Volume 119 — New York Supplement

<p>Action by Max Brenstein against the North American Realty Company for specific performance of a contract for the sale of real property, or, in the alternative, for the recovery of the deposit and counsel fees. Judgment for defendant.</p>

<p>In the matter of the petition of Spiro Rousos to be admitted a citizen of the United States.</p> <p>Upon objections made by the government to the petition of Spiro Rousos for admission to citizenship in the United States, upon the ground that the petitioner had not attained the age of 21 years at the time his petition was filed, although he had attained such age at the time of the hearing.</p>

<p>1. Municipal Corporations (§ 706*)—Sufficiency of Evidence—Question-fob Jury.</p> <p>Evidence, in an action for injuries caused by defendant negligently driving against plaintiff while he was endeavoring to alight from a car, held' sufficient to take the case to the jury on the question of defendant’s negligence. -</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. & 1518; Dec. Dig. § 706 ;* Highways, Cent. Dig. § 473.]</p> <p>2. Trial (§ 165*)—Taking Case from Jury—Nonsuit.</p> <p>On a motion for nonsuit, all disputed facts are to be regarded in favor of plaintiff, and all inferences conceded to him'.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 374; Dec. Dig. §■ 165.*]</p>

<p>Application- for the probate of the will of Elavia M. Morley, deceased, to which Harriet S. Heath and Eugene Blodgett filed objections on various grounds.</p> <p>Proceedings for the probate of a will, contested on four grounds, charging unsoundness of mind at the time of the execution of the instrument in question, that it was not properly executed, and was not subscribed by the said decedent and published and attested as her last will and testament, and, further, that if said instrument was executed by decedent the execution thereof was procured by undue influence and fraud on .the part of Robert A. Van Allen, a physician, and also other persons to said contestant unknown; said Van Allen being a legatee mentioned in said will.</p>

<p>1. Cabbiebs (§ 180*) — Cabbiage of Freight — Liability fob Damage to Goods.</p> <p>A carrier of perishable freight, under a bill of lading stipulating for through shipment and providing that only the carrier in whose custody the goods were at the time of the loss should be liable therefor, is liable only for negligence occurring on its own line.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent Dig. §§ 815-828; Dec. Dig. § 180.*]</p> <p>2. Cabbiebs (§ 185*)—Through Cabbiage of Freight—Damages—Liability —Burden of Proof.</p> <p>Where freight is delivered to a carrier for through transportation, the shipper, suing the terminal carrier for damage to the goods, need only show that he delivered the goods to the initial carrier in good order, and that the goods were damaged on their arrival at the point of destination, and the burden is then on the terminal carrier to show that they were not injured while in its possession.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent Dig. §§ 835-844; Dec. Dig. § 185.*]</p> <p>3. Cabbiebs (§ 185*)—Through Carriage of Freight—Damages—Liability —Burden of Proof.</p> <p>In an action against the terminal carrier of perishable freight for damages to the goods, evidence held to show that the damages did not occur on its line, relieving it from liability therefor.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 185.*]"</p> <p>4. Cabbiebs (§ 177*)—Through Cabbiage of Freight—Liability of Terminal Gabbier.</p> <p>A terminal carrier is not responsible for any defect in the car in which the goods were shipped under a contract for through carriage, where it did not furnish the car and was not the owner of it.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 775-803; Dec. Dig. § 177.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Lillie H. Bolles against Charles Heckman. From an order setting aside the verdict and granting a new trial, plaintiff appeals.

<p>Insurance (§ 622*)—Limitation of Actions—Infants.</p> <p>An action on a policy insuring the life of an infant, and providing that no suit on the policy shall be maintainable unless brought within six months next after the death of insured, not brought by those interested in the policy until more than eight years after the death of insured, is barred.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1544-1550; Dec. Dig. § 622.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Work and Labor (§ 29*)—Effect of Contract—Amount of Recovery.</p> <p>Where defendant allowed the work sued for to be done on plaintiff’s agreement that the charges would be less than $6 per day, defendant impliedly agreed to pay the reasonable value of the work, calculated at a rate of less than $6 per day.</p> <p>[Ed. Note.-—For other cases, see Work and Labor, Cent. Dig. § 57; Dec. Dig. § 29.*]</p> <p>*For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Nellie M. Hayes against Bertram Borden.' From an order restoring the cause to the calendar, and from an order denying a motion to resettle such order, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Eugene Caravia against Barnet Levy. Erom a judgment for plaintiff, rendered in the Municipal Court of the City of New York, defendant appeals.</p>

<p>Bailment (§ 31*)—Breach of Contract—Sufficiency of Evidence. '</p> <p>In an action for breach of contract by which defendant received furs from plaintiff to be made into scarfs and muffs and redelivered to plaintiff, evidence held not to show by a fair preponderance that defendants Bad possession of the furs or breached any contract made with plaintiff.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. § 131; Dec. Dig. § 31.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Grossman Bros. & Rosenbaum, a corporation, against the Atlas Construction Company, a corporation. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Brokers (§ 84*)—Action for Procuring Loan—Evidence.</p> <p>If the title to property on which a loan was to be made was not good, it should be proved in a suit for procuring the loan thereon which was not made.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 104, 105; Dec. Dig. § 84.*]</p> <p>2. Brokers (§ 60*)—Performance of Agreement—Procuring Loan.</p> <p>Procuring an agreement to make a loan is not the same as procuring loan.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. § 60.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>3. Brokers (§ 84*)—Action for Procuring Loan—Evidence.</p> <p>In an action for procuring a loan on property, it cannot be assumed, In the absence of evidence, that it was not made because of defendants’ fault, or because they did not have a good title.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 104, 105; Dec. Dig. § 84.*]</p>

