Volume 128 — New York Supplement

<p>Sales (§ 418*)—Breach oe Contract—Excessive Damages.</p> <p>Where, in an action for breach of contract to sell a secondhand set of furniture, represented to have been purchased in France some 20 years before for $550, the buyer testified that she was to pay $60 for the furniture, and that the salesman assured her that the furniture had been purchased in France, and the seller showed that the furniture was merely a set of ordinary stock furniture, capable of daily duplication, worth from $45 to $60, a verdict for $250 was excessive.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 418.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Frederick Leu against Osterweis Bros., Incorporated, and another. From a judgment against defendant Osterweis Bros., Incorporated, the corporation appeals.</p>

Action by Charles P. Notman and another, composing the firm of James Elwell & Co., against the J. M. Guffey Petroleum Company. From an order denying a motion to dismiss for want of prosecution, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Max Goldstein against Robert Perlman. Prom a judgment for defendant, plaintiff appealed, bringing up for review an order denying a motion for retaxation of costs.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Hyman Hatman, by Celia Hatman, his guardian ad litem, against Ella Boettigheimer. From a judgment of the Municipal Court, entered upon a verdict in favor of plaintiff, and from an order denying motion for new trial, the defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. V</p> <p>Action by Elmer Hawes against Isabella Hawes. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Abraham Goodman against Daniel McGonigle. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant (§ 258*)—Injury to Chauffeur—Pleading—Negligence—Sufficiency.</p> <p>Allegations that, in employing plaintiff as chauffeur, defendant told him that the automobile was in good order, that after satisfying himself that it was in running order, to external appearance, plaintiff pulled out the starting lever, and through some latent defect it flew back, injuring him, that the injury resulted from defendant’s negligence, and that inspection, as required by law, would have disclosed the defect, were insufficient to show negligence, or the cause of the accident.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 258.*]</p> <p>2. Words and Phrases—“Latent.”</p> <p>“Latent” means not discernible by examination.</p> <p>[Ed. Note.'—For other definitions, see Words and Phrases, vol. 5, p. 4011.]</p> <p>3. Master and Servant (§ 205*) — Defective Appliances — Assurance of Safety.</p> <p>An employs, who did not rely on assurance of the safety of an automobile, and examined it himself, cannot predicate liability thereon.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. § 205.*]</p>

<p>1, Street Railroads (§ 114*)—Accident to Drivers oe Vehicle—Evidence.</p> <p>In an action against a street car company, where plaintiff, driving a heavily loaded truck, was struck by a car, a verdict for the plaintiff held against the weight of the evidence.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 114.*]</p> <p>2. Street Railroads (§ 99*)—Collision with Vehicle—Evidence.</p> <p>Where plaintiff saw a car approaching, and turned his heavily loaded truck in front of the car, hoping to be able to cross before the car struck him, he took the risk voluntarily, and was guilty of contributory íiegUgence.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 2091-216; Dec. Dig. § 99.*]</p>

<p>1. Principal and Agent (§ 110*)—Transactions with Agent—Conclusiveness.</p> <p>The rule that one dealing with an agent must ascertain the agent’s authority, or deal with him at his peril, and that a special agent, acting outside the scope of his authority, may not bind the principal, is subject to the qualification that, where ah agent is intrusted to do a particular kind of business, be becomes, as between the principal and parties dealing with him, the general agent for the transaction of such business, and his acts bind the principal, though he violates a private instruction. [Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 377, 377%; Dec. Dig. § 116.*]</p> <p>2. Principal and Agent (§ 132*)—Transactions with Agent—Conclusiveness.</p> <p>Where an agent was authorized to hire and discharge employes of his principal, so that, when hiring, he was the general agent of his principal, a contract of hiring was binding on the principal.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 132.*]</p>

■ Action by the T. F. Smith Company against the America-Furope Company and another. From a judgment of the Municipal Court of the City of New York for plaintiff, defendant S. Ormond Goldan appeals.

<p>Principal and Agent (§ 14*)—Authority—Principal’s Liability.</p> <p>That the person who attended the “cloakroom” at an entertainment given by persons who hired defendant’s hall acted under an understanding with defendant that such person should receive a part of the tips taken in the cloakroom did not make him defendant’s agent, so as to make defendant liable for a shawl deposited there by plaintiff, who purchased a ticket for the entertainment, in absence of circumstances estopping defendant from denying that such person was his agent.</p> <p>[Ed. Note.—For other eases, see Principal and Agent, Cent. Dig. §§ 2 ft-33; Dec. Dig. § 14.*]</p>

<p>1. Pleading (§ 84*)—Complaint—Demurrer—Theory of Cause of Action.</p> <p>The complaint on demurrer must be construed in harmony with the pleader’s theory of his cause of action. ,</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 84.*]</p> <p>2. Factors (§ 66*)—Agreement to Make Advances—Action—Complaint— Sufficiency.</p> <p>In an action on defendant’s agreement as a factor to advance a certain amount on goods to be shipped to plaintiff, a complaint alleging that the advancement remained unpaid, except a certain sum, and demanding judgment for the balance, with interest, but failing to plead special damages, was demurrable, as failing to state a cause of action.</p> <p>[Ed. Note.—For other cases, see Factors, Dec. Dig. § 66.*]</p>

Action by Giuseppe Iadone and others against Maria Fusco and another. From a default judgment for plaintiffs, aiid an order denying a motiqn to open and set the same aside, defendants appeal. Appeal from judgment dismissed, order reversed, motion to open default granted, and judgment vacated and set aside.

