Volume 132 — New York Supplement

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Yates-Smith Company against Adían J. Doyle. From a judgment for plaintiff, after trial before the court without a jury, defendant appeals. Modified and affirmed.</p>

Action by Xavier Stuetzle and another against Fritz Lindinger. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Joseph Esterson and another against William Whitman and others. From an order of the City Court of New York, refusing to vacate an order for the examination of defendants before trial, they appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough- of Manhattan, Eighth District.</p> <p>Action by Dora Newman against the Waterman Building Company and another. From an order overruling a demurrer, defendant named appeals. Dismissed.</p>

<p>Guaranty (§ 16*) — Consideration — Extension of Time.</p> <p>Continuance of an examination of a judgment debtor in supplementary proceedings and an agreement to extend the time, so that he might-pay in installments, constituted a sufficient consideration for defendant’s guaranty of the debtor’s performance of such agreement.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 14-17; Dec. Dig. § 16.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Equitable Trust Company of New York against Mads P. Madsen. From a judgment of the Municipal Court, rendered for defendant, plaintiff appeals. Reargument ordered.</p>

Action by Beila Hamersmith against Eliza Cohn. From an order setting aside a verdict for plaintiff, and ordering a new trial, she appeals. Reversed, and verdict reinstated.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Morris Glassheim and others against Emmanuel Blumensteil. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered.</p>

Action by Moses Einhorn against P. Derby & Co. From a judgment dismissing the action at the close of plaintiff’s case, he appeals. Reversed and remanded.

<p>1. Appeal and Error (§ 127*) — Orders Appealable.</p> <p>An appeal does not lie, ordinarily, from a default judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 885-891; Dec. Dig. § 127.*]</p> <p>2. Appeal and Error (§ 161*) — Orders Appealable — Acceptance op Bene-</p> <p>fits.</p> <p>Where a defendant has accepted the benefits of an order and has consented to its entry, an appeal therefrom by him will he dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 979-994; Dec. Dig. § 161.*]</p>

Actions by the People against the McDermott Dairy Company for penalties for the sale of adulterated milk. From judgments for defendant, rendered by the Municipal Court after trial without a jury, plaintiff appeals. Reversed, and new trials ordered.

<p>Coubts (§ 189*) — Municipal Coubts — Judgment.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 248, requiring judgment without prejudice when plaintiff fails to prove his cause of action, judgment absolute for defendant in such case is improper.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*].</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by S. Charles Lamport and others against the Continental Art Glass & Brass Company.- From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by the Tenement House Department of the City of New York against Joseph Cans. From a judgment of the Municipal Court of the City of New York for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Municipal Corporations (§ 706*) — Use of.Streets — Runaway Horses — Evidence.</p> <p>In an action for the death of a horse, caused by a horse of defendant, running away and striking that of plaintiff, evidence held insufficient to support a finding of negligence on the part of the defendant, based on the-acts of the driver while loading the cart to which it was hitched.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 706.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Princeton Construction Company against Caswell Barrie. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

<p>Trial (§ 384*) — Trial „by Court — Dismissal and Nonsuit.</p> <p>The trial justice cannot give judgment for defendant at the close of plaintiff’s case, as he is not then acting as judge and jury, but only as judge, to determine whether or not plaintiff has made out a prima facie case, with power only, in case plaintiff has then failed to prove his cause of action, to dismiss the complaint without prejudice to a new action.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 900; Dec. Dig. § 384.*]</p>

Action by Samuel Kahn and another against the Princess Shirt Waist Manufacturing Company. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.

Supplementary proceedings by Whitley P. Westervelt, judgment creditor, against Isaac Shapiro, judgment debtor. From an order of the City Court of the City of New York refusing to vacate a subpoena issued to Sophie Shapiro, and from an order adjudging her in contempt for failure to appear pursuant to the subpoena, she appeals. Order refusing to vacate subpoena affirmed, and order adjudging the witness in contempt modified and affirmed.