<p>1. Nuisance (§ 10*)—Personal Injuries—Liability.</p> <p>To make one liable for a personal injury caused by a nuisance which he did not create, and of -the existence of which he did not have actual notice, it must appear that by reasonable care he could have discovered and abated the nuisance.</p> <p>[Ed. Note.—For other eases, see Nuisance, Cent. Dig. § 41; Dec. Dig. § 10.*]</p> <p>2. Nuisance (§ 10*)—Evidence—Liability.</p> <p>The maintenance of a cornice on a building caused water to flow on adjacent premises, creating a nuisance. Two months after the building was erected, a purchaser bought it, and at the same time executed a lease-thereof. The lease was canceled, and a new one made to another tenant. During the interval between the two leases, the purchaser was in possession of the premises. There was nothing to show that during that period he could discover the existence of the nuisance by reasonable care. Both leases required the tenants to make repairs. Held not to show that the purchaser had actual or constructive notice of the nuisance, or to show that he could have discovered it by reasonable care, and he was not liable for injury caused by the nuisance.</p> <p>*For other cases see same topic & 5 number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. § 41; Dec. Dig. § 10.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.</p>

<p>1. Appearance (§ 26*)—Special Appearance.</p> <p>Where the service of summons was void, the appearance of defendant for the purpose of appealing from the default judgment gave the trial court no jurisdiction over defendant.</p> <p>[Ed. Note.—For other cases, see Appearance, Cent. Dig. §§ 154-159; Dec. Dig. § 26.*]</p> <p>2. Courts'(§ 190*)—Mode of Review.</p> <p>An appeal from a default judgment of the Municipal Court of New York City,- entered without service of process, is proper practice.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Morris Marcus against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. Judgment for defendants, and plaintiff appeals.</p>

<p>. Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Arthur J. Rieser agáinst the Wadsworth Watch Case Company. From an order setting aside a verdict for plaintiff, plaintiff appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Paolo Paolino against Giovanni Lordi. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Tenement House Department of the City of New ’ York against Raphael Kurzrok. From an order denying a motion to set aside a default' judgment, defendant appeals.</p>

<p>Landlord and Tenant (§ 308*)—Dispossess Proceedings—Sufficiency of Evidence.</p> <p>In dispossess proceedings by a landlord against a tenant, evidence held insufficient to sustain a final order in plaintiff’s favor.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent.- Dig. § 1316; Dec. Dig. § 308.*]</p> <p>• *For other cases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes</p>

Action by Charles Yung against Conrad Hubert. From a judgment for plaintiff on a verdict, and from an order denying a new trial, defendant appeals.

<p>Municipal Corporations (§ 822*) i—Negligent Use of Streets—Infants— Instructions.</p> <p>In an action for injuries to an Infant, caused by a defective railing over an excavation in front of defendant's premises, a charge to find for plaintiff if the mother sent the child into the street in the care of a guardian, and if defendant maintained the defective railing in a negligent manner, was erroneous, as taking the question of contributory negligence from the jury.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1761; Dec. Dig. § 822:*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexe*</p>

<p>Dismissal and Nonsuit (§ 60*)—Delay in Prosecution—Right to Dismissal.</p> <p>A complaint will be dismissed on defendant’s motion for failure to prosecute, where younger issues have been tried and no excuse is offered for the delay.</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-142, 148; Dec. Dig. § 60.*]</p> <p>*For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

District. Action by the People of the State of New York against Ida C. Seco'r. From a Municipal Court judgment for the People, and from an order denying defendant’s motion to vacate the judgment, she appeals..

<p>Appeal from Municipal Court, Borpugh of Manhattan, Second District.</p> <p>Action by Samuel London, Jr., against Melody Attias. Erom a default judgment, defendant appeals.</p>

<p>Bbokebs (§ 85*)—Action fob Commission—Evidence—Admissibility.</p> <p>Where, in an action for broker’s commission for procuring a purchaser of real estate, the issue was whether plaintiff had been employed to procure a purchaser, the admission in evidence of the contract of sale, drawn in the absence of plaintiff, stating that the seller and purchaser agreed that no broker had brought about the sale and that no commission was to be paid to the broker, was prejudicial to plaintiff.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 85.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Annie E. Burrows against the New York Breweries Company, Limited. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term."</p> <p>Action by Haas, Schachter & Kass against Bonwit, Teller & Co. From a judgment for plaintiffs, defendant appeals.</p>

<p>"Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Export Trucking Company against G. W. Sheldon & Co. On reargument of an appeal by defendants from a judgment for plaintiff.</p>

Action by the Charles Wissman Company against Halstead & Co. From a judgment for defendants for $128.91, after a trial without a jury, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Seely .Office Appliance Company against the Encyclopaedia Brittannica Company. From a judgment for plaintiff, defendant appeals.</p>

Action.by Daniel Murtagh against Adrian H. Joline and another, as receivers of the'New York City Railway Company. From a judgment of the New York City Court in favor of plaintiff, and from an order denying defendants’ motion for a new trial, they appeal.

