment on a verdict for plaintiff against all the defendants, and from an order denying a motion for new trial, defendants Louis Kantrowitz and Louis Moskowitz appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by the Anglo-American Authors’ Association agpitwt M. F. Slutsky. From an order of the Municipal Court, denying defendant’s motion to open his default, he appeals.</p>

Proceedings by writ of habeas corpus by the People of the State of New York, on the relation of A. Russell Peabody, against Robert W. Chanler, Sheriff of the County of Dutchess, and another, to determine the present sanity of Harry K. Thaw.

<p>Easements (§ 34*)—Grant—Forfeiture—Revival.</p> <p>A right of way for access to a dock, claimed by a town under a grant, which has been forfeited for abandonment of the dock, followed by reentry by the grantor, is not revived by the subsequent use of the dock by a contractor with a village in the town, consisting of-unloading barges of stone at the dock and wheeling the same over it, after repairing the floor of the dock, though such use is under the express authority of the town.</p> <p>[Ed. Note.—For other cases, see Easements, Dec. Dig. § 34.*]</p>

<p>Pleading (§ 167*)—Defense ob Counterclaim.</p> <p>Where matters alleged in an answer may constitute both a defense and a counterclaim, but are by express nomination pleaded as a defense only, they must be treated as such, and not as a counterclaim, at least as far as the question turns on the want of a reply, though the prayer is for an affirmative judgment, as well as for judgment appropriate to a defense.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 329; Dec. Dig. § 167.*]</p>

<p>1. Waters and Water Ooiurses (§ 203*)—Public Water Supply—Water Rates—Contracts.</p> <p>Where a water company by Its franchise agreement with a village contracted to furnish private consumers with water at the rate charged by its predecessor, during the period of its franchise, it is bound by its contract for the whole period and cannot defend an action by a consumer to compel it to furnish water at those rates by showing that they are unreasonable and confiscatory.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig, §§ 292, 294; Dec. Dig. § 203.*]</p> <p>2. Contracts (§ 169*)—Construction—Contemporaneous Situation.</p> <p>Contracts must be read and given a reasonable construction in the light of the situation of the parties when the contract was made.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 752; Dec. Dig, § 169.*]</p> <p>3. Waters and Water Courses (§ 203*)—Public Water Supply—Franchise Contract—Construction.</p> <p>Where, at the time a water company in its franchise agreement with a village contracted to furnish water at the rates charged by its predecessor, the great majority of the houses were suburban cottages and were furnished water with five-eighths and three-fourths inch connection with the main, the intention of the parties was that the size of such connections should remain as they then were, so that a consumer was not entitled to use a connection of a greater diameter than three-fourths inch during the continuance of the contract.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. • §§ 292, 294; Dec. Dig. § 203.*]</p> <p>4. Stipulations (§ 11*)—Validity—Mistake.</p> <p>Where a stipulation, made in an action between a water company and a consumer relative to the rates and the size of the connection the consumer could use, was made by the company through a mistake as to the nature of the connection or the terms upon which it was permitted, the stipulation was not binding.</p> <p>[Ed. Note.—For other cases, see Stipulations, Cent. Dig. § 23; Dec. Dig. § 11.*]</p> <p>5. Costs (§ 23*)—Right op Prevailing Party—Partial Success.</p> <p>. Where both parties claimed more than they were entitled to, costs will not be allowed to either.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. § 74; Dec. Dig. § .23.*]</p>

In the matter of the judicial settlement of the account of the Guaranty Trust Company, as substituted trustee under the will of John Perkins, deceased.' Prom the decree judicially settling the account, and directing payment to the executors of Caroline p. Perkins, deceased, of certain items held to be income, George W. Angelí, a legatee, appeals.

<p>1. Mortgages (g 38*)—Absolute Deed as Mortgage—Evidence.</p> <p>Evidence held to require a finding that a conveyance of property to defendant was, in fact, a mortgage.</p> <p>[Ed. Note.—Por other cases, see Mortgages, Cent. Dig. § 108; Dec. Dig. § 38.*]</p> <p>2. Execution (g 409*)—Supplementary Proceedings—Receiver—Title to Property.</p> <p>A receiver in supplementary proceedings takes only the right of possession of the debtor’s realty, and not the title thereto.</p> <p>[Ed. Note.-—Por other cases, see Execution, Cent. Dig. § 1174; Dec. Dig. § 409.*]</p> <p>3. Execution (g 409*)—Supplementary Proceedings—Conveyances to Receiver.</p> <p>Where a judgment debtor had an equitable interest in certain real estate, the title to which was in the name of another, who was, in fact, a mortgagee, a conveyance of the property by the debtor and his wife to the receiver was effective to convey such equitable interest.</p> <p>[Ed. Note.—Por other cases, see Execution, Cent. Dig. g 1174; Dec. Dig. § 409.*]</p> <p>4. Execution (g 409*)—Supplementary Proceedings—Receivers—Conveyances op Equity—Rights of Receiver.</p> <p>Certain real estate belonging to a judgment debtor was conveyed to B., who, in fact, took only a mortgagee’s interest, after which the debtor and his wife conveyed the property to the debtor’s receiver in supplementary proceedings, and, before action brought by the receiver against B„ he conveyed the land to innocent purchasers for value. Held, that the receiver was not entitled to follow the land into the hands of such purchasers, but was only entitled to judgment against B. for the difference between his claims against the debtor with interest and the proceeds, of the sale.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. gg 1174, 1177; Dec. Dig. g 409.*]</p>

<p>Action by Inez A. Brill Odell and another against George H. Uhl and others for construction of a will.</p>

In the matter of the application of M. H. Riddell to lay out a highway in the town of Milford, Otsego county, N. Y., and the assessment of damages therefor. On motion to vacate the order of the highway commissioners determining that the highway was a public necessity.

<p>1. Master and Servant (§ 252*)—Injuries to Servant—Actions—Notice of Injury—Waiver of Statutory Requirements by Master.</p> <p>The notice of the time, place, and cause of the injury required to be given to the employer within 120 days after the accident as a condition precedent to the maintenance of an action for injury or death, under Employer’s Liability Act (Laws 1902, p. 1749, c. 600) I 2, is for the employer’s benefit, and may be waived by the employer manifesting such an intention, either by words or acts.</p> <p>[Ed. Note.—Fbr other cases, see Master and Servant, Dec. Dig. § 252.*]</p> <p>2. Master and Servant (§ 2S4*)—Injuries to Servant—Actions—Question</p> <p>for Jury—Notice of Injury—Waiver of Statutory Requirements by Master.</p> <p>Where a servant was injured in the master’s employment and confined in a hospital, whether the master, by a letter written to the servant’s wife, stating that he would not deem it advisable to make any claim until the result of the injury was known, the contents of which was communicated to the servant, waived the giving of notice of the injury within 120 days from the date of the accident causing it, as expressly required by Employer’s Liability Act (Laws 1902, p. 1749, c. 600) § 2, held to be for the ' jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 284.*]</p> <p>3. Master and Servant (§ 252*)—Injuries to Servant—Actions—Notice of Injury—Waiver by Master—Estoppel.</p> <p>If the master intended by his letter to consent that the service of the notice be deferred until the extent of the injuries were known, and the servant was thereby led to defer giving notice, the master’s estoppel to object that the notice was not given within the time required by the statute would be involved, though estoppel is not necessary to establish a waiver.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 252.*]</p> <p>4. Master and Servant (§ 252*)—Injuries to Servant—Actions—Notice of Injury—Waiver of Statutory Requirements by Master.</p> <p>If the master consented that the giving of the notice be deferred, and the servant acted upon the consent, service of the notice within a reasonable time after the extent of the injury was known would be sufficient, and the notice given two weeks after he was removed from the hospital would not be after an unreasonable time.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 252.*]</p>

<p>1. Mortgages (§ 25*)—Failure of Consideration.</p> <p>There is a failure of consideration where a mortgage and accompanying bond are given on no other consideration than promises of the mortgagee, none of which he keeps.</p> <p>[Ed. Note.—For other cases, see Mortgages, Gent. Dig. § 41; Dec. Dig. § 25.*]</p> <p>2. Mortgages (§ 256*)—Rights of Assignee.</p> <p>An assignee of a mortgage and accompanying bond takes them, like any other chose in action except a negotiable note, subject to the equities between the parties.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 678; Dec. Dig. § 256.*]</p> <p>3. Mortgages (§ 257*)—Bona Fide Purchaser.</p> <p>One taking an assignment of a mortgage and accompanying note in liquidation of an antecedent debt is not a bona fide purchaser for value.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. g 678; Dec. Dig. § 257.*]</p>

