Volume 123 — New York Supplement

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Jacob Seidenfried against Milton Ullman. Judgment for defendant, and plaintiff appeals.</p>

<p>Evidence (§ 465*)—Parol Evidence.</p> <p>A building contractor, alleging substantial performance of the written contract, may not, over the objection of the owner, prove such performance by proving an oral agreement materially varying the terms of the contract.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1899, 2044, 2065; Dec. Dig. § 465.*]</p> <p>Page, J., dissenting.</p>

Action by Wyckoff, Church & Partridge against Will H. Lyford. Judgment for plaintiffs, and defendant appeals. Modified and affirmed, if plaintiffs consent to a reduction in the amount recovered; otherwise, reversed, and a new trial granted.

<p>1. Courts (§ 189*)—Municipal Court—Dismissal Without Prejudice.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 248, subd. 4, providing that judgment of dismissal without prejudice shall be rendered where the plaintiff does not prove his case, judgment absolute could not be given for defendant, where plaintiff rested, having failed to prove its cause of action.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p> <p>2. Coubts (§ 189*)—Municipal Court—Dismissal on the Merits.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 249, subd. 1, providing that a judgment of dismissal on the merits may be rendered where, at the close of the whole case, the court is of the opinion that plaintiff could not recover as ..a matter of law, a judgment absolute could not be given for defendant, where plaintiff rested, having failed to prove its cause of action, and defendant had not introduced any evidence, or had not rested his case without introducing evidence.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Appeal from • Municipal Court, Borough of Manhattan, Second District. •</p> <p>Action by Abraham I. Smolens against Philip Cameron. From an order vacating a judgment for defendant, he appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Louis Heilbrunn against Henry Seh. There was a directed verdict for plaintiff, and defendant appeals.</p>

Action by William H. Beardsley against Guy V. Benders and others, doing business under the trade-name and style of Universal Mercantile Agency Partnership. From a Municipal Court judgment in favor of defendants, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District. ■</p> <p>Action by John E. Glancey against Thomas C. McClure. - Judgment for plaintiff, and defendant appeals.</p>

<p>Municipal Corporations (§ 818*) — Defective Sidewalk — Action — Evidence—Subsequent Condition of Premises.</p> <p>In an action for negligence in maintaining a defective coal hole In front of his premises, defendant’s negligence should have been decided on the facts existing at the time of the accident, and it was reversible error to admit evidence of the condition of the hole 30 days after the accident in question, and that he had then caused it to be repaired.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1733; Dec. Dig. § 818.*]</p>

Action by Antonio Vitale against Albert C. Gants and another. From an order granting plaintiff’s motion to increase a judgment of $80 and $17 costs to $225 and $22 costs after' judgment on a trial without a jury, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Seventh Avenue Meat & Provision Company against Louis Del Fa veto. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Robert G. Palmer against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Carriers (§ 140*)—Misaddressed Package—Warehousemen—Care Required.</p> <p>Where a misaddressed package was not delivered to the consignee for that reason, the carrier having made all reasonable efforts to find the consignee without success, and a reasonable time having elapsed for the consignee to call for it, the package remained in the hands of the carrier merely as a warehouseman; the carrier being bound only to guard it as securely as it guarded its own property.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 609-616; Dec. Dig. § 140.*]</p> <p>2. Carriers (§ 84*)—Delivery of Freight—Misaddress.</p> <p>Where a package delivered to a carrier was misaddressed, a delivery to the consignee at a place other than that to which the package was directed would have been at the carrier’s peril.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 290-298; Dec. Dig. § 84.*]</p> <p>3. Carriers (§ 86*)—Misaddressed Package—Negligence.</p> <p>Where a package delivered to a carrier was addressed to the consignee at the wrong station, the carrier was not bound to have communicated with the shippers, whose address was on the package, to relieve it from the charge of negligence in failing to deliver it, at least during the time when there was no reason to believe that the consignee would not call for it.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 316-322; Dec. Dig. § 86.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Max Margentine against the Arverne Hotel Supply Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Minnie Klein against Arthur From- a judgment on a directed verdict by the court in favor of plaintiff against both defendants, defendant Williams appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Mary ICaliniak, an infant, against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Louis Wasserstrom against the Public Bank. Judgment for plaintiff, and defendant appeals.</p>

Action by Samuel Harris and another, trading as the Pacific Woolen Company, against Meyer Mosolevslcy. From an order denying a motion to open a default judgment entered against defendant, he appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Harry A. Gordon against the Manhattan Desk Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Abraham Everett against the Usona Stamping Works. A demurrer to the complaint was overruled, and defendant appeals.</p>

<p>1. Replevin (§ 124*)—Liabilities on Bond.</p> <p>A replevin bond, given under Municipal Court Act (Laws 1902, c. 580), § 99, providing that such bond shall cover payment to defendant of “any sum which the judgment awards to him against the plaintiff,” does not indemnify the defendant against expenses incurred for counsel.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 487-497; Dec. Dig. § 124.*]</p> <p>2. Action (§ 53*)—Partial Assignments.</p> <p>Defendant in replevin assigned all his interest in a replevin bond, together with right to sue for the recovery of damages sustained, to the extent of $250. Held, that the cause of action on the bond cannot be split, nor recovery had in an action unless all claimants are joined therein.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 549-623; Dec. Dig. § 53.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by John Thomas against the City of New York. Erom a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Nat Goldston against Marie V. Wade. From a Municipal Court judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>■ Action by Bonwit, Teller & Co. against Elias Macksoud and another. From a Municipal Court judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Harold J. Moore against Adrian H. Joline and Douglas Robinson, as receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Murray Robinson against the Adolph R’audnitz Company. Judgment. for plaintiff, and defendant appeals.</p>

<p>Bills and Notes (§ 469*)—Notice of Nonpayment—Pleading.</p> <p>Under Negotiable Instruments Law (Consol. Laws, c. 38) § 160, providing that an. indorser who is not notified of nonpayment is discharged, where the complaint in an action on a check against the maker and indorser did not allege notice of nonpayment to the indorser, and no proof was offered of notice, a motion for dismissal of the complaint, made at the close of plaintiff’s case, was improperly denied.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1494, 1496; Dec. Dig. § 469.*]</p>

<p>1. Landlord and Tenant (§ 172*)—Eviction—Grounds—Deprivation op Heat.</p> <p>Where an apartment lease bound the landlord to supply steam to heat the apartment during the usual time and seasons, a failure to provide heat as agreed, so that the apartment was not comfortably habitable, was sufficient to constitute a constructive eviction, in case the tenant promptly abandoned the premises.</p> <p>[Ed. Note—For other cases, see Landlord and Tenant, Dec. Dig. § 172.*]</p> <p>2. ' Landlord and Tenant (§ 172*)—Deprivation of Heat—Eviction.</p> <p>Where a landlord leased an apartment and agreed to furnish heat, blit at the tenant’s request three'of the radiators were removed, and in November, on the tenant complaining of lack of heat, the landlord requested permission to restore them, which the tenant refused, and also refused to permit the installation of larger radiators, the landlord’s failure to provide sufficient heat was not a constructive eviction, in the absence of proof that what the landlord proposed would have been futile.</p> <p>[Ed. Note.—For other eases, see Landlord and Tenant, Dec. Dig. § 172.*]</p> <p>3. Landlord and Tenant (§ 172*)—Eviction—Temporary Inconvenience.</p> <p>Temporary inconvenience to a tenant by the landlord’s failure to provide sufficient heat in accordance with the lease does not constitute a constructive eviction, which arises only through the landlord’s persistent neglect.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. | 172.*]</p> <p>4. Landlord and Tenant (§ 171*)—Eviction—Abandonment.</p> <p>Where a tenant, claiming a constructive eviction because of the landlord’s failure to provide sufficient heat, removed his family to a hotel, leaving his household effects and two maids in the apartment, and later paid the rent for the following .month, but did not show when he removed his furniture and personal effects, if at all, there was no sufficient abandonment to constitute an eviction.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. I 693; Dec. Dig. § 171.*]</p> <p>5. Landlord and Tenant (§ 178*)—Constructive Eviction—Waiver.</p> <p>Where a landlord failed to furnish sufficient heat for the rented apartment in December, 1909, and the tenant removed his family to a hotel, but paid the rent for January, 1910, with knowledge of the conditions and of his rights, he waived his right to abandon the premises because of the alleged eviction.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 713; Dec. Dig. § 178.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by William H. Seibert, as committee of Albert Harrison, an incompetent, against Sarah A. Mowbray. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Ellis Bonime against Nathan Hurwitz. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Universal Talking Machine Company against Benjamin Feinberg. From a judgment for defendant on his counterclaim, plaintiff appeals. Reversed, and new trial granted.</p>

