Volume 127 — New York Supplement

<p>Appeal from Kings County Court.</p> <p>Action by Henry Hack against Michael J. Dady. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.</p>

<p>Eminent Domain (§ 153*)—Damages—Persons Entitled.</p> <p>Where, after a city had acquired title to land in the bed of a street, a deed was given with full covenant of warranty which included the street in question “subject to any rights” that the city or the public might have in any streets or avenues, the conveyance passed to the grantee the right to the award afterwards made for the bed of such part of the street.</p> <p>[Ed. Note.-—For other cases, see Eminent Domain, Cent. Dig. § 410; Dec. Dig. § 153.*]</p>

<p>Appeal from Special Term.</p> <p>Certiorari by the People, on the relation of John L. Nellis, against Maynard N. Clement, as State Commissioner of Excise, and another. From a certain order and determination in favor of relator, respondents appeal.</p>

<p>Appeal from Special Term.</p> <p>Certiorari by the People, on the relation of Peter F. Brady, against May-N. dement, State Commissioner of Excise, and another. From a certain order and determination in favor of relator, respondents appeal.</p>

<p>1. Principal and Agent (§ 23*)—Agency—Evidence.</p> <p>Defendant, being engaged to marry F., purchased a bouse in August, 1907, gave her the key, and she contracted with plaintiff to paint and decorate the same. Held, to warrant a finding that she was authorized by defendant to make the contract.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.*]</p> <p>2. Contracts (§ 303*)—Breach—Defenses.</p> <p>Plaintiff, having contracted to paint and decorate a house with paper worth $1 a roll, was subsequently discharged because defendant’s fiancée found a special shade of paper for one room which the dealer would not sell plaintiff, and which was worth $2.50 a roll. Held, that such fact furnished no reason or excuse for defendant’s breach of contract, and rendered him liable for plaintiff’s damages sustained thereby.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 303.*]</p> <p>3. Evidence (§ 377*)—Time Sheet—Proof.</p> <p>Where, in an action for breach of a decorating contract, plaintiff’s foreman superintended the job and knew the time of his men, and he identified the time sheets handed him by each workman engaged on the work, and each sheet, after being approved by him as foreman, formed the basis of plaintiff’s regular pay roll, the foreman’s testimony that the sheets showed the correct time of the artisans working on the job authorized their admission in evidence, without being identified and proved by the artisans themselves.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1647; Dec. Dig.</p> <p>§ 377.*]</p> <p>4. Damages (§ 40*)—Breach of Contract—Subject-Matter—Profits.</p> <p>In an action for breach of a decorating contract, a contractor was not limited to a recovery of payments made by him, but was entitled to recover in addition a profit on both the work and materials he used and would have used, had he been permitted to complete the job.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 72-88; Dec.</p> <p>Dig. § 40.*]</p>

<p>1. Covenants (§ 5*)—Building Restriction Agreements—Validity—“Owners m FEe Simple.”</p> <p>A building restriction agreement executed by persons who are “owners in fee simple” is valid, though not signed by the wife of one of the owners, and, where he and the wife subsequently executed a conveyance to a third person subject to the agreement, the property was subject to the agreement; the quoted words only meaning that the fee simple of the property was vested in the parties to the agreement.</p> <p>[Ed. Note.—For other cases,. see Covenants, Cent. Dig. §§ 3, 4; Dec. Dig. § 5.*]</p> <p>2. Principal and Agent (§ 164*)— Act of Agent — Ratification by Principal.</p> <p>An owner may ratify the execution of a building restriction agreement by his attorney, and convey 'the property subject to the restriction.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 622-625; Dec. Dig. § 164.*]</p> <p>3. Acknowledgment (§ 36*)—Requisites—Contents of Certificate.</p> <p>Under 1 Rev. St. (1st Ed.) pt. 2, c. 3, tit. 5, §§ 9, 15, providing that no acknowledgment of any conveyance shall be taken by any officer unless he shall know or have satisfactory evidence that the person making the acknowledgment is the individual described in the conveyance, and an officer taking the acknowledgment shall indorse a certificate thereof signed by himself, setting forth the matters required to be done, known, or proved, an officer taking the acknowledgment of an instrument executed by an attorney need not certify that he knew that the attorney was the attorney, or that the power of attorney was exhibited and known to him.</p> <p>[Ed. Note.—For other cases, see Acknowledgment, Cent. Dig. §§ 188-191; Dec. Dig. § 36.*]</p> <p>4. Principal and Agent (§ 19*)—Execution of Instrument by Attorney-Power of Attorney—Presumptions.</p> <p>The execution of a valid power of attorney will be presumed in favor of an ancient deed purporting to be executed by attorney.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 36; Dec. Dig. § 19.*]</p> <p>5. Property (§ 4*)—Conveyances—Interest in Land.</p> <p>A building restriction agreement is a conveyance of an interest in land.</p> <p>[Ed. Note.—For other eases, see Property, Cent. Dig. §§ 4-6; Dec. Dig. § 4.*]</p> <p>6. Evidence (§ 372*)—Ancient Instruments.</p> <p>A building restriction agreement more than 30 years old is an ancient deed, and a certified copy of the agreement is admissible in evidence.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. § 372.*]</p> <p>7. Principal and Agent (§ 19*)—Act of Agent—Ratification.</p> <p>That a power of attorney, authorizing one to execute for the owner a building restriction agreement, existed may be presumed from the fact that the owner in a subsequent conveyance to a third person acknowledged that the land was subject to the agreement.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 36; Dec. Dig. § 19.*]</p> <p>8. Principal and Agent (§ 175*)—Act of Agent—Ratification.</p> <p>An owner conveying land subject to a building restriction agreement executed by an attorney thereby ratifies the execution of the agreement relating back to the date of the agreement, and the agreement is as effectual as if original authority to execute it had been given.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent.- Dig. §§ 662-668; Dec. Dig. § 175.*]</p> <p>9. Covenants (§ 69*)—Building Restrictions—Conveyances.</p> <p>Where a conveyance of land to a grantee and subsequent conveyances were made subject to the covenants of a building restriction agreement, the property was charged in the hands of the subsequent owners, and they were estopped from denying the validity of the agreement.</p> <p>[Ed. Note.—For other cases, see Covenants, Cent. Dig. §§ 67-69; Dec. Dig. § 69.*]</p> <p>10. Municipal Corporations (§ 225*)—Conveyances—Property Conveyed— Exhibits.</p> <p>Where a deed by a city referred to a map of the common lands of the city filed in the city clerk’s office, and to a particular survey annexed to the deed, it must be presumed to determine the land conveyed that the survey was a copy of the larger map of the common lands of the city so far as it -related to the property conveyed, constituting a part of the common lands.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 639; Dec. Dig. § 225.*]</p> <p>11. Municipal Corporations (§ 225*)—Conveyances—Property Conveyed— Exhibits.</p> <p>Where a purchaser of lots of the common lands of a city at a sale in June, 1789, pursuant to a resolution of the council providing that a map of the lands to be sold should be exhibited at a designated place before the sale for examination by intending purchasers, obtained a deed in 1799, referring to a survey annexed to the deed and to a map of the common lands filed in the city clerk’s office, and the deed was executed pursuant to a sale completed in 1789, it must be presumed to determine the land conveyed that the survey attached to the deed was a copy of the map exhibited at the designated place before the sale, and not to a copy of a map made subsequent to the purchase.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 639; Dec. Dig. § 225.*]</p> <p>12. Boundaries (§ 48*)—Establishment by Recognition.</p> <p>Wkere a city discontinuing a road intended to devest itself of all the title thereto and to vest the same in the adjacent owners, and the titles of subsequent purchasers rested on the conveyances by the city, and for upwards of 60 years no one had questioned the validity of the conveyances as conveying the entire road, the conveyances and acts in reliance thereon settled the boundary lines, and the location was conclusive on persons holding under subsequent conveyances.</p> <p>[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 232-242; Dec. Dig. § -48.*]</p> <p>13. Estoppel (§ 35*)—By Deed—After-Acquired Title.</p> <p>The deed of a party purporting to convey land to which he has no title operates by way of estoppel on his subsequently acquiring title to the land.</p> <p>[Ed. Note.—For other cases, see Estoppel, Cent. Dig. § 84; Dec. Dig. § 35.*]</p> <p>14. Estoppel (§ 37*)—Building Restrictions—Lands Included.</p> <p>. Where a building restriction executed by owners in fee simple was executed by persons, none of whom owned a designated lot, and there was nothing to show an intention that such lot should be subject to the agreement, the fact that a party thereto subsequently acquired a fee-simple title to such lot did not under the theory of estoppel make such lot subject to the agreement.</p> <p>[Ed. Note.—For other cases, see Estoppel, Cent. Dig. §§ 91-98; Dec. Dig. § 37.*]</p> <p>15. Injunction (§ 62*)—Building Restrictions—Remedy at Law.</p> <p>Defendant owning land about one-fourth of which in area was subject to building restrictions proposed to erect such a building over the whole land as would violate the restriction, plaintiff owning land subject to the restriction would suffer precisely the same annoyances from the erection and occupancy of the building on defendant’s land as she would suffer if it was built only on the part of the land not subject to the restriction. Held, that plaintiff was not entitled to relief in equity, but she must resort to an action at law for damages.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 124^-127, 129; Dec. Dig. § 62.*]</p> <p>16. Covenants (§ 72*)—Building Restriction Agreements — Discharge of Covenant.</p> <p>That the property subject to a restriction agreement abutted on other property not restricted so as to impair the beneficial character of the covenant did not justify the owners of the property restricted in violating the restriction covenants controlling all the property included within the area restricted.</p> <p>[Ed. Note.—For other cases, see Covenants, Cent. Dig. § 73; Dec. Dig. § 72.*]</p>

