Volume 125 — New York Supplement

<p>Action by Alexander Rothschild and another against Isaac Harris and another. On motion for a new trial by plaintiffs after verdict for defendants.</p>

<p>Action by the Kinzer Construction Company against the State of New York.</p>

<p>1. Eminent Domain (§ 186*)—Canal Law—Appbopbiation op Land.</p> <p>Neither Laws 1817, c. 262, § 3, 1 Rev. St. (1st Ed.) pt. 1, c. 9, tit. 9, §§ 9-44, nor Canal Law (Laws 1894, e. 338), authorizing the appropriation of land for canals by merely taking possession thereof, required as a prerequisite either the setting of stakes or the filing of a map showing the location or extent of the appropriation.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 186.*]</p> <p>2. Eminent Domain (§ 320*)—Appbopbiation—Claim.</p> <p>Under Canal Law (Laws 1894, c. 338), and Rev. St. pt. 1, c. 9, tit. 9, § 48, providing that, if a person whose land was taken did not claim damages within a year after the taking, he should be deemed to have surrendered to the state his interest in the premises, the state, on taking possession of land and water for canal purposes, on the expiration of a year acquired a valid title to the land and water so taken.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 320.*]</p> <p>3. Eminent Domain (§ 186*)—Appbopbiation—Maps.</p> <p>A map of a state canal filed in the Comptroller’s office showed an appropriation of T. creek, and a note thereon recited that, where any stream or pond was on the same level with the waters of the creek and navigation was conducted in such stream or pond, the stream or pond was included in the canal to the high-water mark of the stream with a, berm bank on each side of 15 links, where no towing path was designated on the map. Held, that such provision should be construed to mean that, where no towing path was designated on the map, an appropriation of at least 15 links was made on the bank of the creek.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 186.*]</p> <p>4. Eminent Domain (§ 186*)—Public Records—Maes.</p> <p>Where maps showing surveys of state canals made pursuant to a public Statute were filed as directed in the state comptroller’s office, landowners were charged with notice thereof, though they were not filed in the office of the county clerk as also provided by law.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 186.*]</p> <p>5. Eminent Domain (§ 300*)—Appropriation—Evidence.</p> <p>Evidence held to require a finding that the state had previously appropriated the land in controversy for canal purposes, and that the title thereto had vested in the state free from any claims of the owners by virtue of the one year statute of limitations.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 300.*]</p>

<p>Appeal from Justice Court.</p> <p>Action by Herbert Rising against the Town of Moreau. From a judgment by a justice in favor of plaintiff, defendant appeals.</p>

<p>Action by the Sheffield-King Milling Company against Edward T. Gilliland. Judgment directed for the plaintiff.</p>

<p>1. Damages (§ 174*)—Fires—Evidence—Injury to Trees—Admissibility.</p> <p>Although, in an action for damages to a farm caused by fire, the measure of damages was the difference in the value of the farm before and after the fire, yet evidence of the value of slightly damaged trees before and after the fire was admissible to show the extent of the injury to the living trees. '</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. § 464; Dec. Dig. § 174.*]</p> <p>2. Appeal and Error (§ 1053*)—Admission oe Evidence—Harmless Error.</p> <p>"Where the charge, in an action for damages to a farm by fire, repeatedly and expressly told the jury that the measure of damages was the difference in the value of the farm before and after the fire, the error, if" any, of admitting evidence of the value of trees destroyed, could not have misled the jury, and was therefore not prejudicial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.*]</p>

<p>Religious Societies (§ 9*)—President—Personal Liability.</p> <p>Personal judgment against the president of a religious society for return of a deposit made by a sexton to secure performance of a contract of employment is improper, in the absence of evidence showing personal liability.</p> <p>[Ed. Note.—For other cases, see Religious Societies, Dec. Dig. § 9.*]</p>

<p>Action by George D. Townsend and others against William E. Crowner and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by T. J. McKeogh against Browning, King & Co. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Samuel Appel against Annie Lipman. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. Argued before SEABURY, PAGE, and BIJUR, JJ.</p>

<p>1. Landlord and Tenant (§ 172*)—Constructive Eviction—Failure to</p> <p>Furnish Elevator Service.</p> <p>Where a tenant rented a business loft, failure of the landlord to furnish elevator service for a week, preventing defendant absolutely from using the loft, amounted to a constructive eviction.</p> <p>[E3. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 695-703 ; Dec. Dig. § 172.*]</p> <p>2. Landlord and Tenant (§ 231*)—Action for Rent—Admissibility of Evi-</p> <p>dence.</p> <p>In an action for rent, under an alleged oral lease for ten months, cross-examination of plaintiff’s president as to whether his own lease did not expire at a certain date, nearly six months before termination of the alleged lease to defendant, was improperly excluded; the evidence being proper to show the improbability of plaintiff’s contention.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 231.*]</p>

<p>Appeal from City Court of New York.</p> <p>Action, by Calogero Guarino against the Illinois Surety Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>Municipal Corporations (§ 706*)—Action for Injuries to Child.</p> <p>In an action by a father for injuries to his son by collision with defendant’s truck while practicing for a foot race, plaintiif cannot recover, in the absence of any evidence of negligence on the part of the driver of the truck, and of any care having been exercised by the son for his own safety.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 706.*]</p>

