Volume 121 — New York Supplement

Action by Sarah L. Lincoln, administratrix, against the New York Central & Hudson River Railroad Company and another. Heard on motion by each defendant for an order staying all proceedings in the action until the plaintiff pays the costs awarded against her in a former action for the same reiiei.

<p>Action by the City of Rochester against Patrick J. Gray, as Commissioner of Highways, for injunction.</p>

<p>Landlobd and Tenant (§ 231*)—Action fob Rent—Evidence.</p> <p>In an action on an alleged agreement to hire office accommodations ’and stenographer’s services, evidence held not to sustain the burden on plaintiff to prove his claim.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 231.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Thomas D. Reynolds Company against Joseph Toch. From a judgment for plaintiff, defendant appeals.</p>

<p>Eminent Domain (§ 158*) — Compensation — Persons Entitled—Intervention.</p> <p>It is not necessary that a claimant to an award to unknown owners of land taken for public use should affirmatively prove his title before he is allowed to intervene in proceedings under Greater New York Charter (Laws 1901, c. 466) § 1001, to determine ownership of the award, but it is sufficient that he “claims to be interested” as the section provides.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 158.*]</p>

<p>Action by Leonard D. Fischer against the Trustees of .the Village of Clifton Springs for an injunction restraining defendants from diverting waters-and for damages.</p>

Action by Rosalia Hershey against James A. Robson, executor of Joseph Hershey, deceased, and others. Complaint dismissed as to executor, and relief granted to plaintiff as against the other defendants.

<p>Insane Beesons (§ 28*)—Inquisition—Expenses.</p> <p>In proceedings for the appointment of a committee for an incompetent, where only one-third of the amount claimed by the attorney for services and disbursements, including physician’s fees, was allowed, and it did not appear whether the court, in making the reduction, reduced the claims of the respective claimants, they were entitled to a resettlement of the" order, so as to determine the precise amount payable to each.</p> <p>[Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 39, 40; Dec. Dig. § 28.*]</p>

Judicial settlement of the account of Michael Nyahay, as executor of the will of- Mikolaj Ilkow. Application by the executor for the issuance of a citation, to which the Austria-Hungarian consul filed objection.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by John S. Conabeer against Adolph Bruenn. From a judgment dismissing the complaint on the merits, plaintiff appeals.</p>

<p>. Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Louis Hutter against Christian G. Kuhner. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Charles P. Bidwell against Abraham Haas. Prom a Municipal Court judgment for plaintiff, defendant appeals.</p>

<p>Corporations (§ 298*)—Directors—Powers.</p> <p>Where the by-laws of a corporation provided, that there should be five directors and that a majority should constitute a quorum, a resolution adopted at a meeting attended by three directors, who were the president, secretary, and treasurer, respectively, at a time there were but four directors, providing for a salary to the secretary and treasurer and a commission to the president, was not binding on the corporation.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 298.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Harry Rubin against Samuel Borchardt. From a Municipal Court judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Harry J. Sprung, as"executor, against John Kruly. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Jury (§ 26*)—Right to Jury Trial—Tender of Fee.</p> <p>Where defendant tendered the jury fee when issue was joined and demanded a jury trial, and, when the case was called for trial after the jury fee had been exhausted by adjournments, tendered a new jury fee and again demanded a jury trial, it was reversible error to refuse it. "</p> <p>[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 174, 175; Dec. Dig. § 26.*]</p> <p>2. Jury (§ 28*)—Rig;ht to Jury Trial—Waiver.</p> <p>Where defendant was improperly refused a jury trial, his participation in the subsequent trial by the court did not waive his right to a trial by jury.</p> <p>[Ed. Note.—For other cases, see Jury, Cent. Dig. § 185; Dec. Dig. § 28.*]</p>

<p>Sales (§ 126*)—Rescission—Time.</p> <p>Where defendant wore for 30 days a suit furnished him by plaintiff, the latter was not obliged to accfept its return, though it did not fit.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 313; Dec. Dig. § 126.*]</p>

Action by Morris Rosenthal against Benjamin M. Gruenstein .and another. Judgment for plaintiff, after an inquest taken on defendants’ default, from which judgment, and from an order denying defendants’ motion to open the default and vacate the judgment, they appeal.

Action by Abraham Dubroff against the North River Insurance Company. From an order permitting defendant, after trial, to serve an amended answer, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Charles D. Williams against .Theodore W. Hamlin and another. From a judgment for defendants, rendered on a verdict of the jury, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Tenement House Department of the City of New York against the Atlantic Realty Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Philip Smith against Edward J. Healey, as one of the marshals of the city of N^w York, and the National Enameling & Stamping Company. From a judgment for defendant Healey, from an order denying a new trial, and from an order dismissing the complaint as to defendant company, plaintiff appeals.

Action by the Asbestos Products Company against Arthur W. Little. From a judgment dismissing the complaint at the close of plaintiff’s evidence, plaintiff appeals.

<p>Courts (§ 189*) — Municipal Courts — Judgment — Reversal — Absence of Service.</p> <p>Judgment against defendant, on an appeal under Municipal Court Act (Laws 1902, c. 580) § 311, relative to appeal by a defendant from a judgment in an action in which he did not appear, will be reversed; defendant’s affidavits showing that defendant, as a person or a corporation, was not properly served with summons and complaint, but that the person served was not an officer, managing agent, or director of, but only a pharmacist employed by, defendant.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Assault and Batteby (§ 27*)—Civil Liability—Action—Admission of Evi dence.</p> <p>In an action for damages for assaulting plaintiff and attempting to kiss her, admission of evidence as to whether defendant had been divorced and had been named a co-respondent in a divorce suit was 'reversible error.</p> <p>[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. §§ 37-39; Dec. Dig. § 27.*]</p>

<p>Courts (§ 188*) — Municipal Courts — Conditional Sales—Actions—Statutes.</p> <p>Municipal Court Act (Laws 1902, c. 580) § 139, providing that no action shall be maintained on a written contract of conditional sale, except an action to foreclose the lien, does not forbid an action in replevin on an oral conditional sale contract, although a memorandum thereof was signed by plaintiff.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 188.*]</p>

<p>Landlord and Tenant (§ 190*)—Liability for Rent—Eviction.</p> <p>An eviction, to bar an action for rent, must take place before the rent becomes due.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 765 •, Dec. Dig. § 190.*]</p>

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

<p>1. Contracts (§ 323*)—Building Contract—Termination—Delay—Question for Jury.</p> <p>Where defendant terminated plaintiff’s contract for the performance of certain stonework on a building, whether plaintiff proceeded with the work with reasonable expedition, so as to render defendant’s termination of the contract a breach thereof, held for the jury.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1544; Dec. Dig. § 323.*]</p> <p>2. Work and Labor (§ 24*)—Value of Work—Evidence.</p> <p>In an action for the reasonable value of work and labor performed under a contract which defendant terminated for plaintiff’s alleged unreasonable delay, plaintiff could not recover for the value of stone which plaintiff cut for the stoops, but did not use because of the termination of the contract, without proof of the value thereof.</p> <p>[Ed. Note.—For other cases, see Work and Labor, Dec. Dig. § 24.*]</p>

Action by Bernard Jasper and another, trading as Jasper Bros., .against Henry M. Greenberg and others. From so much of the judgment as awards to defendants $10 costs, plaintiffs appeal, also bringing up for review the order denying motion for retaxation of the costs.