<p>Auctions and Auctioneers (§ 8*)—Warranty of Goods—Construction and-Operation.</p> <p>Where an auction rule, read at a sale and heard by a buyer, provided’ that the guaranty of horses sold on Monday would expire at 12 o’clock noon on the following Wednesday, a buyer cannot complain of breach of warranty of a horse purchased Monday, September 26th, where hern ode no complaint until October 6th.</p> <p>[Ed. Note.—For other cases, see Auctions and Auctioneers, Dec. Dig. §. 8.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the United Electric Light & Power Company against J„ Stuart Blackton. From a judgment for defendant, plaintiff appeals.</p>

Action by Wolfe Karon and others against Max Eisen and others. From an order denying a motion to vacate a judgment against him, defendant Samuel Wiesenfeld appeals.

<p>Action by Angelo Orofino, as administrator, against the New York State Railways. Judgment for plaintiff.</p>

<p>Nuisance (§ 72*)—Public Nuisance—Injunction.</p> <p>An injunction restraining an electric power company from maintaining its poles and wires in a city and transmitting power, on the ground that it is maintaining a public nuisance, will not issue at the suit of another company having a franchise to operate in the city, where it does not appear that defendant’s poles or wires interfere with plaintiffs, or that any person or property is injured thereby, except that plaintiff might possibly suffer a loss of business through competition.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 164-169; Dec. Dig. § 72.*]</p>

<p>1. Master and 'Servant (§ 281*)—Death of Servant—Action—Contributory Negligence—Evidence.</p> <p>In an action for the death of a servant, evidence held not to show his freedom from contributory negligence so as to warrant a recovery.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 987-990; Dec. Dig. § 281.*]</p> <p>On Motion to Resettle Order on Motion for New Trial.</p> <p>2. New Trial (§ 163*) — Order Granting New Trial — Statement of Grounds.</p> <p>An order granting a new trial on the ground that the verdict is against the weight of evidence is defective, where it does not state the grounds upon which it was granted under General Rule of Practice 81, providing that, when an order grants a new trial except on the exceptions taken at trial, it shall specify the grounds upon which the motion was made and upon which it was granted.</p> <p>[Ed. Note.—Eor other cases, see New Trial, Cent. Dig. §§ 330-332; Dec. Dig. § 163.*]</p> <p>3. New Trial (§ 161*)—Conditions on Granting—Payment of Costs.</p> <p>Where the verdict for plaintiff was contrary- to the weight of evidence, the error being entirely that of the jury for which defendant was in no wise responsible, defendant should not be required to pay the costs as a condition of granting it a new trial. ’</p> <p>[Ed. Note.—Eor other eases, see New Trial, Cent. Dig. §§ 321-323; Dec. Dig. § 161.*]</p>

<p>Action by the Canavan Bros. Company against Adolph M. Bendheim and another. On demurrer to the complaint. Overruled, with leave to answer.</p>

<p>1. Landlord and Tenant (§ 142*) — Landlord’s Reversion — Injuries Thereto.</p> <p>A lessor is not entitled to an injunction to prevent tbe establishment of a public automobile garage near the leased premises, where the anticipated injuries will be of a temporary nature from the noise and bad odors, as the damage will be to the lessee’s and not to the lessor’s estate.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent Dig. §§ 509-514; Dec. Dig. § 142;* Nuisance, Cent. Dig. § 120.]</p> <p>2. Nuisance (§ 11*)—Acquisition oe Rights by Prescription.</p> <p>No user,, however long, entitles one to maintain a nuisance.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig'. § 42; Dec. Dig. § 11.*]</p> <p>3. Nuisance (§ 23*)—Injunction—Grounds.</p> <p>An injunction to restrain the establishment of an automobile garage near plaintiff’s property will not be granted, where the injury is only problematical.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 26-34, 55-59; Dec. Dig. § 23.*]</p> <p>4. Nuisance (§ 3*)—What Constitutes—Automobile Garage.</p> <p>The establishment of an automobile garage in a residential district is not a nuisance per se, and its establishment in a district bordered with nearby shops may not be a nuisance, the business being lawful and necessary, and the greater part of the noise and bad odors may be obviated, and the objectionable features reduced to a minimum.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.*]</p>

In the matter of the application of the City of New York to acquire title to lands and to open and extend West 134th street. From an order confirming the report of a referee, and dismissing the petition, the City of New York appeals.

