Volume 120 — New York Supplement

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by John Kelly against Herman Goebbert. From a judgment for defendant, plaintiff appeals.</p>

<p>New Trial (§ 68*)—Grounds—Insufficiency of Evidence.</p> <p>Where, in an action for fraud, based on representations of defendant, who was president of a corporation, that the corporation owned certain real estate, the uncorroborated evidence of plaintiff as to defendant’s misstatements was indefinite, and the testimony contradicting him was positive, justice required the granting of a new trial after judgment for plaintiff.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 135-140; Dec. Dig. § 68.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Empire State Garage against John Pratt Carroll. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Leo B. Weisl against Morgan T. James. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the St. Dunstan Society against Henry Allen Mendelson. From a judgment for defendant, plaintiff appeals.</p>

<p>Execution (§ 380*)’—Supplementary Proceedings—Orders—Discontinuance —Contempt.</p> <p>An order was granted for the examination of a judgment debtor, and a motion to punish the debtor for disobedience thereto was denied,' because the creditor entered the debtor’s default without waiting a half hour., in the order denying the motion the creditor was given leave to obtain another order for examination, which was done, and the debtor defaulted, and the creditor again moved to punish for contempt. Held, under Code Civ. Proc. § 2454, providing that such special proceedings must be discontinued by order of the court, that the order granting leave to obtain another order was not a discontinuance, and hence the second order was invalid because of the pendency of the first proceeding.</p> <p>[Ed. Note.—Eor other cases, see Execution, Cent. Dig. § 1118; Dec. Dig. § 380.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. •</p> <p>Action by the L. J. Wing Manufacturing Company, against Richard Thompson.. From a judgment for defendant, plaintiff appeals, and, from a judgment dismissing a counterclaim, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Clara Menzie, administratrix, against Armand Wolff and others, copartners, doing business under the style of Wolff Bros. From a judgment for -plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Max Seisler against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Pleading (§ 192*)—Demurrer—Grounds—Uncertainty</p> <p>Allegations of performance of a contract are not demurrable because they are so indefinite and uncertain that defendant cannot safely go to trial.</p> <p>[Ed. Note.—Eor other cases, see Pleading, Cent. Dig. § 409; Dec. Dig. § 192.*]</p> <p>2. Pleading (§ 204*)—Demurrer.</p> <p>A demurrer to a paragraph of the reply is not authorized.</p> <p>[Ed. Note.—Eor other cases, see Pleading, Cent. Dig. §§ 489, 490; Dec. Dig. § 204.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Benjamin Scharps against Barney Hess. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant (§ 8*)—Contract oe Employment.</p> <p>Where plaintiff applied to defendant for work in October, and defendant orally stated that his employment would continue during the season until Easier following, and a few days later plaintiff notified defendant that he would go to work according to the previous conversation, and on November 1st plaintiff went to work, there was a contract of hiring, binding on both parties, for a period ending at Easter following.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 8-10; Dec. Dig. § 8.*]</p> <p>2. Sunday (§ 17*)—Contracts—Validity—Evidence.</p> <p>Proof that a servant only worked six days in the week, that he worked on Sunday, but did not work on Saturday, and that his master kept open on Saturday and Sunday, was insufficient to show whether the contract contemplated that plaintiff should work seven days, and hence was violative of Perial Law (Consol. Laws, c. 40) §§ 2143, 2144, prohibiting labor on Sunday, etc.</p> <p>[Ed. Note.—For other cases, see Sunday, Cent. Dig. § 48; Dec. Dig. g 17.*]</p>

Action by John L. Shepherd against William R. Elfers. From an order denying a motion to set aside a verdict for plaintiff for insufficient relief and for a new trial, plaintiff appeals.

<p>Bills and Notes (§ 517*)—Actions—Sufficiency of Evidence—Genuineness of Signature.</p> <p>In an action on a note against an alleged accommodation signer, evidence helé to sustain a finding that defendant'did not sign the note.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1807, 1809; Dec. Dig. § 517.*']</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District,</p> <p>Action by Joseph Spitz against the New York Taxicab Company. From a default judgment for plaintiff, and an order denying a motion to open the default, defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by William H. McElfatrick against Henry B. Sire. From an order denying a motion to vacate an order directing substituted service, defendant appeals.</p>

<p>.1. Appeal and Error (§ 1002*)—Yerdict—Conclusiveness.</p> <p>A verdict on conflicting evidence will not be disturbed on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>2. Trial (§§ 211, 255*)—Instructions—Requests—Necessity.</p> <p>It is not improper to charge that plaintiff, suing for a personal injury, was not bound to call a person who took him home after the accident and was in court at the trial; and where the circumstances justify any inference against plaintiff from the failure to call such person, defendant must raise the question by requesting an appropriate charge thereon.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 505, 627; Dec. Dig. §§ 211, 255.*]</p> <p>Goff, J., dissenting.</p>