<p>1. Sales (§ 418*)—Breach of Contract by Seller—Measure of Damages.</p> <p>Ordinarily the rule of damages for breach of contract of sale is the difference between the agreed price and what the goods can be purchased for in the market, but if a party agrees to sell goods, knowing they are to fill contracts on his part, the seller renders himself liable for any special damages for breach proximately and naturally resulting from his failure to deliver.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1174^-1201; Dec. Dig. § 418.*]</p> <p>2. Sales (§ 418*)—Breach of Contract of Seller—Action Therefor—Instructions as to Damages.</p> <p>In an action by a skirt manufacturer for breach of contract to sell him a particular grade of goods which defendant knew were ordered for plaintiff’s business, the court did not err in instructing as to damages that, when defendant failed to fill its contract, it was plaintiff’s duty to minimize the damages from the breach; that he could not arbitrarily substitute for the goods ordered any goods he saw fit; that he might substitute other goods to fill his orders, but that he was bound to use such goods and of such quality as would reasonably meet the requirements of those who contracted with him fo'r skirts; and that, if another grade which defendant offered to supply would have met those requirements, .plaintiff could only recover nominal damages, otherwise he would be entitled to substantial damages.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1174^-1201; Dec. Dig. § 418.*]</p> <p>3. Sales (§ 166*)—Performance by Seller—Goods Sold to Manufacturer.</p> <p>Where a seller could not fill an order for dress goods of a particular grade, but offered another which could be distinguished from the goods ordered only by an examination under a magnifying glass, and the difference was slightly in favor of the grade offered, the buyer, a skirt manufacturer, was not justified in rejecting it</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 391-394; Dec. Dig. § 166.2]</p> <p>4. Sales (§ 420*)—Breach of Contract by Selles—Action—Question fob Juky.</p> <p>In an action by a skirt manufacturer for breach of contract to sell him a particular grade of goods which defendant knew he ordered for his business, evidence held to present a question for the jury whether plaintiff was entitled to more than nominal damages.</p> <p>[Ed. Note.—Eor other cases, see Sales, Dec. Dig. § 420.*]</p>

Action by Thomas J. Mannion against the International Railway Company for a penalty for violation of General Railroad Law, § 104 (Laws 1890, c. 565, as amended by Laws 1892, c. 676). From a judgment for plaintiff, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Actions by Ferdinand Straus against Siegfried W. Rosenthal and against Samuel W. Rosenthal. From a judgment for defendant in each case, plaintiff' appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Israel Ravid against David Karo. From a judgment for plaintiff, defendant appeals.</p>

Action by the Hobart Electric Manufacturing Company against Charles Rooder. From a judgment for defendant, entered on a verdict rendered by direction of the court, plaintiff appeals.

Action by Harry T. Ramsey against George T. Phillips. Frorn a judgment for plaintiff, and an order denying a new trial for newly discovered evidence, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First Department.</p> <p>Action by John A. Fincke against John Borkel. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the Fiss, Doerr & Carroll Horse Company against Moses H. Schwartzchild. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Louis Fink against Emily Glauber. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Summary proceedings by Paul Shetland against Delia Mulligan. From a final order for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Gianbatista Perazzo against London I. Wallick. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Barton & Spooner Company against Alonzo D. Grey. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals.</p>

<p>1. Evidence (§ 543*)—Opinion Evidence—Value of Cow—Qualification of Witness.</p> <p>A -witness testified that a cow, the value of which was sued for, was four years old; that he had known of his neighbors buying and selling cattie, and knew the value of this cow; that he was a farmer, and had bought cows, and knew the value of cows in his. neighborhood. Held, that this qualified him to testify as to her value.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2358; Dec. Dig. § 543.*]</p> <p>"2. Appeal and Erbob (§ 1056*)—Review—Rulings on Evidence.</p> <p>Where illegal evidence has been admitted, it will be carefully scrutinized to ascertain whether it may have affected the result; but the rejection of competent evidence is necessarily fatal on appeal, as the court cannot determine what effect the lack of it may have had on the result.</p> <p>[Ed; Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]</p> <p>3. Sheriffs and Constables (§ 138*)—Liability—Wrongful Levy—Property of Third Persons—Action—Sufficiency of Evidence.</p> <p>In an action against a constable to recover the value of a cow taken by Him on execution against plaintiff’s husband, evidence held, insufficient to sustain a verdict for defendant on the ground that plaintiff was not the owner of the cow.</p> <p>[Ed. Note.—For other cases, see Sheriffs and Constables, Cent. Dig. § 205; Dec. Dig. § 138.*]</p> <p>4. Justices of the Peace (§ 183*)—Review of Proceedings—Presumptions.</p> <p>In reviewing proceedings before a justice, courts will regard them with marked liberality in furtherance of justice, and if possible will sustain them by every reasonable intendment.</p> <p>[Ed. Note.—Eor other cases, see Justices of the Peace, Cent. Dig. §§ 705-710; Dec. Dig. § 183.*]</p> <p>5. Justices of the Peace (§ 183*)—Appeal from Justice Court—Review-Technical Errors or Defects.</p> <p>It is not only the correct rule that an appellate court must render judgment according to the justice of the case, without regard to technical errors or defects not affecting the merits, but in appeals from justices’ courts such rule is mandatory, in view of the express requirements of Code Civ. Proc. § 3003.</p> <p>[Ed. Note.-—For other cases, see Justices of the Peace, Cent. Dig. § 712; Dec. Dig. § 183.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Caroline Belsky against the Fourteenth Street Store. From a judgment for plaintiff, defendant appeals.</p>

<p>Partnership (§ 155*)—Liability as Partner—Estoppel—Certificates. _</p> <p>_ Where a business was conducted in the name of P. & Son, and this was with permission of P., and he represented himself to be a partner, and in fact they had never been partners, he was estopped to deny liability for debts contracted by the son in the firm name; Partnership Law (COnsol. Laws, c. 39) §§ 20-22, permitting a business under certain circumstances to be continued in a partnership name, on retirement of a partner, without liability to the retiring partner, a certificate showing the person or persons intending to deal under such name being filed with the county clerk, having no relevancy.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 278-280; Dec. Dig. § 155.*]</p>

<p>Evidence (§ 76*)—Sufficiency—Inferences.</p> <p>Where, in an action for personal injuries, the defense was nonidentification with the accident, and a boy, testifying for plaintiff, identified defendant as the person, and said that he had a wagon drawn by two horses, which caused the injury, and defendant was merely asked whether he owned a wagon drawn by two horses, the jury were entitled to take defendant’s silence as indicating that he would not have been able to contradict the essence of plaintiff’s story.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 96; Dec. Dig. § 76.*]</p>

<p>Landlord and Tenant (§ 169*) —Injury to Tenant’s Child — Defective Stairway—Negligence—Notice.</p> <p>Evidence, in an action against a landlord of an apartment house for injury to a child of a tenant from tripping on a nail protruding from the upper part of the stairs, that two weeks before the accident the oilcloth had been removed from the stairs at such point, leaving a row of tacks, on which various tenants had tripped, and that the plank at the top of the stairs was broken, and the stairway in a generally unsafe condition, was sufficient to go to the jury on the question of defendant’s negligence, and whether the unsafe condition had existed long enough to charge him with notice.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 169.*]</p>

<p>Replevin (§ 8*)—Right to Possession—Title.</p> <p>Plaintiff, a salesman for M. & Co., sold defendant a couch, for which defendant agreed to pay plaintiff in 30 days or return the couch. Plaintiff sold the couch on commission, and promised M. & Co. to be responsible therefor. The couch was billed to defendant by M. & Co.,.who thereafter charged it to plaintiff on its books; but plaintiff had not paid therefor. Held, that plaintiff had neither title nor right of possession, and could not, therefore, maintain replevin.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 45-68; Dec. Dig. • § 8.*]</p>

Action by Emil Schoenfeld against the Globe Storage & Carpet ■Cleaning Company. From a judgment for plaintiff, after a trial by the court without a jury, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Barnett L. Price against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Costs (§ 42*)—Insufficient Tender.</p> <p>In an action to oust a tenant, plaintiff is entitled to costs, though defendant was at all times willing to pay the rent due, but refused the demand of attorney over the telephone, because the attorney would only give his personal receipt for the money, and did not tell defendant that he had written authority, since to make a valid tender the money must be actually produced.</p> <p>[Ed. Note.—For other cases, see Costs, Dec. Dig. § 42.*]</p>

<p>Sales (§ 357*)—Action for Price—Sale by Sample—Quality of Goods.</p> <p>In an action for the price of goods sold by sample, the burden is on the seller to show that the goods were up to the sample.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1047; Dec. Dig. §■ 357.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Jerome E. Bates and another against Barnet Rosenberg. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Aaron Ginsberg against Fred. M. Lawrence and another. From a judgment for defendants, plaintiff appeals.</p>

Action by Theodore Gerloff against I: Osgood Carleton and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

. . Action by Frederick Almy against Isidor Hammer and others. From an order granting plaintiff a new trial after a verdict in his favor, defendants appeal.

