Volume 126 — New York Supplement

<p>1. Corporations (§ 642*)—Foreign Corporations—Stockbooks pob Inspection—Office fob “Transaction of Business.”</p> <p>The words “transaction of business,” in Stock Corporation Law (Con-sol. Laws, c. 59) § 33, providing that a foreign stock corporation, “having an office for transaction of business in this state,” shall keep therein a stockbook, which shall be open for inspection by certain persons, and declaring a penalty for refusal of such an inspection, do not necessarily mean that the corporation’s main business must be carried on in the state, or something in the nature of that business, or that capital must be employed in the state; but all that is necessary to bring the corporation within the statute is that something related to its business, or part of it, be carried on in the office 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. 8, pp. 7060-7062; vol. 8, pp. 7818, 7819.]</p> <p>2. Corporations (§ 652*)—Foreign Corporations—Stockbooks for Inspection—Office for Transaction of Business—Evidence.</p> <p>Evidence in an action for the penalty declared by Stock Corporation' Law (Consol. Laws, c. 59) § 33, against a foreign corporation “having an office for transaction of business in this state,” for refusal to allow an inspection of its stockbook, required to be kept in such office, held sufficient to establish that it has such an office.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 652.*]</p> <p>8. Corporations (§ 673*)—Foreign ’Corporations—Stockbooks for Inspection—Office for Transaction of Business—Evidence.</p> <p>A lease, tending to prove a hiring by defendant of premises in the state “for an executive office” prior to the demand for inspection of its stockbook, is relevant in an action for the penalty declared by Stock Corporation Law (Consol. Laws, c. 59) § 33, for refusal of a foreign corporation, “having an office for transaction of business in this state,” to allow inspection of its stockbook; required to be kept in such office.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 673.*]</p>

<p>Street Railroads (§ 114*)—Injuries—Actions—Contributory Negligence. In an action for injuries received while crossing a street car track, held, that plaintiff did not show herself free from contributory negligence; there being nothing to prevent her from seeing the car, had she looked.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent Dig. §§ 248, 249; Dec. Dig. § 114.*]</p> <p>Gavegan, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Tombaclc & McPhee, Incorporated, against Martha Schlesinger. From a judgment for plaintiff, defendant appeals.</p>

Action by Giuseppe Ventimiglia against the Tompkins-Kiel Marble Company. From an order of the Municipal Court denying a motion to open the default, and from an order denying motion for re-argument, defendant appeals.

<p>Judgment (§ 17*)—Process to Sustain—Necessity.</p> <p>Where a judgment was rendered against the defendant by default, and it appears conclusively on the record that defendant was never served and never appeared in court, either personally or by attorney, the judgment should be reversed for want of jurisdiction apparent upon the record.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.*]</p>

<p>1. Fraud (§ 3*)—-Pleading—Proof.</p> <p>In an action to recover money advanced by plaintiff to defendants on a pledge of property alleged to have been falsely represented by defendants as belonging to a certain person, plaintiff was bound to allege and prove representation, falsity, scienter, and intent to deceive.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 1; Dec. Dig. § 3.*]</p> <p>2. Judgment (§ 248*)—-Pleadings and Proof.</p> <p>A judgment must be secundum allegata et probata, and cannot be recovered on grounds not properly stated in the complaint.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 434, 439-440; Dec. Dig. § 248.*]</p>

<p>1. Sales (§ 181*)—Actions fob Price — Evidence — Quality of Article— Waiver of Inspection.</p> <p>Evidence held insufficient to sustain a verdict finding that a buyer’s right of inspection had been waived, and that the lumber delivered was not in accordance with the contract.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. § 181.*]</p> <p>2. Evidence (§ 457*)—Contracts—Construction—Parol Evidence.</p> <p>Where a contract provided for the sale of “white basswood” and “number / common basswood,” etc., the court erred in refusing to permit evidence of the meaning of such terms in the trade, having permitted defendant to give detailed evidence as to the appearance, condition, length, and width of lumber delivered under the contract and inspected.</p> <p>[Ed. Note.—For other cases, see Evidence. Cent. Dig. §§ 2104, 2107, 2108; Dec. Dig. § 457.*]</p>

Action by Maurice Frank and others against Moses Subin and another. From a judgment for defendants, and from' an order denying plaintiffs’ motion for a new trial, .they appeal.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Albert A. Rosenthal against the Emerson Realty Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Evidence (§ 513*)—Expert Evidence—Admissibility.</p> <p>Where, in an action for work performed, defendant alleged that the work was plumbing work, and that plaintiff was not a plumber, and had not complied with the laws of the building and tenement house departments of the city of New York, and therefore could not recover, and it was impossible to determine from the items sought to be proved what was and what was not plumbing work, expert testimony that the work performed was plumbing, work was admissible.</p> <p>[Ed. Note.—Eor other cases, see Evidence, Dec. Dig. § 513.*]</p>

<p>1. Courts ( 189*)—Municipal Courts—Procedure—Judgment on Pleadings /—Statutory Provisions.</p> <p>Code Civ. Proc. § 547, providing that, if either party is entitled to judgment on the pleadings, the court may on motion, at any time after issue joined, give judgment accordingly, applies to the Municipal Court of New York City.</p> <p>[Ed. Note.—For other cases, see Courts, Dee. Dig. § 189.*]</p> <p>2. Appeal and Error (§ 657*)—Record—Remand for Correction.</p> <p>Where, on appeal from a judgment on the pleadings, the answer is missing from the return, though stated by the record to be verified and attached to the judgment roll, the record will be returned to the lower court for correction.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2830-2833; Dec. Dig. § 657.*]</p>

<p>Execution (§ 471*)—Wrongful Execution—Sale of Goods—Value—Evidence.</p> <p>In an action for the wrongful sale of goods on an execution issued on a judgment subsequently reversed, evidence held insufficient to show the value of the goods.</p> <p>[Ed. "Note.—For other cases, see Execution, Cent Dig. §§ 1401, 1402; Dec. Dig. § 471.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Abraham Finkelstein against the Long Island Railroad ■Company, doing business as the “Long Island Express.” Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from City Court of1 New York, Trial Term.</p> <p>Action by Hyman Kaplan against the Friedman Construction Company. From a judgment on a verdict for plaintiff, defendant appeals.</p>

<p>Bankruptcy (§ 414*)—Discharge in Bankruptcy—Claims Enforceable— Burden of Proof.</p> <p>A creditor of one discharged in bankruptcy has, to avoid the discharge, the burden of proving his claim, which was provable, was within Bankr. Act July 1, 1898, c. 541, § 17, subd. 3, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), providing that a debt is not discharged which was not duly scheduled in time for proof and allowance.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Dec. Dig. § 414.*]</p>