<p>1. Payment (§ 89*)—Recovery—Mistake—Eight of Action.</p> <p>Under the terms of a lease, the lessee deposited with the lessors the amount of two months’ rent as security for performance of the lessee’s covenants, to be applied to the payment of the rent of the last two months of the term,-provided all the conditions and covenants of the lease be complied with. By successive assignments all rights and interest of the lessee in the lease were transferred to plaintiff. The lessors gave a deed of the property, expressly subject to the lease, and the grantees gave a lease thereof to defendant, expressly subject to the first lease, and providing that they would turn over to defendant $160 paid by the first lessee as security for payment of his rent to defendant, who shall hold it as security as aforesaid. Held, in an action to recover the rent of the last two months, paid under mistake, that defendant’s relation to plaintiff, as regards the original lease and deposit, was the same as that between the original parties, so the action for money had and received would lie.</p> <p>[Ed. Note.—For other cases, see Payment, Cent. Dig. § 291; Dec. Dig. § 89.*]</p> <p>2. Payment (§ 89*)—Recoveky—Mistake—Pleading and Evidence.</p> <p>The right of plaintiff, assignee of a lease, to recover the rent for the last two months of the lease, paid by him under mistake, depending on whether the covenants and conditions of the lease to be performed by the lessee had been performed, and the lease providing that, if they be performed, the amount of two months’ rent deposited as security for their performance should be applied to the payment of the rent of the last two months, he had the burden of showing such performance, alleged by the complaint, and denied by the answer.</p> <p>[Ed. Note.—For other eases, see Payment, Cent. Dig. § 294; Dec. Dig. § 89.*]</p> <p>*For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Courts (§ 190*)—Municipal Courts—Appealable Order.</p> <p>An order of the New York Municipal Court, denying an application for a reargument of a previous motion to open an alleged default judgment, is not appealable.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 3379% ; Dec. Dig. § 190 ;* Appeal and Error, Cent. Dig. § 103.]</p> <p>2. Appeal and Error (§ 123*)—Appeal eroji “Decision.”</p> <p>An appeal can only be taken from a judgment or order and no appeal lies from a “decision” merely.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 875-879; Dec. Dig. § 123.*]</p> <p>31 Appeal and Error (§ 113*)—Appealable Orders.</p> <p>Where defendant appeared by counsel on the trial, there was no default; and so no appeal lies from an order denying an application to open an alleged default judgment against him.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 766; Dec. Dig. § 113.*]</p> <p>13 *For other cases see same topic & § nxtmber in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

<p>Contracts (§ 349*)—Actions—Evidence.</p> <p>In an action to recover $800 under a written agreement providing that, if S. should receive rent for the month of January for certain premises and give a receipt therefor on or before January 5th, the $800 should be paid to plaintiff, the latter was entitled to show that S. was ready and willing to take the rent and give the receipt, and that through defendant’s fault the agreement was not carried out.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 349.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

Action by Thomas Walmsley, as administrator, etc., against William Phillips and another. From an order of the New York City Court, granting plaintiff a new trial for newly discovered evidence, defendants appeal.

<p>1. Judgment (§ 173*)—Opening Default—Proceedings.</p> <p>The court, upon ruling that defendants had failed to comply with the terms of an order granting a motion to open a default and that the default had not been opened should have dismissed the proceedings, and had no right to enter another judgment against defendants in the amount of the original judgment.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 340; Dec. Dig. § 173.*] ■</p> <p>2. Courts (§ 189*)—Municipal Courts—Opening Default—Terms.</p> <p>The only terms that can be made a condition to opening a default are those specified in Municipal Court Act (Laws 1902, p. 1563, c. 580) § 256, providing that the court may require defendant to deposit the amount of the judgment, or to give an undertaking that he will not sell any of his property with intent to defraud plaintiff in the collection of his claim, and that he will pay the judgment recovered; and the court had no power to impose as a condition that an undertaking on a previous appeal continue in force to secure any judgment that might be recovered by plaintiff, nor to require that defendants procure the consent of the sureties that their liability should continue.</p> <p>[Ed. Note.—For other cases> see Courts, Dec. Dig. § 189.*]</p> <p>*For other oases see same topic & § number in Dee. & Am. Digs. 1S07 to date. & Rop’r Indexes</p>

<p>1. Husband and Wife (§§ 19, 23*)—Pubchases op Wipe—Necessabies—Liability op Husband.</p> <p>A husband was not liable for apartment decorations furnished and charged to his wife, in the absence of proof that they were necessaries that she had been expressly authorized to buy, or that he had held her out as his agent with authority to act in the premises.</p> <p>[Ed. Note.-—-For other cases, see Husband and Wife, Cent. Dig. §§ 121— 138, 142-144; Dec. Dig. §§ 19, 23.*]</p> <p>2. Husband and Wipe (§ 23%*)—Pub-chases by Wipe—Actual Authobization.</p> <p>Where apartment decorations were furnished as ordered by defendant’s wife for the apartment in which both resided, and of which he had control, and he thereafter stated that he gave .his wife money to pay for them, such facts established a prima facie case that the wife had been expressly authorized to contract therefor as his agent.</p> <p>[Ed. Note.—For other eases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. § 23%.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.</p>