<p>Appeal from Trial Term.</p> <p>Action by Joseph Wallace, an infant, by John J. Wallace, his guardian ad litem, against the John A. Casey Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>1. Waters and Water Courses (§ 183*) — Acquisition of Land for Water 'Supply—Commissioners of Appraisal—Jurisdiction.</p> <p>Under Laws 1905, pp. 2034, 2039, c. 724, §§ 12, 19, authorizing the commissioners of appraisal appointed under the act to assess the compensation for lands acquired by the city of New York for a w'ater supply, every person interested in any real estate taken has three years within which to exhibit to the commissioners his claim.</p> <p>[Ed. Note.—Eor other cases, see Waters and Water Courses, Dec. Dig. § 183.*]</p> <p>2. Waters and Water Courses (§ 183*) — Acquisition of Land for Water Supply—Commissioners of Appraisal—Jurisdiction. •</p> <p>Under Laws 1905, p. 2027, c. 724, authorizing the acquisition of land for a water supply, and requiring the commissioners of appraisal to determine claims presented, etc., jurisdiction is acquired by a claimant appearing before the commissioners, filing his claim, and offering testimony in support thereof.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 183.*]</p> <p>3. Waters and Water Courses (§ 183*) — Acquisition of Land fob Water Supply—Commissioners of Appraisal—Jurisdiction.</p> <p>The jurisdiction of the commissioners of . appraisal appointed under . Laws 1905, p. 2027, c. 724, providing for commissioners of appraisal to determine claims for land taken for a water supply for the city of New York, is only obtained from the act and the order under which they are appointed, which order must follow the statute.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 183.*]</p> <p>4. Waters and Water Courses (§ 183*) — Acquisition of Land fob Water Supply—Compensation.</p> <p>Where the fee owners of land acquired by the city of New York, under Laws 1905, p. 2027, c. 724, for water supply, appear before the commissioners of appraisal and present their claims, the payment for the claims for the fee should not be delayed because a claimant for the value of an easement in the land had failed to present his claim.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 183.*]</p> <p>5. Waters and Water Courses (§ 183*) — Acquisition of Land for Water Supply—Compensation.</p> <p>Under Laws 1905, p. 2027, c. 724, a report of the commissioners of appraisal will be remitted to them, with instructions to report separately the value of a claim for the fee of the land taken and the respective owners thereof, leaving undetermined the value of an easement in the land owned by one who had not presented his claim to the commissioners.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 183.*]</p> <p>6. Waters and Water Courses (§ 183*) — Acquisition of Land for Water Supply—Compensation.</p> <p>The owners of the fee of the land sought to be taken under Laws 1905, p. 2027, c. 724, authorizing the acquisition of land for a water supply, cannot conclude by their evidence the owner of an easement in the land as 'to the value of the easement; but the owner of the easement is entitled to file his claim before the commissioners of appraisal and require them, to determine its value.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 183.*]</p>

<p>1. Pleading (§ 80*)—Pabtial ob Complete Defense.</p> <p>Where matter is not pleaded as a partial defense, it must be assumed to be pleaded as a complete defense, and as such tested as to its sufficiency.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 162; Dec. Dig. § 80.*]</p> <p>2. Injunction (§ 109*)—Intebfebence with Employés—Defense.</p> <p>In an action to enjoin a trade union lodge and others from interfering with plaintiff’s employés, a paragraph of an answer alleging that, though plaintiff had agreed with its employés that nine hours should constitute a day’s work, it attempted by threats to compel its employés, not alleged to have been employés when the agreement was made, nor defendants in the action, to work 10 hours a day on pain of dismissal if they refused, thereby wrongfully causing certain employés to quit work, to their damage, the contract not being alleged to have been made with the defendant lodge, did not state a defense, especially where the agreement " was alleged to have been made to continue for an indefinite period, and hence subject to be abrogated at any time by either party.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 187; Dec. Dig. § 109.*]</p> <p>8. Injunction (§ 109*)—Intebfebence with Employés—Defenses.</p> <p>It would be no defense as to a defendant, president of the lodge, that there was a conspiracy among plaintiff and other manufacturers to depreciate the market value of labor and prevent employés from lawfully organizing and assembling to obtain an advance in wages and to induce plaintiff to pay better wages to its employés, and that plaintiff determined to carry out the conspiracy by refusing to pay more wages than the rate fixed, by it in combination with the other manufacturers, though the combination were illegal.</p> <p>[Ed. Note.—Eor other cases, see Injunction, Cent. Dig. § 187; Dec. Dig. § 109.*]</p> <p>4. Injunction (§ 109*)—Interference with Employés—Defenses.</p> <p>A paragraph in the answer, alleging that plaintiff had undertaken to provoke assaults upon its officers, by aggravating defendants while they were lawfully upon the streets, that plaintiff might procure injunctions and warrants of arrest, with the ultimate object of preventing and destroying the organization of laborers and to reduce the price of labor, stated no defense, in thé absence of allegation that plaintiff actually procured or provoked the commission of any of the unlawful acts alleged in the complaint.</p> <p>[Ed. Note.—Eor other cases, see Injunction, Cent. Dig.. § 187; Dec. Dig. § 109.*]</p> <p>5. Pleading (§ 217*)—Demurrer to Answer—Right of Defendant to Attack Complaint.</p> <p>■ On demurrer to the answer for insufficiency, defendant can only attack the sufficiency of the complaint to show that it does not state a cause of action, and he cannot raise the question of a misjoinder of parties defendant.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 544%; Dec. Dig. § 217.*]</p>

<p>1. Frauds, Statute of (§ 129*) — Part Performance — Agreements Relating to Real Property.</p> <p>Payment of part of the purchase price and possession by the purchaser under an oral agreement for the purchase of land is not sufficient to take the contract out of the statute of frauds, unless the purchaser makes improvements upon the land.</p> <p>[Ed. Note.-—For other cases, see Frauds, Statute of, Cent. Dig. §§ 301-326; Dec. Dig. § 129.*]</p> <p>2. Frauds, Statute of (§ 139*) — Operation and Effect of Statute — Contracts Completely Performed.</p> <p>A deed, which is executed and delivered pursuant to an oral contract for the purchase of land, ratifies and validates the oral contract.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 340; Dec. Dig. § 139.*]</p> <p>3. Evidence (§§ 215, 248, 265*)—Admissions.</p> <p>A memorandum of a contract for the sale of land, prepared and retained by the grantor, and not signed by the purchaser, is evidence against the grantor of the terms of the contract, but is not conclusive evidence, and is not evidence against his wife.</p> <p>[Ed. Note.-—For other cases, see Evidence, Cent. Dig. §§ 754-759, 953-964, 1029-1050; Dec. Dig. §§ 215, 248, 265.*]</p> <p>4. Vendor and Purchaser (§ 281*)—Evidence as to Contract.</p> <p>Evidence in an action to establish a vendor’s lien held to show that the contract price for the land was the amount paid by the grantor for the land plus the amount of a sewer assessment and interest on the purchase price.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Dec. Dig. § 281.*]</p> <p>5. Deeds (§ 100*)—Construction—Purpose in Instrument.</p> <p>A deed must be construed in the light of the purpose for which it was given.</p> <p>[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 239; Dec. Dig. § 100.*]</p> <p>6. Evidence (§ 419*)—Parol Evidence Affecting Writings—Deeds—Consideration.</p> <p>The consideration stated in a deed and the acknowledgment of its receipt is not conclusive as between the parties, and the true consideration and the amount, if any, actually paid, may always be shown; the deed itself being merely presumptive evidence.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1912; Dec. Dig. § 419.*] - '</p> <p>By the amended complaint this is an action to establish a vendor’s lien for about $230, besides interest, upon a house and lot in the city of Rochester, described in the complaint, and to enforce such lien by foreclosure</p> <p>and sale, and to recover judgment for the deficiency, if any, against the defendant Ender. The issues tried are those raised by the answer of the defendant Ender, the owner of the property. Plaintiffs are husband and wife, and had title to this house as tenants by the entirety. A few days before the 1st day of April, 1899, they made an oral agreement to sell the property to the defendant Ender. It was then subject to a mortgage which plaintiffs had made to one Brayer, on which was unpaid §509.47. The oral agreement as claimed by the plaintiffs was that Ender should pay them §750 for the property, being the amount which it had cost them, together with §31.60 for local assessment for the west side sewer, the amount of three annual installments, two of which plaintiff had paid, and the other was due and payable, making the total purchase price- §781.60; that Ender was able to pay only §5 in cash at the time, but desired immediate possession of the property, so it was agreed he should have possession and make payments at the rate of §2.50 per week and §21 every three months, until §60 had been paid, wheh papers were to be drawn between the parties; and that Ender was to pay interest at the rate of 5 per cent, upon the unpaid purchase money and all taxes and assessments accruing after he took possession.</p> <p>Ender denies that he agreed to pay the §31.60 sewer assessments, or that he agreed to pay any interest on the purchase price unpaid, or any taxes or assessments accruing before he received the deed of the property. He did make payments to the plaintiffs to the amount of §60 during the first year, and during the next three years he made payments to Mr. Brayer upon the mortgage, and from July, 1903, to July, 1904, he made various payments to the plaintiffs, amounting to §123.25. A few days before the 18th of October, 1904, he requested the plaintiffs to give him a deed of the property, to enable him to borrow by mortgage from the Monroe County Savings Bank sufficient money to pay off the Brayer mortgage and to pay the plaintiffs the balance düe them on the purchase price, and on that day, pursuant to his request and relying upon his promise, plaintiffs did execute and deliver to him such a deed, which had been prepared by Ender’s attorney and which was in form a full-covenant deed, stating the consideration as §750, receipt of which was acknowledged. Thereupon Ender borrowed from the Monroe County Savings Bank by mortgage §900, out of which he paid §384.36, the balance then due on the Brayer mortgage, and the following liens then due on the property; §10.45 county taxes, §88.90 West Side sewer assessments, §9.96 city taxes, and also §13.38, attorney’s fees and expenses of securing the loan, leaving §392.95, which he received in cash. He paid none of these moneys to plaintiffs, and, although promising from time to time to do so, he has never made them any further payment, and shortly after he told the plaintiffs that he had been advised that he was not obliged to pay them any more money.</p> <p>At the time the oral agreement was made the plaintiff John Friedman made an entry in a memorandum book in the German language, of which the following is a translation: “Rochester, N. Y., the first of April, 1899. I certify herewith that John Ender purchased a house from John Friedman for §750.00 and that he has paid down §5.00 in payment, by §2.50 rent per week until §60.00 are paid in cash.” This entry was made on the top of the first page of the book, and was not signed or delivered to Ender. The book was used subsequently to enter the payments which plaintiffs received. The balance of the first page is'occupied by such entries, all the next page, and half the third page, and under two of the later entries on the third page the plaintiff John Friedman signed his name. During the first year the plaintiffs made two payments of §21 each of interest maturing on the Brayer mortgage at the request of Ender and on his promise, to reimburse them, and §42 of the moneys which Ender paid to the plaintiffs was for that purpose.</p>