<p>1. Corporations (§ 642*)—Foreign Corporations—“Doing Business Within State”—Sale of Stock.</p> <p>New York General Corporation Law (Consol. Laws 1909, c. 23) § 15, provides that no foreign stock corporation other than a moneyed corporation can do business within the state without first having procured a certificate that it has complied with the requirements of law. Meld, that a subscription to the stock of a foreign corporation and the issuance of the stock subscribed for to a resident of New York do not constitute a transaction of “business within the state” by the corporation.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2155-2160; vol. 8, pp. 7640, 7641.]</p> <p>2. Corporations (§ 268*)—Stockholder’s Unpaid Shares—Becovery of Balance—Action by Trustee—Complaint.</p> <p>Since a stockholder in a foreign corporation is under a contract obligation to pay the full par value of stock subscribed for by him, enforceable by a suit at common law, the trustee in bankruptcy of a New Jersey corporation was not bound to allege Laws N. J. 1896, p. 284, § 21, making stockholders liable until their subscriptions have been fully paid, in a complaint against resident stockholders to recover unpaid subscriptions; such" statute not providing an exclusive remedy.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1129-1148; Dec. Dig. § 268.*]</p> <p>3. Limitation of Actions (§ 65*) — Accrual of Cause of Action — Unpaid Stock—Stockholder’s Liability.</p> <p>A stockholder’s liability for unpaid stock, so far as the creditors of the corporation are concerned, does not accrue until the making of an order in proceedings to wind up the corporation calling on such stockholders to pay the balance of their subscriptions.</p> <p>[Bd. Note.—For other cases, see Corporations, Cent. Dig. §§ 261, 345-350; Dec. Dig. § 65.*]</p> <p>4. Corporations (§ 262*)—Stockholders—Unpaid Subscriptions—Defenses —Fraud.</p> <p>In a suit by a trustee in bankruptcy against stockholders of the bankrupt corporation to recover unpaid stock subscriptions, it was no defense that defendant purchased solely on the agreement that the corporation’s officers should locate its plant in a particular village, which they failed to do, and that it was agreed that the stock should be regarded as fully paid on the subscriber’s paying 25 per cent, of the par value, which was paid when the stock was issued.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1076-1083; Dec. Dig. § 262.*]</p>

<p>Claim of Mary J. White, administratrix of John Watson, against the State of New York.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Nathan Greenbaum, as receiver of the property of the National Standard Brewing Company, against Richard Grammer. From a judgment of the City Court on the pleadings, and on the opening address of defendant’s counsel, defendant appeals.</p>

Action by Abraham Gertler against the Brooklyn, Queens County & Suburban Railroad ’ Company. From an order of the New York City Court, denying defendant’s motion to stay proceedings until the payment of costs of a prior action, it appeals.

Action by Rosario Aidala, an infant, by Gaetano Aidala, his guardian ad litem, against the Savoy Trust Company of the City of New York. From a judgment for defendant, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Henry W. Mahar against the Harrington Park Villa Sites and another. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Master and Servant (§ 70*)'—Services and Compensation—Continuance of Employment.</p> <p>Where one employed for a specified time at a certain sum per month continued to perform, after expiration of his contract, without a new contract being made, duties of the same character as those which he had theretofore performed, he was entitled to pay at the same rate as that originally contracted for.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Gent. Dig. §§ 82-86; Dec. Dig. § 70.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Supplementary proceedings by Giuseppe Scialampo, judgment creditor, against Pietro Ciolino, judgment debtor. From an order granting a motion to discharge the judgment debtor from imprisonment for disobedience of an order in the proceedings, the judgment creditor appeals.</p>

<p>Execution (§ 158*)—Stay.</p> <p>Where a stay of execution for 30 days was granted upon consent, and prior to the expiration thereof an execution was issued, a motion should have been granted to set it aside.</p> <p>[Ed. Note.—For other cases, see Execution, Dec. Dig. § 158.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Supplementary proceedings by John Vosper against Jacob Monkash. From an order denying a motion to issue an attachment for contempt against defendant, and denying a motion for the appointment of a receiver, the judgment creditor appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Gertrude Galif against J. Erlichman, Incorporated. From an order granting a motion to preclude plaintiff from offering evidence because of her failure to serve a bill of particulars pursuant to order, plaintiff appeals. Reversed.</p>

<p>1. Evidence (§ 334*)—Public Records—Official Certificates—Death.</p> <p>A beneficiary of a member of a benefit society adopted, as notification and proof of the cause of the member’s death, a certificate of the board of health, obtained for him by an official of the society and sent by him to the society’s secretary. Held, that the certificate was in effect a certificate offered by the defendant, and that as such it was not competent evidence to prove the cause of the member’s death.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1266-1272; Dec. Dig. § 334.*]</p> <p>2. Evidence (§ 215*)—Admissions—Parties of Record—Admission by Beneficiary under Benefit Certificate.</p> <p>In an action by a beneficiary on a certificate of a benefit society, the plaintiff offered as proof of death of the insured a certificate from the board of health, in which suicide was stated as the cause of death. Held, that the statement in the certificate as to cause of death became an admission against the beneficiary.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 754r-759; Dec. Dig. § 215.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Florence B. Reynolds and another against the Harlem Construction Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Cabbieks (§ 35*)—Charges—Interstate Commerce—Carriage of Freight.</p> <p>Under the interstate commerce act (Act Feb. 4, 1887, c. 104, § 2, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3155]), prohibiting discrimination by special rate or device, a contract by a carrier for transportation for a less compensation than the published rate is invalid, and where at the time of a shipment neither the carrier nor the shipper had any actual knowledge of the actual weight of the goods, and the carrier received compensation based on a specified weight while the goods actually weighed more, it could recover the balance according to the schedule of rates established' and filed.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 94; Dec. Dig. § 35.*]</p>

Action by Jennie Delmour against John Forsythe. From a judgment for plaintiff, after a trial before the court without a jury, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Giovanni Crihietelli against Jenero Pero and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Beta Ginsberg against Clifford N. Shurman and others. From a judgment for plaintiff, certain defendants appeal.</p>

<p>Courts (§ 190*) — Municipal Courts — Decisions Review able — Orders — Costs.</p> <p>An order granting a motion to strike items of costs from the docket of a judgment in the Municipal Court of the City of New York is not appealable, under the provisions of the Municipal Court act (Laws 1902, c. 580) §§ 253, 254, 255, 256, 257, which respectively provide for motions to open defaults, to set aside verdicts, for new trials, and for awarding of costs, and for appeals from orders granting or denying such motions as from judgments.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190;* Appeal and Error, Cent. Dig. §§ 103, 3379%-]</p>

Action by Louis Sasse and another, landlords, against John Cohen, tenant. From a final order, in summary proceedings, of the Municipal Court in behalf of the landlords, the tenant appeals.