Action by Alice McCarthy, a minor, by Kate McCarthy, her guardian ad litem, against the Harvard Dental Parlors and another. Judgment for plaintiff, and defendants appeal.

<p>Appeal from Municipal Court,' Borough of Manhattan, Seventh District.</p> <p>Action by Rae Levy against Jacob ICornreich. From a judgment for plaintiff, defendant appeals.</p>

<p>Work and Labor (§ 14*)—Contract—Definiteness.</p> <p>Where a contract for plumbing was not definite as to the amount and character of the work or the time within which it was to be completed, and by agreement of both parties defendant employed another to complete the work, defendant thereby waived plaintiff’s breach of contract as an entirety as a defense to plaintiff’s right to recover the reasonable value of the work and materials furnished.</p> <p>[Ed. Note.—For other cases, see Work and Labor, Dec. Dig. § 14.*]</p>

Action by Grant Squires against William W. Penfield. Prom a judgment for plaintiff, and an order denying a motion for a new trial,, defendant appeals.

Actions by Caramilla Callahan and by Minnie C. Michel, as executrix of Sophia Mary Callahan, against the Supreme Tent of the Knights of the Maccabees of the World. Motion by defendant to pay into court the amount claimed by plaintiffs, and that it be discharged from liability.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Maurice Asinof against Morton Lasker. From a judgment for plaintiff, defendant appeals.</p>

<p>Sales (§ 391*)—Deposits—Rights of Purchaser on Default.</p> <p>Where a prospective buyer of a store made a deposit with the seller on account of the sale, and thereafter defaulted without cause in purchasing, to the seller’s actual damage to a certain amount, the purchaser was not entitled to recover back the full amount of the deposit.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1127; Dec. Dig. § 391.*]</p>

<p>Landlord and Tenant (§ 208*)—Assignment of Lease.</p> <p>Where a lessee of premises, under a covenant not to assign the lease, executed a purported sublease “for the balance of the term,” all “with the exception of a space of 10 by 10 feet in the rear of said store,” there was an assignment pro tanto as between the lessee and the original landlord, giving the landlord the right to collect the rent from the assignee.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 825; Dec. Dig. § 208.*]</p>

<p>1. Pleading (§ 240*)—-Amendment—Definiteness.</p> <p>It is the better practice to require an amendment to the pleadings at the trial to be made specific and clear, by putting on the minutes a statement as to exactly what words are stricken out and what inserted.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ G36-641; Dec. Dig. § 240.*]</p> <p>2. Trial (§ 252*)—Instructions—Evidence.</p> <p>Where defendant, in her counterclaim to an action for services in keeping an automobile, pleaded damages to her automobile from a fire in plaintiff’s garage, where there was no evidence of the plaintiff’s neg-, ligence in respect to the fire, it was error to charge that defendant was entitled to a verdict if the jury found plaintiff negligent as to the fire.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 606; Dec. Dig. § 252.*]</p> <p>3. " Pleading (§ 237*)—Amendment—Amendments to Conform to Proof.</p> <p>In a suit for services and materials furnished to defendant, an automobile owner, the answer set up as a counterclaim that by plaintiff’s negi ligence defendant’s car was injured by fire in plaintiff’s garage, and as an affirmative defense that by a compromise agreement between the parties the damages were fixed at a named sum, which it was first alleged the plaintiff agreed to pay in money, and later alleged that they agreed to pay by rendering services and furnishing materials, and the evidence showed that the car suffered by two different fires in the garage, the second of which was in no way due to plaintiffs negligence, and that relating to the compromise agreement was conflicting, and when viewed in a light most favorable to defendant it sustained only the averments that the amount agreed upon in the compromise was not to be payable in cash, but in services and materials, none of which it appeared defendant had ever demanded. Belcl, that the facts did not justify an amendment to the answer by incorporating in the counterclaim the facts as set forth in the answer, and which defendant claimed to have been established by the-testimony.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 608; Dec. Dig. § 237.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Ebling Brewing Company against Charles Lipkowitz. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Corn against The B. & M. Defendant had judgment, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Queens, First District.</p> <p>Action by Nellie Mullin against the Long Island Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§ 604*)—Eecords—1 Contents—Exhibits—Necessity of Printing.</p> <p>Under General Rules of Court, No. 43, and Appellate Term rule 5, requiring all testimony considered by the court to be incorporated in the printed case, a stipulation that exhibits not printed or abstracted could be used on appeal by either party in argument as if printed cannot be allowed, so as to avoid the requirements of the rules, and hence such exhibits will not be considered.</p> <p>[Ed. Note.-—For other cases, see Appeal and Error, Dec. Dig. § 604.*]</p> <p>2. Appeal and Error (§ 832*)—Hearing—Postponement—Resettlement of Case.</p> <p>Where certain exhibits were not printed or abstracted in the record as required by the court rules, the appeal may be directed to stand for rehearing until the case is properly resettled.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3219-3222; Dec. Dig. § 832.*]</p> <p>3. Municipal Corporations (§ 706*)—Use of Streets—Negligent, Driving— Persons Liable.</p> <p>Where the wagon which ran over and injured plaintiff in the street was used in a business carried on in the name of defendant’s deceased father, in which defendant and others had an interest, he was a proper party defendant.</p> <p>[Ed. Notq."—For other cases, see Municipal Corporations, Dec. Dig. § 706.*]</p> <p>4. Municipal Corporations (§ 705*)—Use of Streets—Unlawful Obstp.uction.</p> <p>In view of New York City Charter (Laws 1901, c. 466) § 50," prohibiting the board of aldermen from authorizing any encroachment or obstruction upon any street, except the temporary occupation thereof during the erection of a building, a pushcart peddler, who was injured by a passing wagon while standing in the street against the curb with his cart for 10 or 12 minutes for the purpose of selling or packing his wares, was guilty of contributory negligence as a matter of law, so as to bar a recovery for such injuries.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 705.*]</p> <p>5. Evidence (§ 32*)—Judicial Notice—Existence of Ordinance.</p> <p>The existence of an ordinance authorizing licenses to street peddlers cannot be judicially noticed.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 42; Dec. Dig. § 32.=»]</p> <p>6. Witnesses (§ 391*) — Examination — Impeaching Questions — General Questions.</p> <p>In a personal injury action, plaintiff’s witness stated that he had made certain statements regarding the accident to defendant’s investigator, but could not remember all the details, whereupon defendant’s investigator was put on the stand and asked to tell the jury just what such witness told him. Held, that the question should have been excluded as an improper impeaching question, because it did not call for the specific statements of plaintiff’s witness; the rule excluding such questions being strictly enforced in jury trials, because they are likely to elicit incompetent evidence. '</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1248; Dec. Dig. § 391.*]</p> <p>7. Appeal and Error (§ 1048*)—Harmless Error—Prejudicial Effect.</p> <p>In a personal injury action, after a police officer, who testified for plaintiff, had said that he made certain statements regarding the accident ¡to defendant’s investigator, but could not remember all the details, defendant put on his investigator and asked him to tell the jury just what the officer told him, the objection to which question was overruled, and the investigator in his answer stated many details as to which the officer had not been questioned, and testified in conclusion that the officer stated that he called an ambulance and the doctor refused to take plaintiff to the hospital because he had a scratch on his nose, and that he would testify for defendant when needed, and considered plaintiff’s claim a holdup. No motion was made to strike any part of the investigator’s answer. The jury asked, while deliberating, to have the officer’s testimony read to them. Reid, that the jury, by not asking to have the ii¿vestigator’s testimony also read over to them, indicated that they did not consider it important, and, under the rule that error only substantial is reversible, error in permitting the general question to the investigator by way of impeachment of the officer was not reversible.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1048.*]</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Second District.</p> <p>Action By Stanislaus J. Parodi against George Tilford. From a judgment for defendant, plaintiff appeals.</p>

<p>Action by Carlo Alaimo against the E. & J. Marrin Company. Motion to set aside a verdict for plaintiff.</p>