' Appeal from Municipal Court, Borough of the Bronx, Second District. ■ Action by James T. Barry against the American Locomotive Automobile Company. From a judgment for plaintiff, rendered in the Municipal Court of the City of New York, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Wallace Reid against the State Bank. Judgment for plaintiff, and defendant appeals.</p>

Action by Harris Greenberg against Frederick H. Man, impleaded, etc. From a judgment for plaintiff, and an order denying a new trial, defendant Man appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by William Whitman and others against Louis Jacobson and another. From a judgment for defendants, plaintiffs appeal.</p>

<p>Judgment (§ 143*)—Default—Right to Open.</p> <p>In an action for breach of contract of employment, defendants denied the breach, alleged that plaintiff voluntarily abandoned his employment, and counterclaimed for advances. Plaintiff claimed that he was discharged by one of the defendants. When the case came on for trial, defendants asked an adjournment because of the illness of such defendant, which was denied. Defendants moved to open the default, claiming that such defendant was their most important witness to show a voluntary abandonment of plaintiff’s employment, and also to prove their counterclaim. They produced the affidavit of his attending physician, the truth of which was questioned by one of plaintiff’s affidavits; but the allegations of the latter were not so definite as to discredit the physician’s statements. Defendants submitted an affidavit of merits. Sold, that the default should have been opened, upon reasonable terms.</p> <p>[Ed. Note.—Eor other cases, see Judgment, Cent. Dig. § 288; Dec. Dig. § 143.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal and Ebrob (§ 790*)—Dismissal—Decision Not Necessary.</p> <p>Where an order denying a motion to open a default has been reversed, it becomes unnecessary to pass upon an appeal from an order denying a motion for leave to renew such motion to open the default on further papers, and súeh appeal will be dismissed.</p> <p>[Éd. Note.—For other cases, see Appeal and Ei-ror, Cent. Dig. §§ 47, 3132, 4383, 4384; Dec. Dig. § 790.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by John E. Coles against Philip W. Saitta. Erom a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from City Court of New. York, Trial Term.</p> <p>Action by Moses Kaplan against the J. C. Lyons Building & Operating Company for personal injuries. From an ord^r setting aside a verdict for plaintiff, he appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Esther Adams against Leontine Kline. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Pleading (§ 317*)—Bill of Particulars—Right of Plaintiff Corporation.</p> <p>Defendant, sued by a corporation for failure to construct a building according to contract, alleging acceptance of building with waiver of noncompliance, and settlement after controversies and disputes between the parties, should be required to give a bill of particulars as to the officer or agent of plaintiff accepting with waiver and making settlement, and also as to details of controversies and settlement.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 958, 959'; Dec. Dig. § 317.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

In the matter of supplementary proceedings concerning Carro A. Bird, judgment creditor, and Edward J. Wessels, judgment debtor, together with Erederick W. Smallman, third party, and Gordon Ireland, attorney. From various -orders and “memoranda,” Smallman and Ireland appeal.

<p>Appeal from Municipal Court.</p> <p>Action by Frank K. Young against the Sibley, Lindsay & Curr Company. From a judgment for plaintiff, entered on the verdict of a jury, defendant appeals.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Samuel J. Stiebel and others, copartners doing business under-the name of Stiebel, Hernsheim & Co., against John J. Haigney and others. From a judgment for plaintiffs, defendant John J. Haigney appeals.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Charles R; Thomas against John H. Springer. From an order and judgment for plaintiff, defendant appeals.</p>

<p>1. New Trial (§ 108*)—Newly Discovered Evidence—Probable Effect.</p> <p>A new trial should be granted for newly discovered evidence, where the moving party has not been guilty of undue delay in obtaining the evidence, which is substantial and is of such a nature as to justify a belief that, had it been submitted, the result might have been different.</p> <p>[Ed. Note.—Eor other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*]</p> <p>2. New Trial (§ 150*)—Newly Discovered Evidence—Affidavits on Application.</p> <p>Where a witness can supply the new evidence, and refuses to make an affidavit, the affidavit of another as to his statements is sufficient to warrant granting a new trial.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 307, 308; Dec. Dig. § 150.*]</p> <p>3. Courts (§ 190*)—Municipal Courts—New Trial—Newly Discovered Evidence.</p> <p>A new trial may be granted in the City Court of New York for newly discovered evidence, though the judgment has been affirmed on appeal.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 103; Dec. Dig. § 190;* Appeal and Error, Cent. Dig. § 3379%.]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes</p>

<p>Courts (§ 189*)—Municipal Courts—Judgment on Pleadings.</p> <p>The New York Municipal Court has no power to grant judgment on the pleadings, where the complaint states a cause of action.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Corporations (§ 642*)—Foreign Corporations—“Doing Business in the State.”</p> <p>Under the rule that a mere solitary transaction within, the state is not doing business in the state, within General Corporation Law (Consol. Laws, c. 23) § 15, requiring a foreign corporation to procure a certificate of .authority to transact business in -the state, the indorsement in the state to a foreign corporation of a note executed in the state is not “doing business in the state.”</p> <p>[Ed. Note.—For other cases, see Corporations. Cent. Dig. § 2526; Den Dig. § 642.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2155-2160; vol. 8, pp. 7640, 7641.]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, •& Rep’r Indexes-</p>

Action by the Gledhill Wall Paper Company against the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Rabinowitz against the Cunard Steamship Company, Limited. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

Action by Anna W. Ploger against Anna W. Bright. Erom a judgment for plaintiff, and an order denying a motion for a .new trial, defendant appeals.