<p>Corporations (§ 507*)—Actions—Service of Process.</p> <p>Where the summons in an action against a corporation was served on one who had been, but who was not at the time of service, an officer of the corporation, and the officers of the corporation at the time were not served, the corporation was not sufficiently served.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1971-2000; Dec. Dig. § 507.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the J. H. Paddock Company against Bernard Sandrovitz. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Tbial (§ 109*)—Opening Statement—Dismissal.</p> <p>On motion to dismiss on plaintiff’s counsel’s opening, the opening should be construed favorably to plaintiff.</p> <p>[Ed. Note.—For other cases, see Trial, Cent Dig. § 307; Dec. Dig. § 109.*]</p> <p>2. Principal and Agent (§ 72*)—Conversion by Agent—Eefusal to Pay Over Money.</p> <p>Defendant having received money as plaintiff’s agent to pay it to a designated person, his failure to do so or to return the money on demand was a conversion.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 148, 149; Dec. Dig. § 72 ;* Trover and Conversion, Cent Dig. § 70.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Actions by the Federal Varnish Company against Otto Boelsen and against Nathan Fass. From judgments in favor of plaintiff in each action, defendants appeal.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Moses Einhorn against P. Derby & Co. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First Disr trict.</p> <p>Action by August Zeman and others, partners as the Yorkville Marble Company, against the S. Fox Construction Company and others. Judgment for plaintiffs, and defendant Eugene Glucksmann appeals.</p>

<p>1. Trover and Conversion (§ 30*)—Actions—Admission of Evidence.</p> <p>In an action for the conversion of tools, which plaintiff claimed defendant had seized to satisfy an alleged claim against plaintiff,, in which defendant denied having any claim against plaintiff at the time of the alleged conversion, plaintiff could show that, the day after the goods were seized, defendant began an action against him for a certain.sum, and, aftér laying the proper foundation, put in evidence the summons and complaint therein, to prove that defendant was instrumental in seizing the tools, and did not merely stand by while they were seized, as claimed.</p> <p>[Ed. Note.—For other cases, see Trover and Conversion, Dec. Dig. § 36.*]</p> <p>2. Trial (§ 146*)—Withdrawal of Juror—Grounds—Misconduct of Counsel.</p> <p>Where plaintiff’s counsel, who was entitled to introduce in evidence the summons and complaint in a former action between the parties, introduced the whole judgment roll, and read to the jury the justice’s indorsement thereon, denying judgment for plaintiff’s adversary, and intimating strongly that the adversary was a confessed perjurer, though such matter was wholly outside the issues then on trial, it was a deliberate attempt to prejudice the jury by extraneous matters, and defendant’s motion to withdraw a juror was improperly denied.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 329; Dec. Dig. § 146.*]</p> <p>3. Appeal and Error (§ '1031*)—Presumption of Prejudice from Error.</p> <p>In such case, the appellate court will not inquire whether the improper evidence was in fact prejudicial, but will presume .that it had the prejudicial effect which counsel must have intended it to have.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.*]</p>

Summary proceedings by Alexander Mann against Ike Hefter. From a Municipal Court order denying defendant’s motion to vacate and set aside a final order in summary proceedings and to open defendant’s default, he appeals.

Action by Edward Newgass against Otto B. Shulhof. From a judgment of the City Court of the City of New York, entered upon the direction of a verdict for the plaintiff, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the United Merchants’ Realty & Improvement Company against the American Billposting Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Landlord and Tenant (§ 17*)—Estoppel by Conduct—Execution op Lease.</p> <p>Defendant, by representing to plaintiff that he signed a lease to premises occupied by plaintiff, and by collecting rent thereunder, is estopped from denying that he executed the lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 42-44; Dec. Dig. § 17.*]</p> <p>2. Landlord and Tenant (§ 184*)—Action to Recover Deposit as Security —Proof—Variance.</p> <p>Where plaintiff alleged, in his bill of particulars in an action to recover money paid defendant as security for performance of covenants of a lease executed by defendant to plaintiff, that the lease was in writing, he cannot prove a paroi lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 184.*]</p> <p>3. Evidence (§ 427*)—Paroi Evidence—Extrinsic Facts—Showing Execution.</p> <p>In an action by á tenant to recover money paid as security for performance of the covenants of the lease in which defendant denied execution, plaintiff could show by paroi the circumstances under which the lease was delivered, to show that it was executed by defendant, though it was in writing.</p> <p>[Ed. Note.—For other eases, see Evidence, Dec. Dig. § 427.*]</p> <p>4. Landlord and Tenant (§ 184*)—Rent—Security—Action for Breach— ■ Evidence.</p> <p>The tenant could show, in an action to recover money paid the landlord as security for performance of the covenants of a lease executed by the latter, that he was ousted during the term by paramount title, so as to breach -the covenants.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 184.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Frank J. Hauser against the George J. Just Company. Judgment for plaintiff, and defendant appeals.</p>

Action by Aline S. De Graff, an infant, by guardian, etc., against Chester De Graff. Defendant moves to set the service by publication and the order therefor. Denied.