<p>Courts (§ 190*)—Municipal * ? Courts—Appeal—Return op Justice.</p> <p>On appeal from a judgment in the Municipal Court, the return of the trial justice prevails, and a judgment for defendant cannot be sustained on the theory that as to a counterclaim pleaded the justice found for defendant, where the return shows a dismissal of the counterclaim.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 103; Dec. Dig. § 190.*]</p>

Action by Max Gutschneider, as surviving partner, etc., against Abraham J. Pirosnick. From a Municipal Court judgment in favor of defendant, and from an order denying plaintiff’s motion' for a new trial, he appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Meyer Gerstenfeld and another against Herman German. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by George Spaeth against Annie De Witt. Judgment for defendant, and plaintiff appeals.</p>

Proceedings by the City of New York to acquire land for a police station site. Heard on objections by the city to a report of the commissioners of assessment and appraisal. Report referred back for correction as ordered.

Action by Onorio Tricoli against William McKenzie and another. From a default judgment for plaintiff, defendants appeal, for the purpose of vacating an order for substituted service.

<p>Sales (§ 81*)—Construction of Contract.</p> <p>„ Defendant agreed to sell plaintiff all the live carp which it delivered in the city within il months, and plaintiff agreed to purchase such fish. The contract provided that not more than one car load should be delivered each week, unless plaintiff requested, more, and that, in case no shipment should be made in any week, three days’ notice should be given to plaintiff, that it might provide itself with fish from other sources. Held, that the contract contemplated that plaintiff should be supplied with at least one car load a week, and a failure to deliver any fish for almost 8 months was a breach of the contract.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 217-223; Dec. Dig. § 81.*]-</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Barnet Siegel against the State Bank. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error (§ 1057*)—Harmless Error—Exclusion of Evidence.</p> <p>In an action against a corporation for injuries to plaintiff through defendant’s negligence in having an insecure plank over an opening on the fifth floor of a building, where defendant admitted that it was engaged in the construction of the building, but denied that it employed plaintiff, alleging that the injury was caused by plaintiff’s own negligence, or by that of some third person, the exclusion of evidence that defendant was merely the owner of the building, and was engaged in its erection only through contractors, was prejudicial to defendant, though plaintiff testified that defendant’s president engaged him, was acting as superintendent" of the work, and actually directed him to do the particular work resulting in his injury; there being evidence that at the time of such alleged direction the contractor was present, and the nature of the occupation of defendant’s president, and the purpose of his presence in the building, whether as actual superintendent, or as merely overlooking the work of the contractor, not being determinable without a knowledge of the circumstances under which the building was being cqn- , structed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4199; Dec. Dig. § 1057.*]</p>

<p>Evidence (§ 155 * —Admissibility by Reason of Similar Evidence by Adversary.</p> <p>In an action for goods sold, where plaintiff testified that defendant had always represented himself to be a certain other person, under whose name the goods were sold to him, it was error to admit evidence that defendant had never represented himself to the witnesses as such person, though a witness for plaintiff had testified that defendant had represented himself to him as such person, since, assuming that such testimony for plaintiff was irrelevant, it would have justified only evidence, on defendant’s behalf that defendant had not represented himself as such person to plaintiff’s witness.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Thomas Kelly against Montague Aaron. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Francesca De Lucia against' Pasquale Cellilo. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Giovanni Salvetta, by Crescenzo Salvetta, his guardian ad litem, against Annie Farley and another. Judgment for defendants, and plaintiff appeals.</p>

Summary proceedings by the Bankers’ Investing Company, landlord, against Edward Margolies, tenant, and others. From an order vacating a prior order opening the tenant’s default, and restoring to full force and effect a final order in favor of the landlord, the tenant appeals.

Action by Francesco Mattone against the Illinois Surety Company* From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Peter Xippas against the New York Transportation Company. ■ Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Joseph Finger against Abraham Korn. From a judgment for plaintiff, defendant appeals.</p>

Action by the T. J. Hayes Printing Company against John H. Springer. From a judgment on a verdict for plaintiff for $1,114.13, and from an order denying a motion for a new trial, defendant appeals.

<p>Landlobd and Tenant (§ 200*)—Action fob Rent—Sufficiency of Evidence.</p> <p>Where defendant leased premises, and occupied them for a whole month, with knowledge that the ordinary rent of the same was $50, he is liable for that rental.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 794; Dec. Dig. § 200.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Samuel Ginsburgh against Max Solomon for goods sold and delivered. From a judgment for plaintiff, defendant appeals.</p>

<p>Courts (§ 189*)—Municipal Courts—Procedure—Dismissal—Eight oe Plaintiff.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 248, plaintiff is entitled, on motion, before final submission of the cause, to a dismissal thereof without prejudice to a new action.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

Action by Mamie Goodman against Kairo Bedras. There was a judgment for defendant, and plaintiff makes motion for a new trial.

<p>Appeal from City Court of Oneonta.</p> <p>Summary proceedings by Alfred C. Peck against Samuel M. Reid. From an order for plaintiff, defendant appeals.</p>

<p>1. Drains (§ 34*)—Proceedings to Drain Swamp Lands—Procedure.</p> <p>Drainage Act 1869 (Laws 1809, c. 888) § 2, as amended, provides that the court to which the application is made, if satisfied that such drainage is necessary, shall thereupon appoint commissioners. Section 3 provides that the necessity shall be determined by the commission, one of whom must be a civil engineer, or surveyor, after notice to the property owners, by a personal view of the lands and otherwise. Held, that the court should not take evidence and determine in advance of the appointment of commissioners whether it is necessary for the public health that the lands in question should be drained; section 3 contemplating that a property, owner wliose lands are affected by the proposed improvement shall have an opportunity to be heard and submit his proof.</p> <p>[Ed. Note.—For other cases, see Drains, Dec. Dig. § 34.*]</p> <p>2. Drains (§ 2*)—Statutes—Repeal—Power of Municipal Corporations.</p> <p>Village Law (Consol. Laws, c. 64, § 89) § 88, giving village boards of trustees power to construct drains and culverts, and to regulate water courses, ponds, and watering places within the village, is not exclusive, and the drainage act (Laws 1869, c. 888), as amended by Laws 1906, c. 115, which provides (section 1) that two or more applications under the section respecting different lands within the same town or incorporated village may be made by one proceeding, and that the application may be made by the president of the board of trustees of an incorporated village on behalf of the village, being in terms made applicable to incorporated villages, is neither hostile to nor inconsistent with the village law, and hence is not repealed by implication by such law.</p> <p>[Ed. Note.—For other cases, see Drains, Cent. Dig. § 17; Dec. Dig. § 2.*]</p> <p>3. Drains (§ 2*)—Statutes (§ 159*)—Repeal by Implication.</p> <p>The repeal of a statute by implication is not favored by law, and for that result the repugnancy must be so palpable as to make it obvious upon reading the two acts together that it was not the intent that both should remain in force at the same time, and hence the public health law (Consol. Laws, c. 45), which provides a summary method of abating a nuisance which is a menace to the public health, did not by implication repeal the drainage act of 1869 (Laws 1869, c. 888), providing for the drainage of swamp lands; the two statutes affording consistent remedies, and both being intended to accomplish the protection of the public health by different methods of procedure.</p> <p>[Ed. Note.—For other cases, see Drains, Dec. Dig. § 2 ;* Statutes, Cent. Dig. § 229; Dec. Dig. § 159.*]</p>