<p>1. Lis Pendens (§ 25*)—Operation and Effect—Mortgage Foreclosure.</p> <p>' A lis pendens in a. mortgage foreclosure is notice to all' persons dealing with defendant after its filing, and warns them that defendant lias no-right, as against the mortgagee, plaintiff, or subsequent purchasers under the judgment, to further incumber the property; and a lessee of the property, who renews the lease after filing of the lis pendens, takes the risk of having it annulled by the foreclosure as if he had been a party to the-action.</p> <p>[Ed. Note.—For other cases, see Lis Pendens, Cent. Dig. § 47; Dec. Dig. 8 25.*]</p> <p>2. Lis Pendens (§ 26*)—Foreclosure—Rights of Purchaser as to Lease— Ratification.</p> <p>The purchaser at foreclosure sale may at his option treat a renewal of a lease of the premises pending foreclosure after the filing of the lispendens as valid by ratification or express agreement.</p> <p>[Ed. Note.—For other cases, see Lis Pendens, Déc. Dig. 8 26.*]</p> <p>3. Lis Pendens '(§ 26*)—Foreclosure—Rights of Purchaser—Estoppel.</p> <p>The purchaser at mortgage foreclosure is estopped to claim that the renewal of a lease of the premises made after the filing of the lis pendens was extinguished by the foreclosure, where after becoming the purchaser he received the instrument of renewal and accepted rent thereunder.</p> <p>[Ed. Note.—For other cases, see Lis Pendens, Dec. Dig. § 26.*]</p> <p>4. Receivers (§ 87*)—Renewal of Lease—Payment of Rent.</p> <p>Where the mortgagee of leased premises did not demand the rent during-foreclosure, the tenant properly paid it to the receiver of the mortgagor’s property, who renewed the lease after commencement of the actien for foreclosure, until the purchaser became the owner under the referee’s deed.</p> <p>[Ed. Note.—For other cases, see Receivers, Cent. Dig. § 161; Dec. Dig.. § 87.*]</p> <p>5. Receivers (8 87*)—Rights of Receiver—Collection of Rent.</p> <p>Where the mortgaged property was in the hands of a receiver for the-owner before the commencement of action for foreclosure, in the absence-of a demand by the mortgagee for the rent, the receiver is entitled to collect the rent pending foreclosure.</p> <p>[Ed. Note.—For other cases, see Receivers, Cent. Dig. § 161; Dec. Dig.. 8 87.*]</p> <p>6. Landlord and Tenant (§ 88*)—Renewal of Lease—Validity—Ratification by Subsequent Purchaser.</p> <p>■ Where the receiver for the owner of mortgaged property renewed a lease-after the commencement of an action to foreclose and the filing of the lis pendens, and after the sale the renewal leash was given to the purchaser,, who collected the rent for several months without objection to the renewal by either party or claim that it was extinguished by foreclosure, the-renewal lease was ratified, and. the lessee is bound thereby for the remainder of the term.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 88.*]-</p> <p>7. Landlord and Tenant (§ 15*)—Renewal Pending Foreclosure—Mortgage Foreclosure—Effect of Attornment.</p> <p>By attorning to the purchaser at mortgage foreclosure of the lessee under a lease made after commencement of an action to foreclose and filing of a lis pendens, a new tenancy was not created, but the lease was continued.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 13-16; Dec. Dig. § 15.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Benjamin Daniel against the Brooklyn Heights Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>"Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Abraham Dorb against Elehanan Winchester Waybright. Judgment for plaintiff, and defendant appeals. Reversed, unless plaintiff stipulates to reduce the amount of recovery, in which case, affirmed, as modified.</p>

Action by one Castell against one Woodcock on a policy of Lloyds fire insurance for loss by fire. A demurrer was filed to the sufficiency of the allegations of the complaint, and defendant then made a motion for judgment on the pleadings.

<p>Appeals from Municipal Court.</p> <p>Actions by George Partridge and another and by Jacob Urban against John W. Doty. From a Municipal Court judgment dismissing the complaints, plaintiffs appeal.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by George H. Selleck against the Manhattan Fire Alarm-Company. From an order granting plaintiff’s motion for a new trial after dismissal of the complaint, defendant appeals.</p>

<p>Carriers (§ 91*)—Carriage of Goods—Delivery to Consignee—Excuse for Failure.</p> <p>Where plaintiff’s goods, while in the possession of defendant, a common carrier, for transportation, were stolen, but part of them were found by the police and deposited with the property clerk, defendant was not thereby relieved of his obligation to deliver such part; he having an adequate right to recover them. '</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 342; Dec. Dig. § 91.*]</p>

<p>Payment (§ 22*)—Checks.</p> <p>Where defendant gave plaintiff a postdated check In payment for goods purchased, and plaintiff Indorsed it to a third party, who still holds it, this constituted payment, although the check has not been paid, and was a complete defense to an action for the price of the goods.</p> <p>[Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 87, 88; Dec. Dig. § 22.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Resnick against Frederick M. Bookhop. Judgment for defendant, and plaintiff appeals.</p>

<p>Chattel Mortgages (§ 169*)—Default—Possession by Mortgagee—Conversion.</p> <p>Where a chattel mortgagee, after default, took possession of property under the mortgage, which contained a clause authorizing seizure on default and sale SO days thereafter, and the mortgagor demanded return of the property, but did not tender the amount due, and did not request that the property be sold to satisfy the debt, the mortgagee was not guilty of conversion.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. § 302; Dec. Dig. § 169.*]</p>

<p>Courts (§ 189*)—Procedure—Judgment on Dismissal.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 248, providing for dismissal, with costs, without prejudice to a new action, where plaintiff fails to prove his cause of action, the court, on granting a dismissal on this ground, cannot also direct a verdict for defendant.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Corporations (§ 447*)—Assignment to Corporation—Validity.</p> <p>That a corporation, suing on a claim assigned to it, had no legal existence when the claim was assigned to a third person, is immaterial, where it was subsequently incorporated, and before the commencement of the action acquired the claim.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 447.*]</p>

<p>1. Evidence (§ 263*)—Admissions—Right to Explain.</p> <p>A party has the right to explain his admissions, though made in a judicial proceeding.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1022-1027; Dec. Dig. § 263.*]</p> <p>2. Tbial (§ 84*)—Evidence—Objections—Sufficiency.</p> <p>An objection to a question as immaterial, irrelevant, and incompetent does not raise the point that the question calls for a conclusion.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 214; Dec. Dig. § 84.*]</p> <p>3. Pleading (§ 235*)—Amendments—Allowance.</p> <p>An amendment to a pleading should be allowed, where the adverse party does not claim that he will be prejudiced or surprised.</p> <p>[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 235.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. o</p> <p>Action by Annie Jenner, as administratrix of the estate of William J. Jenner, against Julian B. Shope. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Bankruptcy (§ 421*)—Discharge—N otes.</p> <p>A note dated two days subsequent to a petition in bankruptcy, and not shown to be for a previous indebtedness, is not discharged by the discharge of the maker in the bankruptcy proceedings.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Dec. Dig. § 421.*]</p> <p>2. Bankruptcy (§ 421*)—Provable Claims—Contingent Liability—Accommodation Indorser—“Debt on a Contract Express or Implied.”</p> <p>The contingent liability of an accommodation indorser on a note falling due after a petition in bankruptcy, but before time for the filing of proof of claims, is a provable “debt on a contract express or implied,” under Bankr. Act July 1, 1898, c. 541, § 63a4, 30 Stat. 563 (U. S. Comp. St.. 1901, p. 3447); and hence, though not proved, is discharged by the discharge of the indorser in the bankruptcy proceedings, under section 17.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 421.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Nathan Reisler against Rouis S. Cohen and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Parties (§ 6*)—Persons Who may Sue—“Real Party in Interest.</p> <p>Under Code Civ. Proc. § 449, permitting actions to be prosecuted in the name of the “real party in interest,” a publisher of a periodical owned by an unincorporated association having thousands of members was authorized to sue for printing an advertisement under a contract in the form of a written authority on a printed blank addressed to “the publishers” of such periodical.</p> <p>[Ed. Note.—For other cases, see Parties, Cent. Dig. §§ 6-S; Dec. Dig. § 6.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 5938, 5939: vol. 8, p. 7779.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Frieda Hart against the American Fidelity Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by John G. Meister against William H. Woolverton, as president of the New York. Transfer Company. From a judgment for plaintiff, defendant appeals.</p>