<p>Nuisance (§ 35*)—Bbick Kilns—Injunction—Relief Awaeded.</p> <p>Where defendant had built brickkilns at a large expense, and maintained them for several years, and was conducting a flourishing business, an adjoining owner, whose property was injured by smoke and gas from the kilns before the erection by defendant of barriers and the use of a different kind of coal, which practically remedied the trouble, was entitled to damages for injury already suffered, and to have defendant execute a bond conditioned on the payment of rent for the property injured during the continuance of the business, or in default thereof to an injunction restraining defendant from unnecessarily emitting and depositing noxious gases, smoke, etc., on the property.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 93-94%; Dec. Dig. § 35.*]</p>

Action by Nelson Bodette against the Foster-Armstrong Company. On motion to set aside a verdict for plaintiff and for a new trial.

<p>1. Appeal and Error (§ 1195*)—Remand on Reversal—Retrial—Rule ow Decision.</p> <p>In an action to replevin goods of which defendant claims possession under his appointment as receiver in bankruptcy, the decision of the federal Supreme Court holding that, if the receiver had possession of the property, his possession could not be disturbed by a state court, and that the goods could not be taken from his possession under the circumstances, was the law of the case on remand.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. §§ 4661-4665; Dec. Dig. § 1195.*]</p> <p>2. Bankruptcy (§ 20*)—Conflict in Jurisdiction—Possession of Res—Possession by Receiver.</p> <p>If a federal District Court has possession of property through its receiver, one claiming.the property can only obtain relief in the federal court, however meritorious his claim may be; the state courts having no jurisdiction.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. § 20.*]</p> <p>3. Pleading (§ 376*)—Answer—Admissions—Issue.</p> <p>Where, in replevin for goods, the answer admitted the value of the goods to be a certain sum, there was no issue as to their value, so as to require evidence on that question.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. § 376.*]</p> <p>4. Venue (§ 52*)—Change—Conveniences of Witnesses.</p> <p>Where, excepting certain written evidence, most of the evidence would be given by witnesses from Renssalaer county which would involve much expense in witnesses’ fees as well as inconvenience to witnesses, the case will be transferred to that county from Monroe county.</p> <p>[Ed. Note.—For other eases, see Venue, .Cent. Dig. §§ 76, 77; Dec. Dig. § 52.*]</p>

Action by David Bolter against H. Koehler & Co. From an order setting aside a judgment in favor of .plaintiff, rendered after a trial before the court and a jury, he appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Clement H. Smith against Louis A. Peyrot. From a judgment for defendant, plaintiff appeals.</p>

<p>Contracts (§ 28*)—Evidence.</p> <p>Defendant subscribed for a publication for one year at $20 a year. The publisher, without further agreement, sent the publication the following year, which the subscriber accepted and paid $20 for. In the fall of that year the publisher increased the price to $40 a year; but it did not appear that the subscriber received notice thereof. The publication was delivered to the subscriber the following year; but he refused to pay the double price, and requested the publisher’s agent to take it away, but the agent left it at his place of business. Held not to establish a contract ' of subscription.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 28.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Hertha H. Heintze against Thomas F. Graham. From an order granting plaintiff a new trial, defendant appeals.</p>

<p>Courts (§ 189*)—Municipal Courts—Default—Opening—Conditions.</p> <p>Under Municipal Court Act (Laws 1902, pp. 1562, 1563, c. 580) §§ 253, 256, providing that a default may be opened upon such terms as the court may deem proper, and that the court may award costs, not exceeding $10, and, as-a condition to opening the default, order the defendant to deposit the amount of the judgment or give an undertaking, the court may not award $10 costs and the taxable disbursements as a condition.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Sales (§ 391*)—Breach oe Warranty—Recovery oe Price Paid.</p> <p>A buyer of a horse, under a warranty and an agreement by the seller to take it back, if not as warranted, who returned the horse to the seller on finding that it did not comply with the warranty, was entitled to recover the price paid.</p> <p>[Ed. Note.—For other caseá, see Sales, Cent. Dig. §§ 1120, 1121, 1129; Dec. Dig. § 391.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Actions by Lizzie Sicklick and by Anna Sicklick against the Interurban Home Company. From judgments for the respective plaintiffs, defendant in each case appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Louis Zeller against Tobias Greenebaum for services. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Landlord and Tenant (§ 231*)—Lease—Surrender and Acceptance— Sufficiency of Evidence.</p> <p>In an action for rent, evidence held to show that defendant had surrendered his lease and that plaintiff accepted the same.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 231.*]</p> <p>2. Landlord and Tenant (§ 231*)—Surrender • of Lease—Acceptance of Other Tenant—Termination of Relation—Sufficiency of Evidence.</p> <p>In an action for rent, evidence held to show that plaintiffs accepted another tenant prior to the expiration of the term, and that thereafter the relation of landlord and tenant did not exist between plaintiffs and defendant.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dee. Dig. § 231.*]</p>

<p>Insurance (§ 665*)—Burglary Insurance—Loss or Property—Evidence. Where the evidence merely showed that the property had disappeared from beneath the owner’s pillow, she cannot recover the value of such property in an action on a burglary insurance policy.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 665.*]</p>

<p>Master and Servant (§ 30*)—Discharge of Servant—Grounds.</p> <p>Where a servant took patterns which he'unjustifiably claimed belonged to him, notwithstanding he was paid for making them by the master, his discharge was proper, though he was hired for a specified term.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 30-36; Dec. Dig. § 30.*]</p>

<p>1. Carriers (§ 404*)—Passenger’s Effects—Loss of Baggage—Liability of Carrier.</p> <p>Failure of a passenger to call for baggage within a reasonable time after its arrival relieves the railroad company of its obligation as a common carrier and substitutes the liability of a warehouseman.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1542; Dec. Dig. § 404.*]</p> <p>2. Carriers (§ 408*)—Passenger’s Effects—Loss—Burden of Proof.</p> <p>In an action against a carrier to recover for articles taken from her trunk after its arrival at the station to which it was sent, where there is no allegation or proof of negligence, the burden of showing reasonable diligence in calling for her trunk is on plaintiff.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1562; Dec. Dig. § 408.*]</p> <p>3. Carriers (§ 408*)—Passenger’s Effects—Diligence—Question fob Jury.</p> <p>In an action for articles taken from plaintiff’s trunk after its arrival at the station to which it was checked, the question whether plaintiff called for her baggage within a reasonable time is one of fact; the evidence showing that the baggage reached the station about 1 o’clock p. m., that plaintiff arrived at 6:30 p. m., that the station was open until 10:30 p. m., that plaintiff was unable to get an expressman to deliver the trunk at night, and did not call for it until the next morning.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1571; Dec. Dig. § 408.*]</p>