<p>Brokers (§ 82*)—Action for Commissions—Pleading and Evidence.</p> <p>The complaint, alleging plaintiff was employed by defendant as an agent to obtain and assist in obtaining orders for sale of certain articles, to be paid a commission on the selling price of all such articles sold by plaintiff, or sold through his efforts or introductions obtained by him, and that defendant, through such an introduction, sold to a certain person , such an article for a certain price, seeks recovery, not for producing a purchaser ready, able, and willing to purchase on given terms, or for obtaining an oi’der, but for an actual sale; so that there is no right to recover on evidence of a conditional order, that the conditions were not fulfilled, and that there was no actual sale.</p> <p>(Ed. Note.—For other cases, see Brokers, Cent Dig. § 103; Dec. Dig. I 82,*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Leopold Harris against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Sales (§ 54*)—Contract—Construction.</p> <p>A contract of sale on a printed form, which was retained by the seller after being signed by the buyer, to whom no copy was ever delivered, must he construed strictly against the seller, when offered by him in an action between the parties.</p> <p>(Ed. Note.—For other cases, see Sales, Cent ¡Dig. § 152; Dec. Dig. § 54.*]</p> <p>2. Sales (§ 409*)—Conditional Sale—Contract.</p> <p>■A contract for the sale of a piano, which provided that title should remain in the sellers until a certain sum was paid to them in installments, when a bill of sale would be delivered to the buyer, was a sale conditioned upon the payment of the monthly installments stipulated.</p> <p>[Ed. Note.—For other eases, see Sales, Cent. Dig. § 1357; Dec. Dig. $ 409.*]</p> <p>U. 'Sales (§ 481*)—Conditional Sales— Remedies of Buyer — Recovery of Price Paid—Waiver.</p> <p>A provision of a conditional contract for the sale of a piano, which provided that the buyer thereby waived “all notices of said sale of whatever ¡nature and also advertisements,” did not waive the buyer’s right to sue ■.under Consol. Laws, c. 41, § 05, providing that whenever articles are sold mpon condition that title remain in the vendor until payment of the price, ;and are taken by the vendor, they shall be retained for 30 days, and after ■the expiration of such period, without compliance with the contract by the vendee, the vendor may sell the articles at public auction, and unless they are so sold within 30 days thereafter the vendee may recover the amount paid on such articles; the contract at most waiving service of notice of sale.</p> <p>[Ed. Note.—For other cases, see Sales, Cent Dig. §§ 1440-1455; Dec. Dig. § 481.'*]</p> <p>4. Exemptions (§ 92*)—Sales (§ 481*)—Conditional Sales—Remedies of Buyer—Recovery of Price Paid—Waiver—Exemption.</p> <p>An agreement in a conditional contract of sale, waiving all homestead and other exemption rights with reference to the piano sold, is void as against public policy, the piano being a part of the buyer’s household goods; and hence such provision will not be construed to effect a waiver by the buyer of the right to sue under Consol. Laws, c. 41, § 65, authorizing the buyer to recover the amount paid on articles sold upon condition that title remain in the seller, upon the seller’s failure to sell them at public auction, after retaking them, and after the buyer has failed for a certain time to comply with the contract.</p> <p>[Ed. Note.—For other eases, see Exemptions, Cent. Dig. § 115; Dec. Dig. § 92;* Sales, Cent. Dig. §§ 1449-1455; Dec. Dig. § 481.*]</p> <p>5. Sales (§§ 19, 20*)—Conditional Sales—Contracts—Consideration.</p> <p>A contract for the conditional sale of a piano, executed while a similar contract between the parties for the sale of the same piano was in force, differing from it only as to the amount to be paid, which was the balance due on the original contract, was not valid, not being supported by any consideration.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. §§ 19, 20.*]</p>

Action by Joseph Pugh against Emil Kraft. Prom a judgment dismissing the complaint, and from an order denying a motion for new trial, plaintiff appeals.

<p>1. (Execution (§ 371*) — Supplementary Proceedings — Jurisdiction of Court.</p> <p>The City Court of New York has jurisdiction to grant an ex parte application of a judgment creditor obtaining a judgment in the Municipal Court of the city of New York for the examination in supplementary proceedings of the judgment debtor. ,</p> <p>[Ed. Note.—Eor other cases, see Execution, Dec. Dig. § 371.*]</p> <p>2. Courts (§ 91*)—Controlling Decisions.</p> <p>The justices of the Supreme Court virtually constitute the appellate tribunal of the City Court of New York, and it is proper for the City Court to follow a procedure laid down by the individual justices of the Supreme Court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 325, 326; Dec. Dig. § 91.*]</p>

<p>Walter Réppin was charged, by information filed by the district attorney, with violating the motor vehicle speed law as a second offense.</p>

<p>1. Tbade-Maeks and Tbade-Names (§-48*)—Wrongful Use of Labei^Of-FENSES.</p> <p>Labor Law (Consol. Laws, c. 31) § 16, punishing any person who shall, without authority, use the label adopted by a labor union, or who shall counterfeit any such label, or who has in his possession with intent to-sell goods on which the counterfeit label is affixed, creates three distinct offenses; the use of a genuine label without authority, counterfeiting a label, and knowingly having goods bearing.the counterfeit label with intent to sell them.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § GO; Dec. Dig. § 48.*]</p> <p>2. Trade-Marks and Trade-Names (§ 48*)—Nature of “Trade-Mark.”</p> <p>A union label authorized by Labor Law (Consol. Laws, c. 31) §§ 15, 16,. authorizing labor unions to adopt a label, and prohibiting the wrongful use thereof by • others, is not a trade-mark within Penal Law (Consol. Laws, c. 40) §§ 2350, 2354, defining a trade-mark as a mark used to indicate--' the maker, owner, or seller of an article of'merchandise, and punishing-the unlawful affixing to an article of the genuine trade-mark of another, and one wrongfully using a union label does not .thereby violate the sections of the penal law.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Dec.. Dig. § 48*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7042-7048.]</p> <p>3. Indictment and Information (§ 133*)—Variance Between Complaint- and Information—Effect.</p> <p>• The variance between a complaint charging a violation of Labor Law (Consol. Laws, c. 31) § 16, by the unlawful use of a label of the “Allied' Printing Trades Council of Greater New York” and an information filed-1 by the district attorney averring ownership of the label in the “International Typographical Union of North America” must be raised and disposed of at the trial, and not by a preliminary motion attacking the • information on the ground that it is based on matters not disclosed in proceedings before the committing magistrate.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 4G7; Dec. Dig. § 133.*]</p> <p>-4. Indictment and Information (§ 122*)—Preliminary Examination—Information.</p> <p>Where the complaint before the examining magistrate charged accused with violating Labor Law (Consol. Laws, c. 31) § 16, in that he used and counterfeited the label of a labor union, and knowingly had in his possession with intent to sell goods on which the counterfeit label was printed, an information filed by the district attorney alleging a violation by accused of Penal Law (Consol. Laws, c. 40) § 2354, punishing the unlawful affixing to an article of the genuine trade-mark of another will be dismissed because under Or. Code Proc. §§ 741-748, the charge in the information must either be the identical one stated in the magistrate’s complaint or fairly disclosed in the examination before him.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 321-325; Dec. § 122.*]</p> <p>5. Indictment and Information (§ 122*)—Preliminary Examination—Variance. ,</p> <p>A complaint before the magistrate alleging that accused had violated Labor Law (Consol. Laws, c. 31) § 16, in that he used and counterfeited the label of a labor union, and knowingly kept in his possession, with intent to sell, goods on which the counterfeit label was printed, does not justify an information charging accused with using a genuine label without the authority of the union adopting it, and a count in the information charging such offense will be dismissed.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 321-325; Dec. § 122.*]</p> <p>Hoyt, J., dissenting in part.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Margaret V. C. MacNutt against the City of New York and another. From a judgment of dismissal, plaintiff appeals.</p>

