Volume 129 — New York Supplement

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Jacob Greenfeld against Harris Schoenfeld. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Henry D. Gobber against William Empting. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Contracts (§ 322*)—Performance—Effect—Recovery of Expenditures.</p> <p>Where defendant agreed to lay a concrete walk and yard at an apartment house, “in a durable and substantial manner,” and “without the performance of any part of the said work in unsuitable manner,” and defendant completed the work and was paid the price therefor, evidence that the walk, two weeks after the work was finished, cracked and bulged, so that plaintiff was compelled to have it done over, was sufficient to make out a prima facie case for the recovery of the cost of the repair work.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 322.*]</p> <p>2. Contracts (§ 322*)—Action for Breach—Evidence.</p> <p>Where a contract for the construction of a concrete walk and yard provided that the work was to be done “in a durable and substantial manner” and “without the performance of any part of the said work in an unsuitable manner,” and, two weeks after the work was finished, the concrete cracked and bulged, and the owner of the building had the work done over, and sued the contractor for the cost thereof, plaintiff’s testimony that the foundation for the concrete contained only cinders, and that the top covering was less than an inch thick, was inadmissible, in the absence of a showing that the mode of construction was not the usual one and was in fact insufficient.</p> <p>[Ed. Note.-—For other cases, see Contracts, Dec. Dig. § 322.*]</p> <p>3 Contracts (§ 322*)—Defects in Performance—Waiver—Evidence.</p> <p>In an action by the owner of a building against a contractor to recover the cost of reconstructing a concrete walk and yard alleged to have been laid in such a manner that it cracked and bulged within two weeks after the work was completed, evidence held to show that defendant performed the work during freezing weather at the peremptory direction of plaintiff, and that plaintiff agreed to assume the risk arising from the impairment of the work by its freezing.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 322.*]</p> <p>4. Contracts (§ 316*)—Defects in Performance—Waiver—Remedy.</p> <p>Where defendant agreed to lay a concrete walk and yard “in a durable and substantial manner,” and negligently delayed the work until cold weather set in, and then at the peremptory direction of plaintiff laid it in freezing weather, so that it was injured and cracked, and bulged within two weeks after the work was finished, such delay might give plaintiff a right of action for damages; but he had no right to direct the work to be done in freezing weather, and, after the defect became apparent, to cause the work to be reconstructed at the cost of defendant.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 316.*]</p>

<p>Appeal and Ebrob (§ 127*)—Decisions Reviewable—Judgment by Default.</p> <p>Under Code Civ. Proc. § 1294, providing for appeals" unless the judgment complained of was rendered on default, no appeal lies from the default judgment rendered, though it be by motion to open the same.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 885-891; Dec. Dig. § 127.*]</p>

<p>1. Poisons (§ 9*)—Keeping Place fob Smoking Opium.</p> <p>The mere fact that opium and paraphernalia used in smoking opium are on a person’s premises does not show a violation of Penal Law (Consol. Laws 1909, c. 40) § 1533, punishing one who opens or maintains a place where opium is smoked by others, or who sells or gives away opium to be there smoked.</p> <p>[Ed. Note.—For other cases, see Poisons, Dec. Dig. § 9.*]</p> <p>2; Landlord and Tenant (§ 308*)—Dispossession op Tenant—Grounds— Petition.</p> <p>A petition by a landlord to dispossess his tenant, which alleges that the tenant carried on the sale and exposure for sale on the premises of opium contrary to law, is not sustained by evidence that opium was smoked on the premises contrary to law; but the landlord must show that the tenant carried on an illegal trade in selling opium or exposing it for sale.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 308.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by John J. Daly against Benjamin Lowenstein. From a judgment for plaintiff, and from an order denying a motion for a new-trial, defendant appeals.</p>

<p>Bbokebs (§ 62*)—Right to Submission—Deal Going Through.</p> <p>Though the agreement of the owner of property with a broker, authorized to secure a purchaser, provides that he shall not be entitled to a commission “if the deal did not go through,” yet he, having secured one ready and willing, who, on terms agreed to by the owner, entered into a contract for purchase, describing the property in the vendor’s own language, was entitled to a commission; failure of the purchaser to take a conveyance being due solely to the owner’s misrepresentations in the contract as to the dimensions of the property.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 62.*]</p>

Action by Carl W. S. Rothfuss against the H. J. Koehler Sporting Goods Company. From a judgment on a verdict directed for defendant, and from an order denying a motion for new trial, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by the Department of Health of the City of New York against Thomas Joseph Dunn, From a judgment for defendant, rendered by the Municipal Court, plaintiff appeals.</p>

<p>Appeal .and Error (§ 1012*)—Review—Judgment—Conclusiveness.</p> <p>On an appeal from a judgment for plaintiff, all disputed questions of fact must be deemed to have been determined in his favor, and should not be disturbed, unless the determination is so against the evidence as to indicate prejudice, misapprehension, or passion.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3990; Dec. Dig.. § 1012.*]</p>

Action by Alex C. Lassen against the Anthony Stumpf Publishing Company. From an order denying its motion for the issuance -of commissions to take the testimony of witnesses, defendant appeals.