<p>Appeal and Error (§ 931*)—Review—Presumptions.</p> <p>For the purposes of appeal, the facts must be taken most favorably for ,the respondent.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.*]</p>

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

Action by William Newmark and others, copartners doing business as Newmark & Davis, against Horowitz Bros., a domestic corporation. From a judgment by default, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District'.</p> <p>Action by Humphrey J. Lynch against Charles A. Ogren. From a Municipal Court judgment for less than the relief demanded, plaintiff appeals.</p>

<p>1. Landlord and Tenant (§ 195*)—Possession—Abandonment by Tenant.</p> <p>Where a tenant held over after his term and paid a month’s rent, after which he removed without notice, the landlord properly took possession and relet the premises.</p> <p>• [Ed. Note.—Por other cases, see Landlord and Tenant, Cent. Dig. §§ 790-793; Dec. Dig. § 195.*]</p> <p>2. Landlord and Tenant (§ 195*)—Action for Rent—Eight of Action.</p> <p>The landlord made out a prima facie case, in an action to recover rent for the unexpired term and establish a lien on furniture as provided in the lease, by showing that the tenant held over after his term expired and paid a month’s rent, when he removed without notice, after which the landlord took possession and relet.</p> <p>[Ed. Note.—Por other cases, see Landlord ¿nd Tenant, Cent. Dig. §§ 790-793; Dec. Dig. § 195.*]</p>

<p>1. Trial (§ 387*)—Trial by Court—Compromise Judgment.</p> <p>A judgment simply “for defendant," finding no amount due either party, in an action in which there is a counterclaim consisting of several items, none of which could be set off without leaving' some money due one party or the other, is a compromise judgment, which cannot stand.</p> <p>[Ed. Note.—For other cases, see Trial, Dec. Dig. § 387.*]</p> <p>2. Courts (§ 190*)—Municipal Courts—Bight of Appeal—Failure to Move to Modify Judgment.</p> <p>Failure to move for modification of judgment, as allowed by Municipal Court Act (Daws 1902, p. 1563, c. 580) § 254, does not deprive a party of right to appeal from a compromise judgment.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>Assault and Battery (§ 40*)—Damages.</p> <p>Where defendant, without provocation, assaulted plaintiff, knocking out one tooth and loosening another, and causing plaintiff’s face and lips to swell and bleed, plaintiff was entitled to substantial damages, and a verdict for six cents was insufficient.</p> <p>[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 55; Dec. Dig. § 40.*]</p>

Action by Gerald Lyon against Albert Priedlander. Motion to require plaintiff to separately state two causes of action, united as one cause in the complaint, etc.

<p>1. Money Lent (§ 6*)-^Comflaint—Sufficiency.</p> <p>A complaint alleging that on a date set out plaintiff’s intestate loaned defendant a certain sum of money, which defendant promised to repay, pursuant to an agreement annexed, and that there is a balance due, contains all the elements necessary to maintain an action for money loaned, irrespective of the alleged annexed agreement, and is not demurrable because it is not annexed or set out in the complaint.</p> <p>[Ed. Note.—For other cases, see Money Lent, Cent. Dig. § 8; Dec. Dig. § 6.*]</p> <p>2. Pleading (§ 367*)—Motion to Make More Definite.</p> <p>A complaint alleging that plaintiff’s intestate loaned defendant money, which he promised to repay, pursuant to an agreement annexed, is subject to a motion to make more definite, where such agreement is not annexed.</p> <p>[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 367.*]</p>

<p>Trial (§ 13*)—Preferred Causes.</p> <p>An application for a preference is addressed to the discretion of the court, and the applicant should present some fact other than that the case is one which might be preferred under Code Civ. Proe. § 791; the pleadings not being sufficient.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 32; Dec. Dig. § 13.*]</p>

Replevin by David Brenker against Moses Dlatt and another. One of the defendants moves for an order vacating the requisition issued to the sheriff.

<p>Action by Sam Spatz against Saul Singer and others. Verdict for -plaintiff, and defendants move to set the same aside.</p>

<p>Action by. Frank Genninger against the Frank A. Wahlig Company and another. '</p>

<p>Action by Bryon O. Huntington against John C. Rodgers. On motion to stay further proceedings by plaintiff until the Appellate.Term of the Supreme Court determined whether the Trial Term of the City Court could set aside a verdict for inadequacy of damages.</p>

<p>Action by Henry Salkind against Harry Levy. Motion for an order to vacate a judgment of dismissal and open plaintiff’s default and restore the case to - the calendar.</p>

<p>Execution (§ 370*)—Supplementary Proceedings—Simultaneous Proceedings—Examination of Debtor—Dismissal.</p> <p>Under Code Civ. Proc. § 2454, providing for the dismissal of supplementary proceedings by an order of the judge on the application of the judgment creditor, the failure to enter an order dismissing the supplementary proceeding is a valid objection to a subsequent order for defendant’s examination, though through inadvertence his default in the first proceedings could not be noted.</p> <p>[Ed. Note.—Eor other cases, see Execution, Cent. Dig. § 1096; Dec.'Dig. § 370.*]</p>

Action by the International Import & Export Company against Guilio Di Monda, doing business under the firm name of G. Di Monda. Heard on motion for bill of particulars before answering.

<p>Action by Robert B. Adam against the Manufacturers’ & Traders’ National Bank of Buffalo, N. Y.</p>

<p>Action by the Citizens’ Permanent Savings & Doan Association against Charles W. Rampe and another to foreclose a mortgage.</p>

<p>Action by Abraham Ehrlich against Hyman Sklamberg and another.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Supplementary proceedings by Samuel Sonn and another, as executors of the will of Abraham H. Sonn, against James Kenny. From an order refusing to commit defendant for- a failure to 'appear and answer in order to show cause, the judgment creditors appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Howard & Childs Company against John Conaty. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Berner & Freedman, a corporation, against Frank Walker and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Insurance (§ 146*)—Construction of Policy—Answers in Application.</p> <p>Insured’s answers in his application to questions therein framed by the company will be construed most favorably to insured.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 295; Dec. Dig. § 146.*]</p> <p>2. Insurance (§ 665*)—Breach of Warranty—Evidence—Sufficiency.</p> <p>Where the policy was issued in December, 1904," and insured died July 22, 1905, two physicians who attended at his death testifying that he died of pulmonary tuberculosis and in their opinion he had been “ill” from 14 months to 2 years, but not testifying as to the nature of his illness, the company cannot avoid payment of the policy on the ground of breach of warranty of soundness of health and freedom from consumption.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1713; Dec. Dig. § 665.*]</p> <p>3. Insurance (§ 292*)—Breach of Warranty—Medical Attendance.</p> <p>Insured was examined before the policy was issued, and stated in his application that he had never been treated in a dispensary, when he in fact had been so treated a year before for an unknown ailment. He died about 8 months after he was insured; his wife stating that he had , been ill about 2 months, and two. physicians who attended him at his death testifying that in their opinion he had- been “ill” for 14 months and 2 years, respectively, and that he died of pulmonary tuberculosis, but did not state the nature of his illness. Held, that it could- not be said that the company would have rejected the policy, had it known that insured had been treated in a dispensary, and under the circumstances there was not a breach of warranty on that ground, so as to avoid the policy.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 691; Dec. Dig. § 292.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, First District.</p> <p>Action by the Van Nest Woodworking Company against Jacob Minka and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Municipal. Court, Borough of Manhattan, Second Disr trict. -</p> <p>Action by Hyman Schmerler against Sigmund W. Barasch. From' a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Landlord and Tenant (§ 20*)—Leases—Essentials.</p> <p>To constitute a lease the essentials of a contract must be present, and there must be an offer and an acceptance of the terms of the offer.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 53; Dec. Dig. § 20.*]</p> <p>2. Evidence (§ 431*)—Presumptions—Seal on Instrument.</p> <p>A seal attached to an instrument is but presumptive evidence of regularity, and will not prevent the court from receiving evidence to show that no contract was in fact entered into.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1976; Dec. Dig. § 431.*]</p> <p>3. Landlord and Tenant (§ 25*)—Existence of Relation.</p> <p>Where the tenant changed the lease by adding a clause permitting him to display a sign at the front of his apartment, after the landlord had refused to insert such a stipulation, and the landlord, on receiving the lease from the tenant, refused to sign it, but permitted the tenant to occupy the premises on the payment of the monthly rent stipulated for, there was no valid lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 67; Dec. Dig. § 25.*]</p> <p>4. Landlord and Tenant (§ 118*)—Tenancy at Will. ■</p> <p>Where one goes into possession of land under an invalid lease, his .tenancy at its inception is a tenancy at will.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 408; Dec. Dig. § 118.*]</p> <p>5. Landlord and Tenant (§ 115*)—Tenancy from Month to Month.</p> <p>Where one goes into possession of land under an invalid lease and pays a monthly rent, he becomes a tenant from month to month.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 391; Dec. Dig. § 115.*]</p>