<p>Appeal from Special Term, Erie County.</p> <p>In the matter of the triennial election of the Catholic Relief & Beneficiary Association. From an order of the Supreme Court, Thomas J. O’Donnell and another appeal adversely to Thomas H. O’Neil and others. Modified and affirmed.</p> <p>Appeal by the petitioners, Thomas J. O’Donnell individually and as Grand President of the Grand Council of the State of New York of the Catholic Relief & Beneficiary Association, and by Thomas F. Moran, from an order of the Supreme Court made at the Erie Special Term, and entered in the office of the clerk of the county of Erie on the 25th day of Eebruary, 1910, confirming the election of officers of said association at the triennial session of the Supreme Council thereof held at Scranton, Pa., September 29 and 80, 1908, and further declaring certain amendments to the constitution of said association adopted at said session to have been duly and legally adopted and promulgated, and that the same thereby became laws of said association.</p> <p>The notice of motion and petition in which this proceeding had its inception are, respectively, dated and verified May 27, 1909. As stated in the petition, application was thereby made to the court pursuant to section 27 of the general corporation law, to wit, chapter 687 of the Daws of 1892, that it inquire into the matter and causes of complaint set forth in the petition as required by said section of the general corporation law, and set aside the election of said association held at the time above set forth and order a new election for officers thereof, and restore and reinstate the Grand Council of the said association to all their rights under the constitution of said association and ■grant such other, or further, order or relief as right and justice may require. The association and Thomas H. O’Neil, individually and as Supreme President of the association, answered the petition. On the hearing appellant Thomas F. Moran was permitted to intervene as a petitioner in said proceeding. The proceeding has been considered as brought pursuant to section 32 of the general corporation law (chapter 23 of the Consolidated Daws, being chapter 28 of Daws of 1909). This section is a re-enactment of section 27 of the general corporation law referred to in the petition.</p> <p>The facts were stipulated on the hearing.</p>

<p>Action by Henrietta Simon against Cora L. Burgess andl others. Complaint ordered dismissed.</p>

<p>1. Dismissal and Nonsuit (§ 58*)—Misjoinder of Plaintiffs—Waiver.</p> <p>Under Code Civ. Proc. § 499, providing that objections to a complaint not taken by demurrer or answer are waived, any misjoinder of plain- • tiffs cannot be raised by motion to dismiss.</p> <p>[Ed. Note,—For other cases, see Dismissal and Nonsuit, Cent Dig. §§ 134t-139 ; Dec. Dig. § 58.*]</p> <p>2. Frauds, Statute of (§ 75*)—Agreement to Devise Land.</p> <p>An oral agreement to will property to grantor’s children in consideration of a conveyance to testator is void under the statute of frauds as an agreement to convey land, where it appears that the agreement contemplated a gift of land by testator.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 132; Dec. Dig. § 75.*]</p> <p>3. Frauds, Statute of (§ 152*)—Pleading—Necessity.</p> <p>A defense that a contract is void under the statute of frauds as not being in writing must be pleaded.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent Dig. §§ 363-366; Dec. Dig. § 152.*]</p> <p>4. Frauds, Statute of (§ 153*)—Pleading—Sufficiency.</p> <p>An answer that a contract sued on pertains to the transfer of land and is void under the statute of frauds is insufficient to raise a defense of the invalidity because the contract is not in writing.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 367; Dec. Dig. § 153.*]</p> <p>5. Wills (§ 59*)—Contracts to Devise—Consideration—Sufficiency.</p> <p>A conveyance to testator sustains his agreement to devise his property • to grantor’s children. •</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 166; Dec. Dig. § 59.*]</p> <p>6. Wills (§ 68*)—Contracts to Devise—Construction—Evidence.</p> <p>Allegation of a conveyance by plaintiffs’ mother to testator as consideration for his agreement to will his property to plaintiffs is not. sustained by proof of a conveyance by the mother to a fourth person, and a reconveyance by him to the mother and testator as tenants by the entirety, and the vesting of title in testator through survivorship.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. § 68.*]</p> <p>7. Wills (§ 58*)—Contract to Devise—Execution—Evidence—Sufficiency.</p> <p>Evidence held insufficient to establish a contract to will property.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 165; Dec. Dig. § 58.*]</p>