<p>Trial (§ 253*)—Instructions—Ignoring Issues.</p> <p>An instruction which fails to present the issues raised is erroneous.</p> <p>[Ed. Note.—Eor other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p>

<p>1. Evidence (§ 113*)—Loss of Goods—Value.</p> <p>Where plaintiff, a truckman, claimed to have stored a wagon and goods in defendant’s livery stable for compensation, and that some of the goods were lost through defendant’s negligence, evidence of the amount plaintiff was required to pay to the consignee of the goods was incompetent ■to show the value of the goods, as against defendant.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 259-284; Dec. Dig. § 113.*]</p> <p>2. Trial (§ 169*)—Failure of Proof.</p> <p>Where there is a failure of proof, a court may not direct a verdict for defendant, but is only authorized to dismiss without prejudice.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 381-389; Dec. Dig. § 169.*]</p>

<p>1. Courts (§ 190*)—Municipal Courts—Appeal.</p> <p>On appeals from the Municipal Court, the Supreme Court may reverse a verdict, where it clearly appears that it is the result of mistake.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p> <p>2. Courts (§ 190*)—Municipal Court—Appeal.</p> <p>Under the rule that the Supreme Court should affirm or reverse according to the justice of the case, it may reverse a finding of a justice of the Municipal Court, where it clearly appears that he proceeded on an erroneous theory, even though both parties join in requesting a direction.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p> <p>3. Courts (§ 190*)—Municipal Court—Appe'al.</p> <p>Where the record shows that the trial justice, after hearing an interested party, did not believe him, but found in his favor because he believed he was bound to do so as long as the testimony was uncontradicted, the judgment will be reversed.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p> <p>Bfjur, J., dissenting.</p>

<p>1. Judgment (§ 19*)—Evidence to Sustain.</p> <p>Where the trial court wrongfully excluded evidence of the defense pleaded to a note, but found for the defendant on that defense, its judgment cannot be sustained.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 19.*]</p> <p>2. Costs (§ 238*)—On Appeal—Persons Entitled.</p> <p>Where a plaintiff on appeal secured the reversal of a judgment for defendant and a new trial, because the defendant had failed to prove his defense, it is not entitled to costs, when it secured the erroneous exclusion of evidence admissible to prove the defense.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.*]</p>

<p>, Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Sarah Schaffer against J. Lesowitz & Co., Incorporated. From a judgment of the Municipal Court for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Abraham Schlesinger against Isaac Mendelson and another. From an order denying a motion to open a default judgment, defendants appeal.</p>

<p>Courts (§ 189*)—Courts of Inferior Jurisdiction—City Court—Procedure—Amendment.</p> <p>The City Court at Trial Term has no authority to allow an amendment to a complaint which sets up a new cause of action or substantially changes the one pleaded.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Appeal from Trial Term, Queens County.</p> <p>Action by Orlavus Juve against the Pennsylvania Steel Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Taxation-(§ 878*)—Transfer Tax—Property Subject to—“Passing Under Intestate Daws.”</p> <p>The estate of a wife, a resident, dying intestate, leaving a husband and no descendants, does not pass to the husband under the intestate laws, within Tax Daw (Consol. Laws 1909, c. 60) § 220, imposing a tax on the transfer of property “¡passing under intestate laws,” but the estate devolves on the husband by operation of law.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1700, 1701; Dec. Dig. § 878.*]</p>

Action by John Diver against the American Ice Company. From that part of an order substituting a new attorney for plaintiff, which gave the former attorney a lien for his services, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Joe Porto against John J. O’Reilly. Judgment for-plaintiff, and defendant appeals.</p>

<p>1. Food (§ 26*)—Condensed Milk—Statutes—Contracts.</p> <p>Agricultural Law (Consol. Laws 1909, c. 1) § 37, prohibiting the making or selling of condensed milk made from skimmed milk, etc., has no extraterritorial force, and a contract' made and executed in another state for the sale of such an article is enforceable in New York, ■ the sale of such condensed milk being legal at common law, and it not beihg unlawful under such statute to send or bring such milk into this staté.</p> <p>"[Ed. Note.—For other cases, see Food, Cent. Dig. § 19; Dec. Dig. § 26.*]</p> <p>2. Evidence (§ 80*)—Presumptions—Law of Other States—Common Law.</p> <p>In the absence of proof to the contrary, the presumption is that the common law obtains in other states.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. § 80 ;* Common Law, Cent. Dig. §§ 14-16.]</p>

Action by Abraham I. Bleistift against Samuel Diener and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

<p>Contracts (§ 183*)—Joint or Several Contract—Obligation.</p> <p>Plaintiff, being a tenant in common with the -two defendants of incumbered land, and authorized to collect rents and pay taxes and assessments, was notified, by the mortgagee to pay taxes and water charges, and he called a meeting of the parties to induce them to pay a share of the sum necessary to pay the same. Each of the two defendants, in the discussion at the meeting, used the words, “We will pay our share,” and “I will pay my share.” Plaintiff testified that he understood that one of the defendants promised that each of the defendants would pay his proportionate share, and he subsequently asked each one for his proportionate share. Held, that a judgment holding defendants jointly liable was not sustainable.</p> <p>[Ed. Note—For other cases, see Contracts, Cent. Dig. §§ 780-788; Dec. Dig. § 183.*]</p>

Action by Solomon Silberstein against Nathan Spigel and another, doing business under the firm name of Spigel Bros. From a judgment dismissing the complaint on the merits, plaintiff appeals.