<p>1. Logs and Logging (§ 3*)—Timber Contract—Construction.</p> <p>An agreement to sell all the spruce, balsam, and hemlock timber on a certain tract suitable for pulp or lumber, 8 inches in size and upwards at the stump, to be cut and skidded by a certain date about 20 months later, referred to a previous deed of the grantor to the state of the same tract, which reserved the wood 8 inches and over in size at the stump, to be cut in 7 years from the date of the deed, executed in 1900, which period would expire at the termination of the time fixed by the agreement for the removal of the timber; the agreement being made in 1906. The deed would bear the construction that the grantor reserved all the spruce and balsam which at the time of cutting within the seven years should be 8 inches or more in diameter at the stump, and the acts of the parties under it showed such to be their intent, and the parties to the agreement for purchase of the timber evidently understood that the timber purchased was that or a part ,of that reserved in the deed to the state. Held,, that in view of the fact that the agreement was not made until after five years of the time for cutting limited in the deed had expired, and no mention was made of trees measured and marked in 1900, nor of trees 8 inches in diameter at that time, and in view of -the fact that such trees will increase in diameter one-half inch to an inch and a half in seven years, the parties to the agreement will be deemed to have intended that the measurement of the trees should be made when cut at any time before the right of removal expired.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>2. Logs and Logging (§ 3*)—Timber Contract—Construction—“At the Stump.’’</p> <p>The expression “at the stump,” in the agreement, means the point at which the trees would be cut, and the custom in the vicinity, known to the parties, being to cut pulp wood 20 to 24 inches above the ground, that was the point meant by the phrase, which did not apply to a point 3 feet above the ground, as provided in Laws 1897, c. 220, § 7, under which the state acquired the land under the deed, providing that the owner of land to be taken under the article might, at his option, within the limitations thereinafter prescribed, reserve the spruce timber thereon 10 inches or more in diameter’ at a height of 3 feet from the ground.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Dec. Dig. § 3.*]</p> <p>3. Logs and Logging (§ 3*)—Timber Contract—Construction—Timber Embraced in Contract.</p> <p>The agreement being to sell timber, to be cut and skidded, suitable for pulp or lumber, and the tract being in the wilderness, away from any market, where the transportation was by water by two routes, and such timber cut and skidded in such locality in the form of logs 12 or 14 feet in length only, the parties will be deemed to have intended that only such timber should pass as could be cut and skidded and so put in shape for market by one of the water routes mentioned; that is, so much as could be cut into logs of a size suitable for driving and not short logs obtainable from the top of trees, though of the prescribed diameter and suitable for pulp wood.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Dec. Dig. § 3.*]</p> <p>4. Logs and Logging (§ 3*)—Timber Contract—Construction.</p> <p>Laws 1897, c. 220, § 7, in force at the time the deed to the state was executed, permitting spruce timber ten inches and over in diameter, three feet from the ground, and no other to be reserved, subject to the provisions of the act in relation to timber reserved after an appropriation of land by the forest preserve board and the deed not conforming to the statute, it reserving all the wood eight inches and over in diameter at the stump, but conforming to the subsequent law (Laws 1901, e. 652, amending Laws 1897, c. 220), the agreement for sale of the timber made while the later provision was unchanged will be presumed to have been intended to conform to the deed and statute.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Dec.' Dig. § 3.*]</p> <p>5. Woods and Forests (§ 8*)—'Cutting Timber — Reservations on Land Sold to the State for Forest Preserve Purposes.</p> <p>Forest, Fish, and Game Law (Consol. Laws, c. 19) § 51, provides that the owners of land taken by the state for the forest preserve who have reserved timber thereon shall not cut over the land more than once. Held, that the owner is not thereby precluded from going within the limits of a former cutting if he has left a considerable tract upon which no trees have been cut; the intent of the statute being to prohibit a second cutting upon territory which has been once cut down to the prescribed limit of diameter.</p> <p>[Ed. Note.—For other cases, see Woods and Forests, Dec. Dig. § 8.*]</p>