<p>_ Action by Alma Werner against Mabel Kemp Wheeler. Submission of controversy upon an agreed statement of facts. Judgment for defendant.</p>

<p>Action by Richard A. Springs and others against the Hanover National Bank of the City of New York. On motion to set aside a ver-dict for plaintiffs and grant a new trial.</p>

<p>Physicians and Surgeons (§ 24*)—Employment—Evidence—Weight.</p> <p>In an action for a physician’s services, involving issues whether he was employed and' whether defendant made a payment on account, judgment for defendant held against the weight of the evidence.</p> <p>[Ed. Note.—For other cases, see Physicians and Surgeons, Dec. Dig. § 24.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. ■</p> <p>Action by Elias Doylcos against Montgomery, Ward & Co. From a judgment for plaintiff, rendered in the Municipal Court of the city of New York, defendant apeals.</p>

<p>Husband and Wife (§ 23%*)—Husband’s Liability—Goods Purchased by Wife.</p> <p>Where a wife purchased merchandise from a corporation of which her husband was president and general manager, part of which was used on his table and part given away by his wife during the holiday season, it would be presumed that the husband knew that it was charged to him, in the absence of evidence to the contrary, and that the wife was authorized to purchase the same on his credit.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. § 23%.*]</p>

<p>1. Waters and Water Courses (§ 87*)—Diversion—Equitable Relief.</p> <p>To warrant equitable relief because of defendant’s change of a water course, the evidence should be clear.</p> <p>[Ed. Note—For other cases, see Waters and Water Courses, Dec. Dig. § 87.*]</p> <p>2. Waters and Water Courses (§ 107*)—Diversion—Evidence—Suffi-ciency.</p> <p>Evidence held insufficient to show that water taken by a municipal waterworks system lowered the water beneath plaintiffs’ lands, thus defeating their right to recover damages.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Dec. Dig. § 107.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Freda Seller, an infant, by Dora Reisberg, her guardian ad litem, against Israel Levy and another. From an order setting aside a verdict of $750 for plaintiff, and ordering a new trial on condition (124 N. Y. Supp. 411), plaintiff appeals.</p>

Action by the City of New York against Emil Reibstein. From an order of the Municipal Court of the City of New York, denying a motion to open a default judgment against defendant, he appeals.

<p>1. Wills (§ 120*)—Attestation—Request by Testatrix—Sufficiency.</p> <p>A testatrix’s request that certain persons attest her will applied to any will subsequently signed by her before them.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 314-317; Dec. Dig. § 120.*]</p> <p>2. Wills (§ 156*)—Execution—Undue Influence—Essentials.</p> <p>Incompetency preventing a testator from resisting importunity is essential to undue influence which will invalidate his will.</p> <p>[Ed. Note.—For other cases, see Wills, Cent Dig. § 382; Dec. Dig. § 156.*]</p> <p>3. Wills (§ 54*)—Evidence—Testator’s Declarations.</p> <p>Neither written nor verbal declarations by a testator are evidence of the facts stated, but they are competent upon an issue of his mental status during the period within which they were .written or uttered.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 131-134; Dec. Dig. § 54.*]</p> <p>4. Wills (§ 164*)—Undue Influence—Evidence—Transfers Before Death.</p> <p>On an issue of undue influence over a testator, transfers of property shortly before the will was made should be considered in connection with execution of the will.</p> <p>[Ed. Note.-—For other eases, see Wills, Cent. Dig. §§ 403^14; Dec. Dig. § 164.*]</p> <p>5. Wills (§ 166*)—Undue Influence—Evidence—Weight.</p> <p>Evidence in a will contest held to show that undue influence was not exercised over testatrix.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*]</p>

<p>In the matter of the inheritance tax upon the estate of Susan Patterson.</p>

<p>Sales (§ 482*)—Conditional Sales—Third Persons—Right to Possession.</p> <p>The defendant retook a number of horses from a purchaser to whom they had been conditionally sold. Plaintiff alleged ownership of one of the horses, based on having given $125 to the purchaser to buy a horse, of which plaintiff was to be the owner until the purchaser paid for it. Mold, that the plaintiff stood in the same position as the purchaser, and on the loss of the purchaser’s right to possession the plaintiff could not maintain an action for conversion.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1457; Dec. Dig. § 482.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Bessie Maldosky against the Germania Bank. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>1. Evidence (§ 383*)—Surveys—Weight.</p> <p>A survey of a sidewalk purporting to give exact measurements controls estimates given by witnesses.</p> <p>[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 383.*]</p> <p>2. Municipal Corporations (§ 755*)—Sidewalks—Injury to Pedestrians— Liability.</p> <p>A city’s liability for injury to a pedestrian caused by a defective sidewalk must depend upon the city’s failure to use the requisite care to keep the sidewalk in a reasonably safe condition for travel.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1587; Dec. Dig. § 755.*]</p> <p>3. Municipal Corporations (§ 755*)—Injury to Pedestrians—Liability.</p> <p>A city does not insure pedestrians against mere accident on public streets.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 755.*]</p> <p>4. Municipal Corporations (§ 788*)—Sidewalks—Injury to Pedestrians— Negligence—Requisites.</p> <p>Before a city can be found to have been negligent toward a pedestrian injured on a sidewalk, it must appear that the place was dangerous, and that the city had actual or constructive notice thereof, and sufficient time after notice in which to repair.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1641; Dec. Dig. § 788.*]</p> <p>5. Municipal Corporations (§ 819*)—Sidewalks—Injury to Pedestrian— . Negligence—Evidence—Sufficiency.</p> <p>Evidence held insufficient to show that a city was negligent toward a pedestrian injured on a sloping sidewalk.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 819.*]</p>

<p>Appeal from City,Court of New York, Special Term. -</p> <p>Action by Salvatore Cutietta against Salvatore Cilluffo. From an order vacating an attachment against the property of defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Fannie Abrahams against the Goodman Mortgage & Realty Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Rutherford B. Dean against the Terry & Tench Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of 'Manhattan, First District.</p> <p>Action by Frank Straub against Joseph Becker. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the L. G. Catty Company against Allen Cantor. From a judgment for plaintiff, defendant appeals.</p>