<p>1. Action (§ 53*)—Splitting op Causes op Action.</p> <p>Where one indebted for work done by a contractor on his building so dealt with the transaction as to create separate causes o£ action, separately assignable, an assignee of the contractor’s entire claim may sue separately at law on each cause of action.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 549-623; Dec. Dig. § 53.*]</p> <p>2. Judgment (§ 714*)—Res Judicata.</p> <p>Where the services for which a prior recovery was had were severable from the services sued for in a subsequent action, and constituted a separate cause of action, the judgment in the former action was without probative force in the subsequent action.</p> <p>[Ed. Note.—FOr other cases, see Judgment, Cent. Dig. §§ 1242-1243; Dec. Dig. § 714.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Leo Saxl against Frederick W. Kinlcade. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Landlord and Tenant (§ 194*)—Rent—Right—Surrender— Substitution.</p> <p>The lessor's executed oral agreement, as where he accepts another tenant in place of the original lessee who has surrendered the premises, will release the lessee.</p> <p>[Ed. Note.—For other cases, "see Landlord and Tenant, Cent Dig. §§ 788, 789; Dec. Dig. § 194.*]</p> <p>2. Landlord and Tenant (§ 233*)—Action for Rent—Evidence—Question FOB JUBY.</p> <p>In an action for rent against a lessee who defended, on the ground of an executed oral agreement, by which he had been discharged and another tenant accepted, evidence as to the existence of the agreement held to present a question for the jury.</p> <p>[Ed. Note.-—For other cases, see Landlord and Tenant, Cent. Dig. § 942; Dec. Dig. § 233.*]</p>

<p>Contracts (§ 332*)—Breach—Complaint.</p> <p>Plaintiff, having contracted for the partial reconstruction of defendant’s brewery and agreed to do all the necessary shoring, sued for alleged breach of contract, alleging that during the course of his work defendant wrongfully filled the vats on the upper floors of the bulding, causing it to collapse, destroying plaintiff’s work and preventing him from completing the contract. Held, that the bare allegation that the vats were wrongfully, unlawfully, and improperly filled was not susceptible on demurrer of an interpretation that the agreement contemplated that the vats should be kept empty, or that they were filled beyond the normal capacity, and, plaintiff having agreed to do all shoring necessary to provide against all ordinary contingencies likely to occur, the complaint was demurrable.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 332.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Frank Wirth and Verona Wirth against Frederick Lang. From a judgment for defendant, plaintiffs appeal. Reversed and remanded. . .</p>

<p>1. Highways (§ 68*)—Establishment—Evidence.</p> <p>A paper recorded in a town clerk’s office in 1814, reading “Short Tract Road. April 7, 1814. Surveyed Nunday road, beginning,” etc., describing a line along which a highway has been maintained for more than 50 years, and signed by a surveyor and commissioners, sufficiently shows the laying out on actual survey of a highway as authorized by Act March 19, 1813 (2 Rev. Laws 1813, c. 33).</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 226-233; Dec. Dig. § 68.*]</p> <p>2. Highways (§ 56*)—Establishment—Irregularities—Confirmation.</p> <p>Any irregtilarity in the acts of commissioners in laying out a highway under Act March 19, 1813 (2 Rev. Laws 1813, c. 33), was confirmed by Laws 1826, c. 198, § 8, where a survey had been recorded in the town clerk’s office.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. § 176; Dec. Dig. § 56.*]</p> <p>3. Highways (§ 49*)—Establishment—Designation.</p> <p>A highway laid out under Act March 19, 1813 (2 Rev. Laws 1813, c. 33), was sufficiently designated by a single line which, in the absence of a contrary showing, is presumed to have been intended as the center.</p> <p>[Ed. Note.—For other cases, see Highways, Dec. Dig. § 49.*]</p> <p>4. Highways (§ 68*)—Location—Evidence—Weight.</p> <p>Evidence in an action to enjoin cutting of trees by a superintendent of highways held to show that they were within/ a highway, and not on plaintiff’s land.</p> <p>[Ed. Note.—For other cases, see Highways, Dec. Dig. § 68.*]</p> <p>5. Highways (§ 80*)—Removal of Trees—Rights of Superintendent of</p> <p>Highways.</p> <p>A superintendent of highways can remove trees standing in a highway if in the exercise of his discretion it is deemed best for the public interest, but he must use high care to prevent injury to trees and shrubs standing substantially on the boundary.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 288, 290; Dec. Dig. § 80.*]</p>

<p>Landlord and Tenant (§ 303*)—Summary Proceedings—Petition.</p> <p>Code Civ. Proc. § 2235, provides that an applicant to dispossess a tenant in summary proceedings must present a petition describing the premises, stating plaintiff’s interest therein and the facts which, according to the provisions of the title, authorized the application and the removal of the person in possession. Held, that a petition by a receiver in mortgage foreclosure proceedings to oust a tenant for nonpayment of rent, alleging that the tenant W., or the tenant S., or both, entered into a lease, written or oral, for a term, or from month to month, and if with the tenant S., then the tenant W. had an assignment thereof with the record owner or his grantors, and that by the terms of the lease and agreement the tenant or tenants hired from the record owner or his grantors the premises described, etc., was fatally defective for failure to allege facts from which the conventional relation of landlord and tenant could be inferred.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 1303-1309; Dec. Dig. § 303.*]</p>