Action by John L,. Travis and others against' Clara A. Bowron and others. Prom a judgment for defendants, and from an order denying a motion for a new trial, plaintiffs appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by John Bill against Phillip Wolinsky. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Arbitration and Award (§ 73*)—Decisions Appealable—Order Confirming Award.</p> <p>Code Civ. Proc. § 2381, permits an appeal from an order vacating an award, from a judgment entered upon an award, or from an order or judgment in an action, and requires the proceedings upon such appeal to be governed by sections 1293-1355, so far as applicable. Section 1353 requires an appeal to the Appellate Division from a final judgment, to be heard upon a certified copy of the notice of appeal, judgment roll, and the case and exceptions, if any, filed as prescribed by law and the general rules of practice. Held, that an order confirming the report of arbitrators was not appealable; an appeal lying only from the judgment entered thereon.</p> <p>[Ed. Note.—For other cases, see Arbitration and Award, Dec. Dig. § 73.*]</p> <p>2. Arbitration and Award ($ 73*)—Review—Record—Case—Necessity.</p> <p>In order to review an order confirming the report of arbitrators, upon appeal from the judgment entered thereon, a case, showing the proceedings before the arbitrators, and exceptions, are essential.</p> <p>[Ed. Note.—For other cases, see Arbitration and Award, Dec. Dig. § 73.*]</p> <p>3. Appeal and Error (§ 419*)—Review—Notice of Appeal—Contents.</p> <p>Under Code Civ. Proc. § 1301, providing that, where the appeal is from a final judgment in a special proceeding, in order to bring up for review an interlocutory judgment or order, appellant must distinctly specify the interlocutory judgment or order in the notice of appeal, on appeal from a final judgment entered upon an order confirming an award of arbitrators, the notice of appeal must specify the confirming order, in order to have it reviewed.</p> <p>[Ed. Note.—For other eases, see Appeal and Error, Dec. Dig. § 419.*]</p>

1 Action by Henry Peterson against the Standard Arch Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Malicious Prosecution (§ 49*)—Probable Cause—Pleading Want of.</p> <p>The complaint must allege the lack of probable cause,' in order to maintain an action for malicious prosecution of a civil remedy.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 94r-96; Dec. Dig. § 49.*]</p> <p>2. Attachment (§ 373*)—Wrongful Attachment—Action for Damages— Pleading.</p> <p>To maintain an action for damages for levying a void or irregular attachment, plaintiff must show that the writ was void or vacated for. irregularity, or because unauthorized; and a complaint is insufficient where it merely alleges that it was duly vacated.</p> <p>[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 1358, 1359; Dec. Dig. § 373.*]</p> <p>3. Costs (§ 238*)—Appeal—Reversal on Different Theory.</p> <p>Where the grounds upon which a judgment is reversed were not presented by appellant below, and an affirmance would have been necessary upon his theory, he will not be allowed costs on appeal.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. § 912; Dec. Dig. § 238.*]</p>

<p>■ Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by John Cleary against Millie Heyward. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal and Error (§ 1195*)—Judgment on Appeal—“Without Prejudice "to a New Action.”</p> <p>In an action against T. and O., in which T. was not served, but appeared as a witness for plaintiff, there was a judgment on the merits for O., and on appeal it was affirmed, with the words “without prejudice to a new action.” Held, that these words referred only to defendant T., so that the judgment for O., when affirmed, settled the litigated issues between him and plaintiff.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7507-7509; vol. 8, p. 7837.]</p>

<p>Action by one Simpson against one Dutcher. Motion by defendant for judgment on the pleadings.</p>

<p>Action by one Cappadonna against the Illinois Surety Company. Leave to answer granted defendant.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Abram Ellenborger against Wallace W. Slocum and another. Prom a judgment dismissing the complaint on the merits, plaintiff appeals.</p>

<p>Municipal Corporations (§ 386*)—Closing Streets—Compensation.</p> <p>Laws 1895, c. 1006, permitting recovery for the closing of a street for property taken, affected, or damaged, does not .provide for payment of damages to property not abutting on any part of a street which is closed, and which is bounded by other streets.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 929; Dec. Dig. § 386.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Henry U. Robinson against Simon Ritz. From a judgment for plaintiff, entered on a directed verdict, defendant appeals.</p>

<p>Judgment (§ 603*)—Conclusiveness.</p> <p>A judgment for the tenant in summary proceedings by the landlord for nonpayment of rent due in August, in which the tenant filed a verified' answer alleging his eviction by the landlord’s entry and breaking down, and obstructing the hallways and rooms so as to make it unfit for habitation, was a bar to subsequent proceedings by the landlord for an installment of rent due the last half of October, if the condition of the premises remained the same, so as to continue the eviction; the cause of action, in each case being the same.</p> <p>(Ed. Note.—For other cases, see Judgment, Dec. Dig. § 603.*]</p>

Action by Mortiz Wolff against Roy C. Megargel and another, trading under the firm name of Megargel & Brooks. From a judgment on a verdict directed for plaintiff, and from an order denying a motion for new trial, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Salvatore Parlato against Hugh Thomas. From a judgment for defendant, plaintiff appeals.</p>

<p>Summary proceedings by Charles C. Bigelow to remove David Hopkins and wife from certain premises.</p>

Application by Charles Ulrich and another to open certain ballot boxes in the custody of the town clerk of the town of Bath, and to examine the ballots therein contained, in aid of an action in the Supreme Court against the State Excise Commissioner and others, to falsify the returns certified to by the election officers, by which defendants hold their several offices pursuant to an election held November 2, 1909.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Isidor Goldenberg against Jacob P. Adler. From a judgment for defendant, dismissing the complaint, plaintiff appeals. Judgment vacated.</p>

<p>1. Taxation (§ 878*)—Transfer Taxes—Subjects.</p> <p>Tax Law (Laws 1896, e. 908) § 220, subcl. 5, as amended by Laws 1897, ic. 284, § 2, making an appointment exercised under a power to dispose of property a taxable transfer, the same as if the property belonged to the donee of .the power and had been willed by him, changed the former rule tfiat no tax could be imposed on a transfer of a trust fund under power o£ appointment conferred by a testator who died before the transfer tax law was enacted, and for taxation purposes makes an appointment by the donee of a power equivalent to a devise or bequest by him.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1700, 1701; Dec. Dig. § 878.*]</p> <p>2. Taxation (§ 868*)—Transfer Taxes—Subjects—Nonresident Property.</p> <p>Tax Law (Laws 1896, c. 908) § 220, subd. 5, as amended by Laws 1897, c. 284, § 2, making an appointment exercised under a power to dispose of property a taxable transfer, the same as if the property belonged to the donee of the power and had been willed by him, a transfer by a nonresident by will under a power of appointment of bonds and mortgages situated outside the state is not subject to a transfer tax, though the debts ■constituting the bulk of the trust estate be secured by mortgages upon land within the state.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1685-1687; Dec. Dig. § 868.*]</p> <p>3. Bills and Notes (§ 151*)—Certificates of Deposit—Negotiability.</p> <p>A certificate of deposit, being transferable only by assignment, was not a negotiable instrument.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 380-387; Dec. Dig. § 151.*]</p> <p>•4. Taxation (§ 868*)—Transfer Taxes—Subjects—Deposits.</p> <p>A deposit within the state of a trust fund, subject to the power of appointment by a nonresident, in the individual name of one of the trustees who does not claim it against the estate, is taxable under the transfer tax law; the appointment acting directly upon the fund in deposit and not transferring a mere right of action against the trustee.</p> <p>[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 868.*]</p>

<p>1. Gifts (§ 34*)—Interest Paid by Donee—Effect.</p> <p>A gift is not invalidated by the donee’s agreement to pay interest on it during the donor’s lifetime.</p> <p>[Éd. Note.—For other eases, see Gifts, Cent. Dig. §§ 68-71; Dec. Dig. § 34.*]</p> <p>2. Trusts (§ 325*)—Settlement of Accounts—Evidence—Weight.</p> <p>Evidence on settlement of a testamentary trustee’s accounts 7ield to show that money was paid to her daughter as an advancement from her personal estate, and not for the daughter’s contingent interest under the will.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 485; Dec. Dig. § 325.*]</p>

In the matter of the' application of the Board of Water Supply of the City of New York to acquire certain real estate. On application to remove the commissioners of appraisal.