<p>Assignments (§ 73*)—Bank Accounts—Property Transferred.</p> <p>An assignment of assignors’ interest in a bank account, which according to the pass book showed a credit, but which was actually overdrawn, did not transfer, as against the assignors’ trustee in bankruptcy, book accounts deposited as collateral to secure assignors’ indebtedness to the bank.</p> <p>[Ed. Note.-—For other cases, see Assignments, Cent. Dig. §§ 139-142; Dec. Dig. § 73.*]</p> <p>'Seabury, X, dissenting.</p>

<p>1. Municipal Coepobations (§ 670*)—Streets—Sidewalks—Obstb,uctions.</p> <p>New York City Code of Ordinances, § 219, enacted by the board of aldermen under Greater New York Charter (Laws 1901, c. 466) § 50, prohibits any person from obstructing a sidewalk, except as provided in section 262, without written permission from the borough president; and section 262 prohibits the placing of merchandise, etc., at a greater distance than three feet in front of a store, except goods being loaded or unloaded, and. requires a free passageway for pedestrians. Held, that obstruetions must be reasonable with reference to the rights of the public, as well as necessary to the business of the person maintaining them, to be justified under the ordinances.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1446; Dec. Dig. § 670.*]</p> <p>2. Municipal Corporations (§§ 120, 643*)—Municipal Courts—Power to Suspend Ordinances.</p> <p>The Municipal Court has no power to suspend the operation of the ordinances in a particular case; they having the force of law.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. §§ 120, 643.*]</p>

Action by Edward Hart against the City Theaters Company. Erom an interlocutory judgment of the City Court of the City of New York, overruling plaintiff’s demurrer to defenses in the answer, plaintiff appeals.

<p>1. Sales (§ 383*)—Breach of Contract—Evidence of Damages.</p> <p>In an action for breach by defendant of a contract to purchase a certain medicine of plaintiff at a fixed price per bottle, testimony of plaintiff as to his “loss of profits,” without proof of the actual cost of the medicine to him, did not constitute proof of damages.</p> <p>[Ed. Note.—For other cases, see Sales, Dec. Dig. § 383.*]</p> <p>2. Contracts (§ 303*)—Performance—Excuses for Nonperformance—Operation of Law.</p> <p>Performance of a contract is excused, where the execution thereof becomes illegal.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 303.*]</p> <p>3. Sales (§ 387*)—Breach of Contract—Nonperformance—Jury Questions.</p> <p>In an action for breach by defendant of a contract to purchase a medicine of plaintiff, where defendant alleged that under the pure food law (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]) the sale of the medicine had become unlawful, the court should have interpreted the act as applied to the facts in the case, leaving to the jury the question whether, on the facts, the goods came within its inhibition.</p> <p>[Ed. Note.—For other cases, see Sales, Cent Dig. § 1108; Dec. Dig. § 387.*]</p> <p>4. New Trial (§ 29*)—Grounds—Remarks of Counsel.</p> <p>Where plaintiff’s counsel persistently, and in defiance of repeated rulings of the court, and over defendant’s objection, commented in his summing up on the answer, in order to convince the jury that defendant was guilty of perjury, because he had sworn to a defense on which he offered no proof, defendant’s motion for a mistrial should have been granted.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent Dig. §§ 43, 44; Dec. Dig. § 29.*]</p> <p>5. Trial (§ 115*)—Remarks of Counsel.</p> <p>The rule that a pleading may be read to the jury does not permit counsel to predicate a charge of perjury on the withdrawal of a defense, and the consequent failure to offer evidence in support thereof. •</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 279-283, 298; Dec. Dig. § 115.*]</p>

Action by Arthur S. Mitchell against the Catlin & Powell Company. From an order denying his motion to interplead a third person as a party, defendant appeals.

<p>Appeal from City Court of New York, Special Term.,</p> <p>Action by Henry L. Ketcham against Rowland & Shafto, Incorporated, and another. From an order denying plaintiff’s motion to vacate an order for his examination before trial, he appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by The Abbaye against the United States Motor Cab Company. From a judgment for defendant, plaintiff appeals.</p>

Action by H. Koehler & Co. against Henrietta Adams, in which defendant counterclaims. From an order directing the action to be severed and entry of judgment for plaintiff, and from a judgment entered thereon, defendant appeals.

Action by the Consolidated Safety Pin Company against William C. Humbert and another, doing business under the firm name and style of Taft Four Years League. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Action by Adolf Stern against Samuel Rosenthal and others. From a judgment of the New York City Court in favor of plaintiff, and from an order denying defendants’ motion for new trial, they appeal.