<p>1. Sales (§ 479*)—Conditional—Rights as to Resale—Waiver.</p> <p>The provision of Lien Law (Laws 1897, p. 541, c. 418) § 116, as amended by Laws 1900, p. 1624, c. 762, that, where the seller retakes articles sold on condition that title remain in him till payment of the price, he must sell them at public auction within 30 days thereafter, unless they have been redeemed by the buyer, or be liable to the buyer for the amount paid on such articles, may be waived by the buyer, otherwise than in the case of household furniture for family use, where public policy forbids.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1435; Dec. Dig. § 479.*]</p> <p>2. Sales (§ 479*)—Conditional—Rights as to Resale—Waiver.</p> <p>The right, under Lien Law (Laws 1897, p. 541, c. 418) § 116, as amended by Laws 1900, p. 1624, c. 762, of one buying articles on condition of title .remaining in the seller till the price is paid, to have the seller, retaking them, sell them at public auction, within 30 days thereafter, or be liable to the buyer for the amount paid by him thereon, is waived by the contract of sale providing that the seller, retaking the articles for default in payment, may sell them “at public or private sale at any time,” and that, if enough is not obtained on such sale to pay the debt, the buyer will pay the deficiency.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1435; Dee. Dig. § 479.*]</p> <p>*For other cases see same topic & § number in Dec: & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Action by Cyrus F. Axtell against Amelia E. Axtell for divorce. Decree for complainant.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Empire City Savings Bank against Louise Moorhead. Judgment for plaintiff, and defendant appeals.</p>

<p>Injunction (§ 118*)—Summary Proceedings—Oral Contract to Lease—Specific Performance—Complaint.</p> <p>A complaint for an injunction restraining defendant from bringing summary proceedings to oust plaintiff from certain premises on the expiration of his lease, alleging a prior oral agreement to grant plaintiff a new lease for two years at the expiration of the existing one at a specified rental, which defendant thereafter repudiated, stated a cause of action, though the promise was unenforceable under the statute of frauds (Real Property Law [Laws 1896, pp.. 592, 602, c. 547] §§ 207, 224).</p> <p>• [Ed. Note.—For other cases, see Injunction, Dec. Dig. § 118.*]</p> <p>•For other cases see'same topic & § number in Dec. & Am.-Digs. 1907 to date, & Rep’r Indexes</p>

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

Action by Hirsch Perlman and another against Ferdinand Ehrlich and another. From a judgment for plaintiffs, and an order denying a new trial, defendants appeal.'

<p>Bankruptcy (§ 114*)—Receivers—Individual Liability.</p> <p>Where premises were subleased to a company, which subsequently became bankrupt, and it did not appear that the company’s, receiver, after he was appointed, took possession of or occupied the premises, or that he exceeded his authority, as receiver, or entered into any personal obligation to pay the rent, he was not individually liable therefor. '</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 114.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Usury (§ 145*)—Penalty.</p> <p>The finding on the defense of usury being for defendant, judgment should be for him, and not for plaintiff for the amount of the loan, less the usurious interest paid.</p> <p>[Ed. Note.—For other cases, see Usury, Dec. Dig. § 145.*]</p> <p>2. Courts (§ 189*)—Municipal Court—Correction op Judgment.</p> <p>Amendment of the judgment on motion, after, trial, by increasing the amount thereof, amounting to a reversal on the material issue from a finding for defendant to one for plaintiff, is unauthorized by the Municipal Court act (Laws 1902, p. 1486, c. 580).</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

• Action by Frederick J. Ogden and another against William L. Sergeant. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

Court, Borough of Manhattan, Sixth District. Action by the Mishkind-Feinberg Realty Company against Morris Rosenhaft. From an order denying a motion to set aside a final order in summary proceedings entered in the Municipal Court of the city of New York in favor of plaintiff as landlord, defendant as tenant appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Fisk Rubber Company against the Times Square Automobile Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.</p>

<p>Action by Francis J. Murphy and another, copartners, doing business as Murphy Bros., against the Number One Wall Street Corporation and others.</p>