Action by Lazar Jacobsohn against Sigmund Semel and another. Erom an order amending proceedings and a judgment nunc pro tune, defendant named appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Jacob Sohlman against the Cluny Art Embroidery Company. From a judgment of the Municipal Court of the City of New York, entered upon a verdict rendered in favor of the plaintiff, defendant appeals.</p>

In the matter of the application of John D. Braue, judgment creditor, in proceedings supplementary to execution on a judgment recovered by him, as plaintiff, against John J. Fogarty, judgment debtor, defendant.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by William Balkin against John H. Buscall. From a judgment of the Municipal Court of the City of New York in favor of the plaintiff, defendant appeals.</p>

<p>1. Master and Servant (§ 87*)—Employer’s Liability—Action.</p> <p>The employer’s liability act (Consol. Laws 1909, c. 31, §§ 200-204) gives a new cause of action to a servant.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 87.*]</p> <p>2. Costs (§ 277*)—Stay op Proceeding—Prior Action.</p> <p>It is not essential that there should be a complete identity of the subject-matter of a former action and an action subsequently brought to entitle a party to a stay-; and, where the plaintiff has brought and abandoned one action upon substantially the same cause of action, the defendant is entitled to a stay of the subsequent action until the payment of a judgment for costs in the previous suit.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1048-1060; Dec. Dig. § 277.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by John F. Kain against the Roebling Construction Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Schools and School Districts (§ 144*)—Appointment op Teacher—Compensation—“Vice Principal.”</p> <p>On June 30, 1S9S, the Richmond borough school board appointed plaintiff as “vice principal, subject to the rules and regulations prescribed by the city superintendent of schools.” The rules of the city superintendent: limited appointment to the position of “assistant principal" to those holding a “first assistant teacher’s license or a principal’s license for high,, schools.” Plaintiff did not have either one of the licenses mentioned in the city superintendent’s rule, but possessed a certificate of the State-Superintendent of Public Instruction. Held, that the term “assistant-principal,” as used in the city superintendent’s rules, was equivalent to the term “vice principal,” and plaintiff was not entitled to the salary of" a “vice principal” or “head of department.”</p> <p>[Ed. Note.—For other cases, see Schools and' School Districts, Gent-Dig. §§ 308-314; Dec. Dig. § 144*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7313-7316 vol. 8, p. 7827.]</p> <p>2. Schools and School Districts (§ 144*)—Appointment op Teacher— Compensation.</p> <p>A further appointment of plaintiff on September 8, 1898, as “acting-head of department,” was ineffectual to entitle her to the pay of a regular head of department, as such appointment was temporary in its character.</p> <p>[Ed. Note.—For other cases, see Schools and School Districts, Cent. Dig. §§ 308-314; Dec. Dig. § 144.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Max Stempel and William Stempel, copartners, against Jacob Sussman. From a judgment of the Municipal Court of the City of New York, dismissing the. complaint, plaintiffs appeal.</p>

<p>Appeal and Error (§ 1207*)—Reversal—Compliance with Opinion.</p> <p>Where, - in a former appeal, a judgment was reversed, and the opinion made it clear that, upon a certain settlement between plaintiff and the makers of notes, defendant was discharged from liability thereon, the court below should have dismissed the complaint on defendant’s motion.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4696-4699; Dec. Dig. § 1207.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Rose Dunn against Victor Neustadtl and others. From a judgment of the City Court of the City of New York dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Surrogate’s Court, Oneida County.</p> <p>Proceedings by Mary Corcoran and another for the probate of the will of Cornelius Corcoran, deceased. From a judgment of the Surrogate’s Court admitting the will to probate, John F. Corcoran appeals.</p>