<p>Sales (§ 52*)—Action for Price—Evidence—Sufficiency.</p> <p>Evidence in an action for the price of goods sold held not to show a sale or delivery to defendant, either personally or as agent for an undisclosed principal.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 52.*]</p>

<p>Payment (§ 71*)—Paroi Evidence Explaining Written Contract.</p> <p>Plaintiff was employed as salesman on commission. Defendant was to advance him a certain sum per week for expenses. Thereafter plaintiff entered into a partnership with a third party, and under the, new arrangement defendant employed the partnership as a salesman. Under the original agreement the traveling and other expenses were to be paid by plaintiff; defendant agreeing to advance money for such expenses up to a certain sum, to be charged to and paid' by plaintiff. Defendant at the trial offered to prove a contract between him and plaintiff, after the first contract, whereby defendant was to pay plaintiff a certain sum each week, and of which plaintiff was to apply half to the payment of the indebtedness due by plaintiff prior to the contract with him and his partner, "and the balance to be used by the partnership. Held, that this subsequent agreement was admissible in evidence to show the intent of the parties in making such weekly payment.</p> <p>[Ed. Note.—For other cases, see Payment, Cent. Dig. § 219;. Dec. Dig. § 71.*]</p>

<p>Appeal from Municipal-Court, Borough of the Bronx, Second District.</p> <p>Action by Walter Whewell against the McLernon Realty & Construction Company. Erom a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>Trial (§ 29*)—Conduct—Remarks by Court.</p> <p>A remark by the court, in reply to a request to charge that there was no proof of damages, that “the jury will remember the evidence of the plaintiff,” was ground for reversal, where plaintiff’s evidence on.this point had been stricken out.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 80-84, 508; Dec. Dig. § 29.*]</p>

Action by Samuel J. Singer and others against Hyman Maimin. From an order granting defendant’s motion to have a judgment taken by default opened, plaintiffs appeal.

<p>1. Master and Servant (§ 9*)—Renewal of Employment—Written Contract-Subsequent Oral Contract.</p> <p>Plaintiff, an actor, upon the termination of a written contract, orally agreed to continue to act in New York City for four weeks. Subsequently he was requested by defendant to play in Chicago for two weeks. He received compensation for the first week, and participated in the performances up to and including Wednesday night of the second week, when the play was closed and the company disbanded. Held, in an action to recover full compensation for the second week, that plaintiff’s right of recovery arose, not upon the written contract, nor upon the subsequent oral agreement to continue performance, but upon defendant’s request that he go to Chicago and play for two weeks; that engagement being a new and independent contract.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent Dig. § 11; Dec. Dig. § 9.*]</p> <p>2. Contracts (§ 303*)—Conditions Precedent—Failure to Perform—Excuses.</p> <p>A party to a contract cannot avail himself of the nonperformance of a condition precedent as a defense in an action on the contract, where he has himself occasioned the nonperformance.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1424; Dec. Dig. § 303.*]</p> <p>3. Work and Labor (§ 14*)—Contract to Pay Specific Sum—Quantum Meruit.</p> <p>Where a person bound himself to pay a specific sum for a week’s work, and prevented the performance of the contract by the other party, the question of quantum meruit did not arise.</p> <p>[Ed. Note.—For other eases, see Work and Labor, Cent. Dig. § 32; Dec. Dig. § 14.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Grayrock Land Company against Harris Wolff. From a judgment for plaintiff on a verdict rendered by the direction of the court, defendant appeals. Record returned, to enable appellant. fn rnrrprt flip camp</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by David Chaityn and others against Annie Stock and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>Towage (§ 15*)—Injury to Tow—Damages—Sufficiency of Evidence.</p> <p>In an action for injuries to a canal boat being towed, by defendants’ tug, evidence held insufficient to support the verdict as to damages.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. § 38; Dec. Dig. § 15.*]</p>

<p>1. Contracts (§ 168*)—Terms—Prior Advertising.</p> <p>Where it could not be reasonably supposed to have been within the contemplation of the parties to a contract for the construction of certain asbestolith floors that all the statements contained in advertising matter sent by plaintiff to defendant some months prior to the contract should be incorporated therein as terms or conditions thereof, the court did not err in rejecting such advertisements, offered generally, without any attempt to show that any particular representation therein was repeated in the subsequent negotiations.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 751; Dec. Dig. § 168.*].</p> <p>2. Contracts (§ 322*)—Building Contracts—Substantial Performance— , Evidence.</p> <p>Evidence held insufficient to sustain a finding of substantial performance of a contract to construct certain floors in defendant’s building, for which plaintiff demanded compensation.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. §'322.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Ellen Lydia Lindemann against the Metropolitan Life Insurance Company. From, an order setting aside a verdict for plaintiff and granting a new trial, she appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Solomon May against Frank Breunig and Frederick ICnecht. From a judgment for plaintiff, he appeals on the ground of the insufficiency of damages.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, First District.</p> <p>Action by James McAveigh against the Pelham Park Railroad Company and another. From a Municipal Court judgment for plaintiff, defendants appeal.</p>

