Volume 117 — New York Supplement

In the matter of the final judicial settlement of the accounts of J. S. Glen Edwards, executor of William H. Tallmadge, deceased. From so much of the decree (60 Misc. Rep. 394, 113 N. Y. Supp. 621) as determined that the fourth paragraph of the will included the children of brother and sisters of testator deceased at the date of the will, Louise McCurtie appeals.

<p>In the matter of the application of J. Edward Simmons' and others, constituting the Board of Water Supply of the City of New York, to acquire real estate, etc. Report of commissioners set aside, and appointment of new commissioners ordered.</p>

Action by the Typothetæ of the City of New York against Typographical Union No. 6 and others. In the matter of the punishment of Patrick H. McCormick and others for criminal contempt for violating an injunction order. From an order confirming a referee’s report, certain defendants appeal.

<p>Husband and Wife (§ 209*) — Personal Injuries to Wife — Recovery by Husband.</p> <p>A husband, whose wife sustained injuries because of the negligence of another, may recover from the latter the damages suffered by the loss of her society and for medical expenses incurred in consequence of such injuries.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 767, 768; Dec. Dig. § 209.*]</p>

<p>Husband and Wife (§ 19*)—Monet Advanced to Wife—Necessaries.</p> <p>Before plaintiff can recover from defendant for money advanced to defendant’s wife, after notice that defendant would not be responsible for his wife’s debts, he must show defendant’s financial condition, his failure to provide for his wife, and that the money was advanced for necessaries.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Dec Dig. § 19.*]</p>

<p>Appeal from Municipal Court. Borough of Manhattan, Fourth District.</p> <p>Action by Frederick Stanbridge against the Nassau Electric Railroad Company and another. From a judgment for defendants; plaintiff appeals.</p>

<p>Appeal from Justice Court.</p> <p>Action by George Diamond against William D. Lawyer. From a judgment rendered in justice court, plaintiff appeals.</p>

<p>Courts (§ 189*)—Municipal Courts—Dismissal.</p> <p>Under Municipal Court Act (Laws 1902, p. 1561, c. 580) § 248, requiring rendition of judgment of dismissal where plaintiff voluntarily discontinues the action before it is finally submitted, it was error, where plaintiff, before final submission of the action, asked leave to discontinue, to render judgment for defendant.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>1. Contracts (§ 280*)—Employment op Architect—Compensation.</p> <p>Where one, ignorant of the rule that drawings' and specifications are the property of the architect, employed an architect to prepare plans for the alterations of a building, the architect could not recover for his services without a delivery of the drawings.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 280.*]</p> <p>2, Contracts (§ 316*)—Employment op Architect—Compensation.</p> <p>Where an architect, employed to prepare plans for a building, insisted that the plans were his property and refused to deliver them, the fact that there had been a prior delivery only for the purpose of inspection, followed by a return of the drawings to the architect, and the fact that the architect had been told to keep the plans until a future time, did not establish a waiver of a delivery, essential to a recovery for the services.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 316.*]</p>

Action by Samuel R. Rosenberg and another, doing business under the firm name of D. Rosenberg & Co., against Simon Klopfer. From a judgment for plaintiffs, after a trial before the court and jury, and from' an order denying new trial, defendant appeals.

<p>Replevin (§ 71*)—Identity of Pboperty—Evidence.</p> <p>In an action to recover certain diamonds delivered to H. on memorandum, and by him pledged to defendant, a pawnbroker, evidence of the indictment of H. and record of his conviction for the larceny of certain diamonds was inadmissible to establish the identity of the diamonds in question.</p> <p>[Ed. Note.—For other cases, see Replevin, Dec. Dig. § 71.*]</p>

<p>Evidence (§ 588*)—Weight and Sufficiency.</p> <p>A judgment for plaintiff, on the theory that the testimony of defendant and his witnesses is false, cannot be upheld, unless it appears that such testimony is on its face so improbable as to be manifestly incredible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §-2437; Dee. Dig. § 588.*]</p>

<p>Appeal and Error (§ 179*)—Presentation oe Questions in Lower Court—' Admission oe Evidence.</p> <p>A juror asked defendant two questions, and, after defendant had answered both, his counsel objected, the objection was overruled, and plaintiff’s counsel said that he would consent that the evidence be stricken out; but defendant’s counsel objected to its being stricken out, and made no request to have it disregarded. Held, that the reception of the evidence and the overruling of the objection did not constitute reversible error.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 179.*]</p> <p>Seabury, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Belle London against Benjamin Doktor. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Costs (§ 57*)—Grounds—Motion to Open Default.</p> <p>The Municipal Court of the City of New York has no power to Impose costs on denying a motion to open defendant’s default.</p> <p>[Ed. Note.—For other cases, see Costs, Dee. Dig. § 57.*]</p> <p>2. Courts (§ 189*)—Inferior Jurisdiction—Municipal Courts—Procedure —Setting Aside Default.</p> <p>It is an abuse of discretion for the Municipal Court of the City of New York to deny a motion to open defendant’s default, where it was shown that defendant was in attendance at the wrong part of the court, was willing to try the cause, was financially responsible, and set up a defense of payment.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Max Goldsmith against Abe Rabinowitz. From a judgment for defendant, plaintiff appeals.</p>

Action by Eva Henson, administratrix of William S. Henson, deceased, against the Lehigh Valley Railroad Company. There was a verdict for defendant, and plaintiff moves for a new trial.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Bergen Realty Company against Celestino De Marco. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Abraham Singer and another against Nicholas Meyer. From a Municipal Court judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Turchin Sheffield Plate & Sterling Silver Company against John Baugh. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Abraham Kalvin against Abraham Meyers and another. From an order dismissing the complaint, an order denying plaintiff’s motion to strike out part of defendants’ answer, and from an order denying a motion to compel defendants to accept service of notice of trial, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Charles S. Vincent against Adrian S. Joline and Douglas Robinson, as receivers. Judgment for plaintiff, and defendants appeal.</p>

<p>Action by the Typothetae of the City of New York against the Typographical Union No. 6.</p>

Action by Michael Schuman against the Brooklyn Heights Railroad Company. Verdict for plaintiff, and defendant moves to set the verdict aside as against the weight of the evidence.