<p>Courts (§ 189*)—Municipal Court—Submission on Agreed Statement—Affidavit.</p> <p>The court was without jurisdiction to render judgment, where a case was submitted on an agreed statement of facts, without the good faith affidavit required by Municipal Court Act (Laws 1902, c. 580) § 241.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Dominick Tuccillo against James A. Pittelli and others. From a Municipal Court judgment in favor of defendants, plaintiff" appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Barnett Sundelevitz against the Fourteenth Street Bank. From a judgment for plaintiff, defendant appeals.</p>

<p>1. ' Evidence (§ 318*)—Hearsay.</p> <p>In an action for damages for injury to the building in which plaintiff conducted his business, by defendant injuring the party wall in pulling down her own building, adjacent thereto, a letter from plaintiff’s customer to the effect that he had telephoned plaintiff to rush his order, and that he was entirely out of the material ordered, was not admissible in evidence ; letters of third persons not being admissible in evidence against a party having no knowledge thereof.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. § 318.*]</p> <p>2. Appeal and Error (§ 1050*)—Harmless Error—Admission of Evidence.</p> <p>It cannot be said that the admission in evidence of a letter from one of plaintiff’s customers, offered to prove damage to plaintiff’s business from acts of defendant, was not prejudicial to defendant; it bearing on the controverted question of whether plaintiff lost business because of the disturbance of the party wall.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160; Dec. Dig. § 1050.*]</p> <p>3. Damages (§ 176*)—Evidence—Admissions.</p> <p>In an action for damages arising from injury to a party wall of the building in which plaintiff conducted his business, evidence to show the loss of profits on certain contracts which plaintiff had with his customers was not admissible; he being only entitled to prove general damage to his business and show that it is profitable.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. § 461; Dec. Dig. % 176.*]</p> <p>4. Landlord and Tenant (§ 142*)—Injuries to Leasehold—Interference with Business—Damages.</p> <p>Plaintiff’s measure of damages, in an action for damage caused by the interference with a party wall of the building in which he conducted his business as a tenant, was the difference between the value of the leasehold before and after the injury to the wall, and not the difference between the rent paid in another building, to which he was compelled to move, and that he would have paid, had he remained in the injured building.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 515; Dec. Dig. § 142.*]</p> <p>5. Party Walls (§ 8*)—Rights of Adjoining Owners.</p> <p>An adjoining owner cannot dig under a party wall resting in part on his own land, so as to injure the building on the other land; a party wall not being the exclusive property of either owner.</p> <p>[Ed. Note.—For other cases, see Party Walls, Cent. Dig. §§ 40, 41; Dec. Dig. § 8.*]</p> <p>6. Appeal and Error' (§ 1031*)—Harmless Error.</p> <p>A judgment cannot be affirmed on the possibility that errors committed at trial did not prejudice the unsuccessful party.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Max Frvmes against Abraham Glaser. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Edward W. Euldner against Otto Trieb and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Anna McDermott against Domenico Stella. From a judgment of the City Court of the City of New York for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Philip Smith against" Edward Healey, as City Marshal, and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action, by Morris Berkow against Samuel Lampel. From an order denying defendant’s motion to open his default, he appeals.</p>

<p>1. Appearance (§ 9*)—Special Appearance—Vacation of Attachment.</p> <p>Where defendant was not served with process, and jurisdiction depended on the validity of an attachment, defendant having appeared specially for the sole purpose of moving to vacate the attachment, a judgment for plaintiff must fall, if the attachment is invalid.</p> <p>[Ed. Note.—For other cases, see Appearance, Dec. Dig. § 9.*]</p> <p>2. Courts (§ 190*)—Municipal Court—Appeal from Judgment—Validity of Attachment.</p> <p>An appeal from a judgment in the Municipal Court brings up for review an order denying a motion to vacate an attachment.</p> <p>[Ed. Note.—For other cases, see Courts,- Dec. Dig. § 190.*]</p> <p>3. Attachment (§ 47*) — Disposal of Property to Defraud Creditors — Fraudulent Intent.</p> <p>Where an attachment was issued on the ground that defendant had transferred and disposed of his property with intent to defraud his creditors, the burden was on the plaintiff to show, not only that the property was transferred, but that it was transferred with fraudulent intent, by proof stronger than sufficient to create a mere suspicion.</p> <p>[Ed. Note.—For other cases, see Attachment, Cent. Dig. § 120; Dec. Dig. § 47.*)</p> <p>4. Attachment (§ 111*)—Affidavit—Grounds—Fraudulent Disposition of Property.</p> <p>An affidavit on attachment, alleging that defendant had disposed of his property with intent to defraud his creditors, held insufficient to show fraudulent intent in the disposition of the goods.</p> <p>[Ed. Note.—For other cases, see Attachment, Dec. Dig. § 111.*]</p>

Suit by William Schwenn against the Dartmouth Realty Company and others to set aside conveyances as an invalid preference under the corporation law. Judgment for plaintiff.

Actions by the New Publication Company against Elias M. Stern and another, doing business as the U. S. Tire Company, and against Louis Zeisler, doing business as the Excelsior Tire Company. From judgments in each case for defendant on a directed verdict, plaintiff appeals.

<p>Contracts (§ 179*)—Liability of Agent—Ac,ts Within Authority.</p> <p>Under the rule that an agent, acting within the scope of his authority with a party advised of his agency, is not personally liable, unless a contrary intention appears, one is not personally liable on a contract, in terms between two corporations and treated as such, though it is signed on behalf of one of them, by its treasurer, in her individual name only.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 777, 778; Dec. Dig. § 179.*]</p>

Action by Margaret Brennan against William F. Brennan, individually and as executor of -the last will and testament of William Brennan, deceased, and others, for the construction of a will.

Action by Margaret Macaulay against Edgar G. Anthony. From an order of the City Court of the City of New York, setting aside a judgment for plaintiff and ordering a new trial, plaintiff appeals.

Henry J. Furlong was -convicted of the crime of asking for 'and agreeing to receive a bribe, and' he makes application for a certificate of reasonable doubt.