<p>Corporations (§ 507*)—Service of Process—Officers.</p> <p>Where the person served was neither the president nor other head of the corporation defendant, its secretary, clerk, cashier, director, nor managing agent, the service was void.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1971-2000; Dec. Dig. § 507.*]</p>

<p>Evidence (§ 148*)—Telephone Conversation—Identity oe Party—Error.</p> <p>Where plaintiff sued to recover a commission for procuring a loan,, and the only evidence of employment by the defendant was that of an agent of the plaintiff, who testified to a conversation with the defendant over the telephone, but who also testified that he had never previously seen or spoken with the defendant, such testimony was inadmissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Dec. Dig. 148.*]</p>

<p>1. Jury 28*)—Waiver—Effect of Constitutional Provision.</p> <p>Const, art. 1, § 2, permitting a jury trial to be waived as prescribed by law, does not preclude a court from holding that a party has waived by conduct or silence.</p> <p>[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 176-196; Dec. Dig. § 28.*]</p> <p>% Jury (§ 25*)—Jury Triai>-Waiver.</p> <p>Under Buffalo City Court Act (Laws 1909, c. 570) § 41, providing that jury trial is waived unless demanded at joinder of issue or on the first adjourned day thereafter, defendant waived such trial by filing an answer and consenting that the case be placed on the ready calendar without making such demand; the practice being to try cases on such calendar by the court.</p> <p>[Ed. Note.—For other cases, see Jury, Cent Dig. §§ 155-159, 164; Dec. Dig. § 25.*]</p> <p>3. Continuance (§ 40*)—Waiver of Right.</p> <p>Under City Court Act (Laws 1909, c. 570) § 34, providing that at the time of the joinder of issue the court shall adjourn any case on request of either party for not more than eight days, defendant when he files his answer can procure one adjournment for at least eight days, but this privilege is waived by consenting to have the case placed on the ready calendar.</p> <p>[Ed. Note.—For other cases, see Continuance, Cent Dig. § 124; Dec. Dig. § 40.*]</p> <p>4. Jury (§§ 25, 28*)—Jury Trial—Waiver.</p> <p>Under Buffalo City Court Act (Laws 1909, c. 570) § 41, providing that jury trial is waived unless, demanded at joinder of issue or on the day thereafter to secure jury trial, it must be demanded substantially at least in the form prescribed or it will be deemed waived, and a waiver once made is irrevocable.</p> <p>[Ed. Note.—For other cases, see Jury, Cent. Dig. §8 155-159. 164; Dec. Dig. §§ 25, 28.*)</p>

<p>Principal and Surety (§ 115*)—Discharge of Surety—Release of Securities.</p> <p>Where a surety on a note was an officer in .a corporation which was the maker of the note, and when he signed as surety he knew of the release of certain securities given by the corporation as collateral for the note, he cannot set up, when sued, that he was discharged by the release of the collateral securities.</p> <p>[Ed. Note.—For other cases, see Principal and Surety, Cent. Dig. §§ 244^268; Dec. Dig. § 115.*]</p>

<p>Judgment (§ 951*)—Res Judicata—Judgment on Merits—Burden or Proof.</p> <p>Where a judgment of dismissal as to a defendant In a former action on the same cause of action did not recite that it was upon the merits, the burden was upon such defendant, when sued again, to show that the former judgment was on the merits, to make it res judicata of the present action.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1809; Dec. Dig. § 951.*]</p>

<p>Sales (§ 391*)—Return oe Goods—Quantum Valebant.</p> <p>Defendants having sold certain goods to plaintiff, an agreement by one of the managers of defendants’ store that plaintiff might return some of the goods was without consideration, and insufficient to sustain an. action for the reasonable value of the goods returned.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1120; Dec. Dig. § 391.*]</p>

<p>1. Master and Servant (§ 21*)—Employment Contract—Breach—Satisfaction.</p> <p>Where an employment contract provided that plaintiff’s work should at all times be to the satisfaction of the defendant, who should be the-sole judge thereof, defendant’s claim of dissatisfaction, in order to justify a discharge, must be real and honest, and not a mere pretense.</p> <p>[Ed. Note.—For other cases, see Master and Sérvant, Cent. Dig. § 21; Dec. Dig. § 21.*]</p> <p>2. Master and Servant (§ 21*)—Discharge—Condonation of Offenses.</p> <p>Where an employment contract required that plaintiff’s work should at all times be to defendant’s satisfaction, the rule that defendant could not discharge plaintiff for unsatisfactory work, of which defendant had previously complained, but for which he had not discharged plaintiff, did not apply, where the unsatisfactory character of plaintiff’s services was alleged to be continuous, and to have immediately preceded his ultimate discharge.</p> <p>[Ed. Note.—For other cases, see Blaster and Servant, Cent. Dig. § 21;. Dec. Dig. § 21.*]</p> <p>3. Master and Servant (§ 41*)—Contract for Services—Breach—Commissions.</p> <p>Where plaintiff was employed as a designer in a cloak and suit house for a fixed weekly salary plus 1 per cent, of the amounts of cash actually paid to defendant for merchandise sold by him during the term of employment, the contract contemplated no effort on plaintiff’s part to bring about sales, and hence, having been broken toy defendant, the court did not err in allowing commissions on receipts subsequent to plaintiff’s discharge.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 50-53; Dec. Dig. § 41.*]</p>