<p>1. Appeal and Error (§ 1052*)—Reception op Evidence—Cubing Error.</p> <p>The erroneous admission of a conversation with a physician may be cured by the admission of subsequent evidence without objection.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. §§ 4171-4177; Dec. Dig. § 1052.*]</p> <p>2. Trial (§ 194*)—Instructions—Undisputed Evidence.</p> <p>A request to.charge on “undisputed evidence” was properly refused, where it would have made certain hearsay evidence contained in an unproven hospital record the final test in the case, and would have practically removed all questions of fact from the jury.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 452, 453; Dec. Dig. § 194.*]</p> <p>3. Trial (§ 295*)—Request to Charge—Misunderstanding of Judge.</p> <p>Where a verdict was based on a fair charge on the whole case, it will lot be set aside because of the court’s refusal to grant a request, which, though possibly correct, the court’s remarks showed he had misunderstood.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§• 703-717; Dec. Dig. § 295.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Sam Dickstein against Frederick C. Campbell, as president of Local Union, No. 892, Brotherhood of Painters, Decorators, and Paper Hangers. From a judgment for plaintiff, defendant appeals.</p>

<p>Landlord and Tenant (§ 166*)—Injury to Property on Premises—Action— Negligence of Landlord.</p> <p>An undertenant, in a building the upper floors of which were rented to other tenants, could not recover of the landlord for damage to his goods from water flowing into his store from a defective pipe and toilet on an. upper floor, in the absence of proof that the overflow was caused by the landlord’s negligence.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 651 ; Dec. Dig. § 166.*]</p>

<p>Sales (§ 417*)—Contract—Breach.</p> <p>Evidence held to establish a sale of certain travelers’ tickets to plaintiff on the credit of another, so that plaintiff was entitled to recover for breach of defendant’s contract in canceling the tickets.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 417.*]</p>

<p>Trover and Conversion (§ 40*)—Damages—Amount Awarded.</p> <p>Evidence in an action for conversion of a truck held insufficient to establish the value fixed by the court, necessitating a new trial.</p> <p>[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. § 242; Dec. Dig. § 40.*]</p>

<p>Brokers (§ 86*)—Employment—Terms.</p> <p>Evidence held not to show that a broker had more than an employment to bring the owner offers for his property which he would consider.</p> <p>[Ed. Note.—Eor other cases, see Brokers, Cent Dig. §§ 116-118; Dee. Dig. § 86.*]</p> <p>Seabury, J., dissenting.</p>

<p>Bbokebs (§ 63*)—Commissions—When Earned.</p> <p>A broker employed, to procure a loan, who procured a person able and willing to make the loan, is entitled- to his commission, where the employer was responsible for the nonconsummation of the loan.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 79, 81, 9-A-96; Dec. Dig. § 63.*]</p>

<p>Negligence (§ 34*)—Owner of Real Estate—Persons on Adjoining Premises.</p> <p>An owner of premises is under no duty, at common law or by statute, as to a stranger on adjoining premises, to guard an areaway abutting thereon.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 48; Dec. Dig. § 34.*]</p>

Action by William. Seligman against William Linder. From d judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals.

<p>1. Principal and Agent (§ 103*)—Authority of Sales Agent—Contracts on Extraordinary Terms.</p> <p>A sales agent has not general authority" to sell goods on extraordinary terms, and certainly not to consign champagne with the understanding that the buyer can pay for it as he sells it, and to undertake to procure him customers therefor.</p> <p>[Ed.- Note.—For other cases, see Principal and Agent, Cent. Dig. §" 283; Dec. Dig. § 103.*]</p> <p>2. Principal and Agent (§ 166*) — Ratification of Unauthorized Contracts.</p> <p>Ratification of the terms of an unauthorized contract made by an agent can be made only with a full knowledge thereof.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 627; Dec. Dig. § 166.*]</p> <p>3. Principal and Agent (§ 123*) — Nature of Agency and Authority — Admission in Telephone Conversation.</p> <p>A telephone conversation between the buyer and sellers of champagne sold by an agent, in which the sellers, in response to an inquiry, said that anything the agent told the buyer went and that he was their representative, is an admission that he was. a general agent, with the fullest authority.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 420, 424; Dec. Dig. § 123.*]</p> <p>4. .Principal and Agent (§ 193*)—Authority of Sales Agent—Question fob Jury.</p> <p>Evidence held to present a question for the jury as to authority of an agent to bind his principals by a sale of champagne on unusual terms.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. § 193.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Personal injury action by Mike Sozansky against the Interborough Rapid Transit Company. A verdict for plaintiff was set aside, and plaintiff appeals.</p>

<p>.Appeal and Error (§ 957*)—Judgment—'Vacation—Discretion.</p> <p>Exercise of the trial court’s discretion in refusing to open defendant’s default will not be reviewed, unless defendant has affirmatively shown that the default was unintentional and excusable and that he has a good defense, which he may reasonably expect to prove on the trial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3823; Dec. Dig. § 957.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Adolph Muller against Eugenia Keller. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Money Paid (§ 1*)—Contract—Payment of Freight.</p> <p>Where the seller, who had paid the freight charges, sued the buyer therefor, and alleged that he had promised to pay the reasonable charges, but there was no evidence establishing them, the action must be dismissed.</p> <p>[Ed. Note.—For other cases, see Money Paid, Dec. Dig. § 1.*]</p> <p>2. Money Paid (§ 1*)—Voluntary Payment—Recovery. .</p> <p>A buyer agreed with the seller to pay the. reasonable freight. The carrier charged excessive rates, and the buyer notified the seller not to pay them. The carrier’s agent permitted the buyer to unload the goods, though he refused to pay. Subsequently the seller paid the charges. Held, that the payment was voluntary, and the seller could not recover the same from the buyer.</p> <p>[Ed. Note.—For other cases, see Money Paid, Dec. Dig. § 1.*]</p>

<p>Landlord and Tenant (§ 190*)—Eviction—Rent Already Accrued.</p> <p>Eviction is no defense as against rent due at the time thereof.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 765-769; Dec. Dig. § 190.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by John Boyle & Co. against John L. Emil Schueler. From a judgment for defendant, plaintiff appeals.</p>

Action by F. Leon Shelp against John S. Clark. From a judgment in favor of plaintiff, and from' an order denying a motion for a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Solomon Kóhn against the Nassau Electric Railway Company. From a judgment for. defendant", plaintiff appeals.</p>

Action by the Public Bank of New York City against Herman Birnbaum and others. From an order setting aside a judgment' in its favor, plaintiff appeals.