<p>1. Appeal and Error (§ 1022*)—Review—Findings of Referee to Take Testimony—Approval by. Trial Court.</p> <p>Where a referee assumes to determine whether a defendant was actually served with summons and complaint, where that issue was submitted to him only for the purpose of taking proof and making a report, but the court on the coming in of the report regards the reference merely as a report, and there is sufficient evidence adduced to support the court’s determination that the defendant was actually served, its finding will not be disturbed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4015-4018; Dec. Dig. § 1022.*]</p> <p>2. Costs (§ 172*)—Attorney’s Fee.</p> <p>In an order made upon the report of a referee to take testimony, finding that a defendant had been properly served with summons and complaint, the court has no authority to award costs to plaintiff’s attorney.</p> <p>[Ed. Note.—For other cases, see Costs, Dec. Dig. § 172.*]</p> <p>3. Contempt (§ 63*)—Disobedience-Order—Authority of Court.</p> <p>In an order made upon the report of a referee to take testimony, finding that a defendant had been properly served with a summons and complaint, an adjudication that the defendant should pay all the costs of the reference, including an allowance of a fee to plaintiff’s attorney, and the fees and poundage of the sheriff and keeper, and a further adjudication that if the defendant fails to comply with the provisions of this order he shall “be and he hereby is adjudged guilty of contempt of this court,” is unauthorized and illegal.</p> <p>[Éd. Note.—For other cases, see Contempt, Dec. Dig. § 63.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Amedo Gianpaola against Alessandro Delli Paoli. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of -Manhattan, First District.</p> <p>Action by Tewe Greenberg against Charles E. Dumb. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Gifts (§ 30*)—Gift of Deposit in Bank—Eobm of Account.</p> <p>Where a bank deposit is made in the name of the depositor and another, with the right to either to draw, the mere form of the account is not sufficient to establish an intent on the part of the depositor to give the person whose name is associated with his own on the books of the bank a joint interest in the deposit, with the right of survivorship.</p> <p>[Ed. Note.—For other cases, see Gifts, Cent. Dig. §§ 52-65; Dec. Dig. § 30. *]</p> <p>2. Gifts (§ 30*)—Inter Yivos—Delivery.</p> <p>Where testatrix directs her attorney to invest part of a sum deposited in a bank for a daughter, and another part for a granddaughter, which investments are not made prior to decedent’s death, and where there is no delivery of any writing or evidence of the gift, there is no valid gift inter vivas, and the sum deposited belonged to the decedent at the time of her death, so as to be subject to a transfer or inheritance tax.</p> <p>[Ed. Note.—For other cases, see Gifts, Cent. Dig. §§ 52-65; Dec. Dig. § 30.*]</p> <p>3. Taxation (§ 868*)—Transfer and Inheritance Tax—Property Liable-Bank Deposits.</p> <p>Where money is on deposit in this state for nearly two months before the death of the owner, it is subject to a transfer or inheritance tax, as against the objection that, being in the state only for investment, it was not subject to the tax.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1685-1687; Dec. Dig. § 868.*]</p>

In the matter of the contested will of John Hock. Decree for probate of the papers propounded as the will, and a codicil thereto, of John Hock.

<p>Supplementary proceedings by the Twelfth Ward Bank of the City of New York, a judgment creditor, against Gus Luckes and others. Application to punish Luckes, the judgment debtor, for contempt of court.</p> <p>A motion was made to punish the defendant judgment debtor, Cus Luckes, for contempt of court in disobeying the injunction order contained in an order for his examination in proceedings supplementary to execution. The motion was made more than a year after the close of the examination, and the papers were served upon the attorneys who had appeared for him in the supplementary proceedings, and who had signed stipulations of adjournment of the said examination. The motion papers herein were returned on the ground that the service upon the attorneys was insufficient, and on the further ground that they no longer represented the judgment debtor, by reason of the length of time that had elapsed since the examination. A motion was thereupon made to compel the attorneys to accept service of the affidavit and order to show cause to punish the defendant judgment debtor, Cus Luckes, for contempt.</p>

Condemnation proceedings by the Lake Shore & Michigan Southern Railway Company against Jeremiah Mahle and another. Motion by plaintiff for the appointment of another commissioner in place of one deceased.

<p>1. Brokers (§ 69*)—Compensation—Right to, Irrespective of Contract.</p> <p>Where defendant placed his property in the hands of plaintiff to find a lessee for the same, and plaintiff introduced parties to defendant, to whom he subsequently leased his property on satisfactory terms, plaintiff would be entitled to the value of her services at the usual rate charged by brokers, irrespective of any special agreement as to the amount of her compensation.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 55; Dec. Dig. § 69.*]</p> <p>2. Brokers (§ 85*)—Actions for Compensation—Evidence—Irrelevancy.</p> <p>Where a broker sued on a contract for commission, claiming that defendant promised her $100 for making the deal, evidence that the defendant voluntarily agreed to pay her a graduated commission upon the gross receipts, amounting to $2,000 or $3,000, and that they were less than $1,200, was inadmissible.</p> <p>TEd. Note.—For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.*]</p> <p>3. Appeal and Error (§ 1050*)—Prejudicial Error—Admission of Evidence.</p> <p>In a broker’s suit for commissions for finding a lessee for defendant’s hotel, plaintiff relied on an agreement to pay a specific sum. Defendant denied agreeing to pay any specific sum as a commission, but was improperly allowed to testify that he voluntarily agreed to give plaintiff a graduated sum, dependent on the gross receipts amounting to between $2,000 and $3,000, and that they were less than $1,800. Held, that the error was prejudicial to plaintiff; the question of the credibility of the parties being involved.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4153; Dec. Dig. § 1050.*]</p>