<p>1. Wills (§ 440*)—Construction—Intention.</p> <p>It is not the intention simply oí testator, but his expressed intention, the intention which the will, from the words used by testator, either expressly or by implication declares, which is to be sought, and given effect to, in construing a will.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 956; Dec. Dig. § 440.*]</p> <p>2. Wills (§ 497*)—Construction—Beneficiaries—“Children.”</p> <p>Under the clause of a will giving the residue of the estate to executors in trust to divide in five equal shares, and pay annually the income of one to A., or to her children, for the support and maintenance of herself and children, as the executors may think best, A. dying, and thereafter one of her children dying, leaving a child, the income goes to her surviving children only; the word “children” not including grandchildren, unless there is something in the will to show that the word is used in the broader sense.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1089-1686; Dec. Dig. § 497.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1115-1141; vol. 8, p. 7601.]</p> <p>3. Wills (§ 497*)—Construction—Beneficiaries—“Children.”</p> <p>By the fifth clause of his will testator gave the residue of his estate to his executors in trust to divide into five equal shares, and pay annually the income, one share to A. (his daughter) or to her children, for „ the “support and maintenance” of herself and children, as the executors may think best; one share to M. (another daughter); one share to each of his daughters B. and S.; and one share to his son I-I. By the sixth clause he provided that the principal of the residue should be divided, 20 years after his death, or on the death of the survivor of B. and S., if before that time, one-fifth to B. and one-fifth to S., or to such person or persons as they shall appoint by will; and, in case one of B. and S. shall decease leaving no lawful issue and no will, then the survivor to receive the share of both; one-fifth to M., if she be living at the date of the division; one-fifth to the child or children of A. living at the time of such division; one half of one-fifth share to H., and to his children, provided such children or B. be living at the time of such division; and the other half of said share to B. and S., share and share alike. By the seventh clause he directed the executors out of the principal of the shares directed to be held in trust for “my children,” in addition to the payment of income provided, to pay each year $1,000 of the principal of said shares to each of “my children.” Held that, in view of the sixth clause naming as beneficiaries of the trust the children of H. and A. living at the time of the final distribution of the estate the word “children” in the seventh clause is used in a broad sense, and includes the children of B. and A., as well as of testator; so that advancements of principal, under the seventh clause, after the deaths of H. and A., go not to their estates, but to those who, as each advancement is made, answer the description of their surviving children.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1080-1086; Dec. Dig. § 497.*]</p> <p>4. Wills (§ 630*)—Construction—Tested Gift.</p> <p>Under the clause of a will giving the residuary estate to the executors in trust, who shall divide it into five equal shares, and shall pay the income annually share and share alike, one share “to my son I-I.,” the bequest of income is a vested gift, which passes to H.’s estate on his death, and is payable to his executors.</p> <p>[Ed. Note.—For other cases, see Wills, 'Cent. Dig. § 1487; Dec. Dig. § 630.*]</p> <p>5. Wills (§ 630*)—Construction—Tested Gifts.</p> <p>Under a will giving property to the executors in trust to pay the income annually, as directed, tñl a certain time, or the happening of a certain event, and at such time or the happening of such event to divide the principal, a certain share to the child or children of A., living at the time of such division, and a certain share to H. and to his children, providing such children or the said H. being living at the time of such division, the gifts of principal are not vested, but H. and any child of him or A. take only in case he or she is living at the time of distribution; and children of a deceased child of A. or I-I. do not take.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1464-1480; Dec. Dig. § 630.*]</p>

<p>In the matter of the application of Sarah G. Fuller and another for the reduction of a paving assessment.</p>

<p>Motion by Augustus Hayman, a judgment debtor, for the vacation of an order appointing a receiver on the application of Louis F. Wilhelm, judgment creditor, and a motion by the latter for an order discharging the receiver and canceling his bond.</p>

<p>Landlord ■ and Tenant (§ 200*)—Tenancies from Month to Month—Creation—Holding Over After Term.</p> <p>Where a tenant holds over after the expiration of his term, the law implies an agreement to hold for. a year upon the terms of the prior lease, if that lease was for a year, so that, where the landlord notified the tenant that after the expiration of his lease the rent would be a larger sum per month, and that the tenancy would be by the month, and the tenant’s secretary stated that the tenant, an association, would meet and leave it to its council to decide, the tenant was liable for rent for the month succeeding the expiration of his former lease, where it held over into such month, though, on being notified on the 1st of the month by the landlord to pay the increased rent, it refused to pay and gave notice that it would vacate; the fact that the tenant was moving out as fast as possible being immaterial, no absolute impossibility for it to have moved before the beginning of the monthly term being shown.</p> <p>[Ed. Note.—Eor other eases, see Landlord and Tenant, Cent. Dig. §§ 794-797; Dec. Dig. § 200.*]</p>

<p>Action by Charles Fryer-and another, executors of Adeline C. Fryer, deceased, against Harry K. Fryer and others, to construe the will of deceased.</p>

Action by the Wilkesbarre Realty Company against Mabel G. Hall. From so much of an order opening her default as makes the deposit of the amount of the judgment a condition for opening the default, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Anna Plater Williams against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. Judgment for plaintiff. From an order granting defendants’ motion for new trial for newly discovered evidence, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Seventh District.</p> <p>Action by Walter J. Blair against the' Brooklyn, Queens County & Suburban Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Appeal and Error (§ 946*)—Discretion of Trial Court.</p> <p>An appellate court will interfere with the rulings of a trial court made within its discretion only when an injustice is done.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. § 3812; Dec. Dig. § 946.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Simon I. Schwartz and another against August Kuhn. From so much of the judgment as dismissed the counterclaim, defendant appeals.</p>

<p>1. Trusts (§ 102*)—Breach of Duty by Guardian—Following Trust Property.</p> <p>Where the guardian of minors, with moneys belonging to them, purchased a residence, taking the title in his own name and that of his wife, the land was charged with a trust in favor of the wards, and the wife’s estate by the entirety, which arose on the death of her husband, was subject to a lien in favor of the minors for the amount owing to them from their guardian, not exceeding the amount of the misappropriation.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 153; Dec. Dig. § 102.*]</p> <p>2. Trusts (§ 356*)—Constructive Trusts—Following Trust Property—Accounting.</p> <p>The wife of a deceased guardian, who purchased land with money belonging to his wards, taking title in the names of himself and wife, is entitled as against the wards to the benefit of payments made by the guardian by which the amount due the wards was reduced to an amount less than the misappropriation.</p> <p>[Ed. Note.—For other cases, see Trusts, Dec. Dig. § 356.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Loda M. Giblyn against Hugo J. Hanf. From a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Third District, for the plaintiff, the defendant appeals.</p>

<p>Discovery (§ 40*)—Grounds.</p> <p>In an action to recover commissions, defendant denied the agreement, and set up payment and money loaned as a separate defense and counterclaim, which counterclaim was denied by plaintiff in his reply. Held, that defendant was not entitled to an order directing plaintiff to appear before trial for examination, on the ground that he was ignorant of the agreement set forth in- the complaint</p> <p>z</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 52-53; Dec. Dig. § 40.*]</p>

Action by Joseph Edelson against Thomas Monahan. From an order setting aside a verdict for plaintiff and ordering a new trial, he appeals.

<p>Action by Melville Farrar against Avery W. Kingsley and others for an accounting and dissolution of a copartnership.</p>

Action by the J. N. Matthews Company against the City of Buffalo and others to restrain defendants shutting off plaintiff’s water supply.