<p>1. Courts (§ 190*)—Municipal Courts—Judgment—Review.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 326, authorizing the appellate court to render judgment according to the justice of the case, the court on appeal from a judgment of the municipal court may reverse the judgment, where it is satisfied that justice has not been done.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p> <p>2. Principal and Agent (§§ 69, 81*)—Fiduciary Relation—Obligation oe Agent.</p> <p>The relation of principal and agent is a fiduciary one, requiring the utmost good faith from the agent, and forbidding any interest adverse to his principal, so that his act in speculating on the subject-matter of the agency for his own profit is a breach of duty authorizing the principal to recover the profits gained, and to defeat the agent’s claim of compensation.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 130-145, 221; Dec. Dig. §§ 69, 81.*]</p> <p>3. Courts (§ 188*)—Municipal Courts—Jurisdiction—Money Had and Received.</p> <p>While the municipal court of the city of New York has no equitable jurisdiction, it has jurisdiction of an action for money had and received.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 458; Dec. Dig. § 188.*]</p> <p>4. Courts (§ 189*)—Municipal Courts—Pleadings.</p> <p>Where no objection is raised as to the form or sufficiency, of the pleadings in the municipal court, the court may arrive at any result justified by the proof.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412; Dec. Dig. § 189.*]</p> <p>5. Brokers (§ 31*)—Individual Interest—Profits.</p> <p>Where an agent employed to sell land took an unfair advantage of the principal, and bought the land for $160, and then immediately resold it for $300, the principal could recover the profit made by the agent.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 24; Dec. Dig. § 31.*]</p> <p>6. Money Received (§ 6*)—Right of Action.</p> <p>To sustain an action for money had and received, it is sufficient to merely show that defendant has in his possession money belonging to plaintiff which he cannot conscientiously retain, and it is not necessary to prove that money belonging to plaintiff was actually and physically given to and received by defendant.</p> <p>[Ed. Note.—For other cases, see Money Received, Cent. Dig. § 22; Dec. Dig. § 6.*]</p>

Action by Grinnell Willis and others, copartners trading as Grinnell Willis & Co., against William H. Smith, doing business under the trade-name of Van Nostrand Express Company. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Harry Collins against the A. Luban Company. From a judgment of the Municipal Court in favor of plaintiff, defendant appeals.</p>

<p>1., Bailment (§ 31*)—Failure of Bailee to Deliver on Demand — Negligence.</p> <p>Unexplained failure to deliver property by a bailee upon demand, where delivery of the property to the bailee is conceded, makes out a prima facie case of negligence against such bailee.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. § 31.*]</p> <p>2. Carriers (§ 134*)—.Carriage of Goods—Delivery of Goods for Transportation—Sufficiency of Evidence.</p> <p>Evidence held not to support a finding that goods alleged to have been lost by a carrier were delivered to it.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 588-592; Dec. Dig. § 134.*]</p>

<p>1. Injunction (§ 230*)—Contempt—Evidence.</p> <p>It is insufficient evidence that defendant violated an injunction against his disposing of his property, so as to authorize an order adjudging him guilty of contempt, that five checks, aggregating $9.10, against his bank account, were presented and cashed after service of the order of injunction, three of them 3 to 6 days, another 20 days, and another 50 days thereafter; defendant swearing that they were not delivered after the service of the order, though not producing them, but stating that they were lost.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 509-516; Dec. Dig. § 230.*]</p> <p>2. Contempt (§ 8*)—Briefs.</p> <p>The filing of a brief in the Appellate Term, containing an unwarranted, contemptible, and contumacious attack on the trial judge, is a contempt of the court.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. § 14; Dec. Dig. § 8.*]</p>

<p>1. Husband and Wife (§ 19*)—Necessaries Fubnished Wife—Liability of Husband.</p> <p>A husband is liable for necessaries furnished to his wife only when his wife has been constituted his agent to purchase the goods, or where he fails to provide for her proper support.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 121-138; Dec. Dig. § 19.*]</p> <p>2. Husband and Wife (§ 19*)—Necessaries Furnished Wife—Liability of Husband.</p> <p>Where husband and wife are living apart, and he furnishes her with sufficient means to purchase all necessaries without pledging her credit, the husband,, as a general rule, is not liable under any quasi contractual theory for necessaries furnished her, nor is he liable under any theory of express or implied agency on her part to purchase the necessaries.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 121-138; Dec. Dig. § 19.*]</p> <p>3. Husband and Wife (§ 19*)—Necessaries Fubnished Wife—Liability of Husband.</p> <p>Where a merchant dealt with a wife, who paid the bills for merchandise furnished, and he did not know of the existence of the husband, except when consulted by the wife about a present to her husband, and the merchant sold and delivered the merchandise to the wife at her special instance and request, the husband, who furnished the wife with sufficient means to purchase all necessaries without pledging her credit, was not liable on the theory that he held the wife out as his agent in the purchase of necessaries.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 121-138; Dec. Dig. § 19.*]</p>

<p>1. Discovert (§ 58*)—Order for Examination—Proper Scope.</p> <p>An order, In an action by a salesman for his commissions, providing that defendant submit to an examination concerning the matters set forth in the affidavit and pleadings, was too broad, where the affidavit set forth, after reciting the facts involved, that affiant had no means of ascertaining the amount due otherwise than by examination before trial, and that such information was wholly within defendant’s knowledge; plaintiff having full knowledge of the amount of sales and the terms of his-contract of employment.</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 72; Dec. Dig. § 58.*]</p> <p>2. Costs (§ 57*)—Right Thereto—Vacation of Order for Examination.</p> <p>Defendants having moved to vacate or modify an improper order for their examination, no costs should have been awarded against them.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 229-249; Dec. Dig. § 57.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Samuel Rabinowitz and another against Jacob Lipschitz. From a verdict for plaintiffs, and an order denying a new trial, defendant appeals.</p>

<p>Wiles (§ 55*)—Testatob’s Mental Capacity—Evidence—Sufficiency.</p> <p>Evidence held insufficient to show that testator had sufficient mental capacity to fully understand the nature and extent of his property, the natural objects of his bounty, and the effect of his will.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 137-161; Dec. Dig. § 55.*]</p>

<p>Action by John Josupeet against the City of Niagara Falls.- Verdict for plaintiff, and defendant moves for a new trial.</p>

Action by Louis Koenigsberg against Adolph L. Blau, one of the Marshals of the City of New York, arid another. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal.