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

<p>Master and Servant (§§ 278, 281*) —Injury'to Servant—Negligence—Evidence.</p> <p>Plaintiff, a cutter, during the five days he was in defendant’s employ, got the patterns, which hung on the wall by standing partly on his cutting table and partly on a hinged extension, supported by a drop leg, oí an adjoining table, and while doing so was injured by the leg slipping. He testified that he regarded such method the quickest and best for getting the patterns; but there was no evidence that he was told by any one. in authority to adopt it. Hold, this was insufficient to prove negligence or freedom from contributory negligence.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 954-972, 987-996; Dec. Dig. §§ 278, 281.*]</p>

<p>Corporations (§ 519*)—Notes—Action Against Indorsee—Evidence.</p> <p>In an action on notes given by a corporation, and purporting to be indorsed by the owners of the corporation individually, evidence held to show that the owners indorsed the notes individually, authorizing a recovery against them.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 519.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action for penalty by the People against Henry Brien. Judgment for the People, and defendant appeals.</p>

Judicial settlement of the estate of Ann McDonough, deceased. From a decree settling the accounts of Catherine McDonough, as administratrix of- Ann McDonough, Ann E. Morton, personally and as executrix of Catherine McDonough, appeals.

<p>1. Appeal and Error (§ 171*)—Theory op Case Below.</p> <p>The trial having proceeded, on the theory that the concession of plaintiff’s counsel at the opening was to be considered as showing ample authority in a certain person to bind plaintiff, the contrary cannot be claimed for the first time on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§• 1053-1069, 1161-1165; Dec. Dig. § 171.*]</p> <p>2. Landlord and Tenant (§ 79*)—Subletting—Remedy.</p> <p>In case of breach of the provision in a lease prohibiting the lessees from assigning it, or subletting, without the landlord’s consent, and pro-" viding for a re-entry by the landlord if the prohibition is violated, the landlord’s remedy is only by action for damages against the lessee, or by re-entry and expulsion of the lessee or those claiming under him; and he cannot forcibly interfere with the enjoyment of the premises, or forcibly eject one occupying them with the lessee’s consent, so that the assignment is effectual till avoided by the landlord’s re-entry.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 79.*]</p> <p>3. Landlord and Tenant (§ 76*)—Subletting—Consent—Evidence.</p> <p>It is not inconsistent with the landlord’s agent having consented to or acquiesced in the subletting of the premises by the lessee to F. that such agent wrote in the sublease words making F.’s right to sublet dependent on the approval of the landlord.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 76.*]</p> <p>4. Landlobd and Tenant (§ 211 *)—Liability fob Rent—Allowance.</p> <p>Plaintiff leased premises to defendants, who assigned the lease to F. Thereafter plaintiff asked permission of defendants to allow S., a tenant of other premises of plaintiff, to occupy part of the premises leased defendants while certain repairs were being made. Defendants said they did not object, but that consent of F., their sublessee, would have to be obtained. Without the consent of F., plaintiff put S. in part of said premises. F. refused to pay rent unless allowed for the use of the part of the premises so occupied by S. Held, that defendants were not liable for the rent without such allowance.</p> <p>[Ed.' Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 211.*]</p>

<p>Husband and Wife (§ 342*)—Criminal. Conversation—Defenses.</p> <p>The bringing of an action for divorce hy a wife on the ground of adultery does not bar an action by the husband for criminal conversation occurring prior to the time of bringing the divorce action, or between the time of bringing the divorce action and the final decree therein; neither is the husband’s adultery a bar to an action for criminal conversation.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 1129; Dec. Dig. § 342.*]</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Fourth District.</p> <p>Action by Harold D. Watson against Franklin P. Duryea. From an order sustaining defendant’s demurrer to the complaint, plaintiff appeals.</p>

Action by Bértha E..Nahe, individually and as administratrix of Louise E.7 Nahe, deceased, against Henry J. Bauer and others. From an order refusing to postpone the'trial, defendant Rhinehart appeals.

<p>Receivers (§ 194*)—Compensation—Counsel Fees.</p> <p>An attorney, acting as counsel for a receiver after the receiver’s resignation, in connection with the receiver’s claim for fees and extra allowances, is not entitled to compensation from the trust estate; but the receiver is individually liable therefor.</p> <p>[Ed. Note.—For other cases, see Receivers, Dec. Dig. § 194.*]</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Second District.</p> <p>Action by David Scott against Emily I. Smith and another. From an order of the Municipal Court of the City of New York granting a new trial, defendants appeal.</p>

Leroy Snyder was indicted, and makes application for an inspection of the minutes of the testimony before the grand jury and for a copy, of the minutes.

<p>Appeal from Municipal Court, Borough of Brooklyn, Sixth District.</p> <p>Action by the United Realty & Mortgage Company against Frederick E. Qarpenter. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Vanderveer Crossings against A. Judson Palmer. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Certiorari by the People, on the relation of William Kennedy, as administrator, etc., against Prank A. O’Donnel and others, as Commissioners of Taxes and Assessments. From an order dismissing the writ, relator appeals.</p>

Action by Mary E. Van Slyke and others against Harry J: Dis-brow and another. From a judgment of a justice of the peace for plaintiffs, defendants appealed, and plaintiffs move for an order to set aside the justice’s return.