<p>1. Contracts (§ 305*)—Time foe Performance—Waiver.</p> <p>Even if time for performance was of the essence of an architect’s contract to furnish plans, the owner waived nonperformance within the time-fixed by not claiming a rescission and by thereafter continuing negotiations.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1398, 1399,. 1467-1475; Dec. Dig. § 305.*]</p> <p>2. Customs and Usages (§ 10*j—Architects—Evidence.</p> <p>One sued for architect’s services, and defending because complete plans-were not furnished, could show a general custom, known to- the architect when the contract was made, to furnish copies of the plans and specifications for use by bidding contractors.</p> <p>[Ed. Note.—For other cases, see Customs and Usages, Cent. Dig. §§ 11— .39; Dec. Dig. § 10.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Sadie Riesenberg against Joseph D. Goldstein. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Jacob Weinstein and another against Harry Davis. From - an order setting aside a verdict, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough, of Manhattan, Ninth District.</p> <p>Action by James T. White & Co. against Albert H. Marckwald. From a judgment for defendant, plaintiff appeals.</p>

<p>Bruns and Notes (§ 256*)—Liability of Indorser—Discharge.</p> <p>Where the notes on which defendant is sued as indorser were given with others by, the same makers and indorsed by the defendant, and all delivered to the plaintiff with a chattel mortgage by the makers of the note as collateral security, and subsequently an action was commenced against the makers of the notes and á purchaser of the chattels to foreclose the mortgage, which action was settled and discontinued, and the plaintiff received a sum of money in settlement, defendant was released from liability on his indorsement.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 587; Dec. Dig. § 256.*]</p>

<p>Contracts (§ 28*)—Existence op Agreement—Evidence.</p> <p>Plaintiff’s secretary, being called to do certain work, was told to call up defendant, which he did, and was told by him to go ahead with the ' work, and that defendant would send a written authorization to do the same the next day. The following day plaintiff received certain letters confirming the conversation and authorizing the work. At the trial plaintiff’s secretary testified that defendant admitted that he had signed the letters, and they were introduced in evidence. After the work was completed, plaintiff’s secretary called on defendant, demanded payment, and was referred to defendant’s manager, who referred him back to defendant. Defendant agreed to pay, but wanted time. Held to establish a prima facie case of defendant’s liability.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 133-144, 1782-1784; Dec. Dig. § 28.*]</p>

<p>Sales (§ 164*)—Performance op Contract.</p> <p>Where, though 1,275 feet of lumber were delivered to the purchaser, ■ he only ordered 1,000 feet, he was not liable for the price of the excess, if he refused to retain it.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 386-390; Dec. Dig. § 164.*]</p>

<p>1. Courts (§ 189*)—Municipal Courts—Affidavit of Real Controversy-Stipulation.</p> <p>Where a stipulation of facts was not accompanied by an affidavit that the controversy was real, etc., as required by Municipal Court Act (Laws-1902, e. 580) § 241, a justice had no authority to entertain or act upon it.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p> <p>2. Courts (§ 189*)—Municipal Courts—Judgment—Dismissal.</p> <p>Where the judge of the Municipal Court on the return day had no jurisdiction to render a judgment on the merits by reason of a defective stipulation of facts, a judgment rendered against plaintiff by default would be deemed a judgment of dismissal, which plaintiff was entitled to have set aside for cause.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p> <p>3. Courts (§ 190*)—Municipal Courts—Appeal from Order Opening Default.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 257, relating to appeals from that court, an order opening a default is not appealable.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>1. Principal and Agent (§ 124*)—Agent’s Authority—Juey Questions.</p> <p>. In an action by an employer to recover the amount of his check given . by his employs to defendant in discharge of the employe’s debt to defendant, held,,- under the evideuce, jury questions whether the employs was an authorized general agent, and acting as such in incurring such debt, and whether defendant knew that the employs was fraudulently using the check to pay his own debt, making it error to direct a verdict for plaintiff.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent Dig. § 724; Dec. Dig. § 124.*]</p> <p>2. Principal and Agent (§ 119*)—Authority of Agent—Burden of Proof.</p> <p>An employer, suing for the amount of his check given by his employe, had the burden of showing that the check was used for an unauthorized purpose.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent Dig. §§ 301-401; Dec. Dig. § 119.*] .</p>

<p>Insurance (§ 665*)—Burglary Insurance—Action on Policy—Sufficiency of .Evidence.</p> <p>In an action on a policy insuring plaintiff against loss of an earring from burglary, theft, or larceny, evidence held not to prove larceny of the. earring, but, at most, only the loss thereof.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 665.*]</p>

<p>Judgment (§ 161*)—Default—Motion to Vacate—Proposed Answer.</p> <p>A motion to open a default, which occurred before joinder of issue, must be accompanied by a copy of the proposed answer.</p> <p>- [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 317, 31S; Dec. Dig. § 161.*]</p>

<p>JL Discovert (§ 32*)—Application by Plaintiff—Defensive Matter.</p> <p>As a general rule, the examination of defendants before trial is only in cases where they have denied some material allegations of the complaint.</p> <p>[Ed. Note.—For other cases, see Discovery, Dec. Dig. § 32.*] -</p> <p>2. Discovery (§ 40*)—Subject-Matter of Examination—Facts Supporting Causes of Action.</p> <p>Where action is brought to recover for an injury caused to the plaintiffs’ delivery wagon by a collision with an automobile, alleged to be owned by the defendant and to have been o'perated by his servant, and defendant’s answer denies every allegation of the complaint concerning the ownership and operation of the automobile, plaintiffs are entitled to an examination of the defendant before trial on these issues.</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig.1 § 53; Dec. Dig. § 40.*]</p>

<p>Sales (§ 391*)—Rescission by Buyer—Recovery oe Earnest Money.</p> <p>A purchaser, who defaults in his contract to buy a bakery, cannot recover back earnest money, less the damages of the seller; but the default acts as a forfeiture of a partial payment.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1127; Dec. Dig. §• 391.*]</p>

<p>Sales (§ 359*)—Action fob Pbice—Evidence.</p> <p>In an action for the price of certain clothes, evidence held to sustain judgment for plaintiff.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1056; Dec. Dig. & 359.'*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Illinois Surety Company against George Hildebrand. From a judgment for plaintiff upon a directed verdict, the defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Isadore Nagler and another against Alfred D. L’Esperance, impleaded with another. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Judgment (§ 949*)—Res Judicata—Allegations—Sufficiency.</p> <p>In an action for eviction from leased premises in violation of an option for an extension of which defendants had notice at the time of their purchase, the allegations of the answer that judgment was rendered against defendants in favor of plaintiff in two former actions to recover certain sums of money, which actions “arose out of the same contract for breach of which this action is brought,” do not show that the matter involved has already been adjudicated, and hence state no defense.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1799; Dec. Dig. § 949.*]</p> <p>2. Judgment (§ 601*)—Successive Actions.</p> <p>Unless the matter involved was adjudicated in a former action, several successive actions may be brought upon the same contract.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1116; Dec. Dig. § 601.*]</p> <p>3. Judgment (§ 592*)—Bar to Action—Ground fob Adjudication.</p> <p>Where plaintiff has split up demands which were in existence and ought to have been sued for at the same time, a former judgment is a bar to a subsequent action.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1107; Dec. Dig. § 592.*]</p> <p>Gavegan, J., dissenting.</p>

Action by Barnet Simon and another against Samuel Levinson and another. From a judgment for plaintiffs on a directed verdict, defendants appeal.