<p>Appeal from Special Term, New York County.</p> <p>Action by Gertrude D. Hawes against United States Trust Company of New York and others to register title to certain land. From an order as resettled, denying the motion "of Joseph F. Snipes to enter his appearance and answer the complaint, he appeals.</p>

<p>Action by Sophia M. Avery against Eugene J. Chapman. On defendant’s motion for a new trial.</p>

<p>In the matter of the application of Michael T. Haugh to annul the determination of the Board of Elections of the City of New York.</p>

<p>1. Banks and Banking (§ 47*)—Stockholders’ Liability.</p> <p>In a suit to charge a bank’s stockholders with its debts, a former judgment against the bank on the debts is not conclusive as to the amount thereof.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 73; Dec. Dig. § 47.*]</p> <p>2. Banks and Banking (§ 49*)—Stockholders’ Liability—Nature of Fund.</p> <p>A bank’s stockholder’s statutory liability for its debts is not an asset of, and cannot be enforced by, the bank, being for the exclusive benefit. of creditors whose debts are payable within two years, and who sue thereon within two years after maturity, as provided by Stock Corporation Law (Consol. Laws, c. 59) § 59.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 49.*]</p> <p>3. Judgment (§ 701*)—Conclusiveness—Pasties Bound. A judgment against a corporation binds its assets, but not its stockholders.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1226; Dec. Dig. § 701.*]</p> <p>4. Corporations (§ 253*)—Stockholders’ Liability.</p> <p>Stock Corporation Law (Consol. Laws, c. 59) § 59, limiting a stockholder’s liability to the amount due on execution against the corporation, does not make judgment against the corporation on debts conclusive as to the amount thereon in a subsequent suit to enforce stockholder’s liability.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1024-1030; Dec. Dig. § 253.*]</p> <p>5. Judgment (§ 138*)—Vacation.</p> <p>Refusal to vacate a default judgment against a bank is justified by opposition to a vacation by a majority of its directors.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 138.*]</p> <p>6. Banks and Banking (§ 47*)—Judgment—Conclusiveness.</p> <p>A default judgment against a bank on a liquidation agreement does not preclude any defenses otherwise open to stockholders subsequently sued on their statutory liability, where the judgment was collusive.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 47.*]</p> <p>7. Banks and Banking (g 47*)—Stockholders’ Liability—Extent.</p> <p>Banking Law (Consol. Laws, c. 2) § 71, making stockholders liable for a bank’s contract, etc., to the amount of their stock, does not make them liable on an agreement for liquidation of the bank.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 47.*]</p> <p>8. Banks and Banking (§ 47*)—Stockholders’ Liability—Extent.</p> <p>Banking Law (Consol. Laws, c. 2) g 71, making stockholders liable for a bank’s obligations, does not apply to ultra vires undertakings.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 62, 64^68; Dec. Dig. § 47.*]</p> <p>9. Corporations (§ 237*)—Officers—Nature of Functions.</p> <p>Corporate officers are but the agents of the corporation and, in a sense, of the stockholders, and cannot bind the latter by ultra vires transactions.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 237.*]</p> <p>10. Banks and Banking (§ 105*)—Power of Directors—Liquidation.</p> <p>Banking Law (Consol. Laws, c. 2) §§ 18, 19, 35, 66, 99, Code Civ. Proc § 2419. and Gen. Corp. Law (Consol. Laws, c. 23) § 170, by vesting authority in others than the directors of a bank to determine whether it shall be liquidated, excludes such authority in the directors, making ultra vires a liquidation agreement executed by them.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 105.*}</p> <p>11. Corporations (g 610*)—“Liquidation.”</p> <p>“Liquidation” implies a winding up of the affairs of a corporation.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. g 610.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 4180.]</p> <p>12. Corporations (g 297*)—Directors—Powers.</p> <p>A corporation’s directors cannot end its existence.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 297.*]</p> <p>13. Corporations (§ 388*)—Ultra Vires Contracts—Liability.</p> <p>A corporation retaining the benefit of its ultra vires contract Is liable thereon.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec. Dig. § 388.*] .</p> <p>14. Banks and Banking (§ 47*)—Stockholders’ Liability—Estoppel.</p> <p>A bank’s stockholder sought to bé held liable on the bank’s contract under Banking Law (Consol. Laws, c. 2) § 71, is not estopped to show that a liquidation agreement was ultra vires by accepting payment of his deposits in the bank under it.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. §. 47.*]</p> <p>15. Banks and Banking (§ 47*)—Stockholders’ Liability—Nature.</p> <p>A bank stockholder’s liability under Banking Law (Consol. Laws, c. 2) § 71, for his bank’s debt, 'is secondary, and not primary; he standing somewhat as a surety.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 62, 64-68; Dec. Dig. § 47.*]</p> <p>16. Pledges (§ 59*)—Collateral—Application.</p> <p>Collateral must be applied to the debt for which it was given, and cannot, without consent, be applied to general indebtedness.</p> <p>[Ed. Note.—For other cases, see Pledges, Cent. Dig. §§ 134-138; Dec. Dig. § 59.*]</p> <p>17. Banks and Banking (§ 47*)—Stockholders’ Liability.</p> <p>As affecting a stockholder’s liability under Banking Law (Consol. Laws, c. 2) § 71, on the bank’s note, the creditor had no right to apply collateral securing the note to the bank’s general indebtedness.</p> <p>[Ed. Note.—For other cases, see .Banks and Banking, Dec. Dig. § 47.*]</p> <p>18. Banks and Banking (§ 64*)—Liquidation Agreements—Effect.</p> <p>An agreement by one bank to liquidate another providing for a personal guaranty against loss to the first bank does not imply release of the second bank from liability.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 64.*]</p> <p>19. Words and Phrases —“Advances.”</p> <p>The word “advance” or “advances” does not necessarily imply a promise to pay.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, vol. 1, pp. 214-218; vol. 8, pp. 7566, 7567.]</p> <p>20. Banks and Banking (§ 64*)—Liquidation Agreements—Effect.</p> <p>An agreement by one bank to liquidate another implied repayment covering its advances and expenses.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 64.*]</p> <p>21. Banks and Banking (§ 47*)—Liquidation Agreements—Stockholders’ Liability.</p> <p>An agreement by one bank to- liquidate another at most gave the liquidating bank right of action against the liquidated bank for any balance existing after application of the assets to the advances, defeating the stockholders’ personal liability under Banking Law (Consol. Laws, c. 2) § 71, because the indebtedness was not payable within two years.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 47.*]</p> <p>22. Statutes (§ 239*)—Construction—Acts in Derogation of the Common Law.</p> <p>A statute making stockholders personally liable for corporate debts must be strictly construed, being in derogation of the common law.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 320; Dec. Dig. § 239.*]</p> <p>23. Banks and 'Banking (§ 64*)—Liquidation Agreements—Performance.</p> <p>One bank agreeing to liquidate another was not entitled to the fixed compensation until full performance.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. § 64.*]</p> <p>24. Banks and Banking (§ 49*)—Stockholders’ Liability—Limitation of Actions.</p> <p>Taking possession of a bank’s assets for liquidation did not dissolve the bank, as affecting limitations on suit to enforce the stockholders’ personal liability under Banking Law (Consol. Laws, c. 2) § 71.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Dee. Dig. § 49.*]</p>

Walter K. Thomas was convicted of disorderly conduct, and he appeals. On motion to dismiss the appeal. Motion overruled conditionally.