<p>1. Principal and Agent (5 183*)—Action fob Rent—Undisclosed Agency —Sealed Lease—Action by Principal.</p> <p>An action cannot be brought by an undisclosed, principal upon a sealed lease executed by the agent, since actions on sealed instruments cannot be brought by a stranger thereto.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 692; Dec. Dig. § 183.*]</p> <p>2. Landlord and Tenant (§ 231*)—Lease—Execution—Seal—Evidence.</p> <p>In an action for rent, evidence held to show that a lease in evidence was not sealed when delivered to the tenant, though a seal was recited in the attestation clause.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 231.*]</p> <p>3. Landlord and Tenant (§ 231*)—Rent—Holding Over.</p> <p>A sealed lease in the name of an agent of an undisclosed lessor, though not binding on the latter, may be used to establish the terms of the contract implied from the tenant’s act in holding over.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 231.*]</p> <p>4. Parties (§ 95*)—Amendment.</p> <p>The court may permit an amendment of the complaint to cure error in the description intended to identify the plaintiff.</p> <p>[Ed. Note.—For other cases, see Parties, Cent. Dig. §§ 160-166; Dec. Dig. § 95.*]</p>

<p>1. Brokers (§ 9*)—Employment—Time fob Performance.</p> <p>Where a contract employing a broker to procure a mortgage loan fixed no time for performance, the broker had a reasonable time within which to perform.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. ■ Dig. § 10; Dec. Dig.. § 9.*]</p> <p>2. Brokers (§ 63*)—Employment—Time for Performance.</p> <p>A contract employing a broker to procure a mortgage loan did not fix the time for performance. The broker procured a lender ready and able' to furnish the money but he objected to the title. Negotiations to cure defects in the title were carried on for about a month when the objections to the title were withdrawn and the time fixed for closing the transaction. The borrower failed to appear, and several days later stated that he did not want the money. Held, that the broker had earned his commissions.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 79-96; Dec. Dig. § 63.*]</p> <p>Lehman, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Burns Bros, against the Royal Bank of New York. From a judgment for plaintiffs, after a trial without a jury, defendant appeals.</p>

<p>Action by the Wright Company against the Aero Corporation, Limited. On motion by plaintiff for an injunction.</p>

<p>In the mattér of the appraisal under the transfer tax acts of the property of James Jourdan, deceased.</p>

<p>1. Wills (§ 167*)-—Revocation.</p> <p>In order for one to revoke Ms will, there must be something done by which he recalls or renders his bequest inoperative.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 438; Dec. Dig. § 167.*]</p> <p>2. Wills (§ 476*)—Construction—Codicils.</p> <p>A will and codicil are to be construed as parts of the same instrument.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 997; Dec. Dig. § 476.*]</p> <p>3. Wills (§ 184*)—Revocation.</p> <p>A codicil is no revocation of a will further than it is so expressed. Where the codicil contains dispositions inconsistent with the will, the latter will be deemed revoked to the extent of the discordant dispositions.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 462-467; Dec. Dig. § 184.*]</p> <p>4. Wills (§ 184*)—Revocation.</p> <p>A codicil will not operate as a revocation beyond the clear import of its language, and an expressed intention to alter a will in one particular negatives an intention to alter it in any other respect.</p> <p>[Ed. Note.—For other cases, 'see Wills, Cent. Dig. §§ 462-467; Dec. Dig. § 184.*]</p> <p>5. Wills (§ 184*)—Revocation—Codicils.</p> <p>Testator gave his wife the use of all his property during her life, and on her death the property, or so much thereof as might remain, to his daughter, and by a codicil provided that, if the wife and daughter could agree, they might sell the land and divide the proceeds. Thereafter testator destroyed the codicil. Held, that the codicil did not change the will in any important respect, and its destruction did not cause a revocation of the will.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 462-467; Dec. Dig. § 184.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Morris Zack against Emil Cans and another. From a judgment for plaintiff, defendants appeal.</p>

Action by the Columbia Metal Box Company against Frederick W. Cohn. From a judgment in favor of defendant, and from an order denying a motion for a new trial and to correct the judgment as entered, plaintiff appeals.

Action by Addie Fromme, as executrix of the last will and testament of Jacob Fromme, deceased, against William H. Davidow and another. From a judgment of the Municipal Court for plaintiff, defendants appeal.

Action by Charles H. Nellis against the Brown-Leipe Gear Company. On defendant’s motion for a bill of particulars. The complaint alleges that the plaintiff, while in the employment of the defendant, on June 30, 1910, in operating a machine known as the “Jones & Lamson flat turret lathe,” which was defective in construction, received an injury which resulted in the total loss of his left eye.

<p>Action by John Henneky, Jr., against George M. Stark for injunction to restrain flooding of land. Judgment for plaintiff.</p>