<p>Municipal Corporations (§ 705*)—Negligence in Use of Street—Contributory Negligence.</p> <p>A pedestrian, Injured in the daytime by an automobile, which suddenly moved backward without warning, was not guilty of contributory negligence in attempting to cross the street back of the standing machine, especially where other people directly ahead of him had crossed in safety.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 705.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Rose Brinkman against the Borden’s Condensed Milk Company. From an order of the City Court of the City of New York, •denying a motion to stay proceedings until payment by plaintiff of the cost of a prior action, defendant appeals.</p>

<p>. Appeal from City Court of New York, Trial Term.</p> <p>Action by. Will L. Greenbaum against The Girl from Rector’s Company. From a judgment for plaintiff, and from an order refusing a new trial, defendant appeals.</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 in favor of plaintiff, defendant appeals.</p>

Action by Michael Lessler and another, individually and as copartners, trading as M. Lessler & Co., against Paul Gerli. From a judgment for defendant, after trial by the court without a jury, plaintiffs, appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Abraham Suchova'sky against the City of New York. From a judgment for plaintiff, defendant appeals.</p>

Summary proceedings by Pierre E. Siegelstein, as landlord, for the removal of Morris Auslander, as tenant. From a final order awarding to the landlord possession of the premises described in the petition, the tenant appeals.

Action by Louis Mann against Fredericka Maurel; first name being fictitious, and otherwise known as Fred De Grezac. From a judgment for plaintiff, defendant appeals.

Action by the Royal Bank of New York against Joseph H. Reinschreiber, impleaded with others. From a judgment for the mentioned defendant and an order denying a new trial, plaintiff appeals.

<p>William Baldwin was indicted for rape. On motion to dismiss.</p>

<p>Appeal from Trial Term, Albany County.</p> <p>Action by Annie Gutekunst and another against the Municipal Gas Company of the City of Albany. From a judgment for plaintiffs, defendant appeals.</p>

Herbert M. Whiting was indicted, a demurrer to the indictment was sustained, and the court directed a resubmission to another grand jury, in Orleans county. Motion to vacate an order modifying the order directing the resubmission, and for an order setting aside the indictment, and for an order refunding to accused the cash bail, was-made at Special Term in Erie county.

<p>1. Judgment (§ 135*)—Motion to Set Aside—Nature of Remedy—Appeal.</p> <p>A preliminary injunction having been vacated, and an appeal taken which stayed all the defendants except the G. corporation, the case was moved on the day calendar by the, corporation, and, when reached for trial, plaintiff’s attorney appeared and applied for postponement on the ground that the stay applied to all of the defendants. The postponement was denied, and the attorney left the courtroom, and, when the case was called, a default judgment of dismissal was taken by the corporation defendant. Melé, that a motion to vacate the default judgment was not proper, as the question whether the stay applied to the corporation defendant was one of law, reviewable only on appeal.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 135.*]</p> <p>2. Judgment (§ 135*)—Vacation—Nature of Remedy.</p> <p>Further grounds for such motion to vacate that the presiding justice should) not try the case because he had expressed an opinion on the merits, and because counsel who applied for the postponement had an engagement in another cause at the time set for trial were matters of discretion reviewable only by the judge who entered the dismissal or on appeal, and hence were not available on motion to vacate directed to another justice.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 135.*]</p>

<p>1. Venue (§ 82*)—Change of Venue—Grounds.</p> <p>If, after the granting of a motion to change the place of trial of a libel1 action to the county of defendant’s residence, defendant so conducted -■ its paper as to prejudice the people of the county, so as to make it impossible for plaintiff to secure a fair trial, the court would have power to change the place of trial to another county.</p> <p>[Ed. Note.—For other cases, see Venue, Cent. Dig. § 144; Dec. Dig;. § 82.*]</p> <p>2. Libel and Slander (§ 75*)—Action—Venue.</p> <p>Where the alleged libelous articles were published in C. county, andi nearly everything complained of by plaintiff took place therein, the action should be tried there.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 180;. Dec. Dig. § 75.*]</p>