Action by Theresa: Happel, as administratrix of Raymond Happel, deceased, against the City of New York. Plaintiff moves to vacate a judgment and restore the cause to the day calendar.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Acme Rubber Manufacturing Company against Leander J. Buckley. From an order denying a motion for resettlement of the case on appeal from the judgment for plaintiff, defendant appeals.</p>

<p>On motion for reargument.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Edward M. Marum against Max Granitz. Judgment of dismissal, and plaintiff appeals.</p>

<p>Contracts (§ 321*)—Building Contracts—Nonperformance—Subcontract-’ ors—Owner’s Liability.</p> <p>Where a building contractor abandoned the work, leaving a substantial part thereof uncompleted, so that the owner was required to expend more than the balance due the contractor to finish the uncompleted portion, the owner was not liable for work and material furnished by a subcontractor.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1508; Dec. Dig. § 321.*]</p>

<p>Contracts (§ 321*)—Nonperformance—Right of Subcontractor.</p> <p>Where a contractor’s failure to perform was so serious as to leave nothing due him, the owner was not liable for labor and material furnished by subcontractors.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§• 1508; Dec. Dig. § 321.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Jennie Kohner against Nathan Kohn, impleaded with others. From a Municipal Court judgment for plaintiff, defendant Kohn appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Jennie Kohner against Nathan Kohn, impleaded with others. Judgment for plaintiff:, and defendant Kohn appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Paul Klopsch and another against the Atlas Construction Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>WORK AND LABOR (§ 12*)—RECOVERY.</p> <p>A tailor, making a coat for a customer and. furnishing some of the materials, may recover the value of the work and materials, less the cost of making slight alterations necessary to complete the. garment in all respects.</p> <p>[Ed. Note.—For other cases, see Work and Labor, Cent. Dig. § 27; Dec. Dig. § 12.*]</p>

<p>1. Contracts (§ 28*)—Actions for Breach—Evidence.</p> <p>Evidence in an action for breach of a contract by defendants to pay plaintiff, who was a creditor of a third person, a part of such third person’s indebtedness and deliver notes for the balance, held not to show the existence of the contract.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 133; Dee. Dig. § 28.*]</p> <p>2. Principal and Agent (§ 145*)—Undisclosed Agency—Liability of Principal.</p> <p>Certain creditors, among whom were plaintiff and his assignor agreed in writing to accept a certain portion of the debt in cash and the remainder in notes signed by the debtor and indorsed by his wife. Following the agreement, and underneath the subscriptions of the creditors, there was written, “The notes mentioned above are to be delivered within 10 days from the date of this instrument,” which was signed by one R. Held that, although defendants were undisclosed principals of R., the agreement did not render them liable for a breach of the agreement by failure to deliver the notes specified therein.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 514; Dec. Dig. § 145.*]</p>

<p>1. Landlord and Tenant (§ 231*)—Action for Rent—Sufficiency of Evidence.</p> <p>In an action for rent, where defendant claimed that he was constructively evicted from the premises by being deprived of the beneficial use thereof because of bad elevator service furnished, evidence held to show that the elevator service was bad, as claimed by defendant.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 231.*]</p> <p>2. Landlord and Tenant (§ 172*)—Eviction—Constructive Eviction—Untenantable Condition of Premises.</p> <p>While there is no implied covenant that leased premises are fit for the tenant’s purposes, yet where, by the landlord’s misfeasance or nonfeasance, the premises become untenantable for the purposes for which they were let, there is a constructive eviction.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 695-703; Dec. Dig. § 172.*]</p> <p>3. Landlord and Tenant (§ 171*)—Eviction—Nature—“Actual Eviction” —“Constructive Eviction.”</p> <p>Evictions are of two kinds: “Actual eviction,” by the landlord or through a title paramount, by which the tenant is actually deprived of the use of a material part of the premises; and “constructive eviction,” where the landlord, by acts of omission or commission, deprives the tenant of the beneficial enjoyment of the premises, the character of the enjoyment to which he is entitled depending upon the nature of the building and the purpose for which it was let.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 691-694, 703; Dec. Dig. § 171.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 157; vol. 2, p. 1470.]</p> <p>4. Landlord and Tenant (§§ 171, 190*)—Eviction—Constructive Eviction —Necessity of Abandonment by Tenant.</p> <p>There can be no constructive eviction, unless the tenant abandons the premises; he being liable for rent accruing during his occupancy.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 691-694, 765-769; Dec. Dig. §§ 171, 190.*]</p> <p>5. Landlord and Tenant (§ 190*)—Rent—Liability—Eviction—Partial Eviction.</p> <p>The tenant’s liability to pay rent is suspended upon his actual eviction. and when partially evicted he may continue in possession of the remainder of the premises without paying rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 765-769; .Dec. Dig. § 190.*]</p> <p>6.. Landlord and Tenant (§§ 172, 190*)—Eviction—Constructive Eviction —Interference with Beneficial Enjoyment.</p> <p>Defendant rented for a term the top floor of a five-story building for manufacturing purposes, entrance to which was by a single elevator and a narrow unlighted stairway, which was out of repair, and thereafter the elevator service became very poor, and was discontinued altogether for several hours each day at intervals, so that defendant’s customers-were often compelled to climb the stairs or leave the building without calling upon him, and shipments to and from his factory were greatly inconvenienced and delayed; and after plaintiSE’s failure to permanently improve the service, as promised, defendant abandoned the premises. Held, that plaintiff’s failure to give proper elevator service deprived defendant of the beneficial enjoyment of the premises, so as to amount to a constructive eviction, and hence defendant was not liable for rent accruing after he abandoned the premises.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 695-703, 765-769; Dec. Dig. §§ 172, 190.*]</p> <p>7. Landlord and Tenant (§ 190*)—Eviction—Constructive Eviction— Waiver by Tenant.</p> <p>Where a tenant is deprived of the beneficial enjoyment of premises, so as to amount to constructive eviction, he has a reasonable time thereafter in which to abandon the premises, depending upon the particular circumstance, so that where the tenant complained of bad elevator service in November, 1908, and improvements were promised and made at intervals, and some improvement in the service was made following another complaint in February, 1909, after which the service became worse .than before, and the tenant moved out on March 15th, he abandoned the premises within a reasonable time under the circumstances, so as to relieve him from- liability for rent accruing thereafter.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §•§ 765-769; Dec. Dig. § 190.*]</p>

<p>1. Pleading (§ 121*)—Actions fob Rent—Defenses—Fbivolotjs Defenses.</p> <p>In an action for rent of a building leased and occupied by defendant, an answer denying that defendant has any knowledge or information to form a belief as to the allegations was frivolous.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 245, 246; Dec. Dig. § 121.*]</p> <p>2. Evidence (§ 459*)—Parol Evidence Affecting Writings—Identification of Parties.</p> <p>In an action for rent of a building leased to defendant under a written lease executed by the G. estate as lessor, plaintiffs could show that they represented the estate.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1906-1911, 2109-2114; Dec. Dig. § 459.*]</p> <p>3. Evidence (§ 415*)—Parol Evidence Sustaining Written Instrument-Authority to Execute.</p> <p>In an action for. rent due under a written lease executed by a certain estate as lessor, plaintiffs could show that the executor of the estate had power to execute the lease.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1873; Dec. Dig. § 415.*]</p>