<p>1. Landlord and Tenant (§ 303*)—Summary Proceedings—Jurisdiction.</p> <p>As a prerequisite to the exercise of jurisdiction in summary proceedings, every requirement of the statute must be strictly observed and every essential affirmatively alleged.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 1303; Dec. Dig. § 303.*]</p> <p>2. Landlord and Tenant (§ 303*)—Summary Proceedings—Sufficiency of Petition—“Factory”—“Tenant Factory.” .</p> <p>Labor Law (Laws 1906, p. 303, c. 178) § 94, as amended by Laws 1908, p. 1217, c. 426, provides that the lessee or tenant of any part of a tenant factory shall permit the owner, etc., to enter upon the premises whenever . necessary to comply with provisions of law, and his failure or refusal to do so shall be cause for dispossessing as provided in the Code of Civil Procedure, and whenever by the terms of a lease any lessee or tenant shall have agreed' to comply with or carry out any of such provisions his failure or refusal so to do shall be cause for dispossessing him by summary proceedings. The Code of Civil Procedure does not mention the ' labor law or any of its provisions as a cause for dispossessing a tenant. Labor Law (Laws 1897, p. 462, c. 415) § 2, defines the term “factory.” Section 94, as amended by Laws 1908, p. 1217, c. 426, defines a “tenant factory.” All the powers under the act which are given to the Commissioner of Labor or those acting under his authority to prescribe regulations or require alterations and improvements have reference to the factory or the tenant factory. Held that, as the power of the Commis- ■ sioner of Labor is derived solely from the statute, summary proceedings under the labor law for noncompliance with requirements of the commissioner can only be instituted against the tenant of a factory or tenant factory, and a petition in such a proceeding describing the premises by street number and location, but silent as to the character of the building or the uses to which it was put, was fatally defective, and did not give the Municipal Court jurisdiction.</p> <p>[Ed. Note.—For other' cases, see Landlord and Tenant, Dec. Dig. § 303.*]</p>

<p>1. Landlord and Tenant (§ 115*)—Leases—Construction—Tenancy from Month to Month.</p> <p>Where, after tenants had leased a suite of rooms in a building, the landlord agreed with them that they should exchange the suite selected for one of two others as soon as another tenant had made selection between them, and that meanwhile they should temporarily occupy a different suite, the agreement did not bind them to remain in the suite temporarily furnished more than a reasonable time, and, they having paid a monthly rental in advance, their tenancy was at most a tenancy from month to month.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 391-394; Dec. Dig. § 115.*]</p> <p>2. Landlord and Tenant (§ 116*)—Tenancy from Month to Month—Notice to Terminate.</p> <p>A notice necessary to terminate a tenancy from month to month is one given within a reasonable time, and a notice given on July 21st by actually moving out was sufficient to terminate the tenancy on August 1st.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 396-398; Dec. Dig. § 116.*]</p>

<p>Evidence (§ 442*)—Pabol Evidence—Leases.</p> <p>An oral agreement by a landlord to make repairs, made as an inducement to the execution of a lease silent on the subject, at or before the signing of the lease, together with proof that the repairs were not com- - pleted and that the. tenant did not occupy the premises, may be shown in an action for rent due under the written lease.</p> <p>[Ed. Note.—For. other cases, see Evidence, Cent. Dig. §§ 1874^-1899 • Dec. Dig. § 442.*]</p> <p>Goff, J., dissenting.</p>

<p>1. Trover and Conversion (§ 32*)—Pleading—Nature op Complaint.</p> <p>Where the complaint alleged that defendant hired three horses for an agreed term and price, and two of the horses were returned, but he neglected to return the third horse after demand, the complaint was not in conversion, as the horse was held under a bailment, and as' bailee defendant assumed obligations other than the return of .the horse.</p> <p>[Ed. Note.—For other eases, see Trover and Conversion, Dec. Dig. .§ 32.*]</p> <p>2. Bailment (§ 31*)—Action Against Bailee—Evidence—Negligence.</p> <p>In an action for failure to return a horse hired to defendant, which was shot while in defendant’s possession after its back was discovered to be broken, evidence held to show that the injury to the horse- was not caused by defendant’s negligence.</p> <p>[Ed. Note.—For other cases, see Bailment, Dec. Dig. § 31.*]</p>

<p>Appearance (§ 24*)—Want of Service—Waiver.</p> <p>Defendant, by appearing and answering without objecting to the jurisdiction of the court, waived his "right to question the validity of the judgment because no summons had ever been served.</p> <p>[Ed. Note.—For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. § 24.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Emanuel Levittas against Frieda Hart. From an order denying a motion for bill of particulars, defendant appeals.</p>

<p>1. Carriers (§ 108*)—Public Truckman—Liability.</p> <p>A public truckman, engaged in transporting for hire the goods of such as chose to employ him, was a common carrier, and liable, as for a breach of contract, to a person delivering goods to him for carriage, where the goods were never delivered, but were stolen by the truckman’s driver. [Ed. Note.—For other cases, see Carriers, Dec. Dig. § 108.*]</p> <p>2. Carriers (§ 119*)—Carriage of Goods—Liability for Loss.-</p> <p>A carrier is responsible for loss of goods which he undertakes to carry, irrespective of negligence or fault on his part, if the loss does not occur by the act of God or the public enemies.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent Dig. §§ 523-530; Dec. Dig. § 119.*]</p>

<p>Attachment (§ 351*)—Wrongful Attachment—Bond—Elements of Recovery—Attorney’s Fees.</p> <p>Defendant T. brought attachment against a foreign corporation. The attachment was sustained on that ground, but the complaint was dismissed on the merits, and T. appealed, and the appeal was finally dismissed. Eeld that, since the attachment was used to secure jurisdiction of the foreign corporation defendant, except for which there would have been no trial, attorney’s fees in defending the action on the merits constituted a proper element of damage on the bond for wrongful attachment.</p> <p>[Ed. Note.—For other cases, see Attachment, Cent. Dig. § 1294; Dec. Dig. § 351.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Richard W. Cavin against the O’Rourke Engineering & Construction Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Martha V. L. Buchanan against James E. Chandler and Henry M. T. Beekman; doing business as Chandler & Beekman, and others. From an interlocutory judgment overruling demurrers to the complaint, defendants named appeal.</p>

Action by the Keystone Publishing Company against Edward M. Roman, doing business under the name of Hygienic Hair Waver Company. • From a judgment for plaintiff, after a trial before the court without a jury, defendant appeals.

Action by Morris Levy against the New York City Railway Company. From an order setting aside a verdict for defendant, and granting á new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough.of Manhattan, Second District.</p> <p>Action by David Lind, by Ostas Lind, guardian ad litem, against Horace E. Demorest. From a judgment for defendant, plaintiff appeals.</p>

<p>1» Landlord and Tenant (§ 80%*)—Assignment oí Lease—Evidence.</p> <p>In an action for rent, evidence held to show that defendant took possession as an assignee of the lease, so as to render it liable for the rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 231; Dec. Dig. § 80%.*]</p> <p>2. Use and Occupation (§ 1*)—Occupation by Third Person.</p> <p>A chattel mortgagee could not take possession of leased premises, either absolutely or to protect its property therein, without liability to the lessor for the use thereof at their rental value.</p> <p>[Ed. Note.—For other cases, see Use and Occupation, Cent. Dig. g 4; Dec. Dig. § 1.*]</p>

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

Action by George E. Kann and another, doing business under the name of G. E. Kann & Co., against Michael Cooper. From a judgment for plaintiffs, defendant appeals.

<p>Master and Servant (§ 101*)—Injuries to Servant—Condition of Appliances.</p> <p>The duty imposed by law on an employer is to keep his ways and machinery in as reasonably safe a condition as a reasonably prudent man would keep them; that they shall be in an absolutely perfect condition not being required.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 171-174; Dec. Dig. § 101.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second- District.</p> <p>Action by Max Mendel and another against Elizabeth Herling, as administratrix of the estate of John Herling, Jr., deceased. From a Municipal Court judgment for defendant on a counterclaim, plaintiffs appeal.</p>

<p>Damages (§ 185*)—Personal Injuries—Evidence—Award.</p> <p>In an action by a street car passenger for personal injuries, evidence held insufficient to justify an award of $250 damages.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 502-514; Dec. Dig. § 185.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Hinds, Noble & Eldredge against Robert E. Bonner and others. Erom an order granting plaintiffs judgment on the pleadings, defendants appeal.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Joseph F. O’Leary against George E. Tooker. From an interlocutory judgment overruling a demurrer to the reply to the counterclaim, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Max Weil against the Corn Exchange Bank. From a judgment for plaintiff, defendant appeals.</p>

Action by Max Mandel and another against Elias Gottfried, impleaded with others as undertenants, to recover possession of certain premises. From a final order in favor of plaintiffs Gottfried appeals.