<p>1. Appeal and Error (§ 220*)—Presentation of Questions Below—Report of Referee—Requisites.</p> <p>The report of a referee need not for purposes of appeal include findings made by him at the request of a party.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1825; Dec. Dig. § 220.*]</p> <p>2. Mechanics’ Liens (§ 285*)—Reference—Recommittai>-Grounds.</p> <p>Where, in a suit to foreclose a mechanic’s lien, plaintiff conceded before the referee that the amount due a lien claimant was a specified sum, he was not entitled to a rereference on the ground that an inspection of the buildings made since the report of the referee showed that the amount claimed by the lien claimant was excessive for the work done and materials furnished, in the absence of any excuse as to why the discovery was not made before the close of the hearing, because the evidence was available at the time of the hearing.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. § 576; Dec. Dig. § 285.*]</p> <p>3. Mechanics’ Liens (§ 26*)—“Contract for Improvement of Real Estate” —Statutes—1 ‘Contractor’ ’—“Materialman”—“Improvement.”</p> <p>Under Lien Law (Consol. Laws, c. 33) § 2, defining a contractor as one entering into a contract with the owner of real property for the improvement thereof, and defining a materialman as any person other than the contractor furnishing materials for such improvement, and defining the term “improvement” as including the erection, alteration, or repair of any structure on real estate, and any work done on the property or materials furnished for its improvement, a contract requiring one to furnish all the window frames, sash, glass, and trim in and to buildings in course of construction for a lump sum, payable in installments as the work progressed, and requiring him to make a large part of the materials according to plans, is a contract for the permanent improvement of real estate within the lien law, and he is entitled to a lien for the materials furnished and work done.</p> <p>[Ed. Note.—For other eases, see Mechanics’ Liens, Cent. Dig. §§ 27-29; Dec. Dig. § 26.*</p> <p>For other definitions, see Words and Phrases,. vol. 2, pp. 1513-1530; vol. 8, pp. 7615-7616; vol. 2, pp. 1534-1537; vol. 8, p. 7616; vol. 4, pp. 3454-3459; vol. 8, pp. 7682-7683; vol. 5, p. 4409; vol. 8, p. 7718.]</p> <p>4. Mechanics’ Liens (§ 195*)—Priority.</p> <p>The order of filing liens under the lien law (Consol. Laws, e. 33) governs in determining the priority between lien claimants.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. § 336; Dec. Dig. § 195.*]</p> <p>The following is the opinion of Forrest S. Chilton, referee:</p> <p>This is a reference to determine the priority of mechanics’ liens between plaintiff and defendant Shelvin Contracting Company. The property has been sold for less than $2,000, pursuant to judgment in this action. Plaintiff has a valid lien for $2,000 for trim and window frames^ sash, and glass, and casings and moldings. The Shelvin Contracting Company has a valid lien for $860 for plumbing materials and the labor installing the same. Shelvin Contracting Company filed its lien first. Plaintiff claims priority as a materialman over the Shelvin Contracting Company as a contractor, under section 56 of the lien law (Consol. Laws, c. 33). The Shelvin Contracting Company’s materials and labor were furnished and performed pursuant to an oral contract with the owner to furnish the same in accordance with a model house inspected. Plaintiff’s materials were furnished by it as assignee of and pursuant to a written contract between its assignors, Berman & Jacobs, contractors, and the, Gaul Construction Company, the owner. Disregarding the contradictions in the contract attributable to the using of a printed form and to negligence in its preparation, and interpreting it in the light of its subsequent performance, the clauses material here are:</p> <p>“The contractor (Berman & Jacobs) shall and will provide all the materials and furnish all the window frames, sash, glass and trim in and to premises consisting of five buildings now in course of construction, situate on the northerly side of 73rd street, two hundred and twenty (220) feet northwesterly of Eleventh Ave., borough of Brooklyn, N. Y. City, according to plans and specifications, excepting in the following instances: Pannels and wainscotting in vestibules to be 5 feet high, one dresser in each apartment, collumns and grills in openings, between parlors and dinning rooms. Base for parlor and dinning rooms to be 14 inches high and made in three members. Dinning rooms to have Dutch pannels and strips. Above all doors and windows there is to be cap and head.”</p> <p>“It is hereby mutually agreed between the parties hereto that that sum to be paid by the owner to the contractor for said materials shall be the sum of thirty-two hundred ($3200) dollars, subject to additions and deductions as hereinafter provided, and such sums shall be paid by the owner to the contractor in current funds and only upon certificate of the architect as follows:</p> <p>“ $150 when all the window frames are delivered and buildings are enclosed.</p> <p>“$1,000 when the standing trim is set and sash is hung.</p> <p>“$1,000 when closets, doors and dressers are set and hung and when all the work and materials under this contract is entirely complete except the vestibules.</p> <p>“$1,050 being $525 in cash and $525 in a 60 days note when the buildings are completed.”</p> <p>From the whole contract and from the manner it was performed it is clear that plaintiff assignor did not agree to install the material. The question is therefore squarely presented as to whether or not this fact ipso facto makes plaintiff a materialman. Section 56 of the lien law clearly prefers the claim of a materialman over a contractor. But what is a materialman and what is a contractor within the meaning of lien law. The lien law (section 2) provides: “The term ‘contractor’ when used in this chapter means a person who enters into a contract with the owner of real property for the improvement thereof.” “The term ‘materialman’ when used in this chapter means any person, other than a contractor, who furnished materials for such improvement.” If the word “improvement” as used in the definition of contractor is to be taken only in its natural and logical meaning, no contract to furnish materials without an agreement to install them would constitute a contract for improvement, and make the party who agreed to furnish the same a contractor within the meaning of the lien law. Materials delivered would not improve the premises. That would require their actual installment. To cover the land up with the loose materials admittedly could not permanently improve the premises as one would understand that expression—i. e., the statute did not define “improvement.” However, the word “improvement,” as used in the lien law, has an additional and special meaning by force of the special definition in section 2 of the lien law, which provides: “Improvement: The term ‘improvement’ when used in this chapter, includes the erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement.” The phrase “or materials furnished for its. permanent improvement” cannot be ignored. It plainly says “improvement” when used in this chapter includes materials furnished for permanent improvement. In this special meaning installing by the party furnishing is not essential. The material having been actually used in the structures, the party who simply furnished it has within this special meaning improved the property. Á contract with an owner to furnish materials to be used in constructing structures on the owner’s premises must either be a simple contract of sale and delivery or a contract for the improvement of.the premises. -Of course, if the contract contained an agreement .by the contractor to install his materials, that would be a contract to improve-within the natural as well as the statutory meaning of that word. If the contract does not contain an agreement by the contractor to install his materials, then it might be either a contract for sale and delivery or a contract for improvement with the statutory meaning of “improvement,” although not within its natural meaning.</p> <p>Let us now see whether the contract in question is a contract for sale and delivery or a contract for improvement within this special meaning of “improvement.” In substance, it provides that plaintiff’s assignor should furnish all the window frames, sash, glass, and trim “in and to” premises consisting of five buildings then in course of construction for the lump sum of $3,200, payable in definite installments as the work progressed. A large part of these materials had to be specially made up for this particular set of buildings. Everything was to be according to plans and specifications except certain definite changes. The contractor had to furnish all the materials needed to complete the buildings. If the owner had used any of the materials so furnished and delivered for any purpose other than in the construction of these houses, it Would have been conversion by him of materials belonging to plaintiff. After materials had been delivered, but before they were installed, plaintiff could have taken them away. The owner could not object. Plaintiff was simply to furnish sufficient material when required. If he delivered an excess, it was still his, and he could take it away. Until installment fire losses would be on the plaintiff. I cannot see the first element of sale and delivery here. It is clearly a contract for the improvement of real property within the meaning of the lien law.</p> <p>The foregoing views are consistent with Herrmann & Grace v. City of New York, 130 App. Div. 531, 114 N. Y. Supp. 1107, and Hedden Construction Company v. Proctor & Gamble Co., 62 Mise. Rep. 129, 114 N. Y. Supp. 1103. They do not conflict with Jackson v. Egan, 138 App. I>iv. 505, 123 N. Y. Supp. 297, as I understand that case. In the Jackson Case the court said: “If the person who furnishes material also agrees with the owner of the real property to use that particular material in the erection of any structure upon it, he ceases to be simply a materialman, and becomes a contractor. We do not claim that this exhaustively points out the difference between these two-classes, but it is sufficient for the purpose of this case.”</p> <p>Of course, as said before, a contract to furnish and install particular material would be a contract -to improve even within the natural and logical meaning of “improvement” without any reference to its statutorily extended or additional meaning. But that case does not decide that “improvement” has no such additional signification, nor that under all circumstances a contract with the owner to furnish materials must contain an agreement by the contractor to use that particular material in the erection of some structures upon the premises before it can become a contract within the special meaning of the lien law. Such is not the law, and the Appellate Division did not so decide. They decided in effect that De Long’s contract did not involve an agreement to improve, but simply a contract for sale and delivery. That case is close to the case in hand, but I do not consider it controlling. This view allows a decision in accordance with the justice of the case. Both parties are contractors within the lien law. The order of filing must govern. Shelvin Contracting Company’s claim of $860 has priority over claim of plaintiff.</p>