<p>1. Reformation of Instruments (§ 45*)—Actions—Sufficiency of Evidence —Terms of Contract.</p> <p>In, a suit to reform a partnership dissolution agreement, by which de-' fendant sold plaintiff his interest in the firm, so as to include a covenant by defendant not to re-engage in a similar business, evidence held, to show that defendant did not so agree.</p> <p>[Ed. Note.—For other cases, see Reformation of Instruments, Dec. Dig. § 45.*]</p> <p>2. Master and Servant (§ G*)—Employment—Evidence.</p> <p>In a suit to enjoin defendant from entering another’s employment on the ground that he contracted to work for plaintiff for a definite period, evidence held not to show that defendant made such contract.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 6.*]</p> <p>3. Partnership (§ 229*)—Rights of Parties—Interference with Good Will —Soliciting Trade from Old Customers.</p> <p>One who sold his interest in a firm to plaintiff, together with the good will of the business, interfered with the good will by afterwards soliciting trade from the old customeiis of the firm.</p> <p>[Ed. Note.—For other cases, see Partnership, Dec. Dig. § 229.*]</p> <p>4. Partnership (§ 229*)—Rights of Parties—Obtaining Exclusive Designs.</p> <p>Where the firm of which plaintiff and defendant were members when defendant sold his interest to plaintiff, together with the good will, upon the dissolution thereof, had an understanding that certain patterns should be used exclusively on the goods ordered by the firm from the manufacturer, defendant’s attempt to obtain goods of such patterns from the manufacturer was an interference with the good will of the business which will be enjoined; good will including every advantage acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously conducted, or with the name of the firm or any other material benefit to the business.</p> <p>[Ed. Note.—For other cases, see Partnership, Dec. Dig. § 229.*'</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3128-3330; vol. 8, p. 7673.]</p> <p>5. Pleading (§ 193*)—Objections—Misjoinder of Cause of Action.</p> <p>An objection that the complaint improperly joined causes of action against different defendants should be raised by demurrer.</p> <p>[Ed. Note.—For other cases, see Pleading, Gent. Dig. § 435; Dec. Dig. § 193.*]</p>

<p>1. Marriage (§ 11*)—Second Marriage—Validity.</p> <p>Under 2 Rev. St. (1st. Ed.) pt. 2, c. 8, tit. 1, art. 1, § 6, providing that, where any person whose spouse has absented himself or herself for five years without being known to such person to be living shall marry during the life of the absent spouse, the marriage shall he void only from the time that it is annulled by a court, a second marriage by a husband, who abandoned his wife, where the second marriage occurred before the expiration of five years from the time of the abandonment, is invalid from the beginning.</p> <p>[Ed. Note.—For other cases, see Marriage, Cent. Dig. § 30; Dec. Dig. § 11.*]</p> <p>2. Marriage (§ 40*)—Validity—Presumptions.</p> <p>Under 2 Rev. St. (1st. Ed.) pt. 2, c. 8, tit. 1, art. 1, § 5, providing that no second marriage shall be contracted by any person during the lifetime of any former spouse unless the former spouse shall have been finally sentenced to imprisonment for life, the validity of a second marriage by a husband will not be sustained on the presumption that the first wife had been finally sentenced to imprisonment for life, for she will be presumed to have been innocent of crime.</p> <p>[Ed. Note.—For other cases, see Marriage, Cent. Dig. §§ 58-69; Dec. Dig. § 40.*]</p> <p>3. Bastards (§ 3*)—Legitimacy—Presumptions.</p> <p>It is the policy of law and the duty of the court to preserve the legitimacy of children, where it can be done consistently with the law and the facts.</p> <p>[Ed. Note.—For other cases, see Bastards, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*]</p> <p>4. Marriage (§ 40*)—Validity—Presumptions—Burden op Proof.</p> <p>A husband abandoned his wife, and his whereabouts were unknown for a few years, and, when discovered five or six years later, he lived with another woman as his wife. The first wife acquiesced in the second marriage, and a son of the first marriage recognized the legitimacy of the children of the second marriage. The marriages were contracted more than 60 years ago, and the husband and the two wives had been dead for more than 25 years. Held, that the validity of the second marriage was presumed, and the party asserting its invalidity had the burden of proving that the first marriage had not been dissolved.</p> <p>[Ed. Note.—For other cases, see Marriage, Cent. Dig. §§ 58-69, 79; Dec. Dig. § 40.*]</p>

<p>Appeal from Municipal Court, Borough of Brooklyn.</p> <p>Action by Lillian E. Shimer against Martha E. Ronk. From a judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss.</p>

Application of the City of New York relative to acquiring title to lands required for the opening and extending of a street. Motion to confirm the report of the commissioner of estimate and assessment. Report confirmed.

Action by Burton W. Gibson against Albert F. Schwannecke. From an or- ' tier granting plaintiff’s motion to strike out, as scandalous and redundant, portions of the amended answer, and directing that the fifth and partial defense be made more certain, defendant appeals.

<p>Appeal from Special Term, New York County.</p> <p>Application by William H. Hotchkiss, as Superintendent of Insurance. On appeal from an order.</p>

<p>1. Wiles (§ 81*)—Invalidity in Past.</p> <p>Though the direction to the executors to hold the property for a year before selling it is invalid, as unlawfully suspending the power of alienation, yet, as this may be disregarded without affecting the testamentary scheme, this will be done, and the rest of the will sustained.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 201, 202; Dec. Dig. § 81.*]</p> <p>2. Wiles (§ 740*)—Trust Provisions—Agreements in Contravention—Enforcement.</p> <p>An agreement between the beneficiaries under a will, which destroys a valid trust thereby created for B., with remainder to infants, and allows the property to come at once and directly to B., thereby radically upsetting testator’s scheme, even though adequately protecting the interests of the infant remainderman, cannot be enforced.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. 5 1890; Dec. Dig. § 740."*]</p>

Application by the People, on the relation of Harry S. Bretton, for writ of habeas corpus to Henry C. Schleth, Warden of the Queens-County Jail and Sheriff of Queens County. Writ dismissed, and relator remanded to the custody of the warden and sheriff.

<p>Action by Benjamin H. Kaufman against Samuel Kaufman. Judgment for plaintiff.</p>

<p>1. Insurance (§ 544*)—Proof of Loss—Bills and Vouchers.</p> <p>The standard fire policy does not require bills and vouchers for the purchase of property in the premises at the time of the fire to be all in English.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1348; Dec. Dig. § 544.*]</p> <p>2. New Trial (§ 72*)—Verdict Contrary to Evidence.</p> <p>Before a verdict should be set aside as against the evidence, the court should be satisfied that the preponderance of the evidence is so great against it that the ends of justice will not be met by allowing it to stand.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 146-148; Dec. Dig. § 72.*]</p> <p>3. Witnesses (§ 255*)—Refreshing Memory.</p> <p>A witness in testifying may, to refresh her memory, refer to a memorandum of items sworn to be correct.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. § 255.*]</p> <p>4. Insurance (§ 665*)—Fire Insurance—Proofs of Loss.</p> <p>That the proofs of loss from fire are for $953, while the verdict is for only $600, does not establish that the proofs were fraudulently exaggerated, so as to render the policy void.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1724; Dec. Dig. § 665.*]</p>

<p>Corporations (§ 642*)—Foreign Corporations—“Doing Business.”</p> <p>A foreign corporation transacting business in a sister state, from which its goods are shipped and in which payments are received, is not “doing business” in New York, within General Corporation Law (Consol. Laws, c. 23) § 15, requiring foreign corporations to procure a certificate authorizing it to do business in the state, though a witness called by the corporation inadvertently stated that he. was an official transacting all the business of the corporation, while he was only its resident salesman doing the business which the corporation did in the state.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2520-2527 ; Dec. Dig. § 642.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2155-2160; vol. 8, pp. 7640, 7641.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Charles Freilich against Bessie Tucker. From a judgment for defendant, plaintiff appeals.</p>