Action by Josiah T. Miller against Thomas J. Clary and others to enforce covenants for certain deeds and for damages. Judgment for plaintiff.

<p>Banks and Banking (§ 77*)—Neglect op Receiver—Liability.</p> <p>A receiver of an insolvent state bank, who fails to enforce a stockholder’s liability created by Const, art. 8, § 7, and Banking Law (Consol. Laws, c. 2) § 52, while the stockholder was, for two years subsequent to the dissolution of the bank, financially responsible, is liable for the loss sustained.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 173; Dec. Dig. § 77.*]</p>

<p>Application by Abraham Lachman and another against the People of the State of New York and others for the registration of title.</p>

<p>1. Constitutional Law (§ 46*)—Determination op Constitutional Questions—Ex Parte Proceedings.</p> <p>The court, on an ex parte application, under Beal Property Law (Consol. Laws, c. 50) § 385, for an order directing an action to register title, must assume that the law is constitutional.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. § 46.*]</p> <p>2. Records. (§ 9*)—Registration op Title to Land—Application.</p> <p>The court, on an ex parte application, under Real Property Law (Consol. Laws, c. 50) § 385, for an order directing an action to register title, must examine the complaint, and the examiner’s certificate of title, required by section 434, so that it may be satisfied that the papers conform to the statute, and that there is at least prima facie proof that plaintiff has title.</p> <p>[Ed. Note.—For other cases, see Records, Dec. Dig. § 9.*]</p> <p>3. Records (§ 9*)—Registration op Title to Land—Application.</p> <p>Where the complaint and examiner’s certificate, on an application under Real Property Law (Consol. Laws, c.' 50) § 385, for an order directing an action to register title, do not comply with sections 379, 380, the application will be denied.</p> <p>[Ed. Note.—For other cases, see Records, Dec. Dig. § 9.*]</p> <p>4. Records (§ 9*)—Registration of Title to Land—Application—Order op Publication.</p> <p>The order of publication in an action to register title should be a separate order from the order authorizing the action, under Real Property Law (Consol. Laws, c. 50) § 385.</p> <p>[Ed. Note.—For other cases, see Records, Dec. Dig. § 9.*]</p> <p>5. Records (§ 9*)—Registration op Title to Land—Application—Examiner’s Certificate.</p> <p>A statement of a legal conclusion by the examiner giving a certificate of title cannot be accepted.by the court, on an application under Real Property Law (Consol. Laws,’c. 50) § 385, for an order directing an action to register title, unless the facts are before the court by abstract or statements.</p> <p>[Ed. Note.—For other cases, see Records, Dec. Dig. § 9.*]</p>

<p>Application by J. Edward Simmons and others, constituting the Board of Water Supply of the City of New York, to condemn land. On application to confirm awards.</p>

<p>1. Appeal and Error (§ 909*)—Review—Presumptions—Findings.</p> <p>In an action against a foreign corporation, the question whether plaintiff was a resident of the state, and hence entitled to sue, under Code Civ. Proc. § 1780, being for the jury, when verdict was rendered for plaintiff, it must be assumed on appeal that the jury resolved that question in plaintiff’s favor, though defendant did not ask its submission.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 909.*]</p> <p>2. Corporations (§ 673*)—Foreign Corporations—Actions Against—Residence of Plaintiff—Evidence.</p> <p>In an action against a foreign corporation, evidence held to support a finding that plaintiff was a resident of New York when he sued, within Code Civ. Proc. § 1780, providing that an action against a foreign corporation may be maintained by a resident of the state for any cause of action.</p> <p>[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 673.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Zucchi Manufacturing Company against Frederick W. Herbert. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Infants (§ 31*)—Deed of Trust—Avoidance.</p> <p>An infant, executing a deed of trust for his benefit, may disaffirm it on reaching his majority, provided he exercises the right seasonably.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 46, 50M53; Dec. Dig. § 31.*]</p> <p>2. Infants (§ 30*)—Deed of Trust—Ratification.</p> <p>An infant executed a deed of trust for his benefit. For a year after attaining full age he received the interest from the trustee in ignorance of his right to disaffirm the deed, but he accepted no income to which he was not entitled, regardless of the deed. Held not to show a ratification of the deed after attaining full age.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 41-49, 54, 55; Dec. Dig. § 30.*]</p> <p>3. Infants (§ 57*)—Contracts—Ratification.</p> <p>Any written instrument signed by a party, which in case of adults amounts tó an adoption of an act of an agent, will in the case of an infant who has attained full age amount to a ratification.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 136-148, 151; Dec. Dig. § 57.*]</p> <p>4. Infants (§ 29*)—Contracts—Avoidance—“Estoppel by Deed.”</p> <p>An infant executed a deed of trust for his benefit. On learning, after attaining full age, that he could disaffirm it, he brought suit therefor.</p> <p>Pending the suit, his counsel advised him that the deed could be revoked by consent of the parties thereto. The trustee resigned, and by virtue of the power the infant designated a substituted trustee, and the infant, his father, and the substituted trustee entered into an agreement annulling the deed. Subsequently, on learning that the revocation was not effective, the infant brought a second suit to disaffirm the first deed. Held, that he was not estopped by the subsequent instrument from maintaining the suit; its object being to invalidate the first deed, and an “estoppel by deed” being a preclusion against competent parties to a valid sealed contract and their privies to deny its force by any evidence of inferior solemnity.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 37-40; Dec. Dig. § 29.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2496.]</p>

Manhattan, Ninth District. Action by Theodore Ficke ‘against Felix Hessberg and another. From a judgment dismissing the complaint and counterclaim, both parties appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Arthur J. Moss and another, partners as Moss & Graham, against Charles Hyman. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Aaron Cohen against Max Weinstein. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Mendal Goldberg against Jacob Seidrnan. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Jack Jamgochian against Peter Chankalian. There was a judgment for defendant, and plaintiff moved for a new trial. The motion was granted, and defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Emma Hammel, as executrix of the last will of Solomon W. Hammel, deceased, against Jacob Kahn and others, copartners doing business under the firm name and style of Kahn Bros. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Freiderika Ordemann against Charles A. Manson. From a judgment for plaintiff, involving an allowance of a counterclaim, she appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Sam Fassy and Jacob Orloff, as copartners doing business ■under the firm name and style of Fassy & Orloff, against Morris Jacobs, doing business under the firm name of Jacobs Bros. Judgment for plaintiffs, and defendant appeals.</p>

Action by Morris Weiss and another against Barnet Schwartz. From a judgment directing plaintiffs to make restitution of an amount collected by them under a judgment against defendant, plaintiffs app63,l