<p>1. Landlord and Tenant (§ 44*)—Construction of Lease—Covenants as to Heat.</p> <p>A covenant in a renewal lease that the steam radiator should be increased and enlarged to give sufficient heat, namely, a temperature of at least 65 degrees in cold weather, will be construed to bind the landlord to supply a sufficient head of steam to effect that result, when the landlord has the complete control over the heating plant.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 44.*]</p> <p>2. Landlord and Tenant (§ 172*) — Constructive Eviction — Failure to Heat.</p> <p>Where a lease provides that the landlord, who has complete control of the heating plant, will supply a head of steam sufficient to keep the temperature at 65 degrees in cold weather, a failure to so heat is a constructive eviction, if the tenant so elects and moves out.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 172.*]</p> <p>3. Landlord and Tenant (§ 171*)—Constructive Eviction—Surrender of Premises.</p> <p>There cannot be a constructive eviction without a surrender of the leased premises.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 693, 694; Dec. Dig. § 171.*]</p> <p>4. Landlord and Tenant (§ 178*)—Constructive Eviction—Time to Surrender Premises.</p> <p>Where a tenant claims a constructive eviction for failure to heat the premises, whereby he is entitled to surrender them, he must surrender in a reasonable time after the failure of the landlord to heat.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 713; Dec. Dig. § 178.*]</p> <p>5. Landlord and Tenant (§ 178*)—Constructive Eviction—Surrender of Premises—Reasonable Time.</p> <p>Where a tenant has a right in October to surrender the premises for failure of the landlord to heat, he cannot delay until February and then surrender, without showing that there was an appreciable diminution of the heat in February as to the heat furnished in October, so as to constitute a fresh eviction.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 178.*]</p> <p>6. Landlord and Tenant (§ 231*)—Covenants as to Heat—Breach—Sufficiency of Evidence.</p> <p>Under a lease binding a landlord to heat the premises, self-serving declarations in a letter of the tenant to the landlord, and a promise by the landlord that he intended to improve conditions in the steam supply, were not sufficient evidence to establish a breach of the covenant in the lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 231.*]</p> <p>7. Landlord and Tenant (§ 171*)—Constructive Eviction—Failure to Heat—Waiver.</p> <p>Where a tenant is constructively evicted by the failure of the landlord to heat, a promise on the part of the landlord to remedy conditions would amount to a waiver of the right to take advantage of the tenant’s failure to surrender the premises in a reasonable time.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 171.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Thomas King against Joseph Caruba. Judgment for plaintiff. From an order denying a new trial, defendant appeals.</p>

Action by General Grant Stevens against Matthew W. Gilbert and others. From a judgment for defendants, and from an order denying a motion for new trial, plaintiff appeals.

<p>1. Frauds, Statute of (§ 152*)—Pleading as Nature of Defense—Effect of Failure.</p> <p>The statute of frauds merely introduces a rule of evidence, and hence is waived, unless the party entitled to take advantage thereof presents it as a defense by demurrer or answer.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 365; Dec. Dig. § 152.*]</p> <p>2. Frauds, Statute of (§ 149*)—Pleading—Complaint.</p> <p>Plaintiff, in an action on a contract, is not required to plead facts which, if proven, necessarily avoid the statute of frauds; it being sufficient if he pleads a legal contract and such additional facts as may render the statute inapplicable.</p> <p>[Hid. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 359; Dec. Dig. § 149.*]</p> <p>3. Frauds, Statute of (§ 33*)—Promise to Pat Another’s Debt—Consideration.</p> <p>An independent verbal promise to pay a debt of another is enforceable only in case it is based on an independent consideration.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-56; Dec. Dig. § 33.*]</p> <p>4. Frauds, Statute of (§ 33*)—Promise to Pat Another’s Debt—Consideration—Evidence.</p> <p>A corporation of which defendant was a chief stockholder being indebted to plaintiff, defendant, being pressed for payment, stated that he would pay the bill, and on plaintiff replying, “I want my money,” defendant answered that he could not raise the money then, but that if plaintiff would wait until the following January 1st he would pay. Plaintiff made no promise to forbear, but did so, and then sued defendant for the debt. Held, that defendant’s promise to pay and plaintiff’s forbearance were mutually independent, and, the one not being the consideration for the other, defendant’s promise was unenforceable.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-56; Dec. Dig. § 33.*]</p> <p>5. Judgment (§ 250*)—Conformitt to Pleadings—Theort of Cause.</p> <p>Where plaintiff sued defendant on an express promise to pay the' debt of a corporation of which he was a stockholder, he could not recover on the theory that defendant was liable as a partner in the business which the corporation was organized to take over; a part of the claim having accrued prior to the incorporation.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. § 250.*]</p>

Action by the Bohemian-American Workingmen’s Gymnastic Association (Sokol) against the Northern Bank of New York. From a judgment for plaintiff upon a directed verdict, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered, unless plaintiff accepts a less sum, in which event judgment, as reduced, is affirmed.