<p>Tender (§ 19*)—Effect—Admissions.</p> <p>Where defendant claimed damages, and pleaded that he tendered into court the difference between plaintiff’s claim and the damages, which sum hd was; ready, able, and willing to pay to plaintiff, but there was no proof of payment into court of such balance, plaintiff was at least entitled to. judgment for the balance, and a judgment for defendant was erroneous.</p> <p>[Ed. Note.—For other cases, see Tender, Cent. Dig. §§ 59-64; Dec. Dig. § 19.*]</p>

<p>Militia (§ 17*)—Repairs op Armory—Liability.</p> <p>Under Military Code (Laws 1898, p. 563, c. 212) § 134, relating to armories in New York -City, the secretary of the armory board has no power to issue orders or incur expenses for work and materials for repairing an armory; but the duty devolving on the city must be done under the direction of the commissioner of public buildings, who alone, in case of an emergency, may cause repairs to be done without calling for competition.</p> <p>[Ed. Note.—For other cases, see Militia, Cent. Dig. § 42%; Dec. Dig. § 17.*]</p> <p>Seabury, J., dissenting.</p>

Action by Thomas C. Watkins against John Delahunty. On reargument of plaintiff’s appeal from a judgment (108 N. Y. Supp. 619) dismissing the complaint.. For former decision,.see 114 N.'Y. Supp. 1150.

<p>Judgment (§ 720*)—Res Judicata.</p> <p>The judgment adverse to R. on his counterclaim for the agreed price of articles in an action.against him by D., in which' the only question contested, as to the counterclaim, was whether. the contract on which the counterclaim was based was as claimed by R., is a bar to an action by R. against D. for conversion of the articles, based on the contract having been as contended by R. in the former action.</p> <p>[Ed. Note.—For other cases, see Judgment,. Cent. Dig. § 1251 ; Dec. Dig. § 720.*]</p>

<p>Contracts (§ 93*)—Signature—Meeting of Minds.</p> <p>A business man of experience may not escape his undertaking by saying that he signed the contract without reading it, when the only person who can contradict his present statement that something else should be read into the instrument is insane.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 416; Dec. Dig. § 93.*]</p>

<p>Trial ($ 377*)—Order of Proof—Exclusion of Evidence.</p> <p>Where the issue was whether the transaction involved was usurious,, and plaintiff’s attorney, at whose office the transaction was consummated, asked, before the case was closed, permission to testify in behalf of plaintiff, the refusal to permit him to testify was reversible error.</p> <p>[Ed. Note.—For other cases, see Trial, Dec." Dig." § 377.*]</p> <p>MacLean, J., dissenting.</p>

<p>Bills and Notes (§ 437*)—Release of Makeb-^-Effect on Indorsee.</p> <p>Where the holder of a note released the maker, and reserved no right of recourse- against the payee and indorser, secondarily liable thereon, such indorser was also discharged, under Negotiable Instruments Law (Laws 1897, c. .612, p. 744) § 201, subd. 5, providing that a person secondarily liable is discharged by a release of the principal debtor, unless recourse against the party secondarily liable is expressly reserved.</p> <p>[Bdi Note.—For other cases, see Bills and Notes,-Dec. Dig. § 437.*]</p>

<p>Pleading (§ 238*)—Complaint—Amendment—Affidavit.</p> <p>An order granting leave to amend plaintiff’s complaint on the affidavit of his attorney, which failed to show that affiant had any knowledge of the additional facts sought to be incorporated, was unsustainable.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 622; Dec. Dig. § 238.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Sadie Louise Thompson against Zelma Rawlston. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Jesper M. C. Jensen 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 Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Ellen Enslcew against Mrs. John Reise. From a Municipal Court judgment for plaintiff,- defendant appeals.</p>

<p>New Trial (| 33*)—Grounds—Irregularities at Trial.</p> <p>Where, in an action for injuries in a collision with an automobile, the uncontradicted evidence showed that at the time of the accident the chauffeur running the car was not in the employ of defendant, the court refused to charge that there was no evidence from which the jury could find that the car was employed on defendant’s business, but made statements, as to the extent and nature of plaintiff’s injuries, tending to enable plaintiff to secure a verdict as a result of sympathy for him, the verdict for plaintiff must be set aside.</p> <p>[Ed. Note.—For other cases, see New Trial, Dec. Dig. § 33.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Henry Richardson against William H. Woolverton. From a. Municipal Court judgment for plaintiff, defendant appeals.</p>

<p>Bxeoutobs and Administbatobs (§ 221*)—Action Against Administratrix— Evidence—Sufficiency.</p> <p>In an action against an administratrix on an account stated between plaintiff and defendant’s intestate and for goods subsequently sold and delivered to the latter, evidence for plaintiff helé to make out a prima facie case.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 221.*]</p>

<p>1. Master and Servant (§ 9*)—Employment—Time—Renewal of Contract.</p> <p>The renewal of a contract of employment by-failure of the parties to exercise an option to terminate it before its expiration is a renewal of a provision as to the employer’s right to stop advances.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. $ 11; Dec. Dig. § 9.*]</p> <p>2. Master and Servant (g 40*) — Evidence — Sufficiency—Breach of Contract.</p> <p>Evidence as to damages caused by breach of a contract of employment held insufficient to sustain the verdict.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 40.*]</p>

<p>1. Municipal Coepoeations (§ 659*) — Streets — Monuments — Erection — “PUBPBESTUEE. ”</p> <p>The erection of a suitable monument by a municipal corporation at a street intersection, so situated as not to interfere with the free and reasonable public use of the highway by the public, is not a “purpresture” or unlawful invasion of the public highway.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 659.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 5867, 5868; vol. 8, p. 7776.]</p> <p>H. Municipal Coepoeations (§ 659*)—Historical Events—Commemoration.</p> <p>The passage of a street intersection by Gen. Sullivan and his army in 1779 was an historical incident proper to be commemorated by the erection of a monument at a street intersection.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec.' Dig. § 659.*]</p> <p>3. Municipal Corporations (§ 821*)—Street Intersections—Obstruction— Negligence of City—Question for Jury.</p> <p>Where plaintiff was injured by his horse becoming frightened at a, boulder erected by a private citizen with the consent of the village trustees at a street intersection to commemorate an historical event, and it appeared that the village trustees had been previously notified that horses ordinarily gentle and roadworthy had been frightened at the boulder, whether it was the duty of the board to remove the boulder or to guard it by trees and shrubbery was for the jury.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. $ 821.*]</p>