<p>1. Sales (§ 479*)—Conditional Sales—Breach by Buyer—Remedies of Seller.</p> <p>On a breach of a conditional sale contract by the buyer, the seller may disaffirm the sale and retake the chattel, or he may ratify the sale and sue on the contract, and his remedies are inconsistent, so that, where an election is made, it is final.</p> <p>[Ed. Note.—For other, cases, see Sales, Cent. Dig. §§ 1418-1438; Dec. Dig. § 479.*]</p> <p>2. Sales (§ 479*)—Conditional Sales—Breach of Contract—Action for Price—Effect.</p> <p>The commencement of an action by a seller on a note for a part of the price of goods sold under a conditional sale contract is an irrevocable election to ratify the sale, though the buyer has breached the contract, and he cannot subsequently sue to disaffirm the sale and retake the goods.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1418-1438; Dec. Dig. § 479.*]</p> <p>3. Sales (§ 479*)—Conditional Sales—Action for Recovery of Chattels Sold—Evidence.</p> <p>In an action by a seller in a conditional sale contract to recover the chattel sold for the nonpayment of the price, evidence that the seller had previously brought an action on a note given for a part of the price is admissible under a general denial.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1418-1438; Dec. Dag. § 479.*]</p>

Action by Louis Seipel against Kranich & Bach, a corporation. From a judgment dismissing the complaint, and from an order denying a motion for new trial, plaintiff appeals.

<p>Fraud (§ 13*)—MisrepresentatiosMEvidence.</p> <p>Representation by a seller of a business that a lease covering the premises was a “four-year straight lease” is not actionable as a misrepresentation, because the lessor reserved the right to terminate the lease on five days’ notice for violation of any covenant by the lessee.</p> <p>[Ed. Note.—For other cases, see Fraud, Dec. Dig. § 13.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Charles D. Panzer against Phillip Shilovitz. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

Action by James McCool against the Merrill-Ruckgaber Company. From an order denying in part a motion for a bill of particulars of defendant’s four counterclaims, plaintiff appeals.

<p>Costs (§ 236*)—Taxation—Liability of Defeated Pabtt.</p> <p>The rule that final judgment carries with it all costs to date does not apply to a vacation of a judgment for illegality or irregularity, and the reversal, with costs to defendant, appealing from a judgment on the merits rendered before an erroneously appointed referee, does not carry with it all costs; and defendant is properly allowed only motion costs and the costs of the Appellate Term on the appeal resulting in the vacation of the judgment.</p> <p>[Ed. Note.—For other cases, see Costs, Dec. Dig. § 236.*]</p>

<p>Sales (§ 181*)—Action fob Price—Evidence.</p> <p>The buyer of clothing by sample refused to accept delivery, claiming that in about two-thirds of the suits inferior material had been used. The seller had refused to leave the samples with the buyer, and later sold them to others. The only evidence tending to show identity was that the lot numbers of the goods tendered was the same as the samples. Helct insufficient to show the goods to be up to sample.</p> <p>[Éd. Note.—For other cases, see Sales, Dec. Dig. § 181.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>' Action by Lillian Abraitis against Joel E. Crandall. From an order of the City Court of the City of New York denying a motion for a bill of particulars, defendant appeals.</p>

<p>Bbokebs (§ 82*)—Action fob Compensation—Pleading.</p> <p>In an action to recover broker’s commissions, plaintiff alleged that he was employed to find a purchaser for the lease, furniture, and good will of a hotel for the sum of $16,000, for a commission of 5 per cent, on the gross amount of the sale, and that plaintiff introduced to defendant as a prospective purchaser a party who, in consequence of such introduction to defendant, purchased said property for the sum of $13,500. Held, that the allegations failed to plead facts showing performance of the contract of employment, and stated no cause of action.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 82.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Seymour Guthorn against the Multiple Engineering Company. From an order denying a motion to open a default, defendant appeals.</p>

<p>1. Evidence (§ 513*)—Experts—Actions for Injury to Goods.</p> <p>In an action against a warehouseman for damages to a piano player shipped from a distant city in care of the warehouseman, expert evidence of the cost of putting the piano player in first-class condition is inadmissible, in the absence of proof that it was in such condition when delivered to the carrier, and actually or presumptively in such condition when delivered to the warehouseman,</p> <p>[Ed. Nóte.—For other cases, see Evidence, Dec. Dig. § 513.*]</p> <p>2. Warehousemen (§ 34*)—Injury to Goods—Evidence.</p> <p>Plaintiff, suing a warehouseman for damages to goods shipped from a distant city in care of the warehouseman, must show the condition of the goods at the time they were shipped, or when they came into the warehouseman’s possession.</p> <p>[Ed. Note.—For other cases, see Warehousemen, Dec. Dig. § 34.*]</p>

<p>Chattel Mortgages (§ 251*)—Default—Right to Foreclose.</p> <p>A chattel mortgagor of furniture sublet her apartment and the furniture, and thereafter the subtenant was dispossessed by the landlord. The mortgagor stated that the furniture had been removed, and that she did not know where it was, except that she had been informed that some of her friends had taken charge of it for her. She also declared that she did not have money enough to pay her moving- expenses, and endeavored to borrow from the mortgagee, who afterwards assignéd the mortgage to plaintiff. Held,-that plaintiff was entitled to foreclosure, under a provision authorizing foreclosure whenever the mortgagee deemed the security unsafe or at any risk.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 526, 527; Dec. Dig. § 251.*]</p>

<p>Appeal frdm Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by William N. White and another against Howard Bligh and others, composing the firm of Howard Bligh & Sons. From a judgment dismissing the complaint, rendered after trial by the court without a jury, plaintiffs appeal.</p>