<p>Courts (§ 189*)—Municipal Courts—Replevin—Claim by Third Person— Affidavit—Necessity for.</p> <p>Plaintiff cannot maintain an action against the marshal of the city of New York to recover chattels, where he had not served upon defendant the affidavit required by Municipal Court Act (Laws 1902, c. 580) §§ 118, 114, providing that in a suit of replevin, if a third party claims a right to the possession of the property, he must deliver to the sheriff an affidavit of his claim, specifying the chattels in controversy.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Appeal and EBbob (§ 1054*)—Habmless Ebbob—Admission op Evidence.</p> <p>In an action tried to the court, for the contract price of brick, in which the issue was whether the breach was by plaintiff in refusing to deliver, or ’by defendant in refusing to accept delivery, and the .competent evidence on the point was evenly balanced, the erroneous admission of evidence of plaintiff’s driver as to a conversation with defendant’s timekeeper in which the latter refused to accept deliveries, such refusal not. being within the general scope of his duty nor specially authorized, must be presumed to have affected the decision, so as to require reversal of' a judgment for plaintiff.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 41S5,. 41S6; Dec. Dig. § 1054.*]</p>

<p>Master and Servant (§ 263*)—Injury to Emhloyé in Ditch—Negligence-Evidence—Sufficiency.</p> <p>That plaintiff was injured while working for defendant in a ditch, by dirt and stones falling on him, is insufficient to charge defendant, where cause of the fall or negligence by defendant' is not shown.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent Dig. § 881; Dec. Dig. § 265.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Morris B. Arnold, trustee in bankruptcy of the assets and effects of Davis Rodbell, bankrupt, against Benjamin Ferguson and another, copartners, trading as Ferguson & Co. From a judgment dismissing the complaint on the merits, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Abraham Sachs against Borden’s Condensed! Milk Company. From a judgment for plaintiff, defendant appeals.</p>

Action for injury by. David Hass against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by John D. Keating against the United States Light & Heating Company. From a judgment for plaintiff, and from an order refusing a new trial, defendant appeals.</p>

<p>1. Appeal and Error (§ 1151*)—Correction of Judgment on Appeal.</p> <p>The court on appeal may correct a patent error In the judgment, in calculating the amount for which it should be rendered.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4506; Dec. Dig. § 1151.*]</p> <p>2. Contracts (§ 47*)—Consideration—Necessity.</p> <p>A promise to pay the debt of another must be supported by a sufficient consideration.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 332; Dec. Dig. § 47.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by John A. Bell against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by John Hallaban and another against Morris Carpenter. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough-of Manhattan, Ninth District.</p> <p>Action by Edward V. Harman against Antonio Loscalzo. From a Municipal Court judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Renault Taxi Service against the Park Carriage Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Goodfield Realty Company against Sigmund G. Wormser to recover for rent of an apartment for certain months subsequent to October 1, 1909. Judgment for plaintiff, and defendant appeals.</p>

<p>New Trial (§ 108*)—Newly Discovered Evidence—Relevancy—Materiality.</p> <p>In an action for personal injuries, where the facts of the accident were substantially undisputed, and the questions of the defendant’s negligence and the plaintiff’s contributory negligence were properly submitted to the jury, there was testimony for the defendant that the plaintiff, shortly after the accident, and while not fully conscious, had declared that the accident was his own fault. There was a verdict for defendants, and plaintiff was granted a new trial for newly discovered evidence of three new witnesses who would testify that they did not hear the plaintiff make such a declaration; but no one of them was continuously near the plaintiff. Held, that the evidence, if admissible, bore upon a collateral issue, and also that it could hardly be expected to change the result, and hence it was not sufficient to sustain an order for a new trial.</p> <p>[Ed. Note.—Eor other cases, see New Trial, Cent. -Dig. §§ 226, 227; Dec. Dig. § 108.*]</p>

<p>Master and Servant (§ 235*)—Injuries to Servant.</p> <p>Where a servant employed in defendant’s warehouse was furnished with a lantern to light him about the place, and without using a lantern he entered a dark and unfamiliar stairway, in search of the toilet, and was injured by stepping off, when he erroneously thought he had reached the bottom, the defendant was not liable.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. § 235.*]</p>

<p>1. Bills and Notes (§ 347*)—Bona Fide Holder. »</p> <p>In order to constitute a person a bona fide holder for value of a negotiable instrument, it must have been delivered to him before maturity.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ S70-S79; Dec. Dig. § 347.*]</p> <p>2. Bills and Notes (§ 332*)—Bona Fide Holder—Notice.</p> <p>Where the indorsee of a check knew, when he took it that the bank had refused payment four times, the defense of failure of consideration was good as against him, though the indorser told him that payment had •been refused because of lack of funds and that the maker had promised to make a sufficient deposit.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 805; Dec. Dig. § 332.*]</p>