Action by John Wagner against the H. Herrmann Lumber Company. From an order setting aside a verdict in plaintiff’s favor and granting a new trial, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Julius Richter against David Seitzman and others. From an order denying the motion of defendant Isaac Seitzman to vacate and set aside a judgment and the body execution thereunder issued, and to open the default taken against him, he appeals.</p>

<p>Master and Servant (§ 80*)—Salary Contract—Presumption from Receipt of Salary.</p> <p>The presumption from plaintiff having received her salary at regular and stated periods is that the salary so received was in full payment for services rendered, requiring proof to overcome it of a special agreement to pay additional compensation.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 80.*]</p>

<p>Appeal from Municipal Coürt, Borough of Manhattan, Fifth District.</p> <p>Action by the System Company against the Advertisers’ Cyclopedia Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Landlord and Tenant (§ 308*)—Dispossession Proceedings—Personal Notice—Service.</p> <p>Where, in dispossession proceedings, the landlord failed to prove personal service, or the giving of the statutory three days’ notice, as required by Code Civ. Proe. § 2231, he was not entitled to recover.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 308.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Ralph B. Carter Company against Gustav Fischer. From a judgment for defendant, plaintiff appeals.</p>

<p>Account Stated (§ 6*)—Assent or Party Charged.</p> <p>In an action for money had and received by defendants, cotton brokers, a showing that, after defendants executed the last transaction for plaintiff, they repeatedly sent him statements of his account, which he not only retained without objection, but wrote, defendants asking them to hold the stock which they were carrying on a margin for his account, which letters assumed the correctness of the account which the defendants had sent him, established the defense of an account stated.</p> <p>[Ed. Note.—For other cases, see Account Stated, Cent. Dig. §§ 30-40; Dec. Dig. § 6.*]</p> <p>Bijur, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Minnie L. Anderson against Arthur F. Kaufman. Defendant had judgment, and plaintiff appeals.</p>

<p>Landlord and Tenant (§ 300*)—Re-entry and Recovery of Possession— Summary Proceeding—Persons Entitled to Bring—“Assign.”</p> <p>Real Property Law (Laws 1896, c. 547) § 193, provides that the assigneeof the lessor has the same remedies for the nonperformance of any agreement in the assigned lease as the lessor would have had. Code Civ. Proc. § 2235, includes the assignee of a lease as well as the landlord within those-by whom summary proceedings may be instituted. The language of the-last section is substantially taken from 2 Rev. St. (1st Ed.) pt. 3, c. 8, tit. 10, § 29, which provided that the landlord, as well as his “assigns,” might make and present the oath, under which it was always held that a new lessee was not an “assign," and could not maintain summary proceedings-against the former lessee to recover the premises. Held, that one whose lease begins at the termination of a prior lease canuot, when the prior-lessee holds over, maintain summary proceedings to recover the leased; premises, since the substantial adoption of a former term of description, in a statute on its recodification indicates the intention of the Legislature to-adopt its settled judicial construction.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 1292-1294 ; Dec. Dig. § 300*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 562-504; vol. 8, p. 7584.]</p>

<p>1. Corporations (§ 155*)—Dividend Scrip—Prima Facie Case.</p> <p>In an action to recover interest on a written instrument, introduction of the instrument 'by which a corporation certified that it was indebted to S. in the sum of $315, payable out of its net earnings at any time after 30 days’ notice of payment by the board of directors, to bear interest at 6 per cent., payable annually, established a prima facie case.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 155.*]</p> <p>2. Corporations (§ 155*)—Scrip Dividend—Interest.</p> <p>Where a corporate scrip dividend was issued, bearing interest, without consideration, the holder was not entitled to recover past-due interest thereon without proof that the dividend was legally declared.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 155.*]</p> <p>3. Evidence (§ 158*)—Best Evidence—Corporate Dividend.</p> <p>Evidence of the general auditor of a corporation that, so far as he knew, the company had not earned any dividends, was inadmissible to show that a scrip dividend declared was illegal; the best evidence being the corporation’s books of account.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 471-526; Dec. Dig. § 158.*]</p> <p>4. Evidence (§ 370*)—Documentary Evidence—Books of Account.</p> <p>Books of account of a corporation do not prove themselves.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1562; Dec. Dig. § 370.*]</p> <p>5. Evidence (§ 383*)—Documentary Evidence—Minute Book of Corporation.</p> <p>The minute book of a coloration, after being duly proved, is evidence both that its contents are correct and that, presumptively, proceedings not therein recited did not actually occur.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1667; Dec. Dig. § 383.*]</p> <p>6. Corporations' (§ 155*)—Dividends—Proof.</p> <p>Where plaintiff sued on a scrip dividend alleged to have been passed by a corporation, and the corporation’s minute book contained no entry of any resolution of directors authorizing the dividend, the burden was on plaintiff to prove by some survivor that a resolution for a dividend was actually passed, though not recorded.</p> <p>[Ed. Note.—For other cases, see Corporations, Dee. Dig. § 155.*]</p> <p>7. Corporations (§ 152*)—Dividends—Power.</p> <p>Under Manufacturing Corporations Act (Laws 1848, c. 40) § 13, regulating the affairs of corporations, the power to declare dividends was vested exclusively in the directors, and could not be exercised by the president and secretary.</p> <p>[Ed. Note.—For other cases, see Corporations,' Dec. Dig. § 152.*]</p>

Action by Joseph N. Flynn against the Hanover Fire Insurance Company of New York. From a judgment of the New York City Court on a verdict directed for defendant for $77.08 costs, after a verdict for plaintiff for $850, “subject to the opinion of the court,” had been set aside, plaintiff appeals.

Action by Francis A. Murdock, individually and as agent for Lewis C. Murdock, and others, against Aaron A, Fishel, individually and as surviving partner of the firm of Fishel, Adler & Schwartz, and others. From an order denying relief, plaintiffs appeal.

<p>1. Attorney and Client (§ 64*)—“Retainer.”</p> <p>A retaining fee, or “retainer,” is a payment in advance, to cover future services and disbursements until further provision is made.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 86, 87; Dec. Dig. § 64.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6196, 6197.]</p> <p>2. Attorney and Client (§ 64*)—Agreement fob Retainer—Right to Recover.</p> <p>A client interviewed a lawyer about how to recover advances made to a. restaurant business, and the lawyer advised him that it was his belief that a restaurant could not be put into bankruptcy, and that it would be unwise to accept a preference, but that he would take the matter up on being paid a retaining fee of $250, and the client was to furnish a statement of facts. The client hired other attorneys, and the first attorney performed .no other services. Held, that there was no basis for a recovery of the retaining fee, but that the attorney was entitled to recover the value of the advice given.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Dec. Dig. § 64.*]</p>

<p>Appeal and Error (§ 1050*)—Harmless Error—Admission of Evidence.</p> <p>In a case wherein plaintiff’s testimony was contradicted on material points by different witnesses, error in permitting plaintiff to produce testimony of defendant’s alleged attempt to compromise the claim sued on is prejudicial, notwithstanding thereafter defendant gave some testimony on the same subject , to meet the unfavorable inferences necessarily produced by the incompetent testimony, as it is apparent that the error is not merely technical, but material.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4153-$160; Dec. Dig. § 1050.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Charles M. Decker & Bros, against Albert Moyer. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Herman Henschel against Abraham Bverett. From a judgment for plaintiff, and from certain, orders, defendant appeals.</p>

<p>Taxation (§ 496*)—-Delinquency Taxes—Compromise—Cebtiobabi.</p> <p>Unpaid taxes to the amount of §1,667.36 were a lien on certain land* in the town of T. The supervisors of the county compromised and discharged the lien on receiving §800 from the landowner, charging the balance to the town. The warrant for such amount was drawn in favor-of the treasurer, and the same was included in the amount to be collected by the town tax roll and warrant from the assessed property of the-town. Held, that a petition for certiorari, alleging such facts, stated sufficient grounds for the writ, since there was no statutory or other authority authorizing such action on the part of the supervisors, and its act was-therefore not legislative, but arbitrary, and without jurisdiction.</p> <p>[Ed. Note.-—For other cases, see Taxation, Dec. Dig. § 496.*]</p>