<p>' Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Cohen and another against the American Credit Indemnity Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Cabbiebs (§ 83*)—Carriage of Freight—Bill of Lading—Delivery.</p> <p>A carrier of freight consigned to the shipper under a bill of lading stipulating for notice of the arrival to a third person, and providing that the surrender of the bill of lading properly indorsed shall be required before the delivery of the freight, cannot deliver until presentation of the bill of lading, as the condition imposed therein cannot be waived.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 308-315; Dec. Dig. § 83.*]</p> <p>2. Cabbiebs (§ 140*)—Delivery—Liability.</p> <p>Where the bill of lading stipulated for notice of the arrival of the goods to a third person, and provided that, if the property was not removed on presentation of the bill of lading by the third person within 48 hours after notice, the carrier was liable as a warehouseman only, the third person, on receiving notice, must within 48 hours present the bill of lading if he wished to hold the carrier as such, as after that time the carrier became a warehouseman.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 140.*]</p> <p>3. Cabbiebs (§ 83*)—Delivery—Necessity.</p> <p>A carrier not authorized to deliver the goods until the presentation of the bill of lading need not place the car containing the goods on the delivery track until the person entitled to the goods is prepared by the presentation of the bill pf lading to receive the goods.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § S3.*]</p> <p>4. Cabbiebs (§ 146*)—Liability as Warehouseman—Burden of Proof.</p> <p>Where the liability of a carrier sued for loss of goods was that of warehouseman only, plaintiff must show negligence on the part of the carrier in the care of the goods.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 146.*]</p> <p>5. Carriers (§ 146*)—Liability as Warehouseman.</p> <p>The disappearance of goods in the possession of a carrier holding them as warehouseman only raises a presumption of negligence on its part in the care of the goods.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 146.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Louis Koenigsberg against Adolph L. Bláu, one of the marshals of the city of New York, and Nathan Burnstine. From a judgment for plaintiff entered on a verdict directed by the court as to the liability, and determined as to the amount by the findings of the jury, defendants appeal.

<p>Action by Sarah E. Hope against Charles O. Seaman and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan.</p> <p>Action by Louis Knerll against the Ocean Accident & Guarantee Corporation, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Brokers (§ 49*)—Employment Contract—Performance.</p> <p>Defendant authorized plaintiff to sell certain property for her at $40,-000. The best offer plaintiff obtained was $38,000, and the property was subsequently sold by a third person for $39,000. Held, that plaintiff did not produce a party willing, ready, and able to purchase on defendant’s-terms, and could not therefore claim commissions.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig.. § 49.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action, by Julius Jonson’s Sons against Joseph Buellesbach, doing. business under the firm name and style of Bronx Iron Works., and another. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant Caspar Buellesbach appeals; and from the same judgment, defendant Joseph Buellesbach appeals.</p>

<p>1. Courts (§ 183*)—Jurisdiction—County Courts—Ejectment.</p> <p>A County Court has no jurisdiction of an action of ejectment.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 458; Dec. Dig. § 183.*] 6</p> <p>2. Courts (§ 26*)—Jurisdiction—Pleading—Jurisdiction in Part.</p> <p>If it can be reasonably inferred from the averments that the court has jurisdiction of any cause of action properly pleaded, it will as a rule, retain jurisdiction, though it does not have jurisdiction of other matters pleaded.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 82, 83; Dec. Dig. § 26.*]</p> <p>3. Action (§ 45*)—Joinder of Causes of Action—Ejectment and Action for Mesne Profits.</p> <p>Under Code Civ. Proc. § 1533, providing that, in an action to recover real property, plaintiff, where he recovers the property, may recover as damages the rents and profits or the value of the use and occupation, a cause of action for mesne profits can be joined with one in ejectment.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. § 405; Dec. Dig. § 45.*]</p> <p>4. Action (§ 53*)—Splitting Cause of Action—Recovery of Mesne Profits.</p> <p>Under Code Civ. Proc. § 1531, an action for mesne profits may be brought separately from an action of ejectment.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. § 560; Dec. Dig. § 53.*]</p> <p>5. Courts (§ 183*)—Jurisdiction—County Courts.</p> <p>A County Court has only such jurisdiction as is specifically given it by statute.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 437-468; Dec. Dig. § 183.*]</p> <p>6. Courts (§ 183*)—Jurisdiction—Inferior Courts—County Courts—Ejectment.</p> <p>Code Civ. Proc. § 340, subd. 3, provides that any action for any. cause not enumerated in the other subdivisions (which do not include ejectment), wherein the complaint demands a money judgment not exceeding a certain sum, may be brought in the County Court. Held, that a complaint in the County Court in an action to recover real estate and for damages for withholding possession was demurrable for want of jurisdiction, though it would have jurisdiction of the action for damages alone.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 458; Dec. Dig. § 183.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Conversion (§ 16*)—Discretionary Power of Sale.</p> <p>Where testator empowered his trustees, as they might from time to time deem for the best interests of the estate, to sell, convey, and convert the real estate into money, and invest the proceeds thereof, the power of sale was discretionary, and not mandatory, and hence there was no equitable conversion.</p> <p>[Ed. Note.—For other cases, see Conversion, Cent. Dig. §§ 38-43; Dec. Dig. § 16.*]</p> <p>2. Wills (§ 733*)—Construction.</p> <p>Testator directed his trustees to hold certain property during the lifetime of his widow, and until one of his daughters should arrive at age, or should marry, and directed that on the death of either of his daughters, leaving lawful issue, the trustees should distribute one equal .third or share of the trust estate among such issue. Held, that the son of one of the daughters, on his mother’s death, became vested with an interest in the property.</p> <p>[Ed. Note.—For other cases, see'Wills, Cent. Dig. § 1824; Dec. Dig. § 733.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

<p>Action by John C. Lester against the Board of Education. On demurrer to the complaint.</p>

In the.matter of the transfer tax on the property of Paul Auguste Eleonore Majot, deceased. From an order of the Surrogate’s Court, fixing the transfer tax, Charles H. Gaus, State Comptroller, appeals.