<p>Action by Frank W. Holmes against the Board of Education of the City of New York. Judgment for plaintiff.</p>

<p>Action by Albert Far jean against the Indian Territory Illuminating Oil Company and others. Findings and judgment for plaintiff, to be settled on notice.</p>

In the matter of proceedings by the City of New York to open West 177th Street. From a part of an order confirming an award of Commissioners of Estimate and Assessment as to damage parcels Nos. 3 and-4, in extending West 177th Street, the Portland Realty Company appeals. Reversed, motion to confirm denied, and matter remitted for revision as directed.

Action to foreclose a mortgage by the State Bank of Williamson against William G. Fish and others. Findings ordered as to the sale and distribution of the proceeds.

<p>Appeal from Special Term, Richmond County.</p> <p>Action by the City Equity Company against Minnie E. Jones and others. Judgment for plaintiff, and defendants,' except Mary Elizabeth Housman, appeal.</p>

<p>The American Ice Company was indicted for violating the anti-monopoly act.</p>

Condemnation proceedings by the City of. New York to acquire title to real estate for the construction of an extension of the Manhattan Terminal of the New York and Brooklyn Bridge. Heard' on motion to confirm the commissioners’ report.

Action by John C. Ward and others, as taxpayers, against John Kropf, as president of the Village of Waterloo, and others, to restrain the issuing of bonds or making any payments of money on' a contract entered into by the village officers.

<p>Application for probate of the will and codicils of Garry Brooks, deceased, to which Frances L. Brooks and others filed objections.</p>

<p>Action by the John H. Woodbury Dermatological Institute against one Woodbury.</p>

<p>Action by the Mt. Morris Co-operative Building & Roan Association against Martha T. Smith and others, judgment for plaintiff.</p>

Action by George Clifford Rogers, by his guardian ad litem, William Clifford Rogers, against the County of Orange, in which the defendant county was allowed to interplead John D. McCoach and others. Judgment for plaintiff.

<p>Suit by Frank M. Tailing against John G. Elbs and others for the appointment of a temporary receiver of the property of the defendant Star Egg Carrier. & Tray Manufacturing Company, and for a temporary injunction restraining defendants Elbs from interfering with the property. Receiver appointed, and injunction granted.</p> <p>Motion by plaintiff for the appointment of a temporary receiver of the property of the defendant Star Egg Carrier & Tray Manufacturing Company, and for a temporary injunction restraining the defendants Mbs, their agents and servants, from in any manner interfering with the property and assets of said corporation and from using the name of said defendant in any business or from continuing the business of such corporation by themselves as individuals, and for other relief.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Rosina Curcio against Joel L- Marx and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Master and Servant (§ 80*) — Action for Services — Sufficiency of Evidence.</p> <p>In an action for services, evidence held insufficient to support a verdict for defendant.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 118; Dec. Dig. § 80.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Adolph Hershkopf against Adolph Lintner and another. Judgment for the mentioned defendant, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First Dis trict.</p> <p>Action by Morris Vogel and Leonard J. Vogel against Wells, Fargo & Co. From a judgment in favor of defendant, plaintiffs appeal.</p>

<p>1. Evidence (§ 269*)—Admissibility of Declarations.</p> <p>In an action for money due on a contract to alter premises owned by defendant, the application of the architect, who was not shown to have been in defendant’s employ to the building department, stating that the alterations in the premises were authorized by defendant, the owner of the premises, was inadmissible to prove that he had authorized the alterations, as it was the declaration out of court of a third party; the application not being introduced to impeach the architect, who was plaintiffs’ witness.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1063; Dec. Dig. § 269.*]</p> <p>2. Evidence (§ 269*)—Admissibility oe Declarations.</p> <p>In an action for money due on a contract to alter premises owned by defendant, a declaration by an alleged tenant of defendant, who contracted for the alterations, which declaration he made in supplementary proceedings to the effect that he had no lease from defendant, was not admissible to prove that he had no lease; it being the declaration out of court of a third party not shown to have been in defendant’s employ.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1063; Dec. Dig. § 269.*]</p> <p>3. Witnesses (§ 401*)—Cross-Examination—Impeachment.</p> <p>Where a witness for defendant, on cross-examination, is asked a question about a matter as to which he was not questioned on direct examination, he becomes, as to the evidence he gives in response to the question, the plaintiffs’ witness, and cannot be contradicted by the introduction by plaintiffs of evidence of previous inconsistent statements.</p> <p>[Ed. Note.—For other cases," see Witnesses, Cent. Dig. § 1270; Dec. Dig. § 401.*]</p>