<p>Judgment (§ 145*)—Opening Default.</p> <p>Default should be opened, on motion therefor on all the papers and proceedings in the action; the testimony taken on the inquest not proving a cause of action against defendants.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§• 271, 292-295; Dec. Dig. § 145.*]</p>

<p>1. Street Railboads (§ 28*)—Franchise—Contract.</p> <p>A street railway franchise grant, when accepted and acted upon, becomes a contract.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. $ 28.*]</p> <p>2. Constitutional Law (§ 133*)—Franchise—Contract.</p> <p>A street railway franchise provided that each car should be annually, licensed at such sum as the common council might determine. Thereafter an ordinance was adopted, fixing the license at $50 a car, requiring a certificate of the payment thereof to be displayed in the car and, iniposing a penalty of $50 for each car without a certificate. Later -the ordinance was amended so as to impose a penalty of $50 for “each dayf’ a car should be run without a certificate. Held, that the provisions^ bf the ordinance tov the display of the certificate of payment and imposing a penalty for failure to do so were made under the general power of the city, and not under the power reserved in the franchise to fix the amount of the license fee, and could not be read into the franchise as forming part of the contract, and might, therefore, be amended without impairing the contract rights of the street railway company established by its accepting and acting under the franchise.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 133.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the City of New York against the New York City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Mortgages (§ 588*)—Foreclosure—Decree—Effect—Cancellation of Lease.</p> <p>A tenant of mortgaged premises on which a saloon was conducted was made a party to mortgage foreclosure proceedings, the lease being subsequent to the mortgage, and a decree was entered that the defendants and all persons claiming under them, after the filing of the notice of pendency of the action, be forever barred of all rights in said mortgage premises. The premises were sold, and the purchaser received a deed therefor and sued the tenant for rent. The bar fixtures were left in the saloon and the tenant retained the keys at the request of the purchaser, but declined to make a new lease to the purchaser. Held, that the lease under which the tenant held was canceled by the foreclosure decree.</p> <p>[Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 588.*]</p> <p>2. Landlord and Tenant (§ 193*)—Cancellation of Lease—Liability fob Rent.</p> <p>Held, also, in the absence of an attornment to the purchaser, that the tenant was not liable for rent under the cancellatic.of the lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 193.*]</p> <p>3. Landlord and Tenant (§ 14*)—Implied Tenancy.</p> <p>The leaving of the bar fixtures and the retaining of the keys of the premises at the request of plaintiff did not create an implied tenancy, as mere use and occupation by a tenant is not sufficient to establish the conventional relation of landlord and tenant.</p> <p>[Ed. Note.—For other cases, see Landlord - and Tenant, Cent. Dig. § 40; Dec. Dig. § 14.*]</p> <p>4. Landlord and Tenant (§ 196*)—Holding Ovee—Liability fob Rent.</p> <p>Nor was the tenant liable for rent after the cancellation of the lease as a hold-over, since his possession was not that of a trespasser, but at the request of plaintiff.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 196.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Aaron Brafman against Harry D. Kohn and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by George Ranger against John P. Leo. From a judgment for defendant, plaintiff appeals.</p>

Action by Katherine A. Maher against Philip Schulang. From an order of the Municipal Court, denying plaintiff’s motion to vacate a judgment and for a new trial, she appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Joseph Melcer against Marceline Orbes. From a Municipal Court judgment for plaintiff, defendant appeals.</p>

<p>Pleading (§ 346*)—Demurrer—Frivolous Demubreb.</p> <p>To justify a decision that a demurrer is frivolous, It must -be not only without adequate reason, but so plainly without foundation that the alleged defect appears on mere inspection, -and indicates that it was interposed in bad faith; and if any argument is required to show that the demurrer is bad, it is not frivolous.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1063; Dec. Dig. $ 346.*]</p>

<p>Pleading (§ 346*)—Motions—Summaby Judgment—Fbivolotjs Pleading.</p> <p>A judgment on motion, authorized by Code Civ. Proc. § 547, created by Laws 1908, p. 462, c. 166, § 1, if a party is entitled to judgment on the pleadings, should not be given plaintiff on the answer, unless it as a whole is frivolous, which is not the case where, though one defense is insufficient to raise an issue, the other defense has merit.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1060-1064; Dec. Dig. § 346.*]</p>

<p>Pleading (§ 218*)—Demurrer—Grounds—Proof.</p> <p>Where defendant demurred to plaintiff's complaint on the. ground of another action pending, which fact did not appear on the face of the complaint, the court erred in permitting proof thereof by affidavits.</p> <p>[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 218.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action- by Eugene Hess against Samuel Furst. Judgment for plaintiff, and defendant</p> <p>appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Adolph Witteman against William C. Glass. From a judgment for plaintiff, defendant appeals.</p>

Action by Louis Caplan against Hyman Moness to recover earnest money paid for realty purchased upon misrepresentations. From a judgment for defendant, and an order denying a new trial, plaintiff appeals.

<p>1. Appeal and Error (§ 671*)—Record.</p> <p>Only those papers can be considered, on appéal from an order, which the order- itself, by its recitals, shows were before the lower court.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 671.*]</p> <p>2. Affidavits (§ 15*)—Affidavits Taken in Other State—Authentication.</p> <p>The affidavit used as a foundation for a motion for a. bill of particulars could not legally be read in evidence, having been taken in another state, and the authority of the officer before whom it was taken not having been authenticated, as required by Code Civ. Proc. § 844; so that the order for the bill of particulars was based on insufficient papers.</p> <p>[Ed. Note.—For other cases, see Affidavits, Cent. Dig. §§ 61-64; Dec. Dig. § 15.*]</p> <p>3. Pleading (§ 313*)—Bill of Particulars.</p> <p>It is not within the scope of a bill of particulars to furnish names of witnesses or other matters of evidence.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 949; Dec. Dig. § 313.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by George Bruce Webster against. Clark H. Abbott and another. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Bailment (§ 18*)—Machinist’s Lien on Pbess.</p> <p>Lien Law (Laws 1897, p. 532, c. 418) § 70, provides that a person who makes, alters, repairs, or in any way enhances the value of an article of personal property, at the request or with the consent of the. owner, has a lien thereon, .while lawfully in possession thereof, for his reasonable charges for work done and materials furnished, and may retain possession till such charges are paid. Held, in view of such section, that a machinist, sued for possession of a press, was bound, in order to maintain his lien, to prove that he altered, repaired, or enhanced its- value at the owner’s request or with his consent, and cannot sustain a refusal to deliver on a demand for payment of more than reasonable charges.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. § 78; Dec. Dig. § 18.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the National Bridge Works against the Atlas Construction Company. From a default judgment, defendant appeals.</p>