<p>1. Counties (§ 62*) — Clerks — Assistants — Appointment—Constitutional and Statutory Provisions.</p> <p>Laws 1909, c. 513, changed the clerk’s office of Richmond county to a salaried office, and by section 6 gave the cleric power to appoint all assistants subject to the civil service law, by section 2 provided that the salaries of appointees to the clerk’s office were to be fixed by the board of estimate and apportionment, and by section 11 provided that every assistant employed in the clerk’s office on January 1, 1909, and continuing in employment till the act took effect, and who prior to January 1, 1910. passed a noncompetitive civil service examination, should be retained and assigned to perform the same services in the clerk’s office. The board of estimate and apportionment, acting under Greater New York Charter (Laws 1901, c. 466) § 226, in making up its budget of appropriations for 1910, allowed for three clerks at $1,200, and on request of the county clerk recommended two additional clerks at $1,000. No appointment was-made to either of these additional clerkships before July 31, 1910. Relator was a copyist in the clerk’s office on January. 1, 1909, and, after passing a noncompetitive examination, was assigned to the same work, and, after the appropriation made by the board of estimate and apportionment, he applied for mandamus to the board to fix his salary under the act Held, in view of Const, art. 5, § 9, which requires all appointments to be ascertained .by noncompetitive examination, that section 11 did not compel the clerk to retain in office all those employed on January 1, 1909, but conferred upon the clerk the right of appointment, subject to the civil service law, and that before appointment to the clerkships provided for by the board, the board was not required under the act to fix relator’s salary.</p> <p>[Ed. Note.—For other cases, see Counties, Dec. Dig. § 62.*]</p> <p>2. Officers (§ 8*)—Power to Appoint to Office.</p> <p>The power to appoint to office involves the exercise of choice in respect to the appointee.</p> <p>[Ed. Note.—For other cases, see Officers, Cent. Dig. § 10: Dec. Dig. § &*]</p> <p>3. Counties (§ 64*) — Clerks—Assistants—Appointment—Qualifications— Civil Service Laws—Examination.</p> <p>Under Laws 1909, c. 513, § 11, providing that every clerk or assistant employed in the office of the Richmond county clerk January 1, 1909, and continuing in office until the act took effect, and who prior to January 1, 1910, passed a noncompetitive civil service examination, should be retained and assigned to perform the same services in the clerk’s office, an incumbent in the clerk’s office on January 1, 1909, who failed to pass a noncompetitive civil service examination before January 1, 1910, but who was re-examined and finally passed in February, is not qualified for appointment under the terms of the act.</p> <p>[Ed. Note.—For other cases, see Counties, Dec. Dig. § 64.*]</p>

Action by the People of the State of New York, on the relation of Thomas F. Sinnott, against William J. Gaynor and others, etc. From an order of Special Term, the relator appeals.

Action by Rose Enthoven against the American Fidelity Company of Montpelier, Vt. On motion to.set aside a verdict directed for defendant, and for a new trial.

<p>1. Deeds (§ 133*)—Life Estate—Remainders.</p> <p>A deed to grantor’s son recited that the property described should descend to the grantor’s son’s children after the son’s decease, if he shall have any, otherwise to revert back to the grantor and his heirs. When the deed was made, the son had no children, but four children were afterwards born to him, three of whom are living, and a daughter, who died before the death of her parent, leaving three children. Held, that the deed granted a life estate to grantor’s son, the remainder vesting in the son’s children as they were bom, as tenants in common, hence the share . which vested in the daughter descended to her children, and not to the other children of the son, as the deed did not convey the remainder to the grandchildren as a class.</p> <p>[Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 368-371; Dec. Dig. § 133.*]</p> <p>2. Deeds (g 133*)—Life Estate—Remainders—“Descend.”</p> <p>Where a deed conveyed land to the grantor’s son, the land to “descend" to the sen’s children, if he shall have any, but, if not, to revert to the grantor and his heirs, the word “descend” was not used in its technical legal sense, for the fee could not descend from the son, because it was not vested in him, and could not descend from the grantor because it was to pass by the deed, and not by his death, and as the law favors the vesting of estates unless a contrary intention appears, there is nothing in the deed inconsistent with the vesting of the remainder in the first child born to the grantor’s son, subject to open and let in after-born children.</p> <p>[Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 368-371; Dec. Dig. § 133.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2012-2014.]</p> <p>3. Partition (§ 70*)—Right to Jury Trial—Statutes.</p> <p>Code Civ. Proc. § 1544, regarding partition, provides that an issue of fact joined in the action is triable by jury, and, unless the court directs the issues to be stated under section 970, the issues may be tried upon the pleadings. Held, the statute relates to all the issues, and not merely to the right of- the plaintiff to maintain the action; hence a verdict of a jury in a partition suit fixing the boundaries is not advisory merely, and can only be set aside on grounds authorized in section 999, as in case of verdicts in actions at law; and, where the evidence shows no ground for disturbing it, and it is not against the weight of the evidence, it must stand.</p> <p>[Ed. Note.—For other cases, see Partition, Cent. Dig. ■§ 193; Dec. Dig. § 70.*]</p>

Action by the Midwood Park Company against Bertha G. McLaughlin Baker, impleaded with the Kouwenhoven Realty & Improvement Company and others. Judgment for plaintiff, and certain bonds and mortgage security held invalid.

<p>Action by Sophia Uhler against Samuel Uhler. Decree for plaintiff.</p>

In the matter of acquiring title by the City of New York to premises situated at Avenue A and First Avenue, Fifty-Ninth Street and Sixtieth Street, taken as a sité for bridge purposes according to law. Appeal from an order denying an application to authorize the comptroller of the city of New York to deliver a warrant made in payment of the-award.

Action by George E. Lovett & Co. against Walter Gibb and others, executors of Arthur Gibb, deceased, and Walter Gibb, personally. From a judgment for plaintiff, defendants appeal.

Action by one Pringle against one Dean and others. From the-judgment, plaintiff appealed. On motion, after remittitur, to strike an item of disbursements taxed in favor of defendants.