<p>1. Venue (§ 52*)—Change—Convenience oe Witnesses.</p> <p>In an action for injuries through an ejection from a train in Broome county, where the main contention was whether plaintiff was in fact ejected "from the train, upon which all the witnesses, except plaintiff, resided either in Broome county or upon the line of defendant’s railroad, and the condition of plaintiff before and after the accident, as to which he had nineteen witnesses, comprising a doctor residing in Warren county, and the rest in Saratoga county, could be shown by the doctor and one or two other witnesses, it was error to refuse to change the place of trial from Saratoga to Broome county.</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.</p> <p>[Ed. Note.—For other cases, see Venue, •Cent. Dig. § 76; Dec. Dig. § 52.*] 2. Venue (§ 52*)—Change—Convenience oe Witnesses—Employés op Pasty.</p> <p>The court may consider the convenience of employé witnesses in determining where the trial shall be held, though their convenience will be less considered than the convenience of witnesses who are not connected with the parties.</p> <p>[Ed. Note.—For other cases, see Venue, Cent. Dig. $.76; Dec. Dig. g 52.*]</p> <p>Cochrane, J., dissenting.</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

In the matter of the application of the City of New York to acquire real estate in the Town of Hempstead, in the County of Nassau, for purposes of water supply. On motion to confirm the report of the Commissioners of Appraisal, awarding damages.

<p>Sales (§ 82*)—Payment—Time—Delivery.</p> <p>Where the contract specified no time of payment or of delivery of the goods, payment is due when the goods are completed and ready for delivery.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 230; Dec. Dig. § 82.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Accord and Satisfaction (§ 1*)—Sufficiency.</p> <p>Plaintiff assigned an endowment policy as security for a loan. On maturity of the policy defendant collected it, sending plaintiff a statement of the balance he claimed to be due the latter, together with a check for such amount. A dispute arising as to the amount due, plaintiff said he would keep the check and sue for the balance whereupon defendant told him to sue. Held, that there was no accord and satisfaction.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 1-13; Dec. Dig. § 1.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal and Erkob (§ 999*)—Verdict—Conclusiveness.</p> <p>Where the jury were properly instructed, and no error was committed . on the trial which would affect the verdict, it will not be disturbed on appeal ; the question being purely one of fact.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3912; Dec. Dig. § 999.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Harris Garber against Adrian H. Joline and another, as ' receivers of the Metropolitan Street Railway Company. From an order denying a motion to set aside a verdict for plaintiff and for a new trial, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Samuel Gordon against David Mayer. Plaintiff had judgment, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Mary L. Donovan against the Colonial Life Insurance Company of America. Judgment for plaintiff, and defendant appeals.</p>

<p>Principal and Surety (§ 123*) — Action Against Principal — Notice to Surety.</p> <p>A four days’ notice given a surety company before trial of an action brought against a person with whom the company had given a joint bond of indemnity is not an unreasonably short notice in view of the facility with which adjournments may be had in the court in which the action was tried.</p> <p>[Ed. Note.—For other cases, see Principal and Surety, Cent. Dig. § 309; Dec. Dig. § 123.*]</p>

<p>Contracts (§ 282*)—Performance—Satisfaction of Contracting Party.</p> <p>Though plaintiff agreed to paint and kalsomine certain rooms to the satisfaction of defendant’s agent, the agent could not arbitrarily reject the work on the ground that it was not satisfactory to him, if it was in - fact well done; it not being of such nature as to permit the exercise of individual taste.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1284-1289; Dec. Dig. § 282.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Sales (§ 855*)—Actions—Pleading—Variance.</p> <p>There was no variance between a complaint for “goods sold and delivered,” under a written contract of conditional sale, and proof of a breach of contract; there having been delivery and all the purchase price being due.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 355.*]</p> <p>2. Evidence (§ 442*)—Parol Evidence Affecting Writings.</p> <p>Where a written contract for the sale of a machine was complete on its face, evidence as to any guarantee not contained in the contract was inadmissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1874^-1899; Dec. Dig. § 442.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Sales (§ 269*)—Contracts—Warranty—Caveat Emptor.</p> <p>The rule that implied warranty of quality attaches to provisions sold for the buyer’s consumption does not apply to the sale of an animal to a butcher for resale as meat with the seller’s knowledge, and when neither of the parties knows that the animal is diseased, and no warranty accompanies the sale, and there is no evidence of fraud, the rule is that of caveat emptor.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 746; Dec. Dig. § 269.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Action by Cyrille Eggermont against the Cunard Steamship Company, Limited. Judgment for plaintiff for a part of his claim.</p>

<p>Action by Louis Bancroft against the Inter-borough Estates and others.</p>

<p>Action by Joseph Bell, as administrator, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Albert R. Brandly against the American Butter Company,</p>