<p>Corporations (§ 155*)—Dividends—Action for Dividend.</p> <p>A corporation having a capital stock of $10,000 declared a dividend of 120 per cent, on it appearing that it had a surplus of over.$13,000 in assets, consisting in part of stock, raw and manufactured, and fixtures; the resolution for the dividend providing that creditors entitled to $9,000 should first be paid. Reid, that before payment of such indebtedness a stockholder could not maintain an action for his share of the dividend.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 155.*]</p>

Action by Frank Downing-against McKillop, Walker & Co. Plaintiff obtained an order for the issuing of a commission to take the deposition of witnesses, and defendant appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by George H. Selleck against the Manhattan Fire Alarm Company. From a judgment for defendant, dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Isaac B. Hyman against Alfred H. Caspary and another. From a Municipal. Court judgment for defendants, plaintiff appeals.</p>

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

Action by William Sommer against James Everard’s Breweries. From a judgment for plaintiff, and from an .order denying a motion for a new trial, defendant appeals.

Action by Elwyn G. B. Riley against the United States Title Guaranty & Indemnity Company. From an order of the New York City Court denying defendant’s motion for a new trial for newly discovered evidence, it appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Elwyn G. B. Riley against the United States Title Guaranty & Indemnity Company. From a judgment of the New York City Court for plaintiff, defendant appeals.</p>

Action by Robert Stringer against Benjamin Guggenheim. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Mamie Reynolds against Henry B. Stein and another. Judgment for plaintiff, and defendant Stein appeals.</p>

<p>Judgment (S 739*) —Res Judicata — Matters That could Not have been Litigated.</p> <p>As there can be no constructive eviction without an abandonment of possession, the question of eviction could not he litigated in an action for rent due before an abandonment, which, however, occurred before the trial; and hence, in a subsequent action for rent for the remainder of the term, the judgment in the former action did not bar evidence of the eviction as a defense.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1207; Dec. Dig. § 739.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Joseph Rapp and another against Charles C. Platt. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Julia Mehrbach against Gregor Moser. From a judgment for defendant, plaintiff appeals.</p>

Suit by the Manufacturers’ Commercial Company against the Rochester Railway Company and another on an assignment. Decree for, complainant. This action was brought against the Rochester Railway Company as sole defendant lo recover the price of certain railroad ties .purchased by it of the Ecclestim Lumber Company.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by -Louis Halprin against Max Sarner. From a judgment dismissing the complaint, plaintiff .appeals.</p>

Suit by- Anna Bishop against J. Henry Howe and others. This is an action brought to set aside a deed of real estate situate on Monroe avenue, in the city of Rochester, made by the plaintiff to the defendant J. Henry Howe in July, 1906; also to have declared a nullity her signature and acknowledgment to a deed of real estate owned by her husband, Wilbur L. Bishop, situate in the town of Brighton, and on Labumam Crescent, in the city of Rochester, and her signature to…

Action by the Staines, Bunn & Taber Company against Edward J. Duggan. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action- by Annie Tucker against Mary C. O’Brien and others. From an order setting aside a verdict in favor of defendants and granting a new trial, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Charles E. Anderson against the Independent Peerless Pattern Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 171*)—Change of Theory.</p> <p>Where an action was tried on the theory that defendant was liable for rent as assignee of a written lease, that theory must be adhered to on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1069, 1161-1165; Dec. Dig. § 171.*]</p> <p>2. Frauds, Statute of (§ 63*)—Assignment of Lease.</p> <p>An assignment of a five-year written lease is void, if not in writing.</p> <p>[Ed. Note.—For other eases, see- Frauds, Statute of, Cent. Dig. § 98; Dec. Dig. § 63.*]</p> <p>3. Landlord and Tenant (§ 80½ *)—Assignment of Lease—Evidence.</p> <p>Possession of leased premises by one other than the lessee, and the payment of rent, would be presumptive evidence of a holding under an assignment from the lessee.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 231; Dec. Dig. § 80½.*]</p> <p>4. Landlord and Tenant (§ 208*)—Action for Rent—Persons Liable—Occupancy Under Lessee.</p> <p>One, other than the lessee, in possession and paying rent, may show that there was never a valid assignment of the lease in an action against him by the lessor for rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig.- § 825; Dec. Dig. § 208.*]</p>

<p>1. Attachment (§ 350*)—Action on Bond—Evidence.</p> <p>In an action on an attachment bond, It is sufficient to show that plaintiff incurred a liability, without showing that it had been paid.</p> <p>[Ed. Note.—For other cases, see Attachment, Dec. Dig. § 350.*]</p> <p>2. Attachment (§ 351*)—Liability on Bond—Counsel—Services.</p> <p>The value of the services of counsel retained to vacate an attachment is a part of the damages sustained thereby, within the meaning of an attachment bond.</p> <p>[Ed. Note.—For other cases, see Attachment, Cent. Dig. § 1294; Dec. Dig. § 351.*]</p>

<p>Action by Jacob W. Bayliss against George Ryan. Defendant moves to set aside an order allowing a garnishee execution to issue.</p>

<p>Mortgages (§ 559*)—Practice on Sale Under Prior Mortgage Pending Foreclosure.</p> <p>Where mortgaged premises have been sold under a prior mortgage pending foreclosure of the junior mortgage, plaintiff should proceed to enter judgment of foreclosure and sale, and have the surplus in the hands of the chamlerlain applied as far as it will go iu reducing her mortgage lien, and be relieved from the necessity of a sale by order because of the circumstances, and theréafter she may apply for a deficiency judgment; and hence it was irregular practice where, without entry of any judgment, plaintiff obtained an ex parte order, on an affidavit that none of the defendants appeared, answered, or demurred, and were in default for so doing, directing the clerk to enter a deficiency judgment against defendant mortgagor.</p> <p>[Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 559.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by the Dimoclc & Fink Company against Warren J. Mitchell and Cornell J. Mitchell. Judgment for defendants, and plaintiff appeals.</p>