<p>1. Innkeepers (§ 13*)—Liens—Right to.</p> <p>Boarding house keepers have a valid lien on a boarder’s trunk, unless the amount due for board is tendered.</p> <p>[Ed. Note.—For other cases, see Innkeepers, Cent. Dig. §§ 42-46; Dec. Dig. § 13.*]</p> <p>2. Troves and Conversion (§ 69*)—Judgment—Property.</p> <p>In an action for converting a boarder’s trunk, held for board due, where plaintiff relied on a tender of the amount due, it was error to order a release of the trunk, and to give judgment in the boarding house keeper’s favor.</p> <p>[Ed. Note.—For other cases, see Trover and Conversion, .Dec. Dig. § 69.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action- by Allen Bond against Joseph A. Vandegrift. From an order of the City Court of the City of New York, setting aside a verdict for defendant, and ordering a new trial, he appeals.</p>

<p>Appeal from Special Term, New York County. Action by William M. Ivins against</p> <p>William N. Amory. From parts of an order granting motion to require defendant to furnish a bill of particulars, defendant appeals. Order modified, and, as modified, affirmed.</p>

<p>Action by Lancelot M. Berkeley against F.rank M. Dusenberry and others.</p>

<p>Action by Frank L. Blenis against the Utica Knitting Company.</p>

<p>Action by Joseph Bovi against Max Hess and others.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Santiago P. Cahill, as receiver of 'Pile Why Dairy Lunch Company, in proceedings supplementary to execution against Charles H. Torrey and Howard M. Davis, interpleaded by the Consolidated Gas Company of New York. Plaintiff appeals. Modified and affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by John Carroll against the Samuel Wilde’s Sons Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Action by Maynard N. Clement, as State Commissioner of Excise, etc., against ISO quart bottles of liquor; Garry S. Bacon answering, and John I-I. Wilson appearing specially.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Daniel Curtin against Matthew J. Wheelehan. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

<p>Action by Jerome J. Deery against Elizabeth M. Byrne and others, as executors.</p>

<p>Action by Louis L. Farrell against William J. Farrell, individually, etc.. and others.</p>

<p>Action by Clarence E. Evans, an infant, etc., against the Eastman Kodak Company.</p>

<p>Action by Robert L. Fisher against Florence E. Fisher.</p>

<p>Action by Abram Friedland against the Commonwealth Fire Insurance Company of Ottumwa, Iowa.</p>

<p>Action by Sol Goodman against Louis Dornbush.</p>

<p>Action by John L. Goss against the Williams Engineering & Construction Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by I. Henry Harris against George L. Amouroux. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.1</p>

<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>

<p>Action by Frank Heiferman against Max Scholder and another.</p>

<p>Action by Michael J. Kean and another, as executors, etc., against Mary Kane and others.</p>

<p>Action by William H. KouWenhoven against Electa Gifford and others.</p>

<p>Action by Samuel Earner against the New York Transportation Company.</p>

<p>Action by Phillip Levine and another against Isidor Rosenchein.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District, Action by Frederick Ludwig and another,' as executors of George Mouter, deceased, against Leon Golden-berg and another, composing the firm of Golden-berg & Cohen. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.</p>

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

<p>Action by Albert Martinez against the Film Import & Trading Company.</p>

<p>Action by Robert L. Morrell, as chairman, etc., against Frederick Skene.</p>

<p>Action by Giuseppe Miaño against the Empire State Surety Company and another.</p>

<p>Action by Francis Millerick, an infant, by Johanna Millerick, his guardian, against Albert J. Wing and another.</p>

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

Actions by Frances Newman, as administratrix, against Leah Newman, interpleaded, ■etc. (two actions), and by Leah Newman against Frances Newman, as administratrix, etc., interpleaded (two actions).

<p>Action by the New York Produce Exchange Bank against the Twelfth Ward Bank of the City of New York.</p>

<p>Action by Charles O’Neill against the Erie Railroad Company.</p>

<p>Action by Joseph Oman against the Phoenix Bridge Company.</p>

<p>Action by Ellen C. Osborn against Howard J. M. Cardeza and others.</p>

<p>Proceeding by the People of the State of New York, on the relation of E. P. Bryan and others, as trustees of the New York & Long Island Railroad Company, against the State Board of Tax Commissioners.</p>

<p>Proceeding by the People of the State of New York, on the relation of William H. Duncan, against Maynard N. Clement, as Commissioner, etc.</p>

Action by the R. B. Davis Company against Harris Rosenfeld. From a judgment in the Municipal Court of the City of New York in favor of defendant, plaintiff appeals. Reversed, and new trial granted.

<p>Action by Ignatz Red'er and Pauline Goodman, co-partners, etc., against John T. Byrne.</p>

<p>Action by Charles Rosenberg against Max Hal-pert.</p>

<p>Action by Isidor Sirota against Louis Dornbush.</p>

<p>Action by Louis Sherry against Arthur B. Proal.</p>

<p>Action by Frank B. Torrey, as executor, etc., of Edward Warren Day, deceased, against Evelyn Day Bruner and others.</p>

<p>Action by the Stoller & Cook Company against Vennette F. Pelletreau & Co.</p>

<p>Action by the United Building Material Company against the City of New York and others.</p>

<p>Action by Eugene S. Willard against John W. Ferguson.</p>

<p>Action by Alexander Watson against the Syracuse Rapid Transit Railway Company.</p>

<p>Action by Alexis Witte against Elizabeth Koerner.</p>