<p>Appeal and Error (§ 1003*)—Review—Evidence.</p> <p>The issue being the identity of an article, and plaintiff’s testimony being positive and direct, and defendant’s so indefinite and uncertain as to be practically of no probative force, judgment for defendant must be reversed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1003.*]</p>

<p>Corporations (§ 507*)—Civil Action—Process—“Managing Agent.”</p> <p>Municipal Court Act (Laws 1902, c. 580) § 31, provides that in actions against corporations the summons must be served on the president, etc., or “managing agent.” Held, that a mere salesman, who solicited and received orders and sold merchandise on behalf of defendant, was not such “managing agent,” within the meaning of such section.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent.- Dig. §§ 1971-2000; Dec. Dig. § 507.*</p> <p>Eor other definitions, see Words and Phrases, vol. 5, pp. 4320-4323.]</p>

■ Action by Charles Garcewich against Julius Ascherman. From a judgment for plaintiff on a verdict, and from an order denying a motion for new trial, defendant appeals.

Action by the Rhodesia Manufacturing Company against Simon Tombacher and another. From a judgment for plaintiff, rendered in the Municipal Court of the City of New York, after trial before a judge without a jury, defendants appeal.

<p>Landlord and Tenant (§ 109*)—Leases—Surrender.</p> <p>A lease upon the fifth floor of certain premises provided that, in case of nonpayment of rent, the landlords might enter and relet the premises as agents of the lessees, holding them liable for any deficiency. Before the expiration of the lease there was a dispute, and the lessees refused to pay further rent. The lessors entered and relet the fifth floor, together with the fourth floor, at a gross rental, in which there was no apportionment of the amount applicable to the two floors. This lease was made in the lessors’ own names, and was for a longer period than the former lease. Held, that the lessors had accepted the surrender of the premises, and the lessees were discharged.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 109.*]</p>

Application by the City of New York to acquire title to certain lands for the opening and extension of the approaches to the bridge over the Spuyten Duyvil & Port Morris Railroad. From an order confirming the report of commissioners of estimate and appraisal, certain heirs of William B. Ogden, deceased, appeal.

Action by Jacobsen, Wright & Bogen against Arnstaedt & Co. From an order denying a motion to vacate an order for the examination of a witness as a third party, before trial, defendant appeals.

<p>Frauds, Statute of (§ 113*)—Contracts—Time of Performance.</p> <p>An agreement, signed by the parties, reading, “M. Bros, agree to deliver to P. 100 cases peas,’’ etc., “at a price of $1.10,’’ etc., satisfied the requirements of the statute of frauds, though it failed to state the time when the goods were to be delivered; it being evident that a reasonable time was intended.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 239-241; Dec. Dig. § 113.*]</p>

<p>1. Husband and Wife (§ 19*)—Necessaries—Implied Authority of Wife.</p> <p>The Implied authority to bind the husband for purchases made by a wife applies only to necessaries, and then only in case the husband fails to furnish them.</p> <p>[Bd. Note.—Bor other cases, see Husband and Wife, Cent. Dig. §§ 121-138; Dec. Dig. § 19.*]</p> <p>2. Husband and Wife f§ 19*)—“Necessaries.”</p> <p>What are included in the word “necessaries,” when applied to goods purchased by a wife, and for which it is sought to charge the husband, are such articles of utility as are suitable to maintain her according to the degree and estate of her husband and his ability to pay.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 121-138; Dec. Dig. § 19.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4639-4703.]</p> <p>3. Husband and Wife (§ 232*)—Necessaries—Action—Sufficiency of Evidence.</p> <p>In an action for goods sold to defendant’s wife and claimed to be necessaries, evidence held insufficient to support a judgment for plaintiffs.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Dec. Dig. § 232.*]</p> <p>4. Husband and Wife (§ 19*)—Necessaries—Evidence.</p> <p>That defendant was present the last time his wife visited plaintiffs’ shop could not be considered as knowledge on his part that she was purchasing on his credit, or as a ratification of such purchase.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Dec. Dig. § 19.*]</p> <p>5. Contracts (§ 282*)—Performance—Satisfaction of Party.</p> <p>Where defendant’s wife, after trying on a suit made by plaintiffs under an agreement to fit and make it to her entire satisfaction, and finding that it did not fit, promptly returned it, plaintiffs could not recover, unless it appeared that the suit was rejected in bad faith.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1284-1289.; Dec. Dig. § 282.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Samuel Spector and another against Abraham M. Cropper. From a judgment denying a motion to open a default and set aside the judgment and final order in favor of plaintiffs, landlords, defendant, a tenant, appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Mary S. M. Bryant against Filen S. Auchmuty. From a judgment dismissing the complaint at the close of plaintiff’s case, plaintiff appeals.</p>

<p>Action by Ailene Ely McNeir against Burrows McNeir. Decree for complainant.</p>