<p>Appeal and Error (§ 925*)—Review—Presumptions.</p> <p>Where counsel obtained, without objection, leave to submit briefs by a certain date, the case must be considered as having been submitted on that date.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 925.*]</p>

<p>Husband and Wife (§ 17*)—Liability—'Contracts of Wife.</p> <p>Where a dress was ordered by defendant’s wife, and the details arranged for by her with plaintiff without any reference to defendant, and there was nothing to show that credit was given to him, the bills being made out to his wife, defendant was not liable for the price of the dress; there being no evidence that it was a necessity.</p> <p>[Ed. Note.—For other cases, see Husband aAd Wife, Cent. Dig. § 109; Dec. Dig. § 17.*] ' ...</p>

<p>Landlord and Tenant (§ 314*)—Re-entby— Summary Proceedings—Redemption.</p> <p>In a proceeding by a mortgagee of a lease to redeem the premises in accordance with Code Civ. Proc. § 2257, after a warrant in summary proceedings, where it appeared that a sum received by the landlord during Ms possession was held solely as a deposit under a lease to a tenant not a party to the proceeding, it was error to order the landlord to account for this sum as rents received from the premises, to be deducted from the sum required to redeem.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 1327; Dec. Dig. § 314.*]</p>

<p>Principal and Agent •(§ 72*)—Conversion by Agent.</p> <p>Where plaintiff engaged defendant to purchase a home for him, and to obtain a title policy, and gave him money with which to obtain a title policy, and defendant obtained no policy for plaintiff, an action- will lie for conversion.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 148, 149; Dec. Dig. § 72 ;* Trover and Conversion, Cent. Dig. § 70.]</p> <p>Lehman, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Michael Palumbo against the Atlas Portland Cement Company. From a judgment'for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>Courts (§ 190*)—Municipal Court—Appeal—Affidavits of Evidence—Con- , ' flict of Evidence—New Trial.</p> <p>Under Municipal Court Act (Laws 1902, p. 1581, c. 580) § 319, which provides that in certain cases the appellate court may determine an appeal upon affidavits of evidence taken at the trial, etc., where the stenographer’s minutes of a trial were lost, and the affidavits filed by the attorneys, giving the substance of the testimony of several witnesses sworn, showed a conflict upon many material points, the court on appeal will order a new trial, without costs.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. .Dig. § 190.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Frank Smithson against Frank Robinson. From an order of the City Court of the City of New York, directing the service of a bill of particulars, plaintiff appeals.</p>

<p>New Trial (§ 74*)—Verdict Contrary to Evidence—Amount of Recovery.</p> <p>Where, under the evidence, it appears that the amount of the verdict was purely speculative, it will he set aside.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 150; Dec. Dig. § 74.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Cleonice Policastro, doing business as the Lorenzo Building Construction Company, against Edgar Pitske. From a judgment for plaintiff, defendant appeals.</p>

<p>Work and Labor (§ 26*)—Burden op Proop.</p> <p>Where one neither showed an agreed price for his work nor its value, there was no foundation for an allowance to his assignee.</p> <p>[Ed. Note.—Eor other cases, see Work and Labor, Cent. Dig. §§ 47-49; Dec. Dig. § 26.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the New Amsterdam Casualty Company against George Spaeth. From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Moses Abramson against Simon Brimberg and another. From the judgment for plaintiff, he- appeals, because of its failure to provide that defendants are liable to arrest and imprisonment on execution under the judgment.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the William A. Thomas Company against Christ Holst. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the Lillian Realty Company against Frank Erdurm. From a judgment for plaintiff, defendant appeals.</p>

<p>Courts (§ 189*)—Municipal Courts—Opening Default—Conditions.</p> <p>Under Municipal Court Act (Laws 1902, p. 1563, c. 580) § 256, authorizing the court to require as a condition for opening a default that defendant deposit the amount of the judgment or give a sufficient undertaking, the court, opening a default, may require defendant to deposit the amount of the judgment in court, and need not permit him to either make the deposit or file an undertaking.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Auguste Romeas against Henry W. Boettger. From an order granting defendant’s motion for a bill of particulars, and an order denying plaintiff’s motion for a reargument, plaintiff appeals. Order denying reargument affirmed, and order granting motion for bill of particulars modified and affirmed!.</p>