Action by Mary Braun, as administratrix, againgt the New York Central & Hudson River Railroad Company. Miotion by plaintiff upon the minutes of the court to set aside a nonsuit and for a new trial, on exceptions and grounds permitted by Code Civ. Proc. § 999.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Madison Paper Stock Company against the Maurice O’Meara Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Evidence (§ 90*)—Meaning of “Burden of Proof.”</p> <p>The phrase “burden of proof” properly signifies the duty to establish the entire case by a preponderance of evidence, in which sense the burden never shifts, and also indicates the duty of proceeding to adduce the evidence, in which sense the burden shifts whenever a prima facie case is made by either party.</p> <p>• [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 112; Dec. Dig. § 90*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 904-907.]</p> <p>2. Master and Servant (§ 40*)—Action for Wrongful Discharge—Burden of Proof.</p> <p>A servant, suing for a wrongful discharge, need not specifically prove his discharge without cause, as a discharge before determination of the stipulated period prima facie violates the agreement, and the burden is cast on defendant to prove justification.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 47; Dec. Dig. § 40.*]</p> <p>3. Master and Servant (§ 44*)—Action fob Wrongful Discharge—Instruction as to Burden of Proof.</p> <p>In an action for a wrongful discharge, the main charge declared that the burden was at all times on plaintiff, who was bound to satisfy the jury by a preponderance of evidence that each proposition he advanced was right, and unless he convinced them by such evidence, they were bound to find for defendant. At defendant’s request they were instructed that the burden was on plaintiff to prove full performance of his contract, and not on defendant to prove plaintiff’s violation thereof. Held- that, given in this unqualified form, the instruction was misleading, and reversible error. . :</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 44.*.]</p>

<p>Carriers (§ 318*)—Injuries to Passengers—Defective Door—Negligence— Evidence.</p> <p>In an action for injuries to a passenger by the car door slamming on his finger, evidence held insufficient to establish defendant's negligence charged, consisting of a defect in the door.</p> <p>. [Ed. Note.—For other cases, see Carriers, Dec. Dig. § 318.*]</p>

<p>Highways (§ 184*)—Use fob Travel—Contributory Negligence—Question for Jury.</p> <p>Where plaintiff’s automobile ran into the rear of defendant’s automobile, which had stopped suddenly without warning only six feet ahead of plaintiff’s, it was a question for the jury whether plaintiff was guilty of contributory negligence.</p> <p>[Ed. Note.—For other cases, see Highways, Dec. Dig. § 184.*]</p>

<p>Action by one Heilperin against one Levy.</p>

<p>1. Pleading (§ 367*) — Motions—Making More Definite and Certain—Alternative Motion.</p> <p>A motion, in the alternative, to make a pleading more definite and certain or for a bill of particulars, is never regarded favorably by the court.</p> <p>[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 367.*]</p> <p>2. Pleading (§ 318*)—Bill of Particulars of Defense.</p> <p>A defendant is not required to furnish a bill of particulars of payments made, under the defense of payment.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 969; Dec. Dig. § 318.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Marguerite B. Darlington against the Hamilton Bank of New York City. From a Municipal Court judgment for defendant on a counterclaim, plaintiff appeals.</p>

<p>1. Principal and Agent (§ 101*)—Powers of Agent—Implied Authority— Offer of Reward.</p> <p>One employed as a superintendent of trucking has no authority, implied from the nature of his position, to offer a reward for the recovery of Eis employer’s horse and wagon and thereby bind his employer.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 255 , Dec. Dig. § 101.*]</p> <p>2. Rewards (§ 7*)—Previous Knowledge of Offer.</p> <p>One who claims a reward offered for the return of lost property must show that he found the property after he had learned of the reward and: had acted in the discovery with a view of obtaining the reward.</p> <p>[Ed. Note.—For other cases, see Rewards, Cent. Dig. § 7; Dec. Dig § 7.*]</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Walter Moffat against the New York Edison Company.. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Bernard Shane against the City of New York. . Judgment of dismissal, and plaintiff appeals.</p>

<p>. Bankruptcy (§ 424*)—Discharge—‘‘Willful and Malicious- Injuries”— Judgment for .False Imprisonment.</p> <p>Ba'nkr. Act July 1, 1898, c. 541, § 17, subd, 2, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), provides for the discharge of a bankrupt from his debts, except such as are for “willful and malicious injuries,” which are not affected, by 'the discharge. Held, that “willful and malicious,” as so used, did not restrict the exemption to claims for injuries "malicious in fact, but meant nothing more than an injury intentionally -inflicted, and hence a recovery for false imprisonment was not discharged.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 787;. Dec. Dig. § 424.*]</p> <p>Gildersleeve, P. J., dissenting.</p>

<p>Trial (f^ 29*)—Conduct of Trial—Attitude of Judge.</p> <p>A manifestly hostile attitude by the trial judge toward defendants’ counsel, both in the conduct of the trial and in the instructions, was necessarily prejudicial to defendants.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 83; Dec. Dig. § 29.*]</p>

<p>Landlobd and Tenant (§ 186*)—Rent—Liability.</p> <p>Lessees,- having had the use and occupation of the premises for a month, were liable, for a month’s rent, though it was agreed that, if they could not lawfully úse the premises for a certain purpose, the deposit made" by them on account of the rent should be returned, and the .authorities prevented such use of the premises.</p> <p>[Ed. Note.—For other cases; see Landlord and Tenant, Cent. Dig. § 760; Dec. Dig. § 186.*]</p>

<p>Receivers (§ 174*)—Actions—Rights op Action Against Receivers.</p> <p>Where the owner oí a bank deposit assigns it to plaintiff, who notifies the bank, and subsequently a part of the deposit is paid to a receiver appointed for the depositor after the assignment of the deposit, plaintiff, after leave of court, may sue the receiver for the recovery of the amount under an implied assumpsit, instead of intervening in the original action by motion; but his action in suing the defendant will release the bank.</p> <p>[Ed. Note.—For other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. § 174.*]</p>

<p>1. Covenants (§ 103*)—Restrictive Covenants—Use of Premises.</p> <p>In an action for damages by operation of defendant’s elevated road, it appeared that the parties derived title from a common source, and that a covenant against offensive establishments was referred to in several conveyances; but though, in a number of deeds, prior to and since defendant’s road was constructed in 1887, no reference was made to the covenant, it appeared in a deed "to plaintiff, executed in 1905, at which time the railroad had been in operation for about 18 years, but the property in the immediate neighborhood had been changed to a factory section and ceased to be used for residential purposes. Held, that enforcement of the covenant would be inequitable.</p> <p>[Ed. Note.—For other cases, see Covenants, Dec. Dig. § 103.*]</p> <p>2. Covenants (§ 122*)—Restrictive Covenants—Use of Property—Damages—Evidence.</p> <p>Evidence held insufficient to show damages in an action for breach of covenant in a deed against the use of premises for offensive establish- . ments. t</p> <p>[Ed. Note.—For other cases, gee Covenants, Dec. Dig. § 122.*]</p>

<p>Banks and Banking (§ 121*)—Deposits—Mistake in Crediting—Liability of Bank.</p> <p>Where a deposit slip containing a memorandum of checks constituting a deposit was made out erroneously in the name of a person other than the depositor, but the bank’s receiving teller credited the deposit in the bank book, the bank was liable to the depositor in an action on a contract evidenced by the depositor’s bank book, though by reason of the mistake ' in the name oii the deposit slip the bank had credited the deposit in its books to the person whose name appeared on such deposit slip.</p> <p>[Ed. Note.—Eor other cases, see-Banks and Banking, Dec. Dig. § 121.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Michele Di Dio against Giuseppe Robino and another. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>L Landlord and Tenant (§ 88*)—Lease—Requisites oe Contract—Offer and Acceptance.</p> <p>In response to a letter from an agent inquiring of a tenant whether he intended to renew his lease in accordance with its terms, and informing him that the landlord was prepared to make any necessary repairs . immediately, the tenant replied that the terms were satisfactory and that the only repairs necessary would be the putting in of a refrigerator, which he would prefer not to have done until after a certain date. Held to constitute a valid contract for the leasing of the preimses for another year.</p> <p>[Ed. Note.—For other cases, see Landlord and 'Tenant, Cent. Dig. § 279; Dec. Dig. § 88.*]</p> <p>2. Landlord and Tenant (§ 230*)—Amendment of Complaint.</p> <p>In an action on a lease contract, plaintiff should be allowed to amend his complaint as to the amount agreed to be paid as rental, where the amendment was reasonable and did not affect the issue.</p> <p>[Ed. Note,—Por other cases, see Landlord and Tenant, Dec. Dig. § 230.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by.Henry H. Lazarus against the Union Bank of Brooklyn. From a judgment for plaintiff, defendant appeals.</p>

<p>Attorney and Client (§ 166*)—Relation—Sufficiency of Evidence.</p> <p>In an action for services rendered as an attorney, evidence held not to show that plaintiff was employed by defendant as attorney, but that he only acted as stakeholder for a sum deposited by defendant for the prospective assignment of a loan.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Dec. Dig. §. 166.*]</p>

<p>Appeal from Municipal Court', Borough of Manhattan, Eighth District.</p> <p>Action by Gittel Smith and another against Louis D. Prager and another. From a judgment for defendants, plaintiffs appeal.</p>

Action by Mary Etta Murphy against Adrian H. Joline and another, as receivers of the New York City Railway Company. From an order setting aside a verdict for plaintiff, she appeals.