<p>Habeas Corpus (§ 94*)—Proceedings—Laches.</p> <p>Where relator escaped trial for first degree murder by being confined in the asylum after her examination by a lunacy commission, and the regularity of the lunacy proceedings was not raised by her attorney, who . is now her attorney in habeas corpus proceedings, for more than a year and a half after the lunacy proceeding, it is too late for relator to claim' in the habeas corpus proceedings that the former proceeding was fatally defective, in that the provision directing the commissioners to inquire into relator’s sanity was made in chambers.</p> <p>[Bd. Note.—For other cases, see Habeas Corpus, Dec. Dig. § 94.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Ida Richman against Max Blum. From a judgment for defendant, dismissing the complaint, plaintiff appeals.</p>

<p>Bills and Notes (§ 462*)—Indorsers—Suits Against—Complaint—Requisites.</p> <p>To render one liable on a note as indorser, the complaint must show indorsement, demand for payment, due protest, etc.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1444, 1445, 1447-1473; Dec. Dig. § 462.*)</p>

<p>Costs (§ 48*)—Dismissal or Action—Discretion of Court.</p> <p>Where Code Civ. Proc. § 822, permits the court in its discretion to dismiss an action where plaintiff unreasonably neglects to proceed, the discretion does not extend to costs; but, the judgment being a final one, costs belong to defendant as a matter of right, under sections 3228, 3229.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 192, 196; Dec. Dig. § 48.*]</p>

<p>Corporations (§ 360*)—Liabilities of Officers to Creditors—Fraudulent Transfers—Pleading.</p> <p>Under Stock Corporation Law (Consol. Laws, c. 59) § 66, prohibiting transfers to officers or stockholders of a corporation under certain circumstances, and providing that every director or officer of a corporation who shall violate any provisions of this section shall be persona'ly liable to the creditors, etc., to the full extent of the loss they may sustain by such violation, the loss to the creditors is the basis of the action, and plaintiff must allege and prove facts showing such loss, and a complaint merely alleging that defendant, the president of a corporation, while the same was insolvent, caused to be transferred from the corporation to himself land which the corporation had agreed to sell to plaintiff’s assignor, for the purpose of defrauding plaintiff’s assignor, and that plaintiff was a corporation creditor, failed to state a cause of action, in not setting forth facts showing the amount of plaintiff’s loss.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1503; Dec. Dig. § 360.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by William T. Turner against Walter J. Wright and another. From judgment dismissing the complaint, plaintiff appeals.</p>

<p>Landlord and Tenant (§ 310*)—Dismissal op Summary Proceedings.</p> <p>Summary proceedings were brought for default In monthly rent, payable in advance on the day the petition was verified and the precept was issued and served, and the tenant moved to dismiss on the ground that the agency of the person verifying the petition was not shown and the proceedings could' not be legally instituted prior to the day following that on which the rent was payable. Held, that it was error to dismiss the petition on the merits, as the most that could be said was that there was a failure of proof, or that the proceedings were prematurely brought _[Ed. Note,—For other cases, see Landlord and Tenant, Cent. Dig. § 1319; Dec. Dig. § 310.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Byron D. Allerton against Major R. Poole. From a default judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Isidor Herz against the Illinois Surety Company. From á judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Samuel Ginsberg against David Borenstein and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Landlord and Tenant (§ 231*)—Repairs—Liability op Tenant—Evidence.</p> <p>Evidence held to show that a tenant was to pay for repairs.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 231.*]</p>

<p>Contracts (§ 10*)—Mutuality.</p> <p>A contract of employment, entitling plaintiff to a certain per cent, commission on all sales made by him and to a certain weekly salary, but silent as to plaintiff’s obligations, was not void for want of mutuality, so as to prevent an action for services actually rendered by plaintiff thereunder.</p> <p>[Ed. Note.—Eor other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.*]</p>

<p>Theaters and Shows (§ 6*)—Liability for. In jury to Person Attending— Evidence.</p> <p>Plaintiff, in an action for injury from- the fall of a piece of iron from a balcony in a theater on a Sunday, does not establish that the theater was under defendant’s control at the time, so as to make him liable, from the fact that defendant leased it to another, reserving the right to use it on Sundays; it not being enough to show, that he had a right to use it at -the time of the accident, especially in view of evidence that he had leased it to still another for Sundays.</p> <p>[Ed. Note.—For other cases, see Theaters and Shows, Dec. Dig. § 6.*]</p>

Action by Arnold Hepner against the United States Grand Lodge Order Brith Abraham. From a judgment for defendant, after a trial by the court without a jury on an agreed statement of facts, plaintiff appeals.

Action by Max Utess against the Erie Railroad Company. Heard on defendant’s motion for new trial on the ground of newly discovered evidence.

<p>1. Contempt (§ 10*)—Misconduct of Attorney—Advice to Client.</p> <p>An attorney is guilty of no wrongful act in advising his client of his legal rights and remedies; and hence is not guilty of contempt for advising his client to file a petition in bankruptcy or in actually filing the petition, though the client was undergoing examination in supplementary proceedings, and had been enjoined from disposing of or transferring any property.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. § 21; Dec. Dig. £ 10.*]</p> <p>2. Bankruptcy (§ 20*)—/Voluntary Petition—Pending Proceedings in the State Courts.</p> <p>The right to file a voluntary petition in bankruptcy is not limited or affected by any pending proceedings in the state courts.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. p 20.*]</p> <p>3. Bankruptcy (§ 20*)—State Courts—Powers.</p> <p>A state court has no power to suspend the operation of the bankruptcy •law, or restrain a judgment debtor from availing himself of its provisions.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 23, 40; Dec. Dig. § 20.*]</p> <p>4. Contempt (§ 21*)—Disobedience to Order of State Court—Filing Petition in Bankruptcy.</p> <p>As a state court has no power to forbid the filing of a petition in bankruptcy, the filing of such a petition 'contrary to an order of that court cannot be in contempt.</p> <p>[Ed. Note.—For other- cases, see Contempt, Cent. Dig. §§ 03, 64; Dec.. Dig. § 21.*]</p> <p>5. Execution (§ 417*)—Supplementary Proceedings—disobedience to Order—Transfer to Trustee in Bankruptcy.</p> <p>Where the court ordered a judgment debtor not to transfer or make any disposition of his property, the subsequent transfer of such property to a trustee in bankruptcy was by operation of law, and not contrary to-the court’s order.</p> <p>[Ed. Note,—For other cases, see Execution, Cent. Dig. § 1199; Dec. Dig. § 417.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Louis Mischner against Isaac Altman. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Actions by Hugo Gorsch against the Niagara Fire Insurance Company of New York and against the Phoenix Insurance Company of Brooklyn. From an order in each case setting aside a directed verdict for plaintiff and ordering a new trial, plaintiff appeals.</p>

Action by the American-Hungarian Publishing Company against Miles Bros. From a judgment for plaintiff and an order denying a -new trial, defendant appeals.

<p>1. Appeal and Error (§ 657*)—Case on Appeal—Settlement—Judicial Power.</p> <p>The Appellate Court cannot dictate to the trial judge how a case shall be settled, but may determine whether amendments should have been allowed, and, if so, may give him opportunity to settle the case according to the facts.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2830-2833; Dec. Dig. § 657.*]</p> <p>2. Appeal and Error (§ 559*)—Case on Appeal—Contents.</p> <p>On a settlement of a case on appeal, questions and answers not denied to have been propounded and given are improperly stricken.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2483-2489; Dec. Dig. § 559.*]</p> <p>3. Appeal and Error (§ 559*)—Case on Appeal—Contents.</p> <p>Remarks not denied to have been made by the trial court are improperly stricken from the case on appeal or its settlement.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2483-2489; Dec. Dig. § 559.*]</p>

Action by Joseph' Gallup, an infant, by Minnie Gallup, his guardian ad litem, against John Bessling. From an order setting aside the verdict for plaintiff, he appeals.