<p>Vendor and Purchaser (§ 335*)—Contract to Purchase—Deposits—Right to Return.</p> <p>Agreements whereby plaintiff contracted to purchase real estate, assuming and giving mortgages for the price, and deposited $1,000 to secure performance, and to be returned on performance, including his agreement to make material alterations on the building, must be treated as a single contract, defeating his right to recover the deposit on breaking the agreement.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Dec. Dig. § 335.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Frank Herter against Anna M. Dwyer. From, a judgment for plaintiff, defendant appeals.</p>

Action by Myrtle C. Heywood against Henry R. Doherty and another. From a judgment for plaintiff on a verdict, and from an order denying a motion for new trial, defendants appeal.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Asbestolith Manufacturing Company against Charles G. Kerley. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by May Wessel against Albert J. Schwarzler. From an order vacating an order for defendant’s examination before trial, plaintiff appeals.</p>

<p>Daniel W. Murphy was convicted of grand larceny, and applies for a new trial.</p>

<p>Taxation (§ 893*)—Transfer Tax—Property Subject to.</p> <p>An affidavit by the widow of testator, who left all his property to her and appointed her executrix, which avers that deposits in savings banks in their joint names were made from earnings jointly acquired by them in their business, sold three years before testator’s death, aided by the presumption that, where moneys are deposited in a savings bank in the name of husband and wife, each has an equal interest therein, in the absence of a showing who placed the moneys there, shows that the widow owns one-half of the deposits, in determining the amount of the property of testator subject to the transfer tax. fEd. Note.—For other cases, see Taxation, Dec. Dig. § 893.*]</p>

<p>Action for partition by William P. Fogarty against Mary A. Stange and others.</p>

<p>Two suits, one by Grace C. Greene and the other by Pauline C. McKinley, against the Goodwin Sand & Gravel Company.</p>

<p>Appeal from Special Term, Richmond County.</p> <p>Action by Mary Louise Warth and others against Martin Herman. From a judgment for plaintiffs, defendant appeals.</p>

<p>Pleading (§ 239*)—Amendments—Conditions on Granting Leave.</p> <p>Where a plaintiff was permitted to withdraw a juror to amend his complaint on the payment of the taxable costs and disbursements to date, and was given leave to withdraw a juror on a subsequent trial on the payment of a trial fee and taxable disbursements for the trial, with leave to amend at Special Term on such terms as the court might direct, the court, on granting leave to amend the complaint a second time, should require plaintiff to pay taxable costs to date, excluding the items directed to be paid when the second leave to withdraw a juror was granted, on condition that the terms then imposed had been complied with.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 626-635; Dec. Dig. § 239.*]</p>

<p>1. Pleading (§ 324*)—Bills op Particulars—Sufficiency.</p> <p>One required to furnish a bill of particulars, setting out the items of claimed expenditures, aggregating a stated amount, should furnish the particulars within his power, and state his lack of knowledge or inability as to the other items.</p> <p>■ [Ed. Note.—For other cases, see Pleading, Cent. Dig. § 982; Dec. Dig. § 324.*]</p> <p>2. Motions (§ 31*)—Admissions by Affidavit.</p> <p>Undenied allegations of an affidavit opposing a motion are deemed admitted.</p> <p>[Ed. Note.—For other cases, see Motions, Cent. Dig. § 42: Dec. Dig. § 31.*]</p>

<p>1. Seduction (§ 7*)—Right to Relief—Residence.</p> <p>Where a minor child, at the time of her seduction, was temporarily living in a boarding house, while plaintiff, her divorced mother, was reestablishing their home in another city, the daughter having previously lived with plaintiff and kept house for her, and intending to reside with plaintiff again as soon as a new apartment could be secured, her temporary absence did not deprive plaintiff of her right to maintain an action for her seduction.</p> <p>[Ed. Note.—For other cases, see Seduction, Cent Dig. 9-14; Dec. Dig. § 7.*]_</p> <p>2. Seduction ’(§ 7*)—Parent’s Right to Relief—Loss oe Service.</p> <p>Mere nominal loss of service by a parent, owing to the seduction of her minor daughter, is sufficient to justify a recovery therefor; the real, as distinguished from the legal, gravamen of the cause of action being the mortification, disgrace, and injury to the sentiments, etc.</p> <p>[Ed. Note.—For other cases, see Seduction, Cent. Dig. §§ 9-14; Dec. Dig. § 7.*]</p> <p>3. Seduction (§ 13*)—Accrual of Cause of Action.</p> <p>Where plaintiff’s minor daughter became enceinte as a result of defendant’s seduction, plaintiff was entitled to sue therefor at once, without waiting until pregnancy was so far advanced that the daughter was no longer able to render service.</p> <p>[Ed. Note.—For other cases, see Seduction, Cent. Dig. § 26; .Dec. Dig. § 13.*] ,</p>

<p>Action by the City of New York against John R. Voorhis and another. On motion for an injunction pendente lite.</p>

<p>Action by Harry J. Herbs against Emma'Mary Herbs.</p>

Action by Julia Shwartz against James F. Fargo, as treasurer of the American Express Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Proceedings by the City of Yonkers to acquire land for the opening and extension of Alexander Street from Ashburton Avenue to the south line of Wells Avenue in the city. From an order refusing to confirm as to. a parcel the report of the commissioners of estimate and directing a rehearing as to such parcel, and from an intermediate order permitting amendment to objections to the report, Elijah M. Yerks and others appeal.