<p>1. Pleading (§ 36*)—Admissions—Proof.</p> <p>In an action by a landlord against a tenant, he could not contend that there was no satisfactory proof that he executed the lease, where his answer set out that he “entered into a certain written agreement in writing between plaintiff and said defendant, purporting to be a lease of the premises mentioned in the complaint,” and such lease was received in evidence on the part of plaintiff, and defendant did not deny that it was the lease which his answer admitted he executed.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 81-86; Dec. Dig.' § 36.*]</p> <p>2. Landlord and Tenant (§ 195*) — Abandonment by Tenant — Reletting by Landlord.</p> <p>Where a tenant abandoned the premises before termination of the' lease, and no duty was imposed on the landlord by the lease as to the re-letting of the premises, but it was merely permissive, he owed the tenant no duty to relet the premises.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§: 792, 793; Dec. Dig. § 195.*]</p>

<p>Sales (§ 479*)—Conditional Sales—Pleading—General Denial—Scope.</p> <p>Where a complaint alleged a conditional sale, reservation of title until payment, failure of payment, and possession, a general denial put in issue only the material aHegations of the complaint, which plaintiff was bound to prove, and hence defendant had no right to show thereunder that they purchased the chattels of the original purchaser in good faith and without notice, and that plaintiff or his assignor had not filed the contract as required by law.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 479.*]</p>

<p>1. Pleading (§ 329*)—Bill of Particulars.</p> <p>Under Code Civ. Proc. § 531, providing that the court may order a bill of particulars, and in default shall preclude the party from giving evidence of the allegations of which particulars have not been given, a plaintiff is in default if .he fails to serve a bill after the order therefor is made, though he served such bill after motion, but before the order, which was returned as insufficient by defendant.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 995; Dec. Dig. § 329.*]</p> <p>■2. Costs (§ 57*)—Order Granting Favor.</p> <p>Costs should not be allowed defendant on an order precluding plaintiff from giving evidence in support of an allegation, a bill of particulars of which he has failed to serve as ordered.</p> <p>[Ed. Note.—For other cases, see Costs, Dec. Dig. § 57.*]</p>

<p>Appeal from Special Term, Kings County.</p> <p>Habeas corpus by the People, on the relation of Sol. Lichtenstein, against Joseph .Langan, a Lieutenant of Police, for the discharge of relator, arrested under a warrant of the Court of Special Sessions of the City of New York, issued on an information filed under Code Cr. Proc. § 742. From an order sustaining the writ, and discharging relator, respondent appeals.</p> <p>Affirmed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Mennie Harris against Barney Scher. From an order setting aside a verdict on motion of plaintiff as being inadequate, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Scarsdale Publishing Company-The Colonial Press-against Charles Edgerton Carter. From a judgment for plaintiff, defendant appeals.</p>

<p>'Trial (§ 396*)—Counterclaim—Amount of Recovery.</p> <p>In an action for installments due on contracts for sale of books, $4.50 was conceded to be due. Defendant filed a counterclaim for $22 for books not as represented. Judgment was given for defendant for $22. Held, there was no basis for the judgment rendered.</p> <p>[Ed. Note.—For other cases, see Trial, Cent Dig. § 938; Dec. Dig. § 396.*]</p>

Action by Rudolph Sturenberg against Louis Spero. From an order setting aside a verdict for plaintiff and dismissing the complaint, plaintiff appeals.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Frederick Schollhamer against Barnett Hamburger. From a judgment of dismissal, with costs, plaintiff appeals.</p>

<p>Payment (§ 82*)—Recovery—Voluntary Payment.</p> <p>Where the treasurer of a society, on settling his accounts, was asked for and paid interest on the funds in his possession, he was not, in the absence of duress, mutual mistake of fact, or false statements made to induce the payment, entitled to recover the same.</p> <p>[Ed. Note.—For other cases, see Payment, Dec. Dig. § 82.*]</p>

<p>1. Brokers (§ 53*)—Compensation—Sufficiency of Service.</p> <p>In an action to recover for services in effecting a sale of defendant’s automobile, under a complaint alleging that plaintiff acted as- a broker in effecting the sale, it was necessary for plaintiff to show that he was the procuring cause of the sale, that he found the purchaser, and that through his efforts the minds of the parties met and resulted in an agreement on the terms of sale; but it is not necessary for him to show that he introduced the purchaser to the owner, nor that he was acquainted with the purchaser.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.*]</p> <p>2. Brokers (§ 8*)—Agency—Evidence.</p> <p>Evidence in an action for a broker’s services held insufficient to show that he acted as broker for defendant in the sale.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 8.*]</p> <p>3. Brokers (§ 82*)—Compensation—Actions—Pleading—Variance.</p> <p>In an action for services performed by plaintiff as a broker under a contract with defendant, recovery cannot be had on proof of a special promise to pay him a commission, which showed no employment of plaintiff.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 82.*]</p> <p>4. Evidence (§ 271*)—Self-Serving Declarations—Letters.</p> <p>In an action for services as a broker, where there was no correspondence between plaintiff and defendant and no question of notice or demand, it is error to admit, at the instance of plaintiff, letters written by him to defendant after the services were rendered to show a demand for payment of his commissions, and containing evidence as to the agreement for services, which was denied by defendant, as they were in the nature of self-serving declarations.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1068-1104; Dec. Dig. § 271.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Morris Friedman against the City of New York and others. Judgment for defendants, and plaintiff appeals.</p>

Action by Annie Brockman against Paul Pape. From an order of the Municipal Court setting aside a judgment for plaintiff, rendered after a trial without a jury, and setting the case down for trial with a jury, plaintiff appeals.

<p>Action by Samuel Silverman against Luigi Garibaldi. Verdict for plaintiff, and defendant filed a motion to set aside the verdict and for a new trial.</p>

Action on a note by Reuben Peckham against George L. Wentworth and others. There was a verdict for plaintiff, and defendants moved to set the same aside.

<p>Sales (§ 201*)—Contract—Delivery to Oabriek.</p> <p>Under a contract for purchase by defendant of plaintiff, made in New York, of wine there sampled by defendant and to be shipped to R., the memorandum of which provided that defendant would deliver to plaintiff the purchase price as soon as the six barrels of red wine, identical with the sample, will have been received in Florida by R., the title vested in the purchaser on delivery, of the wine to the carrier to be shipped, and the duty of plaintiff ended when he shipped six barrels of wine identical with the sample shown, and defendant was liable for the price, though it was not in such condition on arrival.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 535; Dec. Dig. i 201.*]</p>

<p>1. Contracts (§ 19*)—Offer and Acceptance—Proposal bt Mail.</p> <p>Where an offer is made by mail, and an acceptance posted, the contract is complete; a withdrawal of the offer being ineffective, unless received before the mailing of the acceptance.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 57-60; Dec. Dig. § 19.*]</p> <p>2. Contracts (§ 2*)—Offer and Acceptance—What Law Governs.</p> <p>An acceptance of an offer by letter, or by telegraph, if the latter is a proper means of communication and reaches the party to whom it is sent, is governed by the law of the place where the acceptance is dispatched.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 2, 41; Dee. Dig. §2.*]</p> <p>3. Sales (§ 32*)—Contract—Offer and Acceptance—Proposal.</p> <p>A proposal by letter to sell merchandise, in order to ripen into a contract on acceptance, must leave nothing further to be done by the proposer when the acceptance is mailed.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 59; Dec. Dig. § 32.*]</p> <p>4. Sales (§ 26*)—Offer and Acceptance—Proposal.</p> <p>Defendant company, in New York, wrote to plaintiff, in Cincinnati, re* ferririg to a mailed sample of Porto Rico bay rum, quoted to plaintiff at 75 cents per gallon in barrel lots, and stated that it had decided to make a flat price of 70 cents per gallon in barrel lots to jobbers, that all defendant’s goods from invoice arriving July 20th had been sold, and that defendant had orders for most of the invoice of their next steamer, due July 27th, and “should you favor us with your order, we will ship same in the order which we receive it with others.” Held, that such letter did not constitute an offer to sell any definite quantity of bay rum, and was at most an invitation for an order, which defendant might reject or accept, so that a telegram ordering bay rum pursuant to such letter, dispatched before plaintiffs had received subsequent letters withdrawing defendant’s invitation, did not constitute a contract of sale.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1Í9, 120; Dec. Dig.' § 26.*]</p>

In the matter of the appraisal of the estate of William P. Pierce, deceased, under the act's relating to taxable transfers. From an order and decree of the Surrogate’s Court affirming an order or decree taxing certain savings bank trust funds held by decedent, Bryon A. Pierce and another, as administrators, appeal.