<p>1. Appeal and Erboe (§ 931*)—Presumption.</p> <p>The trial court having held that the limitation, in the contract of carriage, of the carrier’s liability was not binding on the shipper, it will be considered to have resolved all disputed questions of fact in her favor.</p> <p>[Ed. Note.-—For other cases, see Appeal and Error, Cent. Dig. g 3704; Dec. Dig. g 931.*]</p> <p>2. Carriers (g 155*)—Loss of Goods—Limited Liability.</p> <p>Wihere the circumstances of a shipment by express themselves repel the idea that the parties intended an instrument delivered by the carrier should represent a contract, the carrier, to establish a limitation of its liability, must show the shipper knew and ássented to the terms of the instrument; but where the circumstances show that the parties intended the instrument should represent a contract, the shipper is bound by its terms, though he did not read them, if there was no fraud or concealment; and where the circumstances do not distinctly show the one nor repel the other, then the intention of the parties is a question of fact.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 677-679; Dec. Dig. g 155.*]</p> <p>3. Carriers (§ 155*)—-Loss of Goods—Limiting Liability—Fraud.</p> <p>Fraud vitiating a contract of carriage, limiting the amount of carrier’s liability, in case of loss, may not be found from the fact of the carrier’s agent being furnished with blanks stamped, “Value asked and not given,” and the shipper not being asked the value; the carrier not relying for a defense on such provision, but on that that, the shipper expressly agreed that the value of the goods was no more than a certain amount, and that, no greater value being stated, the shipper was estopped in case of loss to claim any greater value.</p> <p>[Ed, Note.—For other cases, see Carriers, Cent. Dig. g§ 677-679; Dec. Dig. g 155.*]</p>

<p>1. Railroads (§ 415*)—.Injuries to Stock—Private Crossings—Warning-Signals—Necessity.</p> <p>A railroad company is not bound by statute to give warning of the approach of a train to a private farm crossing, so that it was not liable-for injuries to cattle thereon because of failure to do so.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1476-1482; Dec. Dig. § 415.*]</p> <p>2. Railroads (§ 443*)—Injuries to Stock—Actions—Sufficiency of Evidence-Negligence.</p> <p>In an action against a railroad company for injuries to' stock at a private farm crossing, evidence held not to show that the accident was-caused by defendant’s negligence.</p> <p>[Eld. Note.—For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*]</p> <p>3. Railroads (§ 443*)—Injuries to Stock—Action—Sufficiency of Evidence-Contributory Negligence.</p> <p>In an action against a railroad company for injuries to stock at a private crossing, evidence held not to show that plaintiff was free from-contributory negligence in driving the cattle over-the crossing.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent Dig. §§ 1608-1620; Dec. Dig. § 443.*]</p> <p>4. Railroads (§ 441*)—Injuries to Stock—Action—Presumption—Contrib- ' utory Negligence.</p> <p>There is no presumption of absence of negligence by the owner contributing to the injury of cattle by being struck by a train while being driven across a private farm crossing, and, if the circumstances tend as much to show contributory negligence as its absence, he cannot recover.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.*]</p> <p>5. Railroads (§ 441*)—Injury to Stock—Action—Burden oe Proof—Negligence.</p> <p>Railroad Daw (Daws 1890, c. 565) § 32, requires all railroad companies to erect and maintain fences along the right of way sufficient to keep cattle off the road, with farm crossings and gates wherever reasonably necessary, and to construct cattle guards at all crossings, and makes the corporation liable for damages by cars to animals so long as such fences are not made or kept in good repair. Held, that the statute did not relieve one suing for injuries to cattle at a private farm crossing of the burden of showing that the company’s employés were guilty of negligence causing the injury.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. | 441.*]</p> <p>-6. Railroads (§ 413*)—Injuries to Stock—Action—Sufficiency of Evidence—Negligence—Defective Gates.</p> <p>That the crossing gate was fastened by a wire, instead of a latch, was not sufficient evidence of negligence in not repairing the gate.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1459-1473; Dec. Dig. § 413.*]</p> <p>7. Railroads (§ 413*)—Injuries to Stock—Application of Statute.</p> <p>Railroad Daw (Daws 1890, c. 565) § 32, was intended merely to prevent cattle from straying upon the track, and does not apply where the owner opened the crossing gate and drove them upon the track.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1459-1473; Dec. Dig. § 413.*]</p> <p>8. Railroads (§ 421*)—Injuries to Stock—Negligence—Defective Gate.</p> <p>That plaintiff’s cattle were struck because of delay in closing the gate - at his private farm crossing after he had driven them through the gate in order to cross the track, resulting from the gate being fastened with a wire instead of a latch, would not make the railroad company negligent, as plaintiff should have driven the cattle across the track before closing the gate. *</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1501-1510; Dec. Dig. § 421.*]</p> <p>9. Railroads (§ 413*)—Injuries to Stock—Negligence—Absence of Cattle Guards.</p> <p>Railroad Daw (Daws 1890, c. 565) § 32, requires railroad; Companies to construct cattle guards at all road crossings, and makes them liable for damages to animals so long as such fences are not made or in good repair, and provides that, when they are made and in good repair, they shall not be liable for damages unless negligent. Held, that it was immaterial to a railroad company’s liability for injury to cattle at a private farm crossing that there were no cattle guards, where their absence did not contribute to the accident.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1459-1473; Dec. Dig. § 413.*]</p> <p>10. Railroads (§ 103*)—Construction—Cattle Guards—Farm Crossings.</p> <p>Railroad Daw (Daws 1890, c. 565) § 32, requiring railroad companies to construct cattle guards at all road crossings, only applies to road crossings, and does not require cattle guards at farm crossings.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 318; Dec. Dig. § 103.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Isidore Postman against William J. Rowan. From a judgment for defendant, plaintiff appeals.</p>

<p>Sales (§ 428*)—Set-Off—Breach of Warranty.</p> <p>In an action to recover for goods sold, a breach of Implied warranty having been proven, the defendant was entitled to set off the amount of the damages for such breach.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1214^-1223; Dec. Dig. 5 428.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by David H. Friedman against Sara E. Mathews. Judgment for defendant, and plaintiff appeals.</p>

<p>Biles and Notes (§ 526*)—Action on—Indorsee—Notice—Evidence.</p> <p>In an action on a note against an indorser, the contention of the indorser that he receive no notice of protest was sustained by the testimony of the notary public that his name was not inserted in the certificate, made out at the time of protest, until three days before the trial, by the fact that the indorser’s name was written with different ink from that used in writing the other names on the certificate, and by the testimony of the indorser.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Dec. Dig. § 526.*]</p>

<p>Landlord and Tenant (§ 196*)—Liability eob Rent—Tenant Holding Over.</p> <p>. Where a considerable part of a tenant’s belongings remain on the premises as late as the 3d day of the month succeeding that under which he occupied the premises and paid therefor, it is a holding over, rendering him liable for the rent for such succeeding month.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 737-740; Dec. Dig. § 196.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Jules Eehr against Louis Rosenbaum. Erom a Municipal Court judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the American Silk Label Manufacturing Company against Augusta Wolf. From a judgment for plaintiff, defendant appeals.</p>

<p>Landlord and Tenant (§ 167*)—Use of Premises—Liabilities of Landlord —Implied Invitation to Third Person.</p> <p>Where plaintiff was injured in an apartment house while visiting her son, the janitor, the injury occurring in a cellar used for the storage of coal, and occasionally used by tenants for storage of their trunks, where plaintiff had no right, there was no invitation, express or implied, to her to use the cellar.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 676; Dec. Dig. § 167.*]</p>

Action by Otto E. Pape against Henry E. Tomoor. Erom so much of a judgment for plaintiff in the Municipal Court of the City of New York as awarded costs to plaintiff, and from an order denying plaintiff’s motion to amend the judgment by increasing the costs, plaintiff appeals.