<p>Judgment (§ 251*)—Conformity to Pleadings and Proof.</p> <p>Inclusion in a judgment of the amount claimed in a cause of action explicitly abandoned on the trial was error.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*]</p>

<p>1. Brokers - (§ 48*)—Commissions—When Earned.</p> <p>A broker, employed to procure a purchaser of real estate, who Introduced the same and the owner to the purchaser, and who was present during the drawing and modification of the contract of sale, which was ultimately carried out, was entitled to his commission, though he agreed to wait therefor until the passing of title, and to waive commission if title did not pass.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 65; Dec. Dig. § 48.*]</p> <p>2. Brokers- (§ 65*)—Commissions—Right to Recover.</p> <p>The fact that one who was employed by an owner to procure a purchaser of real estate violated in so doing his contract of employment with a third person engaged in the real estate business did not defeat his right to recover his commission from the owner on procuring a purchaser..</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Nathan Dorman and another against David W. Arkin. From a judgment for defendant on a trial before the court without a jury, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Noah E. Gyle 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, Fifth District.</p> <p>Action by Julius Levy against James F. Brennan. From an order setting aside a verdict for plaintiff, he appeals.</p>

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

<p>Judgment (§ 143*)—Default—Opening—Grounds—Inadvektence.</p> <p>Defendant’s motion to open Ills default was made upon an affidavit which stated that he had inadvertently made an incorrect memorandum of the return day, alleged a general release and accepted order for a bond delivered to plaintiff in full settlement of the controversy, contained an affidavit of merits, averred defendant’s financial ability to meet any judgment against him, and was accompanied by defendant’s proposed answer, setting up a good defense; and no opposing affidavits were submitted. Held, that the motion should have been granted.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 143.*]</p>

Action by Frank J. Piretti and another against the Firestone Tire & Rubber Company. From a judgment for. defendant after a trial, before the court without a jury, plaintiffs appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Charles P. Wray against Emil B. Miller. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Usury (§ 56*)—Bonus of Agent.</p> <p>That the lender’s agent exacted a bonus from the borrower does not render the transaction usurious, where the lender received no part of the bonus and had no knowledge of such exaction.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 122-127; Dec. Dig. § 56.*]</p> <p>2. Usury (§ 113*)—Evidence—Presumptions—Burden of Proof.</p> <p>The taking of usury cannot be presumed, but the burden of establishing it is on the borrower.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 308-323; Dec. Dig. § 113.*]</p> <p>3. Usury (§ 117*)—Evidence—Sufficiency of Evidence.</p> <p>Usury is not established, where the evidence is as consistent with its absence as with its presence.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 328-340; Dec. Dig. § 117.*]</p> <p>Dayton, J., dissenting.</p>

<p>1. Landlord and Tenant (§ 172*)—Breach of Lease—Failure to Furnish Heat.</p> <p>Where the landlord fails to furnish heat as required by the lease, the tenant may vacate the premises.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 695-703; Dec. Dig. § 172.*]</p> <p>2. Witnesses (§ 369*)—Credibility—Interest in Controversy.</p> <p>The janitor, whose duty it is to operate the furnace for the heating of a building, is not an entirely disinterested witness in an action for rent, wherein the defense is eviction by failure to properly heat an apartment.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1187; Dec. Dig. § 369.*]</p> <p>3. Landlord and Tenant (§ 231*)—Conviction—Failure to Furnish Heat —Sufficiency of Evidence.</p> <p>Evidence held to show breach of lease by the lessor’s failure to properly heat the leased apartment, justifying the lessee in vacating the same. .</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. 934; Dec. Dig. § 231.*]</p> <p>Lehman, J., dissenting.</p>

<p>1. Work and Labor (§ 26*)—Burden of Proof—Affirmative Matter—Special Contract.</p> <p>Where plaintiff sued for the value of work and labor, the burden was-upon defendant to show that the work was performed under a special agreement alleged in the answer; plaintiff not being required to elect whether he should proceed as for work and labor or upon the special contract alleged in the answer.</p> <p>[Ed. Note.—For other cases, see Work and Labor,- Cent. Dig. §§ 47-49;. Dec. Dig. § 26.*]</p> <p>2. Work and Labor (§ 28*)—Actions—Sufficiency of Evidence.</p> <p>Where, in an action for work and labor, in which defendant alleged that the work was performed under a special contract, testimony, upon which-the court based a judgment for plaintiff for a less sum than claimed, that the work was done under a special contract to pay the actual cost of the work and materials plus 10 per cent, which only related to a part of the work claimed for, and did not show the actual cost of the work, was insufficient to show the amount to which plaintiff was entitled, so as to sustain the judgment.</p> <p>[Ed. Nota—For other cases, see Work and Labor, Cent. Dig. § 55; Dec. Dig. § 28.*]</p> <p>3. Words and Phrases—“Chasing,”</p> <p>“Chasing” is a technical term, and relates to the cutting of bricks in a building for wiring.</p>