<p>Master and Servant (§ 265*)—Injury to Servant—Negligence.</p> <p>Where, in an action for injuries to a servant while hoisting a bucket of mortar by means of a pulley, caused by mortar striking him in the eye, there was no evidence as to how the mortar fell, or anything on which to predicate negligence of the master, the master was as a matter of law not liable for the injury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 265.*}</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by August Walters against the Borgia Marble Works. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from City Court of New York; Special' Term.</p> <p>Action by Charles C. Burlingham and others, as trustees in bankruptcy of Thomas A. McIntyre and others, against Patrick F. Gargan. From an order of the City Court of the City of New York, refusing to strike out the amended answer, plaintiff appeals.</p>

<p>Appeal from City Court of New York.</p> <p>Action by G. P. Sherwood & Co. against the Artistic Marble Company. From an order granting a motion to set aside the service of summons, plaintiff appeals.</p>

<p>Appeal from Special Term, Queens County.</p> <p>Action by Bertha E. Nahe, individually and as administratrix, etc., of Louise E. Nahe, deceased, against Henry J. Bauer and others. From the judgment, plaintiff appeals. Reversed, and new trial granted.</p>

<p>1. Principal and Agent (§ 27*)—Conditional Contract—Liability.</p> <p>Where the defendant, agent for several fire insurance companies, as part of a contract of sale of his agency, agreed with the plaintiffs to procure for them authority to represent such companies, the consent of the companies to plaintiffs’ agency is a condition precedent to the defendant’s liability on the contract, and, upon their refusal to give such consent, he would not be liable.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 27.*]</p> <p>2. Specific Performance (§ 126*)—Contracts Enforceable-Conditional</p> <p>Contract.</p> <p>.Even if a contract by the agent of several fire insurance companies as part of a contract for the sale of his agency to procure for the plaintiffs from the companies authority to represent them were enforceable in equity specifically, the decree could only compel the defendant to endeavor in good faith to secure the agency for the plaintiffs without attempting to direct the companies to accept and retain the plaintiffs as agents.</p> <p>[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 401-405; Dec. Dig. § 126.*]</p> <p>3. Specific Performance (§ 126*)—Relief-Interest in Subject-matter-</p> <p>Pleading.</p> <p>The principal defendant in an- action had contracted, as part of a contract of sale of his fire insurance agency, to procure for plaintiffs the agency for several companies, which he then held. At the time for performance he refused to perform, and it was alleged in plaintiffs’ complaint for specific performance that he made a sham transfer of his agency to employes in his office who carried on the business of the agency in their name, and who were joined as parties defendants. Held, that there could be no decree of specific performance against these defendants unless the principal defendant upon allegations showing him to be the true owner of the business would be compelled to try to procure the agency for the plaintiff.</p> <p>[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 401-405; Dec. Dig. § 126.*]</p> <p>4. Specific Performance (§ 12*)—Nature of Remedy—Enforcement Inef-</p> <p>fectual.</p> <p>Courts of equity will not decree specific performance where they are. unable to enforce their decrees, but leave complainants to their remedy at law for breach of contract.</p> <p>[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. § 26', Dec. Dig. § 12.*]</p> <p>5. Specific Performance (§ 126*)—Previous Sham Transfer—Parties—Complaint—Decree in Aid of Contract.</p> <p>A contract was made to the effect that the principal defendant, having the agency of several fire insurance companies, as part of his contract for the sale of his agency, would procure for plaintiffs from the companies authority to represent them, and would himself refrain from acting as their agent and would turn over to the plaintiffs the records of the agency. In a complaint, seeking specific performance of the contract, two others were impleaded as parties defendant; it being alleged that the business of the agency had been transferred to them by a sham transaction, and that they were not the real parties who were carrying on its business. Held that, the companies being willing to accept plaintiffs as their agents, the substantial part of the contract sought to be enforced being the seeuring of the agency, the court might make a decree directing the principal defendant and the impleaded defendants, on receipt of the purchase price, to turn over to the plaintiff books and papers connected with the agency.</p> <p>[Ed. Note.—For other eases, see Specific Performance, Dec. Dig. § 126.*]</p> <p>0. Specific Performance "(§ 127*)—Conditional Contract—Decree Ordering Books and Papers Turned Over—Accounting.</p> <p>Where a decree orders a turning over to the complainant of defendant’s books and papers in aid of the performance of the contract, such decree may also carry the incidental remedy of an accounting also sought by the complaint.</p> <p>[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 406-411; Dec. Dig. § 127.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>A-Ction by R. Frank Levy and another, doing business under the firm name of the Levy Company, against Isidor Warschauer and others, copartners doing business as Warschauer Bros. & Weber. From an order vacating a judgment for plaintiffs, entered on defendants’ default, defendants appeal.</p>

<p>Action by Catharine Hayes against Edmond J. Hayes. From an order granting plaintiff counsel fees and an allowance pending an appeal from an order denying an adjournment, on which a judgment of dismissal was entered, defendant appeals.</p> <p>Appeal from. Special Term, Kings County.</p>

<p>Criminal Law (§ 216*)—Commitment fob Examination—Warrant fob Arrest—Necessity.</p> <p>The arrest without a warrant, made upon an affidavit of information, under Code Cr. Proc. §§ 177-185, providing that an officer may arrest a person without a warrant (1) for a crime committed in his presence, or (2) where the person has committed a felony, although not in his presence, or (3) where a felony has in fact been committed,' and he has reasonable cause for believing the person arrested to have committed it, was valid, so that it could not be contended that the accused’s commitment for examination by the magistrate was invalid, because no warrant was issued for the arrest.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 436; Dec. Dig. § 216*3</p>

Judicial settlement of the account of the Kings County Trust Company as executor, etc., of the will of William Howard, deceased. From that part of a surrogate’s decree (125 N. Y. Supp. 159) allowing interest to the widow from the date of the testator’s death on a trust fund of $32,000, the income of which was to be paid to the widow for life, Robert P. Howard and others, residuary legatees, appeal.