<p>1. Banks and Banking (§ 133*)—Deposits—Return to Depositor.</p> <p>A provision in a bank pass book that all payments to persons producing the pass book shall be valid payments to discharge the bank is of no legal effect except in the case of savings banks, and then only if prescribed by the board of trustees, as authorized by Banking Daw, § 143 (Consol. Daws, e. 2).</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Gent. Dig. §§ 344, 347; Dec. Dig. § 133.*]</p> <p>2. Banks and Banking (§ 148*)—Deposits—Return to Depositor.</p> <p>An ordinary bank must know the signature of a depositor at its peril, unless it can show an agreement to the contrary with the depositor.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 440; Dec. Dig. § 148.*]</p> <p>3. Banks and Banking (§ 133*)—Deposits—Return to Depositor.</p> <p>A provision printed in English in a bank pass book authorizing payment to any person producing the pass book, to which a depositor did not assent, not being able to read English, and the provision not being called to her attention, was not evidence' of an agreement to that effect.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 344, 347; Dec. Dig. § 133.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Henry W. Mahar against Harrington Park Villa Sites, a corporation, and Laura A. Skinner. Judgment for plaintiff, and defendants appeal.</p>

<p>Master and Servant (§ 40*)—Contract of Employment—Action for Breach.</p> <p>The evidence in an action for damages for breach of contract of employment held insufficient to sustain the verdict for plaintiff.</p> <p>[Ed. Note.—Bor other cases, see Blaster and Servant, Dec. Dig. § 40.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Samuel B. Goodale and others against John T. Lauth. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Pleading (§ 358*)—Frivolous Answer—Striking.</p> <p>In an action on a note executed by defendant to plaintiff, an answer denying that defendant is indebted to plaintiff on the note in any sum is insufficient to raise an issue, and will be stricken as frivolous and irrelevant.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1099; Dec. Dig. § 358.*)</p> <p>2. " Bills and Notes (§ 480*)—Actions—Pleading—Ownership oe Note.</p> <p>Where, in an action on a note given by defendant to plaintiff, the complaint alleged that plaintiff was the owner and holder of the note, an answer denying that plaintiff was the owner and holder raised an issue of fact.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1526-1529; Dec. Dig. § 480.*]</p> <p>3. Bills and Notes (§ 480*)—Actions—Pleading—Ownership of Note.</p> <p>Where plaintiff suing on a note executed by defendant to him does not allege that he is the owner and holder, defendant, to raise the issue of ownership, can only do so by pleading affirmatively that plaintiff is not the owner and holder.</p> <p>[Ed. Note.—For other eases, see Bills and Notes, Cent Dig. §§ 1526-1529; Dec. Dig. § 480.*]</p>

Two actions, one by Grace De Lancey and others against Frederick Robbin, and the other by Emma A. Heylman and others against Lillian O. Cummings and others. From judgments for defendants, plaintiffs appeal.

<p>1. Evidence (§ 441*)—Parol Evidence Affecting Writing—Contract of Sale.</p> <p>A contract of sale expressly providing that all agreements of both parties were stated therein, and that no change of terms or conditions should bind either party unless indorsed thereon, excludes evidence of the sale-man’s promises to furnish a showcase in addition to the goods.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2030-2047: Dee. Dig. § 441.*]</p> <p>2. Trial (§ 60*)—Prohise of Agent—Evidence—Admissibility.</p> <p>The promise of an alleged agent is not admissible to bind his principal, without proof of his authority.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 141-145; Dec. Dig. g 60.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Samuel J. Bloomingdale and others against Herman Keller. From a judgment for defendant dismissing the complaint, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Samuel Block against the Nassau Electric Railroad Com-" pany. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the M. P. Smith & Sons Company against B. Koronsky & Son. From a judgment for plaintiff, defendant appeals.</p>

<p>Evidence (§ 179*)—Secondary Evidence.</p> <p>Code Civ. Proc, § 867, providing that one need produce a book of account only on order or subpoena duces tecum, provides a method to produce hooks when a litigant is unwilling to rely on secondary evidence, and does not modify the rule that noncompliance with notice to produce books or documents permits secondary evidence of their contents.</p> <p>[Ed. Note.—Eor other cases, see Evidence, Cent. Dig. § 596; Dec. Dig. § 179.*]</p>

Action by Meyer Bloom against Maurice Polacselc and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>Bills and Notes (§ 140*)—Accommodation Indorsers—Discharge—Proof Required.</p> <p>Accommodation indorsers are not discharged by an agreement ior an extension of time for payment without their assent, where they fail to show that there was any consideration for the extension, or that the agreement was actually consummated.</p> <p>[Ed. Note—Fo.r other cases, see Bills and Notes, Cent. Dig. §§ 355-350; Dec. Dig. § 140.*J</p>

<p>Husband and Wife (§ 25*)—Liability of Wife—Contracts by Husband.</p> <p>A married woman, who had an agent to attend to the making of repairs on her premises, and who did not order painting and papering thereon, was not liable to a third person doing that work under a order give by her husband, believed by the third person to be the owner.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 148-154; Dec. Dig. § 25.*]</p>

<p>New Trial (§ 56*)—Misconduct of Jury.</p> <p>In an action for the value of certain cement building blocks, which defendant claimed were defective, a verdict was rendered for plaintiff, and an application made for new trial for misconduct of the jury, in that, during a recess, two of the jurors stood opposite a wagon containing some of the blocks, similar to exhibits already offered in evidence, and a stranger to the case and to the parties remarked that they were “pretty poor blocks, but what can you expect for $14 per hundred,” whereupon one of the jurors said, “What do you want to get for that money? They are good enough,” and another juror said, “Oh, that is all right.” Hold, that such incident, though perhaps prejudicial to plaintiff, was not prejudicial to defendant, and was not such misconduct as authorized a new trial, especially where all the jurors in an affidavit denied the occurrence of the incident, and asserted that their verdict was based solely on the evidence adduced in court.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 116-119; Dec. Dig. § 56.*]</p>

Action by Morris Kotkin against Bernard Landau and another. From a judgment for plaintiff for less than his claim, he appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Werner Company against Herman Abrams. Judgment for plaintiff, and defendant appeals.</p>

Proceedings supplementary to execution by Frank M. Howe against William W. Stuart. From an order refusing to punish a third party for contempt, the judgment creditor appeals.

<p>Landlord and Tenant (§122*)—Leases—Property, Covered—1“Basement Bakery.”</p> <p>Ovens and chimneys were part of premises leased as a “basement bakery,” being connected with the basement of such premises.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 435; Dec. Dig. § 122.*]</p>

<p>Sales (§ 359*)—Remedies of Seller—Action for Price—Evidence.</p> <p>In an action for the price of goods sold, evidence held insufficient to sustain a defense of payment.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1059; Dec. Dig. § 359.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattaii, Ninth District.</p> <p>Action by Harry Alexander against the Automatic Mail Delivery Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eirst District.-</p> <p>Action by the Seymour Dudley Company against the Arbor Realty Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Judgment (§ 138*)—By Default—Opening Default.</p> <p>Where a case was adjourned by agreement to December 29th, but by direction of the trial justice it was set down for December 28th, and it appears from the affidavit of defendant’s counsel that he was not notified until the afternoon of December 27th that the case had been set for the 28th, and that it was impossible for him to properly prepare for trial on- the following day, and the affidavit of merits discloses a good defense, and defendant has evidently -acted in good faith, the motion to open the default should be granted.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 249-254; Dec. Dig. § 138.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Paolo Picalora against the Gulf Co-operative Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Bills and Notes (§ 414*)—Indorsers—Protest.</p> <p>To recover against an indorser of a note, proof of notice of protest is essential.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Dec. Dig. § 414.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the National Cash Register Company against Isidor Kaufman and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Selina E. McKenty against the Oceanus Manufacturing Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Pledges (§ 54*)—Payment of Debt—Effect.</p> <p>An assignee of rent due under a lease as collateral for a loan made to the landlord may not prosecute an action against the tenant for rent, where before the tenant’s answer the landlord has paid the full amount of the loan and has received a satisfaction piece; the rights of the assignee ceasing after the payment of the debt.</p> <p>[Ed. Note.—For other cases, see Pledges, Dec. Dig. § 54.*]</p>