<p>1. Brokers (§ 86*)—Actions for Compensation—Sufficiency of Evidence.</p> <p>In a broker’s action for commissions for procuring a purchaser for property, evidence held, to sustain a judgment for plaintiff.</p> <p>[Ed. Note.—For other eases, see Brokers, Dec. Dig. § 86.*]</p> <p>2. Witnesses (§ 363*)—Disinterested Witnesses.</p> <p>That a witness had business relations with another witness, who was interested in the result of the litigation, did not make the former an interested witness.</p> <p>[Ed. Note.—For other cases, see Witnesses, Dec. Dig. § 363.*]</p> <p>3. Appeal and Error (§ 274*)-—Objections—Instructions—Necessity.</p> <p>Where a charge that a certain witness was the only disinterested witness was excepted to on the ground that he was interested, it cannot be contended on appeal that the charge was erroneous because such witness was not the only disinterested witness; appellant being confined to his objection below.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1631-1645; Dec. Dig. § 274.*]</p> <p>Lehman, J., dissenting.</p>

Action by Marcus O. Anthony against the United Machine & Supply Company. From an order opening plaintiff’s default upon payment of a trial fee, plaintiff appeals.

Action by Herman Schopflocher and another against Ernest Machenbach. From a judgment for plaintiffs, entered on a verdict, and from an order denying a new trial, defendant appeals.

<p>Negligence (§ 7*)—Acts Constituting Negligence—Liability.</p> <p>Where a child six years old was thrown down by defendant while he was chasing children, and after the child fell defendant dropped a hatchet which he was carrying, injuring the child, there was evidence. that defendant was negligent and that the child was free from contributory negligence.</p> <p>[Ed. Note.—For other cases, see Negligence, Dec. Dig. § 7.*]</p>

<p>1. Municipal Corporations (§ 706*)—Negligent Use oe Street—Actions— Sufficiency of Evidence.</p> <p>In an action for Injuries from being struck by an automobile, evidence that plaintiff was struck while walking on a street, exercising due care, by the automobile, which none of the witnesses had seen until the moment of the collision, though they had taken particular pains to look for it, was sufficient to take the case to the jury; it making out a prima facie case of negligence against defendant and of freedom from contributory negligence on the part of plaintiff.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 706.*] •</p> <p>2. Municipal Corporations (§ 705*)—Streets—Crosswalks—Right of Pedestrian.</p> <p>A pedestrian has equal rights to the use of a crosswalk over a street with the driver of an automobile using the street.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 705.*]</p> <p>3. Trial (§ 139*)—Submission to Jury—Prima Facie Case fob Plaintiff.</p> <p>Where the evidence on its face makes out a case for plaintiff, it is error to dismiss the complaint, though the judge might set aside the verdict if dissatisfied with it.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 332, 338-341; Dec. Dig. § 139.*]</p>

<p>1. Brokers (§ 53*)—Action for Services—Sale—Procuring Cause.</p> <p>A real estate broker cannot recover commissions, unless he was the actual procuring cause of the sale.</p> <p>[Ed. Note.—Eor other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.*]</p> <p>2. Brokers (§ 86*)—Commissions—Procuring Cause of Sale—Evidence.</p> <p>In an action for broker’s services, evidence held insufficient to sustain a verdict that plaintiff was the procuring cause of the sale.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 116—117; Dec. Dig. § 86.*]</p> <p>Dayton, J., dissenting.</p>

Action by Edgar P. Reed against Albert O. Fenn and others. Motion by part of defendants to postpone the trial of a number of cases and for other relief. Cases postponed over term on terms stated.

<p>On motion to certify questions to the Court of Appeals.</p>

<p>Action for a partition by Mary A. McLain against Ada Bird and others. Judgment for plaintiff.</p>

<p>Actions by the Acme Rubber Manufacturing Company against Leander J. Buckley, by William Bradley against Adelbert Jaeckel, and by Frank W. Swartwout against Jacob Doll.</p>

<p>Action by the Benevolent & Protective Order of Elks against the Improved Benevolent & Protective Order of Elks of the World and another.</p>

<p>Action by Mary Brady, as administratrix, etc., of Patrick Brady, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Sarah A. Carlin, as administratrix, etc., against the New York Dock Company and another.</p>

<p>In the matter of supplementary proceedings in an action of Alexander Caplan against Harry Guión and another.</p>

<p>Action by Elizabeth Charles against Kate Nickerson and others.</p>

<p>Action by Martin J. Con-don against the New Rochelle Water Company.</p>

<p>Action by Hene Cooper against Jossef Wisselthier and others, in which Gustav Lange and another appeal.</p>