<p>Appeal from Special Term, Albany County.</p> <p>Certiorari by the People, on the relation of the New York Central & Hudson River Railroad Company, against Egburt B. Woodbury and others, constituting the State Board of Tax Commissioners, to review an assessment in the Town of Canajoharie. Prom a final order, respondents appeal.</p>

<p>1. Grand Jury (§ 27*)—Jurisdiction—Local Powers.</p> <p>The grand jury is not part of the administrative government of a municipality, but has the amplest power to investigate the willful and corrupt misconduct in office of public officers of every description within the county, as expressly provided by Code Cr. Proc. § 260.</p> <p>[Ed. Note.—For other cases, see Grand Jury, Cent. Dig. § 66; Dec. Dig. § 27.*]</p> <p>2. Grand Jury (§ 42*)—Presentment—Propriety—Vacation.</p> <p>Code Cr. Proc. § 257, provides that the grand jury is not bound to hear evidence for the defendant; but it is its duty to weigh all the evidence1 submitted, and, when it has reason to believe that other obtainable evidence would explain away the charge, it should order such evidence to be' produced, and may require the district attorney to issue process to witnesses. Held, that where a grand jury, though attended by a district attorney, afforded certain officials, whose conduct in office was being examined, no opportunity to explain the same, notwithstanding documents admitted on a motion to quash a presentment subsequently returned decisively exonerated such officials from the alleged misconduct, and it appeared that the presentment itself was drawn up by the prosecuting witness and adopted as the act of the grand jury, it was inadvisedly made, and will be set aside.</p> <p>[Ed. Note.—For other cases, see Grand Jury, Cent. Dig. § 88; Dec. Dig. § 42.*]</p>

<p>1. Municipal Corporations (§ 706*) — Collisions Between Vehicles — Questions fob Juey.</p> <p>In an action for injuries in a collision between plaintiff’s vehicle and defendant’s taxicab, where the evidence as to the collision was conflicting, the question was for the jury.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig, § 706.*]</p> <p>2. Damages (§ 185*)—Personal Injuries—Evidence.</p> <p>In an action for personal injuries, where plaintiff’s doctor was not called, nor his absence explained, and the alleged injuries were not shown, and it did not appear that because of such injuries plaintiff was prevented from attending to his business during the time he laid off, but the jury were allowed to speculate as to what caused the injury, and also as to the damages, a judgment for plaintiff will not be sustained.</p> <p>[Ed. Note.—For other cases, see Damages, Dec. Dig. § 185.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by William P. Youngs and others against Nathan J. Packard and another. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal.</p>

In the matter of supplementary proceedings by William C. Roos, judgment creditor, against George J. Treubig, judgment debtor. From an order adjudging the judgment debtor in contempt of court for failing to appear for examination, and imposing a fine, he appeals. Modified, and, as modified, affirmed.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Isidor J. Auerbach against Charles Pellman. From an order denying a bill of particulars, defendant appeals.</p>

<p>1. New Trial (§ 72*)—Ground—Verdict Contrary to Evidence.</p> <p>Unless the verdict was so clearly against the weight of the evidence as to compel the belief that it was rendered from passion, prejudice, or mistake, it should not be set aside as against the weight of the evidence.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 146-148; Dec. Dig. § 72.*]</p> <p>2. Master and Servant (§ 40*) — Wrongful Discharge — Action — Sufficiency of Evidence.</p> <p>In an action for an employe’s wrongful discharge, evidence held to sustain a finding that plaintiff was discharged without cause, after being assaulted by his employer.</p> <p>[Ed. Nóte.—For other cases, see Master and Servant, 'Cent. Dig. § 49; Dec. Dig. § 40.*]</p> <p>3. Master and Servant (§ 43*)—Wrongful Discharge—Right of Action-Duty to Resume Employment.</p> <p>Where an employe was discharged without cause after being assaulted by his employer, and did not resume work from a fear of being again assaulted, Ms refusal to resume work does not, as a matter of law, prevent Ms recovery for wrongful discharge.</p> <p>[Ed. Note.—Eor other.cases, see Master and Servant, Cent. Dig. §§ 57, 58; Dec. Dig. § 43.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Samuel Castell against the Sterling Fire Insurance Company. From a judgment by default for plaintiff, defendant appeals.</p>