<p>1. Carriers (§ 317*)—Injuries to Passengers—Evidence.</p> <p>* In an action for assault on one waiting to take passage on a car, by a special officer appointed at the request of the carrier to maintain order ac the station platform, whose salary was paid by the carrier, evidence • of the directions of the carrier’s superintendent to the special officer, and his precise duties, was admissible.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 317.*]</p> <p>2. Carriers (§ 283*)—Injuries to Passengers—Acts of Carrier’s Servant-Special Officer.</p> <p>• A special officer, appointed at the request of a carrier to maintain order at station platforms, whose shield and cap were paid for by the carrier, and whose wages were paid by it, was its employe, for whose acts towards a passenger the carrier is liable.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § ,1119;. Dec. Dig. § 283.*]</p> <p>3. Carriers (§ 283*)-—Injuries to Passenger—Acts of Employés—Scope of Employment.</p> <p>Where an employe of a carrier warned plaintiff, waiting on a station platform, not to push or he would smash his head, and plaintiff told him to go ahead and do it, whereupon the employé knocked plaintiff down, the carrier is liable for the employé’s acts, and cannot avoid liability on the plea that they were not within the scope of his employment.</p> <p>[Ed. Note.—For other -cases, see Carriers, Cent. Dig. § 1121; Dec. Dig. § 283.*]</p> <p>4. Carriers (§ 283*)—Injuries to Passengers—Duties of Carrier.</p> <p>A common carrier owes a duty to passengers that its employés shall treat them in a decent manner and protect them from attack.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1121; Dec. Dig. § 283.*]</p> <p>5. Trial (§ 165*)—Taking Case from Jury—Dismissal.</p> <p>On motion to dismiss a complaint at the close of plaintiff’s case, plaintiff is entitled to the most favorable inferences to be drawn from the evidence.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 374; Dec. Dig. § 165.*]</p> <p>6. Carriers (§ 320*)—Injuries to Passengers—Acts of Employés—Justification—Question for Jury.</p> <p>Where a special officer warned plaintiff, a passenger waiting on the station platform, not to push or he would smash his head, plaintiff’s reply, “Go ahead and do it,” did not as matter of law justify an assault by the officer.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig, § 32Ó.*] '</p>

<p>1. Corporations (§ 28*)—De Facto Corporation.</p> <p>There is not a de facto corporation, where persons sign and execute a certificate of incorporation and file it with the county clerk, but not with the Secretary of State, as required by statute, and there is no actual user of any corporate powers.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 26, 70; Dec. ' Dig. § 28.*]</p> <p>2. Partnership (§ 41*)—Liability as Partners.</p> <p>Persons are engaged in a joint venture, making them liable as partners, when their ineffectual efforts at incorporation are subsequent to their assuming to contract for purchase of goods, and to the sale and delivery thereof to them.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 56, 58, 59; Dec. Dig. § 41.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Robert W. Hebberd, Commissioner of Public Charities of the City of New York, against Louis H. Levin and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by James J. Egan against the Board of Education of the City of New York. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Assault and Battery (§ 27*)—Evidence—Admissibility.</p> <p>In an action against the owner of an apartment house for an assault by his janitor upon plaintiff, who went to the house to collect a bill from a tenant, it was improper to exclude evidence as to why plaintiff went there.</p> <p>[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 37; Dec. Dig. § 27.*]</p> <p>2. Landlord and Tenant (§ 134*)—Apartment Houses—Landlord’s Right to Establish Rules.</p> <p>While the landlord of an apartment house may establish reasonable rules governing use of the entrance, stairways, and other parts of the premises under his control, to promote the comfort and safety of the tenants generally, the rules must not be arbitrary, or inconsistent with the use of the premises by the tenants or by persons who, through occupancy of particular tenants, or invitation by them, have a right to be thereon.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 482; Dec. Dig. § 134.*]</p> <p>3. Landlord and Tenant (§ 134*)—Apartment Houses—Rights op Third Persons.</p> <p>A requirement by a janitor of an apartment house that plaintiff communicate through the dumb-waiter with a tenant who had invited him there respecting payment of a bill was unreasonable, and properly disregarded.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 482; Dec. Dig. § 134.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by John De Marco against the Schubert Piano Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Master and Servant (§ 41*)—Unlawful Discharge—Amount of Damages. An employé, who has been unlawfully discharged, may recover damages for the full term of the contract, and is not limited to the amount up re the date of the trial.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 12, 50-53; Dec. Dig. § 41.*]</p>

<p>1. Partnership (§ 316*)—Dissolution op Partnership—Action por Accounting—Return op Consideration por Dissolution.</p> <p>Where plaintiff, a partner of defendant in the practice of law, transferred to defendant all of his interest in the business jointly owned by them for a stated consideration, which was received by him, plaintiff could maintain an action for an accounting without offering to return the consideration so received, as he was entitled to that sum irrespective of his success or failure in the action.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 732; Dec. Dig. § 316.*]</p> <p>2. Partnership (§ 321*)—Dissolution—Action fob Accounting—Limitation • of Statutes.</p> <p>Where a partner after dissolution sues to recover an item fraudulently omitted from the settlement, the period of statutory limitation only will bar the accounting, and the suit will not be barred by laches because plaintiff delayed for more than a year after acquiring knowledge of the omitted item before bringing suit.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 742¡-745; Dec. Dig. § 321.*]</p> <p>S. Partnership (§ 328*)—Dissolution—Action for Accounting—Evidence.</p> <p>In an action by a partner to compel his former partner to account for a fee received by him, evidence held sufficient to show that the transaction for which the fee was received was a partnership transaction.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 781; Dec. Dig. § 328.*]</p>

<p>Action by Samuel Brody against the Hudson Companies.</p>

<p>Action by Edward D. Chittenden against Ellenor Chittenden.</p>

<p>In the matter of the appraisal under the transfer tax acts of the property of Maria B. Chapman, deceased.</p>

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

<p>Action by William L. Clark against John B. West.</p>

<p>Action by Robert A. Oonkling against Josephine Krandusky.</p>

<p>Action by 'Richard J. Cullen against the Battle Island Paper Company.</p>

<p>In the matter of the probate of the last will and testament of John Gunnion, deceased.</p>

<p>Action by Marianne Dupont against the Village of Port Chester.</p>

<p>Action by Harry Eldridge against William T. Garner and another.</p>

<p>Action by Jessie Gillender against the City of New York.</p>

<p>Action by James A. Grant and others against the Cananea Consolidated Copper Company, impleaded with others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan. Action by the Hartford Machine Screw Company against Alexander A. Anzelwitz and another. From a Municipal Court judgment for defendants, plaintiff appeals.</p>

<p>Action by Clarence E. Hedges and others against Mary L. Wells and another.</p>

<p>Action by John Boyle' & Co. against Johann L. Emil Schueler.</p>

<p>Action by the Isbell Porter, Company against Isaac Heineman.</p>

<p>Action by Charles Kohler against Herman Rosenthal and another.</p>

<p>Action by Thomas Kirby against the City of New York.</p>

<p>Action by the Knickerbocker Trust Company against the Tarrytown, White Plains & Mamaroneck. Railway Company and others.</p>

<p>Action by Pauline Nicoll against Samuel Dietchman.</p>

<p>Action by Jacob J. Nunnold, as surviving executor, etc., against Catherine N. Bluntach and another, as executrices, etc.</p>

<p>Action by Rosanna Palin, as administratrix, etc., of Adelard Palin, deceased, against the Cary Brick Company.</p>

<p>Action by Howard Pendleton, Jr., as receiver, against Hyman Friedman, impleaded.</p>

<p>Proceeding by the People of the State of New York, on the relation of James G. Collins, against John F. Ahearn.</p>

<p>Proceeding by the People of the State of New York, on the relation of the Le-high Valley Railroad Company, against the State Board of Tax Commissioners.</p>

<p>Action by Ellis Pettis against Adolph Schwartz.</p>

<p>Action by the Rector, etc., of St. Stephen’s Protestant Episcopal Church against the Rector, etc., of the Church of the Transfiguration.</p>

<p>Action by Henry J. Russell against the Lautz Company.</p>

<p>Action by Alton W. Swingle against the Empire State Dairy Company.</p>

<p>Action by Julius Strelitzer against Blilton Schnaier.</p>

<p>Action by Max Stein against Joseph Opry and another.</p>

<p>Action by Julia A. Sweeting against the Iroquois China Company.</p>

<p>Action by James Thedford against Henry L. Herbert.</p>

<p>Action by James R. Tyler against Elias F. Pulver.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Tunnel Advertising Company against Morris Newgold. Judgment for defendant, and plaintiff appeals. Reversed, and a new trial ordered.</p>

<p>Action by Richard L Vaughan against John Smith.</p>

<p>Action by Charles Voit against Charles Shamroth and another.</p>

<p>Action by Max F. Utess against the Erie Railroad Company.</p>

<p>In the matter of proving the last will and testament of Charles S. Webb, deceased.</p>

<p>Action by Charles M. Wells against William J. Howard and' another.</p>

<p>Action by Harriet A. Willover against the Town of Olean.</p>