<p>In the matter of the application of the Co-operative Law Company, for approval of the existence of said corporation, etc.</p>

<p>In the matter of the probate of the last will and testament of Virgilio Del Genovese, deceased.</p>

<p>Action by Lena Dieterlen, as administratrix, etc., of Henry A. Dieterlen, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>In the matter of the application of William A. De Groot for a writ of mandamus, 6ÍCe</p>

<p>Action by William R. Delany against Anna M. Carpenter and Harry N. 'Bennett.</p>

<p>Action by AVilliam W. Doty against Washington F. Norton.</p>

<p>In the matter of the probate of the will of George Ellwanger, deceased. Proceeding by William T. Plumb, special guardian, against Henry Selden Bacon.</p>

<p>Action by Edward Garvey against the Oldbury Electro-Chemical Company.</p>

<p>Action by Robert A. Funger against the Brooklyn Bottle Stopper Company.</p>

<p>Appeal from Blunicipal Court, Borough of Blanhattan, Second District. Action by Harris Goldstein and and another against Max Salee and others. From a Blunicipal Court judgment for plaintiffs, defendants appeal. Affirmed.</p>

<p>In the matter of proving the last will and testament of Martha Gibson, deceased.</p>

<p>In the matter of the judicial settlement of the account of Charles T. Geyer, as execut- or and trustee, etc., of Allen Alexander, deceased.</p>

<p>Action by Aaron M. Goodman against Thomas G. Casey</p>

<p>Action by Grossman Bros. & Rosenbaum against the Atlas Construction Company. With this case has been consolidated in this court cases bearing titles as follows: De Graff & Palmer v. Mayer D. Mayper et al.; Joseph Simon, an Infant, v. Henry D. Preston; Anliss E. Heerman v. Caroline D. C. Payne; Ira Mowery v. Charles F. Pierce et al.; Diedrich Blendermann v. Emma M. Wray; Marcel Prineveau v. Reno R. Billington; John A. Morris v. Wm. H. Woolverton, as President; Abram V. Smith v. Herring-Hall-Marvin Safe Co.; Samuel M. • Hodkinson v. Ann Errett et al.; Trust Co. of America- v. Henry Conklin.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by John Kehoe against Adolph Riesenberg, Edwin Von Der Horst Koch, and William T. Koch, copartners under the name of H. C. F. Koch & Co. Plaintiff had judgment, and defendants appeal. Affirmed, on condition that judgment be reduced.</p>

<p>Action by the McCall Company against John H. Wright.</p>

<p>Action by Daniel B. McCoy against the Gas Engine & Poxver Company and Charles L. Seabury & Co., in which Joseph A. Flannery appeals.</p>

<p>In the matter of George Moeser. Action by Thos. J. McLaughlin against George Moeser.</p>

<p>Action by Martin M. Moore against the Rochester Railway Company.</p>

<p>Action by Donald Mitchell against John L. Murray, impleaded.</p>

<p>Action by Thomas Moore against Charles F. Taylor, as surviving partner of the firm of Charles F. Taylor & Co.</p>

<p>Action by Philip I. Nash and another against the Thousand Island Steamboat Company and another.</p>

<p>Action by Andrew Ozogar against Pierce, Butler & Pierce Manufacturing Company.</p>

<p>Action by Frank Earle Parham, as assignee, etc., against Edward Bums, individually, etc., and others.</p>

<p>Action by Russel C. Paris against Charles E. Stevenson and others.</p>

<p>Proceeding by the People of the State of New York against Nick Farina.</p>

<p>Proceeding by the People of the State of New York, on the relation of Adrian H. Joline, against Wm. R. Willcox. With this case has been consolidated in this court cases bearing titles as follows: Jeannette H. Joseph v. Simon Herzig; In re Georgianna N. Amidon; William J. Schieffelin v. Geo. B. McClellan.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Theodore Radin against Harry Livingston. From a judgment for defendant, plaintiff appeals. Modified and affirmed.</p>

<p>Action by Margaret Rooney, as administratrix, etc., of John Rooney, deceased, against the Brogan Construction Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Max L. Rohman and another against James Bunt. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Albert Rosenagel against Charles Rosenagel and another. Judgment for defendants, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>In the matter of Charles Rubens, deceased.</p>

<p>In the matter of the judicial settlement of the account of proceedings of Francis Schlosser, administrator, etc., of Elizabeth Schlosser, deceased.</p>

<p>Action by Katherine Ship against Percy Fridenberg, impleaded with others.</p>

<p>Action by Annie M. Tredwell and Henry C. Tredwell, as executors, etc., of Timothy Tredwell, deceased, against Millard F. Smith.</p>

<p>Action by Bella Usefof against David Herzenstein, impleaded with others.</p>