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Rudolph Fleischer against Samuel Steinfeld and another, partners as Steinfeld Bros. From an order setting aside a verdict for plaintiff, he appeals.</p>

<p>Master and Servant (§ 30*)—Contract op Employment—Discharqe op Servant.</p> <p>A contract employing one as manager of a department in the employer’s business, to give satisfactory service to the employer in the management of the department, may be terminated by the employer, if the services are unsatisfactory.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 30-36; Dec. Dig. § 30.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, ■ First District.</p> <p>Action by the E. R Brackett Company against Samuel J. Kornblum and another, partners as S. J. & W. Kornblum. _ Judgment for plaintiff, and defendants appeal.</p>

„ Action by Emanuel W. Bloomingdale against Mary A. Duffy, as executrix of the last will and testament of James J. Duffy, deceased. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

<p>Appeal from City Court of New York, Trial Term:</p> <p>Action by Frederick Davy against Mary Lyons. From an order setting aside a verdict for $350 in his favor, plaintiff appeals.</p>

<p>Master and Servant (§ 280*)—Trial—Evidence—Assumption of Eisk.</p> <p>Evidence in an action for personal injuries to a servant, where the verdict found that the defendant was negligent and that the plaintiff was not guilty of contributory negligence, held to show that plaintiff had assumed the risk.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. § 280.*]</p>

<p>Bills and Notes (§ 397*)—Liability of Indobseb—Notice of Dishonob.</p> <p>If loss of a note excuses failure to comply •with Negotiable Instruments Law (Consol. Laws, c. 38) § 134, it did not excuse plaintiffs for failure to comply with sections 160, 167, 174, requiring demand and notice of dishonor in order to charge and hold the indorser.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 1038; Dec. Dig, § 397.*]</p>

<p>In the matter of Lincoln G. Backus, an attorney. On petition of Ludlow W. Valentine.</p>

<p>Action by Margaretha Behrens against Sarah S. S. Sturges and others.</p>

<p>Actions by Theodore A. Bingham against William J. Gaynor and by James Pollitz against George J. Gould and others.</p>

<p>Action by Julia Beregszazi, as administratrix, etc., against the Kreischer Brick Manufacturing Company.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Charles Brogan against Norris Silverman and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Action by Frederick Henry Bruckel against J. Milhau’s Son.</p>

<p>Action by Joseph Burke against Louis Westphal.</p>

<p>Action by the City of New York against Henry Corn, impleaded with others.</p>

<p>Action by George H. Cummings against the Corbin Motor Vehicle Company.</p>

<p>Action by Elizabeth Di Santo, as administratrix, etc., against the Brooklyn Chair Company and others.</p>

<p>Action by Cora S. Egelston, as administratrix, etc., against the New York, Chicago & St. Louis Railroad Company.</p>

<p>Action by Charles E. Foster against the B. I. Crooker Company, impleaded with others.</p>

<p>Action by John Geiger against Charles J. Hanson and another.</p>

<p>In the matter of Benjamin Frindel, an attorney.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Max Goldwasser against Morton & Co. From_ a judgment of the Municipal Court for plaintiff, defendant appeals.</p>

<p>In the matter of the application of Clark H. Hammond, as Corporation Counsel of the City of Buffalo, New York, for a peremptory writ of mandamus against George A. Rick-er and others, constituting the Municipal Civil •Service Commission of the City of Buffalo, and Louis P. Fuhrmann, as mayor of said city.</p>

<p>Action by Clarence Hammond against the Union Bag & Paper Company.</p>

<p>Action by the Hastings Pavement Company against George Cromwell as President of the Borough of Richmond, and others.</p>

<p>Action by Harvey D. Hinman against Cora W. Keyes.</p>

<p>Action by James E. Hoy against Thomas F. Hoy, individually, and others.</p>

<p>Action by Lebaron M. Huntington against Daniel Sheehan and others.</p>

<p>Action by George S. Kidder against the Port Henry Iron Ore Company of Lake Champlain and another.</p>

<p>Action by Anthony Kozlowski against the Rochester, 'Syracuse & Eastern Railroad Company.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Simon S. ICoffler against Robert J. Rubin. From a judgment in favor of the plaintiff, rendered in the Municipal Court, defendant appeals.</p>

<p>Action by Ella Huffman, as administratrix, etc., against the Hudson River Telephone Company.</p>

<p>Action by William A. McCreery against the Harral Soap Company.</p>

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

<p>In the matter of the application of the City of New York relative to acquiring title, etc., to lands for approach to Manhattan Bridge (Bridge No. 3), etc., in the Fourth, Fifth, and Eleventh Wards, Borough of Brooklyn, City of New York;</p>

<p>In the matter of the application of Roderick C. McLennan for an order requiring Bert W. Moyer, as treasurer, etc., to file an amended statement, etc.</p>

<p>Action by the Midwood Park Company against Bertha G. McLaughlin Baker and others.</p>

<p>Action by George Neuberger, an infant, by Bertha Neuberger, his guardian ad litem, against the Long Island Railroad Company.</p>

<p>Action by Margaretha Mullerleile against the City of New York.</p>

<p>Action by William E. Mowbray against Harriet De Forest.</p>

<p>Action by Jennie B. Noonan against Thomas C. Luther.</p>

<p>Action by James W. Payne against the New York, Susquehanna & Western Railroad Company.</p>

<p>Proceeding by the People of the State of New York against the Bleecker Street & Fulton Ferry Railroad Company.</p>

<p>Proceeding by the People, of the State of New York, on the relation of the Manhattan Railway Company, against Egbert E. Woodbury and others;</p>

<p>Proceeding by the People of the State of New York, on the relation of Nicholas Hon Yost, against Daniel P. Becker, as Sheriff of Oneida County.</p>

<p>Action by James Polli.tz against George J. Gould and others.</p>

<p>Action by Elizabeth M. Rogers against the Atlantic, Gulf & Pacific Company.</p>

<p>Action by Hobert L. Romig against Charles L. Sheldon, individually 'and as administrator, etc.</p>

<p>Action by Leonie Sabourin, an infant, by her guardian ad litem, etc., against James E. Kelly and others.</p>

<p>Action b^ Josephine A. Schuller against Filippo Todaro, impleaded with another.</p>

<p>Action by Philip Simons against the Brooklyn Heights Railroad Company.</p>

<p>Action by Rose C. Seager, as administratrix, etc., against the Solvay Process Company.</p>

<p>Action by Joshua J. Warren against William Warren and others.</p>

<p>Action by Charles H. Young and Charles T. Dunning, as substituted trustees, etc., against Edith M. Barker, individually and as executrix, etc., and others.</p>