<p>■Street Railroads (§ 117*)—Injuries—Negligence—Jury Question.</p> <p>A street car was standing at the approach of a curve, when plaintiff’s wagon approached it on the other street car track, the wagon wheel running in the flange of the rail next to the track on which the street car was; and, when the forward part of the wagon had passed the forward end of the street car, the car started around the curve, and" the end of the car swung toward the other track, overhanging the rail on its own track about six feet, and struck the wheel of plaintiff’s wagon. It did not appear that plaintiff knew that the car overhung far enough in going around the curve to strike the wagon on the other track. Held, that it was for the jury to say whether plaintiff was negligent.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 248-250, 255; Dec. Dig. § 117.’*] • ■</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Thomas Gallagher against the Metropolitan Life Insurance Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Fraudulent Conveyances (§ 3*)—Bulk Sales—Validity of Statute.</p> <p>Personal Property Law (Consol. Laws, c. 41) § 44, providing that a sale of any portion of a stock of merchandise, other than in the ordinary course of trade, or the sale of an entire stock of merchandise in bulk, will be presumed to be fraudulent against the creditors of the seller, unless at least five days before sale a detailed inventory is made, and the purchaser makes explicit inquiry of the seller as to the names of creditors, and notifies them, is not unconstitutional.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 3; Dec. Dig. § 3.*]</p> <p>2. Fraudulent Conveyances (§ 241*)—Bulk Sales—Fraud—Presumption.</p> <p>Personal Property Law (Consol. Laws, c. 41) § 44, providing that sales contrary to its provisions shall be presumed to be fraudulent and void against the creditors of the seller, does not refer to judgment creditors alone.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 097; Dec. Dig. § 241.*]</p> <p>3. Fraudulent Conveyances (§ 47*)—Bulk Sales—Fraud—Presumption.</p> <p>Where a sale of goods was made in violation of Personal Property Law (Consol. Laws, c. 41) § 44, providing that sales of merchandise in bulk will be presumed to be fraudulent unless at least five days before the sale a full inventory is made, and the purchaser makes explicit inquiry of the seller as to the names of creditors, and notifies them, the question whether the sale was fraudulent is one of fact for the trial court or jury, and in making this determination it should consider the presumption of fraud and illegality arising from the fact that it was a transaction in violation of the statute.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. § 47.*]</p> <p>4. Fraudulent Conveyances (§ 283*)—Bulk Sales—Bona Fide Purchaser-Burden of Proof.</p> <p>Where a party purchased a stock of goods from one whom he knew purchased them in bulk from another, so that his purchase was presumed fraudulent unless the requirements of Personal Property Law (Consol. Laws, c. 41) § 44, of notice to the creditors of the seller, were complied with, the burden was on him to show that the notice was given, in order to be considered as a purchaser in good faith.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 819; Dec. Dig. § 283.*]</p> <p>Bijur, J., dissenting.</p>

Action by John A. Brower against John J. Crimmins. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from City Court of New York, Special Term.</p> <p>In the matter of proceedings supplementary to execution in the action of Sigmund Tauter against Sendai Hirsch. From an order denying a motion to vacate an order appointing a receiver in such proceedings, defendant debtor appeals.</p>

<p>Petition by Peter R. Van Derzee, executor of Gertrude A. Van Derzee, deceased, for a final settlement of his account, in which James Vanderpool, as administrator of Margaret E. Vanderpool, deceased, filed objections. Decree settling account.</p>

<p>Action by Albert J. Wheeler, as receiver, against Paul Werner and others, to recover on stockholders’ liability.</p>

Action by Harry Dunn, as administrator of Julia Dunn, deceased, against the New Amsterdam Casualty Company. From a judgment dismissing the complaint, and from an order denying a new trial, plaintiff appeals.

Action by the Brearley School, Limited, against Beverley Ward. From an order of the City Court of the City of New' York, denying a motion for an order under Code Civ. Proc. § 1391, plaintiff appeals.

Application by Clark H. Hammond for a writ of peremptory mandamus, requiring reclassification of employés in the office of the Corporation Counsel of the City of Buffalo, against George A. Ricker and others, as Municipal Civil Service Commissioners, etc.

<p>Action by Mary E. Johnson against the Phoenix Bridge Company. On motion by plaintiff for an order permitting service of an amended complaint.</p>

<p>Action by one Garvey against one Larney. Motion by defendant to •set aside an order directing the issuance of an execution.</p>

<p>1. Partnership (§ 53*)—Existence—Evidence—Accounting.</p> <p>In a suit for partnership accounting, evidence held to sustain a finding that a partnership existed between complainant and defendant, involving shares in profits and losses, and that complainant was entitled to an accounting.</p> <p>[Ed. Note.—Eor other cases, see Partnership, Cent. Dig. § 70; Dec. Dig. § 53.*]</p> <p>2. Partnership (§ 325*)—Accounting—Receivers.</p> <p>Where, in a suit for an accounting of a partnership engaged in the brokerage business, the appointment of a receiver will destroy the use by defendant of his Stock Exchange seat, he may be permitted to give bond in lieu of a receiver.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 767; Dec. Dig. § 325.*]</p>

<p>1. Gifts (§ 28*)—Inter Vivos—Delivery.</p> <p>Testatrix had placed in her nephew’s possession certain bonds, inclosed' in an envelope, bearing her signed statement: “The inclosed bonds are the property of my brother, James A. Hailey, of Tarrytown, New York.” She purchased the bonds to provide a fund which would yield a monthly income for her brother, after consultation with the nephew. On' one occasion testatrix applied to her nephew for the interest coupons, which he was at first unwilling to deliver to her, stating that they belonged to the brother, and not to her, but did so on her assurance that the money was to be paid to her brother; she desiring that he receive the income in monthly payments, rather than semiannually. In a will made by testatrix about the time of the transaction, she referred to the bonds as bonds “of which I am now possessed, or which I shall possess at the time of my decease”; but in her last will, made later, she made no reference to the bonds. Held, that the bonds were not delivered to the nephew as agent for testatrix, nor as trustee, but as a custodian, and that the facts showed a sufficient intent to establish a gift inter vivos.</p> <p>[Ed. Note.—For other cases, see Gifts, Cent. Dig. § 61; Dec. Dig. § 28.*]</p> <p>2. Gifts (§ 21*)—Inter Vivos—Delivery.</p> <p>A transfer of possession to a third person for the donee, with the intention to make a gift, is a sufficient delivery to constitute a valid gift inter vivos.</p> <p>[Ed. Note.—For other cases, see Gifts, Cent. Dig. § 36; Dec. Dig. § 21.*]</p> <p>3. Gifts (§ 21*)—Inter Vivos—Donee’s Knowledge.</p> <p>The donee’s knowledge of a gift inter vivos is not essential to the validity thereof, where there has been a delivery of the property to a third person for the donee.</p> <p>[Ed. Note.—For other cases, see Gifts, Cent. Dig. § 36; Dec. Dig. § 21.*]</p> <p>4. Gifts (§ 41*)—Delivery to Agent.</p> <p>Delivery of property, intended to be given to another, to the donor’s agent, is insufficient, unless the donee obtains possession before the donor’s death, since the death would terminate the agency and the delivery be incomplete.</p> <p>[Ed. Note.—For other cases, see Gifts, Cent. Dig. § 20; Dec. Dig. § 41.*]</p> <p>5. Gifts (§ 34*)—Conditional Delivery.</p> <p>A gift inter vivos is not effective, if delivery to the donee is made conditional on a donor’s death.</p> <p>[Bd. Note.—For other cases, see Gifts, Cent. Dig. §§ 68-71; Dec. Dig. § 34.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Kalkhoff Company against the Russian Orthodox St. Nicholas Church of New York. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Special Term, Queens County.</p> <p>Action for partition by Ada H. Mitchell against Charles L- Mitchell and others. From a judgment for plaintiff, overruling their demurrer to the complaint, defendants 'appeal.</p>