<p>Warehousemen (§ 25*)—Delivery op Goods—Rights of Consignee.</p> <p>A warehouseman, receiving from a carrier goods for storage, on the refusal of the seller to receive the goods back on the buyer rejecting them, may deliver them to the seller, designated the consignee in the hill of lading, bearing on its face the words “not negotiable,” in the absence of knowledge of any new right in one claiming' under the buyer.</p> <p>[Ed. Note.—For other cases, see Warehousemen, Cent. Dig. §§ 38-47; Dec. Dig. § 25.*]</p>

<p>Masteb and Sebvant (§ 80*) — Contbact of Employment— Evidence—Sufficiency.</p> <p>In an action for services rendered pursuant to an alleged employment, evidence held not to sustain plaintiff's burden of proof.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 80.*]</p> <p>MacLean, J., dissenting.</p>

<p>1. Cabriers (§ 100*)—Demurrage Rules—Construction.</p> <p>Demurrage rules promulgated by a Carrier must be construed most favorably to the shipper.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§• 427-433; Dec. Dig. § 100.*]</p> <p>2, Carriers (§ 100*)—Demurrage Rules—Construction.</p> <p>Rules stipulating that demurrage will be charged at designated coal piers for the detention of coal cars held for transshipment, promulgated by a terminal carrier, required to deliver at such piers a shipper’s coal, do not authorize the collection of demurrage for the detention of coal cars at a freight yard under the control of the carrier 12 miles distant.</p> <p>[Ed. Note.—For other cases, see Carrier's, Cent. Dig. §§ 427-433; Dec. Dig. § 100.*]</p> <p>MacLean, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Sigmund Wechsler against the O. J. Gude Company. From a judgment for defendant, plaintiff appeals.</p>

Action by George Mulligan against Caroline Hachmeister, individually and as executrix, and others. From an interlocutory judgment overruling a demurrer to the complaint, defendants Jetter appeal.

<p>Sales (§ 69*)—Contract—Nature of Article.</p> <p>Defendants purchased certain “suction hose” from plaintiff, to be specially made in accordance with specifications furnished by the canal commission, to be furnished by defendants to the commission under contract. The commission refused to receive the hose, because not reinforced, after which defendants wrote plaintiff, admitting that the specifications did not call for reinforcement. Held, that it was no defense to an action for the price that the hose was not reinforced.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 69.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Cornelia B. Page against William J. Dempsey. From an order opening a default judgment on payment of $10 costs, plaintiff appeals.</p>

Action by Adolph Rusch. and another, copartners, against Samuel Klausner and another, copartners. Judgment' for plaintiffs, and defendants appeal.

Action by William R. McMillan against the Minetto Shade Cloth Company. From' a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Eminent Domain (§ 237*)—Proceedings to Take Property—Motion for Supplemental Report by Commissioners.</p> <p>Greater New York Charter (Laws 1901, p. 613, c. 466) § 1438a, provides that upon submission of the report in condemnation proceedings the court shall either confirm the same in whole or in part, or refer it back to the commissioners, or to new commissioners. Commissioners having filed their final report, and a motion having been made to confirm the same, a property owner, before the time fixed for hearing the motion, claiming to be aggrieved by the commissioners’ action, applied for an order requiring them to make a supplemental report, stating certain details bearing upon the principle adopted in making their final award, including an itemized valuation of certain land under water, the pier thereon, and wharfage rights, all of which the commissioners had excluded from the award on the ground that the owner either had no title or would enjoy an equivalent benefit. Held, that all such matters properly belonged to the hearing on the motion to confirm.</p> <p>[For other cases, see Eminent Domain, Dec. Dig. § 237.*]</p>

<p>Action by Onondaga County against the City of Amsterdam, tried before the court upon an agreed statement of facts. Judgment for plaintiff.</p>

Actions by Thomas H. Blair, an infant, by William S. Blair, his guardian, against the New York Transportation Company, and by William S. Blair against the same defendant. From judgments for plaintiffs and orders denying motions for new trial, defendant appeals.

<p>Action by Bernard Curry against the Manhattan Railway Company and another. J.</p>

<p>Action by the Continental Insurance Company against Henry C. Fuller and others.</p>

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

<p>Action by the Delaware, Lackawanna & Western Railroad Company against the City of Buffalo and F. G. Ward, as commissioner of public works, etc.</p>

<p>Action by Amelia A. Finucane against Charles C. Warner and another.</p>

<p>Action by the Empire Bridge Company against the Larkin Soap Company.</p>

Action by George W. Herbert against Harriet Humphreys and another. From a judgment dismissing the complaint, and awarding to defendant Harriet Humphreys the possession of the chattels replevined, or their alleged value, plaintiff appeals.

<p>Action by Emmons Howard against John J. Al-bright.</p>

<p>Appeal from Special Term, Westchester County. Action by Harry B. Hollins and others against William R. Garrison, impleaded with the New York & Java Trading Company and another. From an order denying a motion to vacate an order extending defendant Garrison’s time to make and serve the case on appeal, plaintiffs appeal.</p>

<p>Appeal from City Court of New York, Special Term. Action by Moses Kaplan against Frederick A. Wallis. From an order directing him to serve a bill of particulars of his counterclaim, defendant appeals.</p>

<p>Action by Jeanette H. Joseph against Simon Herzig, individually, etc.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Louis Lenkowsky against the Oscar Wiessner Hat Frame Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by the National Metal Edge Box Company against Darwin B. Gotham.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by the New York Talking Machine Company against William L. Young. Judgment for defendant, and plaintiff appeals.</p>

<p>In the matter of the opening of Briggs avenue.</p>

<p>Action by Norman E. Radley, an infant, etc., against Samuel Shopire.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Rosa Saberski against Sam Katz. From a final order in plaintiff’s favor, defendant appeals.</p>

<p>Action by Clifford N. Searle against Halstead & Co.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Frederick L. Stahl and another against Harry L. Toplitz and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Action by Anna C. M. Webster against the Columbian Life Insurance Company.</p>