<p>1. Execution (§ 418*)—.Supplementary Proceedings—Delivery of Property-Ownership—"Substantial Dispute. ’’</p> <p>Where in supplementary proceedings IÍ. appeared, at the hearing of a motion to punish the judgment debtor for contempt in refusing to turn over certain property to a receiver, by the same attorney that appeared for the judgment dtebtor, without filing a written claim, or supporting it by documentary evidence or otherwise, there was no “substantial dispute” as to-right of possession, within Code Civ. Proc. § 2447, providing that, where the judgment debtor has in his possession personal property belonging to him, and his right to possession thereof is not substantially disputed, the judge may require the debtor to turn over such property.</p> <p>[Ed. Note.—Eor other cases, see Execution, Cent. Dig. § 1201; Dec. Dig. § 418.* .</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6738.]</p> <p>2. Execution (§ 418*)—Supplementary Proceedings—Claim—Reference.</p> <p>Where, in contempt proceedings against the judgment debtor for failure to turn over certain personal property to a receiver, there was no substantial dispute as to the debtor’s right to possession, an order that the judgment debtor should be held in contempt, and should turn over the property, unless within a specified time the claimant should establish before a referee named that he was the legal owner of the property, was erroneous, since the court at Special Term, or through a referee, had no right to try such issue.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. § 1201; Dec. Dig. § 418.*]</p>

Action by Mina Zviebel against Hayman Benowitz and others. From a judgment for plaintiff, defendants appeal. Reversed, and new-trial ordered.

<p>1. Courts (§ 189*)—Municipal Courts—Pleadings—Amendments.</p> <p>An amendment to a pleading in the Municipal Court, as authorized by Municipal Court Act (Laws 1902, c. 580) § 166, authorizing amendments at any time to promote substantial justice, must be made in open court when the parties are present; and an amendment made by the trial justice after the case had been submitted for determination is unauthorized. -</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*]</p> <p>:2. Sales (§ 94*)—Partial Rescission—Effect.</p> <p>Where a buyer, when sued for-the price of goods, was relieved from paying for a part of the goods in his possession, on the ground that his offer to return them to the seller had been accepted, the seller was entitled to the possession on demand; and where the buyer subsequently refused to deliver possession on demand, the seller could sue for conversion.</p> <p>[Ed. -Note.—For other cases, see Sales, Cent. Dig. g 260; Dec. Dig. § 94.*]</p> <p>'3. Trover and Conversion (§ 9*)—Demand—Necessity.</p> <p>Where there has been a wrongful taking of goods, a demand is not necessary to constitute a conversion; but where goods have come into the possession of a person lawfully, a. demand for their delivery is essential, and where the demand is not complied with an action for conversion lies.</p> <p>[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. §g 5S-S3; Dec. Dig. g 9.*]</p> <p>4.-Appeal and Error (g 1169*)—Reversal—Erroneous Grounds for Correct Judgment.</p> <p>A valid judgment will not be' reversed merely because it is based on a wrong ground, as expressed by the trial justice in his opinion.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4531-4539 ; Dec. Dig. g 1169.*]</p>

<p>1. Corporations (§ 432*)—Contract by Agent—Action Against Principal— Agency—Burden oe Prooe.</p> <p>In an action against a corporation to recover commissions for securing a purchaser of goods, basing the claim on an agreement made with plaintiff by an employs of the corporation, the burden was on the plaintiff to prove, not only the employes agency, but that Ms agreement was within the scope of Ms authority.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1730; ’ Dec. Dig. § 432.*]</p> <p>2. Brokers (g 40*)—Right to Commissions.</p> <p>Plaintiff secured a purchaser of goods for defendant. After the order for them had been taken, plaintiff wrote to an employe of defendant, who had no authority to grant commissions, stating that he expected his commissions on the order, to which there was no reply. Reid, that he could not recover.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 40.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by William Westphal against Frederick W. Whitridge, receiver. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Contracts (§ 10*)—Unilateral Agreements.</p> <p>An instrument which, alter adjusting firm matters between plaintiff and defendant, declares that the goods are to be bought at the'stipulated selling prices by plaintiff from defendant, on specified terms, and that plaintiff has the privilege to return all goods not accepted by his customers on account of late delivery and imperfections, is void for want of mutuality.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.*]</p> <p>2. Sales (§ 59*)—Contracts.</p> <p>The fact that plaintiff frequently sent defendant orders for goods stating quantity and the desired date of delivery, and that defendant made deliveries and O. K.’d the orders, did not make a prior agreement between the parties, declaring that goods are 'to be bought at stipulated selling prices by plaintiff from defendant, on specified terms, and that plaintiff may return goods not accepted by his customers, a part of the contract between the parties based on the orders and their acceptance.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 59.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Actions by.Franz Listemann, Jacob Wolf, and Michael Laitner against the Russian Symphony Society. Judgments for plaintiffs, and defendant appeals. Reversed,"and new trials ordered.</p>

Action by Helen A. French against Charles T. French and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Jacob Solomon against Adrian H. Joline and another, receivers of the Metropolitan Street Railway Company. From an order setting aside a verdict for plaintiff, plaintiff appeals.</p>

Summary proceedings by Alexander Mann, landlord, against Ike Hefter, tenant. From a judgment and final order awarding possession to the landlord, the tenant appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by L. C. Page & Co. against Robert E. Sherwood. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Matter of Richard Arnold against the Greene Gold Silver Company.</p>