<p>1. Vendor and Purchaser (§ 130*)—Rights of Vendee—Marketable Title.</p> <p>A vendee is entitled to a marketable title free from reasonable doubt.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 245; Dec. Dig. § 130.*]</p> <p>2. Process (§ 96*)—Service by Publication—Affidavit.</p> <p>An affidavit for an order for service of summons by publication, alleging that one of the defendants could not, after due diligence, be found within the state, and, as deponent was informed and believed, was residing and last resided in Greenwich, Conn., but whicfi failed to disclose what, if any, effort had been made to find and serve him within the state, or to state any reason why such effort, if made, would be useless, was insufficient to confer jurisdiction, and an order for publication based -thereon was void.</p> <p>[Ed. Note.—For other cases, see Process, Cent. Dig. § 118; Dec. Dig. § 96.*]</p> <p>3. Vendor and Purchaser (§ 75*)—Delivery of Deed—Time.</p> <p>Where a deed to certain property was to be delivered to the purchaser on May 1,1909, in consideration of a transfer of certain personal property and cash, and on that date the title was unmarketable, the vendee was not required to accept performance on July 1st following, she having in the meantime sold the personal property to others.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 113; Dec. Dig. § 75.*]</p> <p>4. Vendor and Purchaser (§ 337*)—Breach of Contract—Vendee’s Damages.</p> <p>Where a vendee refused to accept performance because the title was unmarketable, she was entitled to recover the amount paid at the time of signing the contract, the expense of a survey, for the examination of the title, and for improvements on the premises, with interest, which amount should be made a lien thereon.</p> <p>[Ed. Note.—For other eases, see Vendor and Purchaser, Cent. Dig. § 985; Dec. Dig. § 337.*]</p>

Application by Joseph Besch for the examination of Horatio M. Pollock as a witness in an expected action. On motion to vacate the order directing the examination.

<p>Action by Thomas Cary against Hazel M. Koerner and another.</p>

<p>Mandamus by the People, on the relation of A. S. Swan, against John L- Doxsee and others, to compel defendants, as trustees of the town lands of the town of Islip, to remove an icehouse from a public dock.</p>

Mandamus by the People, on the relation of William H. Walker, against John F. Ahearn, as President of the Borough of Manhattan. On motion to vacate and set aside the judgment entered against defendant.

<p>Appeal from Trial Term, Broome County.</p> <p>Action by the Meyer Bros. Drug Company against Edward P. McKinney and another. From the judgment, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Thomas F. White & Co., a corporation, against Adrian H. Joline and another, receivers of the New York City Railway Company. From a Municipal Court' judgment for plaintiff, defendants appeal.</p>

<p>Suit by one Epstein against one Smith to compel the revocation of permits granted by the park commissioner.</p>

<p>1. Release (§ 24*)—Fraud—Remedies.</p> <p>One induced by fraud to execute a release of a claim for damages for negligence may rescind, return or tender the money received under it and sue on the original cause of action, or he may affirm the settlement, retain the money received, and sue for damages for the fraud, or he may sue in equity to rescind and for equitable relief offering in the complaint to restore the money, if he is not entitled to retain it.</p> <p>[Ed. Note.—For other cases, see Release, Dec. Dig. § 24.*]</p> <p>2. Action (§ 36*)—Change of Character or Form.</p> <p>A judgment for plaintiff suing for fraud inducing the compromise of a claim for the negligent death of her intestate is not sustainable as rendered in an action for the original negligence, though so tried and submitted, when such an action was not maintainable because the compromise had not been rescinded and the money received under it tendered back, and it is not sustainable as rendered in an action for the fraud when the question of damages for fraud was not submitted to or passed on by the jury.</p> <p>[Ed. Note.—For other cases, see Action, Dec. Dig. § 36.*]</p> <p>3. Fraud (§ 49*)—Remedies—Issues, Proof, and Variance.</p> <p>One suing for fraud inducing the compromise of a claim for damages for the negligent death of plaintiff’s intestate need only prove that an accident occurred, that intestate’s death resulted, and that a claim for liability against defendant was made, and he need not show the existence of a valid claim against defendant.</p> <p>[Ed. Note.—For other cases, see Fraud, Dec. Dig. § 49.*]</p>

<p>1. Judicial Sales (§ 27*)—Validity of Title.</p> <p>A purchaser at a judicial sale will be compelled to take title to the premises covered by an unsatisfied mortgage of record due more than 20 years before sale, in the absence of proof of any payment of principal or interest within that time.</p> <p>[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 98, 99; Dec. Dig. § 27.*]</p> <p>2. Judicial Sales (§ 27*)—Validity of Title.</p> <p>A purchaser at a judicial sale of premises covered by an unsatisfied, mortgage of record dated more than 20 years before sale and payable on demand has the burden of rebutting the presumption of any payment-of . principal of interest within the 20 years and thus avoiding his purchase.</p> <p>[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 98, 99; Dec. Dig. § 27.*]</p>

<p>Partnership (§ 279*)—Dissolution—Proceedings by Firm Creditors.</p> <p>Where a partnership dissolves by agreement, by which one of the partners becomes owner of the partnership assets and assumes the partnership liabilities, the other partner becomes merely a surety as to firm debts, and a firm creditor, having notice of the change, must first proceed against the one taking over the assets.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 636, 637; Dec. Dig. § 279.*]</p> <p>Whitney, J., dissenting.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Julia S. Newman against Julian Benedict. From an order of the City Court of New York denying defendant’s motion to vacate an order of reference, obtained through defendant’s default, he appeals.</p>

<p>On reargument.</p> <p>For former opinion, see 120 N. Y. Supp. 752.</p>

Action by Charles C. Burlingham and others against Patrick E. Cargan. From an order denying a motion to make amended answer more definite and certain, and to direct defendant to serve an amended answer separately stating and numbering affirmative defenses and counterclaims, plaintiffs appeal.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by John Sharp Wilson against Robert E. Johnston. From an order directing a reference, plaintiff appeals.</p>

<p>L Appeal and Erbok (§ 232*)—Objections—Instructions—Necessity.</p> <p>Where a charge that a witness was the only disinterested witness was excepted to on the ground that he was interested, the exception was sufficient to sustain a contention on appeal that the charge was erroneous because the witness was not the only disinterested witness.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1430; Dec. Dig. § 232;* Trial, Cent. Dig. § 691.]</p> <p>2". Trial (§ 187*)—Instructions—Evidence.</p> <p>Where a witness was shown to be intimately related in business matters with one interested in the outcome of the litigation, it was error to instruct that he was the only disinterested witness, since this might indicate to the jury that his version was to be accepted by them, rather than that of defendant’s attorney.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 418; Dec. Dig. § 187.*]</p>

<p>Action by George C. Smith and another against Thomas J. Allen and others.</p> <p>The action was brought by plaintiffs to partition certain real property in the county of New York. The plaintiffs claimed as the transferees of five-sevenths of the heirs at law of Charlotte Miller, deceased, in case she died intestate, and as transferees of one Margaret L. Schultz, deceased, who was a sole devisee under an 'alleged last will and testament of the said Charlotte Miller, deceased; plaintiff having purchased both these apparently conflicting interests. Charlotte Miller died the 2d day of March, 1901, leaving an alleged last will and testament, which was offered for probate in the Surrogate’s Court, New York county. Margaret L. Schultz was the sole residuary devisee under the said alleged last will. This will was refused probate toy the surrogate of New York county. See Matter of Miller, 36 Mise. Rep. 310, 73 N. Y. Supp. 508. On appeal to the Appellate Division of the Supreme Court, the proceeding was transferred to the Supreme Court for a jury trial. Matter of Miller, 72 App. Div. 615, 76 N. Y. Supp. 351. There were two subsequent jury trials on which the juries disagreed. Margaret L. Schultz, pending these proceedings, died, and the plaintiffs purchased her alleged interest, and also the interests of five-sevenths of the heirs at law and commenced an action to partition the real property, claiming the right to do so as part owner of the property under one title or the other. Plaintiffs did not allege or prove that the alleged last will and testament was void.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Gray rock Land Company against Harris Wolff. There was a directed verdict for plaintiff, and defendant appeals.</p>

Action by Albert H. Dollard against Benjamin Koronsky and another, doing business under the firm name of B. Koronsky & Son. From an order of the City Court of the City of New York (64 Mise. Rep. 611, 118 N. Y.' Supp. 922) adjudging Max E. Bloch guilty of contempt of court, he appeals.

Action by Louis Helling, as administrator of Elizabeth Helling, deceased, against Jacob Boss and others, as executors of Abraham Boss, deceased.