<p>Action by Mary E. Church against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Maynard N. Clement, as State Commissioner of Excise, against James B. Beers and another.</p>

<p>Action by Martin J. Condon against the New Rochelle Water Company.</p>

Action by Letterio Crisafulli, an infant, by his guardian ad litem, against the Coney Island & Brooklyn Railroad Company. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, First District. Action by Cosino D’Auria against John P. Rodgers, Jr. From a Municipal Court judgment for plaintiff, defendant appeals.</p>

<p>Action by Joseph A. Duffy against Arthur L. Meyer.</p>

<p>Action by Loretta M. Donohue, as administratrix, against Charles Braaf.</p>

<p>Action by Walter F. Duckworth against Patrick McSorley.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by the Funk & Wagnalls Company against Samuel Opolinsky. Judgment for plaintiff, and defendant appeals.</p>

<p>In the matter of the application of the Grade Crossing Commissioners of the City of Buffalo, etc. Proceedings by Michael O’Connor and others against the Grade Crossing Commissioners and another.</p>

<p>Action by Jeanette K. Hahn against the Conried Metropolitan Opera Company.</p>

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

<p>Action by Jacob C. Heintz against the Continental Casualty Company.</p>

<p>Appeal from City Court of New York, Special Term. Action by Carrie L. Hiddink against William H. Woolverton, as president of the New York Transfer Company. From an order, “in so far as the same fails to amend the interlocutory judgment * * * by striking therefrom the words ‘ten dollars ($10),’ and leaving the amount of costs to be adjusted by the clerk,” defendant appeals.</p>

<p>In the matter of the application of William G. I vie, for the removal, etc., of Charles H. Bunnell and Ida C. L. Bunnell.</p>

<p>Action by John T. Holmes _ against the Seaboard Cement Company and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by William C. Holly against Owen D. Healy. Judgment for defendant, and plaintiff appeals.</p>

<p>Action by John Lindholm against Ralph E. Waite.</p>

<p>Action by Elia Ligouri against the American Railway Traffic Company.</p>

<p>Appeal from City Court of New York, Special Term. Action by Antonio Lordi against the People’s Surety Company. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action -by Edgar Luneschloss against Jacob Rothschild. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Margaret McElligott against Browning, King & Co. With this case has been consolidated in this court cases bearing titles as follows: Willie Gootman v. Moses Gruber et al.; Charles ■Scheinberg v. Meade’ Transfer Co.; Bartley Heaney v. Thompson Starrett Co.; Samuel S. Chamberlain v. Childs Co.; Henry Siede v. ' David C. Myers; Mayer L. Cohn v. Supreme Lodge, etc.; Mathias Wrahlie v. L. Oscar Nov-en ; Frederick W. Beinhauer v. Minnie Gross-man.</p>

<p>Action by Albert S. Moore against the Vulcanite Portland Cement Company.</p>

<p>Appeal from City Court of New York, Special Term. Action by Ira Mowery against Charles F. Pierce and another. From an order of the City Court of the City of New York, granting the motion of defendant Charles F. Pierce to open his default without costs, plaintiff appeals.</p>

<p>In the matter of the application to-revoke the letters testamentary issued to Frank E. O’Reilly, as executor of Arthur J. Heaney, deceased. (No. 1.)</p>

<p>In the matter of the judicial settlement of the account of Frank E. O’Reilly, as executor, etc., of Arthur J. .Heaney, deceased.</p>

<p>Action by Michael O’Rourke against the Guy B. Waite Company.</p>

<p>Proceeding by the People of the State of New York, on the relation of the Amoskeag Savings Bank, against Lawson Purdy and others, Commissioners.</p>

<p>Action by Frank Rich against the Pennsylvania Railroad Company.</p>

<p>Action by Joseph Reider, as administrator, etc., against the Michigan Central Railroad Company.</p>

<p>Action by Harry Scherl against Herman L. Flam, as a City Marshal of the City of New York.</p>

<p>Action by George Rubinstein against Max Radt.</p>

<p>Appeal from Blunicipal Court, Borough of Brooklyn, Seventh District. Action by Edward S. Siegel against Benjamin B. Greenberg. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Action by Schwartzschild & Sulzberger against the Empire State Surety Company.</p>

<p>Action by Leonard H. Shipman, as receiver of the F. Gray Company, against George C. Treadwell and another.</p>

<p>Action by Blary A. Schultz against the United States Fidelity & Guaranty Company.</p>

<p>Action by George W. Seaward, as administrator, etc., against Buell G. Davis, as executor of Mary E. King, deceased.</p>

<p>Action by Julius Silver against Jahiel Rebhun.</p>

<p>Action by Lillian B. Taylor and another against John B. Higgs, as administrator, etc., and others. N</p>

<p>Action by Benjamin Stolz, as receiver, etc., against the City of Syracuse.</p>

<p>In the matter of the application for an order for a special town meeting in the Town of Groton, Tompkins County,' N. Y.</p>

<p>In the matter of George W. Venable,</p>

<p>Action by Rudolph Wallaeh against the Riverside Bank.</p>

<p>Action by. -Charles H. Weller against Henry Stengel, Jr.</p>

<p>Proceeding by the People of the State of New York against the Natural Carbonic Gas Company.</p>