<p>Petition by Stafford and others to have commissioners in street opening proceedings assess damages from the discontinuance of contiguous streets.</p>

<p>Action by one McVay against the City of New York to recover salary during his unlawful exclusion from office.</p>

<p>1. Criminal Law (§ 977*)—Judgment— Sentence—Time for.</p> <p>When no sentence is imposed on a plea of guilty, the court may pronounce sentence at a subsequent term.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2492; Dec. Dig. § 977.*]</p> <p>2. Criminal Law (§ 86*)—Jurisdiction—Courts.</p> <p>The Courts of Sessions aré superior courts of general jurisdiction of crimes.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 125: Dec. Dig. § 86.*]</p> <p>3. Habeas Corpus (§ 22*)—Nature of Remedy.</p> <p>Habeas corpus will not lie to review the final determination of a court of general jurisdiction.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 19%; Dec. Dig. § 22.*]</p>

Special Term, New York County. Action by William S. Anderson and another against the New York & Harlem Railroad Company, the New York Central & Hudson River Railroad Company, the New York, New Haven & Hartford Railroad Company, and Everett P. Wheeler. From a judgment for plaintiffs, defendants appeal.

<p>1. Wills (§ 823*)—Legacies—Personal Liability of Devisee.</p> <p>Where a will does not direct a devisee, also executor, to pay a legacy, and his title is not conditioned on payment, and there is no provision by which the legacy is expressly charged on the real estate, no personal liability rests on the devisee by his acceptance of the devise to pay the legacy.</p> <p>[Ed Note.—For other cases, see Wills, 'Cent. Dig. § 2116; Dec. Dig. § 823.*]</p> <p>2. Wills (§ 826*)—Charging Legacy on Real Property—Liability of Executor-Decree.</p> <p>In such case a decree of the Surrogate Court that the legacy is a lien on the devised real property, and directing the executor to pay the legacy in full, is erroneous in so far as it directs payment of any amount beyond the sum which he is chargeable as proceeds of personal property of the testator on due distribution and application thereof, since under' Code Civ. Proc. § 2554, providing that a decree for the payment of a sum of money into court may be enforced by an execution agáinst the property of the party directed to make the payment, the effect of the decision was to create a personal liability on the executor.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 2136; Dec. Dig. § 826.*]</p> <p>3. Executors and Administrators (§ 507*)—Settlement of Account—Scope of Relief.</p> <p>On the settlement of an executor’s account in the Surrogate Court, that court has no jurisdiction to determine whether legacies are chargea- . Me on the residuary real estate.</p> <p>[Ed. Nóte.—For other cases, see Executors and Administrators," Cent. Dig. § 2180; Dec. Dig. § 507.*]</p>

<p>1. Fraud (§ 28*)—Fraudulent Purchase op Goods.</p> <p>A complaint which alleges that defendant was indebted, to plaintiff's assignor, that defendant gave a check aggregating the debt in payment thereof as an inducement to obtain further .credit, that plaintiff’s assignor, relying on defendant’s statement that the check was good, extended to defendant further credit and delivered to him merchandise of a specified •value, that the check was not paid, because defendant had no funds in the bank to meet it, that defendant knew at the .time he gave the check that he had no funds in the hank, that he gave it with intent to defraud plaintiff’s assignor, and that plaintiff’s assignor was Injured in a specified amount, states a cause of action for deceit. , ■</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 8, 26; Dec. Dig. § 28.*]</p> <p>2. Fraud (§ 3*)—Elements.</p> <p>The elements of actionable fraud are representations, falsity, knowledge, deception, and injury.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 1; Dec. Dig. § 3.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2943-2954; vol. 8, p. 7666.]</p> <p>3. Arrest (§ 29*)—Arrest in Civil Actions—Affidavit—Sufficiency.</p> <p>An affidavit for order of arrest in a civil action for fraud, which avers facts showing that property has been parted with by reason of defendant’s false representations, is sufficient, under Code Civ. Proc. § 549, defining when a defendant may be arrested in a civil action.</p> <p>[Ed. Note.—For other cases, see Arrest, Cent. Dig. § 66; Dec. Dig. § 29.*]</p> <p>4. Arrest (§ 35*)—Arrest in Civil Actions—'Complaint—Sufficiency.</p> <p>Where a complaint states a cause of action for fraud, and the affidavit for order of arrest issued avers facts showing that property has been parted with by reason of defendant’s false representations, an amended Complaint is not necessary, within Code Civ. Proc. § 558, authorizing the service of an amended complaint where an order of arrest has been granted.</p> <p>[Ed. Note.—For other cases, see Arrest, Cent. Dig. § 85; Dec. Dig. § 35.*] .</p> <p>5. Arrest (§ 33*)—Arrest in Civil Action—Order—Sufficiency.</p> <p>An order for arrest of defendant in an action for fraud, which states the ground as “fraud and' representations in inducing plaintiff to enter into a sale and delivery of merchandise,” is sufficient, though it was plaintiff’s assignor who was induced to sell and deliver merchandise; the omission of the word “assignor” being a clerical error.</p> <p>[Ed. Note.—For other cases, see Arrest, Cent. Dig. § 76; Dec. Dig. § 33.*]</p> <p>6. Abbest (§ 33*) — Abbest in Civil Action—Obdeb—Sufficiency—Recitals as to Undertaking.</p> <p>Where an undertaking in proper form was attached to the order of arrest of defendant in a civil action, and it appeared that the undertaking had been approved as to form .and sufficiency by the justice who signed and allowed the order, the order of arrest sufficiently showed that plaintiff had given an undertaking as required by law.</p> <p>[Ed. Note.—Eór other cases, see Arrest, Cent. Dig. § 76; Dec. Dig. § 33.*]</p>

<p>Action by one White against one Glover.</p>

^ Action by Frank G. Shay against Abraham Cruxton. From a judgment for plaintiff against defendant for goods sold and delivered to Peter Hodge, defendant appeals.

<p>Action by Sarah H. Barnes and others against the Midland Railroad Terminal Company.</p>

<p>Action by Adolph Bauman against Lippman Tannenbaum. F. Bien, for appellant. H. A. Friedman, for respondent.</p>

<p>In the matter of the application of the city of New York relative to acquiring title for the purpose of opening Beverly Road from Bedford avenue to East Thirty-First street, in the Twenty-Ninth ward, Brooklyn.</p>

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

<p>Action by William P. Dodd against William J. Anderson, administrator, etc., of William H. Anderson, deceased.</p>

<p>Action by John H. Gass against the Astoria Veneer Mills.</p>

<p>Action by the Hedden Construction Company against the Procter & Gamble Company.</p>

Summary proceedings to recover the possession of leased premises by Margaret Luez against Julia D. Alexander, formerly Julia D. Williams. From a final order for the landlord, the tenant appeals. Order modified, and, as modified, affirmed. Max J. Kohler and Saul S. Myers, for appellant. Thomas H. Rothwell, for respondent.

<p>Action by Katherine I. Myers against Ellen T. Herzog and another.</p>

<p>Proceedings by the people of the state of New York, on the relation of James Bradley, against Joseph Besch, as' sheriff, etc.</p>

Action by Caspar Rein against Mollie Zwebelson. From a judgment for plaintiff, and from an order denying a motion for a new trial on the ground of perjury, fraud, and newly discovered evidence, defendant appeals. Reversed, and new trial ordered. Herman Hoffman, for appellant. Lester W. Eisenberg, for respondent.

<p>Action by John B. Schoonmaker and another, copartners, etc., under name of Schoonmaker & Rice, against Henry Steers, Incorporated.</p>

<p>In the matter of the application and petition of J. Edward Simmons and others, constituting the board of water supply of the city of New York, to acquire real estate for and on behalf of the city of New York, under chapter 724, p. 2027, of the Laws of 1905, etc., in the town of Olive, Ulster county, N. Y., for the purpose of providing an additional supply of pure and wholesome water for the use of the city of New York. Parcel No. 50; Marshall Winn and Benjamin Van Steenburgh, claimants.</p>

<p>On motion for reárgument. Denied.</p>