<p>Action by Jane West Horner Benedict against Antoinette Lockwood Clarke.</p>

<p>Action by Nathan Bilderas trustee, etc., against Charles E. Ellis.</p>

<p>Action by William A. Bradshaw and another, as executor, etc., of Robert O. Bradshaw, deceased, against the Mutual Life Insurance Company of New York.</p>

<p>Action by Philip Carpenter against Elmer E. Hawes.</p>

<p>Action by Irving W. Childs against Eversley Childs, individually, etc.</p>

<p>Action by Mary W. Eels against Jamin S. Morse.</p>

<p>Action by Leonard D. Fischer against the trustees of the Village of Clifton Springs.</p>

<p>Action by Thomas Fahey against the New Amsterdam Gas Company.</p>

<p>Appeal from City Court of New York, Special Term. Action by Eugene C. Gilroy, as receiver of the Columbia Publishing Company, against the Twelfth Ward Bank. From a City Court judgment on a verdict directed for plaintiff, defendant appeals. Modified and affirmed.</p>

<p>Appeal from Trial Term, New York County. Action by Una Goslin against Annie Irene Magher. Judgment for plaintiff, and defendant appeals. Judgment affirmed.</p>

<p>Action by Elizabeth A. Hickey, as sole administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Percival L. Harden against William T. Hoops.</p>

<p>Action by Emily H. Hathom and another against the Natural Carbonic Gas Company.</p>

<p>Appeal from City Court of New York, Special Term. Supplementary proceedings by the Highland Trust Company of New Jersey, as judgment creditor, against Anthony Saba, judgment debtor. From an order punishing the judgment debtor for contempt, and from an order denying a motion to open his default, he appeals. Order punishing judgment debtor for contempt reversed and appeal from order denying motion to open default dismissed.</p>

In the matter of the application of Peter Kinn, as executor, etc., of Anna Kinn, deceased, for leave to sell real estate to pay debts, etc., William Auer, appellant.

<p>Action by Charles M. Lane against Albert O. Fenn and others.</p>

<p>Appeal from City Court of New York, Trial Term. Action by James McCarthy against the Fleischmann Bros. Company and the Rapp Construction Company. From a judgment against both defendants and from orders denying their respective motions for a new trial, they appeal. Affirmed as to Fleischmann Bros. Company, and reversed as to Rapp Construction Company, and new trial ordered.</p>

<p>Action by Katharine McDuffie against the Financier Company.</p>

<p>Action by Thomas F. Maloney against Simon Katzenstein.</p>

<p>Action by Louis C. Manee against Hattie Hossington, ds executrix, etc., of G. A. Hossington, deceased.</p>

<p>Action by Sarah Meyerhoffer against Hyman D. Baker.</p>

<p>Action by ICnowlton Mixer against James N. Adam, as mayor of the city of Buffalo, and others.</p>

<p>In the matter of the probate of the last will and testament of Mary R. Moore, deceased.</p>

<p>Action by the New Hartford Cotton Manufacturing Company against Morris Lowenstein and others</p>

<p>Action by Blary Nolan against the Prudential Insurance Company of America.</p>

<p>Action by William Norris against William H. Reynolds.</p>

<p>Action by Thomas J. O’Neill and another against Christopher Campbell and another.</p>

<p>Appeal from Court of General Sessions, New York County. Frank Zerillo and others were indicted for a crime, and from certain orders of the Court of General Sessions they appeal. Appeal dismissed.</p>

<p>Proceedings by the People on the relation of Charlotte Y. Ackerman, against" Charles B. Stover and others.</p>

<p>Action by Adam Raíble, an infant, by Sophia Raíble, his guardian ad litem, against the Hygienic Ice & Refrigerating Company.</p>

<p>Action by Benjamin Bobinson against Samuel Jaffe, defendant, and Til-lie Jaffe, appellant.</p>

<p>Action by Charles D. Rood against the Bank of Cattaraugus.</p>

<p>In the matter of the application of the South Shore Traction Company for the appointment of commissioners, etc., HoEman Boulevard, borough of Queens, city of New York, etc.</p>

<p>Action by James H. Tamblin and others against Frank Donely and others.</p>

<p>Action by Mary B. Tower against Albert E. Tower.</p>

<p>Action by Benjamin Tuska against Heller, Hirsch & Co. impleaded with others.</p>

<p>Action by the United States for the benefit of Henry Collins against Anson M. Bangs, sole surviving partner, etc., and another.</p>

<p>In the matter of Martin L. Ungrich against Henry Ungrich. Jr., and others.</p>

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

<p>Actions by the United Building Material Company against the City of New York, William E. Paine and Benjamin B. Odell, Jr., as receivers, and others, defendants and appellants. (Appeals Nos. 1 and 2.)</p>

<p>Appeal from City Court of New York, Special Term. Action by Abraham Weinreb and another against the Coleman Stable Company and others. From an order granting the motion of part only of defendants for a full bill of costs against plaintiffs, plaintiffs appeal. Reversed and motion denied. Adolph Freyer, for appellants. May & Jacobson, for respondents.</p>

<p>Action by Amos E. Woodruff against Elinor W. Squier.</p>

<p>Action by Dennis L. Wright against the Knights ■ of the Maccabees of the World.</p>