Action by 'Stanley Dwight, as substituted trustee, against Harrison Jeffray Gibb and others. From an order denying a motion for a commission to take testimony on written interrogatories, defendant Stanley Dwight, individually, appeals.

' Action by Stanley Dwight, as substituted trustee, against Harrison Jeffrey Gibb and others. From an order denying a motion for a commission to take testimony on written interrogatories, Stanley Dwight, individually, appeals.

<p>1. Landlord and Tenant (§ 127*)—Possession of Premises.</p> <p>The continued physical possession of leased premises by a transferee of a tenant constitutes possession by the tenant himself.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 446, 447; Dec. Dig. § 127.*]</p> <p>2. Landlord and Tenant (§ 128*)—Putting Lessee in Possession.</p> <p>One demising property is not obliged to put the lessee in possession.</p> <p>fEd. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 448, 449; Dec. Dig. § 128.*]</p> <p>3. Landlord and Tenant (§ 128*)—Possession by Lessee.</p> <p>A grantee taking property subject to a lease is not bound to put the lessee in possession.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 448, 449; Dec. Dig. § 128,*]</p> <p>4. Landlord and Tenant (§ 129*)—Summary Proceedings—Right to Maintain.</p> <p>Under the statute relating to summary proceedings, a lessee may maintain such proceedings against a former tenant and his assignee when the term has expired.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 450-457; Dec. Dig. § 129.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Mary H. A. Allen against James McWalters. From a judgment of the Municipal Court, dismissing the complaint, plaintiff appeals.</p>

<p>Action by Oliver M. Arkenburgb against Peter Aronson.</p>

<p>Action by Charles F. Bandel against the City of New York and another.</p>

<p>Action by Reginald G. Barclay against Alexander Barrie.</p>

<p>Action by George F. Bryan against Bennett C. Carter.</p>

<p>Action by the Borough Bank of Brooklyn against Edward J. McLaughlin, impleaded with others.</p>

<p>Action by George E. Brown against the Thompson Starrett Company and others.</p>

<p>Action by the Brooklyn Heights Railroad Company against the Brooklyn City Railroad 'Company.</p>

<p>Action by Idella Dadson, as administratrix, against William Allaire.</p>

<p>Action by Jeannette Demuth against George Kemp. (Appeal No. 1.)</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by William D. Desmond against Patrick J. Byrne. From a judgment for defendant, plaintiff appeals.</p>

Action by Walter B. Deuel against Julia M. Greenwood, as administratrix of the goods, chattels, and credits of Clark Greenwood, deceased. From a City Court judgment in favor of defendant, and from an order denying plaintiff’s motion for a new trial, he appeals.

<p>Proceeding by the First National Bank of the City of New York against William Gow, judgment debtor.</p>

<p>Action by Seamon Frank against Adolph Firestone.</p>

<p>Action by John H. Fleming against William D. U. Field.</p>

<p>Action by Marguerite Gilbert against Isabella V. Adams.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Action by the Goodman Contracting Company against the Baltimore Bridge Company. From' a Municipal Court judgment for plaintiff, defendant appeals.</p>

<p>Action by Lillie T. Henderson against the Guaranty Trust Company of New York and others.</p>

<p>Action by John Kascsak against the Central Railroad Company of New Jersey.</p>

<p>Action by Hyman Kaplan against the Friedman Construction Company.</p>

<p>Action by Silverius ICoellhoffer against Henry Hillebrand and others.</p>

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

<p>Action by Sarah Nadler against William F. Baker, as Police Commissioner, etc., and another.</p>

<p>Action by Margaret O’Connor against the City of Dunkirk.</p>

<p>Action by Elizabeth M. Nicholson, as administratrix of William S. Nicholson, deceased, against the Town of Stillwater.</p>

<p>Action by the New York Central & Hudson River Railroad Company against the Federal Sugar Refining Company of Yonkers and others.</p>

<p>In the matter of Michael O’Sullivan, an attorney.</p>

<p>Action by the Oliver Typewriter Company against the Nassau County Republican.</p>

<p>Action by Horace J. Parsons, as administrator, etc., against the Syracuse, Binghamton & New York Railroad Company.</p>

<p>Action by Alfred Post against Andrew Kerwin, Jr.</p>

<p>Action by Frank G. Potts against J. Edward Lambie.</p>

<p>Action by John L. Schultz and another against the Skaneateles Railroad Company.</p>

<p>Action by George T. Stockham against the Borough Bill Posting Company.</p>

<p>Action by Henry W. Specht, as administrator, etc., of Magdalena Specht, deceased, against the Waterbury Company.</p>

<p>Action by Radi Tamaseric against Clinton Beckwith.</p>

<p>Action by the County of Westchester against the Trustees of the Leake & Watts Orphan House in the City of New York.</p>

<p>Action by Josepliina Vollaro against Saverio Vollaro.</p>

<p>Action by Jacob Young against the Nassau Electric Railroad Company.</p>