<p>Action by William Albrecht, as administrator, etc., against the Rochester, Syracuse & Eastern Railroad Company.</p>

<p>Action by Willard S. Allen against Addie Fromme, as executrix.</p>

<p>In the matter of the probate of the alleged last will and testament of Charles Dean Baldwin, deceased.</p>

<p>Appeal from Municipal Court, Borough (Of Manhattan, Fifth District. Action by Clare I Baker against the Consolidated Gas Company. 'From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>In the matter of the probate of the last will and testament of Harriette C. Armstrong, deceased.</p>

<p>In the matter of the application and petition of John A. Bensel and others, constituting the Board of Water Supply of the City of New York, to acquire real estate for' and on behalf of the city of New York, under chapter 724 of the Laws of 1905 and the acts amendatory thereof, in the towns of Olive, Marbletown, and Hurley, Ulster county, N. Y., for the purpose of providing an additional supply of pure and wholesome water for the use of the city of New York.</p>

<p>Action toy John J. Casey, as administrator, against the Davis & Furber Machine Company.</p>

<p>In the matter of the application of the City of New York to acquire certain real estate at Valley Stream, Lynnbrook, etc., in the county of Nassau, for the purposes of water supply, etc.</p>

<p>Action by the City of Geneva against Robert W. Henson and others.</p>

<p>Action by Harrison K. Cole against Victor R. Slate and another.</p>

<p>Action by Delia Dolan, as administratrix, etc., of Michael Dolan, deceased, against ; the Hudson & Manhattan Railroad Company.</p>

<p>Action by the Etc- z port Trucking Company against G. W. Sliel- j don & Co.</p>

<p>Action by Annie M. Fitzgerald against the City of New York.</p>

<p>Action by Jacob J. Friedman against the James F. Scholes Company.</p>

<p>Action by Robert B. Gaskell against Charles H. Nolte.</p>

<p>In the matter of T. B. S. Gray. With thi^ case has' been consolidated in this court cases bearing titles as follows: In re Mott Haven Co.; In re W. W. Astor; In re E. O. Hams-burg; In re B. A. Morrison; In re E. E. De Vinne; In re M. Geisxler.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Samuel Goldstein against Abraham Kaminsky. Judgment of dismissal, and plaintiff appeals. Reversed, and new trial ordered.</p>

In the matter of the petition of Ella F. Haring, for the appointment of commissioners to assess the damage to her property, etc.

<p>In the matter of the judicial settlement of the account of Margaret N. Harteau, Eugene H. Winslow, and Julian D. Fair-child, as trustees, etc., of Henry Harteau, deceased.</p>

<p>Action by Jos- ■ eph W. Jacobs against Henry B. Sire.</p>

<p>In the matter of the application of the Jackson Steinway Company, for a peremptory writ of mandamus, etc., for opening Fourteenth avenue, etc.</p>

<p>Action by Johanna Kenney against the South Shore Natural Gas & Fuel Company, George Clinton, as trustee, etc., and William E. Carroll, as receiver, etc.</p>

<p>Action by Frank ICiernan against Albert H. Dollard and another.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Julius G. ICremer, as trustee in bankruptcy of Gabriel Marks and anoth- \ er, against Louis Haas. From a Municipal ) Court judgment in favor of defendant, plaintiff ( appeals. Reversed, and judgment ordered for j plaintiff. See, also, 123 N. Y. Supp. 975.</p>

<p>Appeal from Municipal ¡Court, Borough of Manhattan, Second District. Action by Thomas J. McGrath and another (against the Rudolph Wurlitzer Company. From 'a judgment in favor of plaintiffs, defendant appeals. Reversed.</p>

<p>-Action by Constantine J. McGuire against MarIgaret B. Hughes.</p>

<p>Action by Daniel T. Merritt and others against Blary Belluscio.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Harris Nitzberg against Otto H. Droege. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Otto H. Droege in pro. per.</p>

<p>Proceeding by , the People of the State of New York against</p>

<p>Proceeding by the People of the State of New York against the McDermott Dairy Company.</p>

<p>Proceeding by the People of j the State of New York, on the relation of .Sam- , uel D. Isaacson, against John J. Fallon, War-, i den of the City Prison, etc.</p>

<p>Action by Robert K. Richards, individually and as executor, etc., Mary W. Richards, and Sarah E. Richards, individually and as executrix, etc., of Mary W.- Richards, deceased, against the Citizens’ Water Supply Company of Newtown and another.</p>

<p>Action by Emma Seaman and others against Edward R. McLaury, as executor, etc., and others.</p>

<p>Appeal from- Trial Term, New York County. Action by the Sontheimer Embroidery Manufacturing Company against Bertha Maier. Judgment for plaintiff. Defendant appeals. Affirmed.</p>

<p>Action by Winfield S. Taylor and another against Bernard F. Guinan.</p>

<p>Action by Eugene E. I Stokes against the Barber Asphalt Paving Company.</p>

<p>In the matter of the application of the Steinway Park Realty Company for a peremptory writ of (mandamus, etc., for opening Ditmars avenue, 'etc.</p>

<p>Action by Bant Tishman against Becky Leben- f diger. j</p>

<p>Action by the Thrall Hospital against Cecelia T. Caren.</p>

<p>Action by Frank B. Townsend against Ezekiel C. Perry and others.</p>

<p>Appeal from City Court of New York. Action by Mary L. Tilden against Andrew S. Brownell, President of the New York Realty Owners Company. From a certain order, both parties appeal. Portion of order appealed from by plaintiff affirmed. Portion of order appealed from by defendant modified and affirmed. 'See, also, 136 App. Div. 941, 121 N. Y. Supp. 1149.</p>

<p>Actions by the Village of Haverstraw against J. Esler Eckerson and others.</p>

<p>Action by the Wading River Realty Company against Gilbert E. Loper.</p>

<p>Action by Louis White against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Hattie Wingersky against the United States Grand Lodge Independent Order Free Sons of Israel.</p>

<p>Action by Mary V. M. Zint against Cornelius Mulligan and others, as executors, etc.</p>

<p>Action by Warren S. H. Wright against Edward P. Wright.</p>