<p>1. Coubts (§ 188*)—Enforcement—Jurisdiction.</p> <p>The mechanic’s lien act (Laws 1897, c. 418) provides for enforcement of such liens in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of the debt, and provides that the lien.may be enforced “against such property and against the person liable for the debt,” and requires the filing of a lis pendens when the action is brought, whether in a court of record or not, and • provides that failure to do so shall not abate the action as to any personal liability for the payment of the debt. The Municipal Court act (Laws 1902, c. 580) gives Municipal Courts jurisdiction of “an action to enforce a mechanic’s lien on real property in which the court shall have power to render judgment for the sum due with interest * * * and to declare the amount a valid lien against the interest of the defendant in the property described in the complaint * * * where the amount does not exceed $500," but provides that such court cannot render judgment for the foreclosure and sale of the property. Held, that the meaning of the statutory provisions relating to the jurisdiction to enforce a mechanic’s lien must be ascertained from all the provisions considered together, and from the general scope of the statutes and purpose in view, and that the Municipal Court has jurisdiction to enforce a mechanic’s lien.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 188.*]</p> <p>2. Appeal and Error (§ 209*)—Grounds of Review—Reservation in Lower Court.</p> <p>Where no objection is made in an action to enforce a mechanic’s lien to the failure to show that a lis pendens was filed within the year required by statute, the objection cannot be raised for the first time on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and-Error, Cent. Dig. §§ 1290, 1293 ; Dec. Dig. .§ 209.*]_■ _</p> <p>3. Appeal and Error (§ 1039*)—Harmless Error—Variance.</p> <p>In a proceeding to enforce a mechanic’s lien by a subcontractor, who states in his notice of lien that B. and his wife were the contractors with the owners, and that he made his contract with both of them, and the complaint in the action to enforce the lien alleges the same relations, a variance in proof which fails to connect 'both B. and his wife with the contract with the owner and with the subcontractor is harmless, where there are no other liens resulting from the same transaction, and the jury might have found from the evidence that the contract with plaintiff was on behalf of B.’s wife, though made with B.</p> <p>[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. § 4086; Dec. Dig. § 1039.*]</p> <p>4. Appeal and Error (§ 197*)—Issues in Lower Court—Pleading—Variance.</p> <p>Where the issues in a proceeding to enforce a mechanic’s lien were tried upon the understanding that the allegations of an amendment to the complaint should be considered as denied by defendant’s answer, an objection that certain evidence was improperly introduced because the amendment to the complaint under which it was introduced was improperly made cannot be taken on appeal.</p> <p>[Ed. Note.—Eor other cases, see Appeal and Error, Dec. Dig. § 197;* Pleading, Cent. Dig. § 1428.]</p> <p>5. Mechanics’ Liens (§ 281*)—Enforcement—Evidence.</p> <p>Evidence in an action to enforce a mechanic’s lien by a subcontractor held to show a balance due from the owners of the property to the contractor.</p> <p>[Ed. Note.—Eor other cases, see Mechanics’ Liens, Cent. Dig. §§ 565, 571; Dec. Dig, § 281.*]</p> <p>6. Mechanics’ Liens (§ 281*)—Enforcement—Evidence—Set-Off.</p> <p>Evidence in an action to enforce a mechanic’s lien by a subcontractor held- to sustain a finding denying a set-off to the owners of the premises for the cost of repairing defective work done under the contract.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 565, 571; Dec. Dig. § 281.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Henry Kupfer & Co. against Samuel Pellman. From a judgment for defendant, plaintiffs appeal.</p>

<p>Action by the Diamond Mills Paper Company against the Independent Peerless Pattern Company. Motion for a bill of particulars of facts alleged in defendant’s answer.</p>

<p>Pleading (§ 368*)—Stating Denials, Defenses, and Gounteeclaims.</p> <p>Under Code Civ. Proe. § 500, providing that the answer of the defendant must contain, first, a general or specific denial, and, second, a statement of any new matter constituting a defense or counterclaim, and section 507, providing that defenses of new matter must be separately stated and numbered, a motion to direct defendant to separately number and state counterclaims and to separately number and state defenses will be granted, where defendant by his first paragraph sets up a denial to plaintiff’s second and third allegations of the complaint, toy the second paragraph sets, up a counterclaim, by the third paragraph sets up a defense, and by the-fifth paragraph sets up a further defense.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1194-1198; Dec; - Dig. § 368.*]</p>

<p>Pleading (§ 367*)—Complaint—Making More Definite and Certain.</p> <p>A complaint on a fire insurance policy alleged in one paragraph thereof that plaintiff was at all times willing to appoint a competent appraiser and to have an impartial appraisal of the loss, but defendant refused to have such appraisal, and insisted on compliance with unusual 'conditions before it would enter into such appraisal, and therefore waived the requirements of the policy as to the appraisal. Held, that defendant was entitled to have the complaint made more definite and certain, so as to show the acts constituting the waiver, in what manner the defendant refused to have such an appraisal, and the unuspal conditions imposed.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1173-1193; Dec. Dig. § 367 ;* Insurance, Cent. Dig. § 1631.]</p>

<p>Action by Sam Werner, Incorporated, against Henry Syrop. On motion for defendant for a stay of proceedings.</p>

<p>Appeal from Municipal Court. Borough of Manhattan, Eighth District. Action by Henry P. Ansorge against Edward Van Praag and another. From a judgment for plaintiff, defendants appeal. Reversed, and complaint dismissed.</p>

<p>Action by Samuel J. Belfer against August Diedrick.</p>

<p>Action by the Consolidated Rubber Tire Company against the Firestone Tire & Rubber Company.</p>

<p>Action by the Deraismes Hose Company No. 1 against the City of New York.</p>

<p>Action by Anthony Fisher against the Wakefield Park Realty Company.</p>

<p>Action by Nene van T. Fenn against William M. Ostrander, Incorporated, and others.</p>

<p>Action by Emanuel Feller against William Kronowitz.</p>

<p>Action by Henry Feldman against Stephen Baldwin.</p>

<p>Action by Samson W. George, as trustee, etc., against the Village of Chester.</p>

<p>Action by Frank Grant against the National Railway Spring Company.</p>

<p>Appeal from City Court of New York, Special Term. Action by Nellie M. Hayes against Bertram Borden. From an order in favor of plaintiff, defendant appeals. Modified. See, also, 119 N.° Y. Supp. 156.</p>

<p>Action by Stephen B. Heaton against the Village of Chester.</p>

<p>In the matter of the application of the Heine Safety Boiler Company for a writ of mandamus requiring the Franklin Boiler Works Company to allow an inspection of its books.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by Samuel A. Israel against Laura Bloch. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from City Court of New York, Trial Term. Action by John A. Eckert & Co. against Emil Baumgarten, as surviving partner of William Baumgarten & Co. From an order denying defendant’s motion for judgment on the pleadings, he appeals.</p>

<p>Action by Catharine Loeschauer, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Proceeding by the People of the State of New York against Richard Moore.</p>

<p>Proceeding by the People of the State of New York, .on the relation of the New York Central & Hudson River Railroad Company, against James Gourley, James Monahan, and Maurice Maloney, Assessors of the Village of Haverstraw, Rockland County, N. Y., and Henry F. Dorl, Clerk of said Village.</p>

<p>Proceeding by the People of the State of New York on the relation of Everett E. AVheeler, against the City of New York and others.</p>

<p>Actions by William H. Russell against the Washington Life Insurance Company and against the, Pittsburgh Life & Trust Company.</p>

<p>Action by Mike Schultz against the Barber Asphalt Paving Company.</p>

<p>Action by Joseph Schlegel and others against the Roman Catholic Church of the Most Holy Trinity and others.</p>

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

<p>Action by Samuel Stein against the Brooklyn Ash Can Manufacturing Company.</p>

<p>Action by Samuel R. Smith against Frank E. Anderson.</p>

<p>Action by Richard Van Wyck Thorne and others against Henry T. Carey and others.</p>

<p>Action by Samuel Tepfer against the Rival Gas & Electric Supply Company.</p>

<p>Action by the United States Trust Company of New York, as trustee, etc., of the will of John J. Van Nostrand, deceased, against Louisa B. Van Nostrand, individually and as trustee, etc., of the will of John J. Van Nostrand, deceased, and as executrix of the will of John J. Van Nostrand, Jr., deceased, and others.</p>