<p>1. Carriers _(§ 158*) — Limiting Liability — Receipt.</p> <p>Plaintiff, having furs stored in Italy, arranged with defendant express company in New York to carry them to the latter place, and gave it his storage receipt, receiving in exchange a receipt reciting that defendant liad received storage receipt for furs stored in Italy, to he brought to New York, and providing it should nqt be liable in any event for more than $50, unless a greater value is declared. Held, that the defendant’s receipt was not merely for the storage receipt, but was an agreement limiting its liability for carriage of the goods, in the absence of a declaration of a greater value thereof than $50.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 663-718; Dec. Dig. § 158.*]</p> <p>2. Carriers (§ 158*) — Limiting Liability — Declaration of Value.</p> <p>A greater value is declared, so as to render inoperative the provision in a contract for carriage of furs, limiting the carrier’s liability to $50 in the absence of a declaration of a greater value, where the furs are in storage, and there is delivered to the carrier, with which to get the furs, a storage receipt, declaring their value to be $1,500; anything apprising the carrier of such excess value being enough.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 663-718 ;• Dec. Dig. g 158.*]</p>

<p>1. Appeal and Ebbob (§ 888*) — Amendments — Conformity to Proof.</p> <p>An appellate court has power, in the exercise of a sound discretion, to amend the pleadings to conform to the proof.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3617-3619; Dee. Dig. § 888.*]</p> <p>2. Appeal and Ebbob (§ 171*) — Estoppel to Allege Ebbob.</p> <p>A party who has met an issue of fact not made by the pleadings and has been defeated thereon cannot on appeal urge that the issue actually litigated was not that defined by the pleadings.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig.- §§ 1053-1069, 1161-1165; Dec. Dig. § 171.*]</p> <p>3. Appeal and Ebbob (§ 888*) — Amendment — Conformity to Proof.</p> <p>Where defendant directed his proof to the issues raised by the pleadings and conclusively established his defense thereunder and requested the direction of a verdict, plaintiff cannot, to sustain a judgment for himself, have the pleadings amended on appeal to obviate the defense proved, by setting up another theory.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3617-3619; Dec. Dig. § 888.*]</p> <p>4. Money Received (§ 18*) — Evidence.</p> <p>In an action to recover an amount claimed to have been paid to defendant as security, evidence held to show that the money was not so given, but was a part of the purchase price of stock, as claimed by defendant.</p> <p>[Ed. Note. — For other cases, see Money Received, Dec. Dig. § 18.*]</p>

<p>Coubts (§ 189*) — Municipal Court — Findings.</p> <p>Municipal Court Act (Laws 1902, c. 580) § 153, provides that, where a counterclaim is established which equals plaintiff’s demand, the judgment must be in favor of defendant, and, where it is less than plaintiff’s demand, plaintiff shall have judgment for the residue only. Held, that the Municipal Court was not thereby required to make a separate finding on a counterclaim, and that a judgment for plaintiff and against defendant for the amount demanded in the complaint without referring to the counterclaim specifically was a sufficient finding that defendant was not entitled to take anything by his counterclaim.</p> <p>£Ed. Note. — For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by George A. Ohl & Co. against the Henry L. Lewin Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>1. Tbovbr and Conversion (§ 40*) — Evidence — Sufficiency.</p> <p>In an action for the conversion of the proceeds of a note, which nlaintiff claimed defendant was to have discounted and to deliver to him, evidence held insufficient to show either a discount of the note or a conversion of the proceeds.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Dec. Dig. § 40.*]</p> <p>.2. Appeal and Errop. (§ 994*) — Review — Findings—Conclusiveness—Credibility of Witnesses.</p> <p>The determination of the credibility of witnesses is a matter for the trial court sitting as a jury, and not for the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.*]</p>

Action by Isidore Punie and another against the Buffalo German Insurance Company of Buffalo, N. Y. From so much of an order of the City Court of the City of New York as denies defendant’s motion for bill of particulars in certain respects, it appeals. Modified and affirmed.

<p>Courts (§ 190*) — Municipal Courts — Orders Appealable.</p> <p>An order of the Municipal Court of the City of New York, directing the striking from the judgment of costs taxed against plaintiff, is not appealable.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>Appeal from Municipal Court, Borough of- Manhattan, Fifth District.</p> <p>Action by Charles L. Weeks and another, partners as Weeks & Parr, against Philip Starr. Judgment for plaintiffs, and defendant appeals. Reversed, and complaint dismissed.</p>

Action by Heloise F. Van Damm against the New York Central Storage Company. From a judgment of the Municipal Court of the City of New York, entered upon an inquest upon the default of the defendant after the defendant’s traverse to the service of summons had been overruled, defendant appeals. Reversed, and complaint dismissed.

<p>1. Municipal Corporations (§ 705*) — Runaway Horse — Injury to Property</p> <p>—Personal Injuries — Negligence — Knowledge of Previous Character.</p> <p>The owner of an animal is not responsible for personal injuries caused by its vicious propensities, where he had no previous notice of them, so that where, in an action for a window broken by a horse which ran away while in charge of a competent driver, there is neither a showing that the owner in fact had knowledge of a tendency to run away, or of facts sufficient to charge him with such knowledge, there is no negligence shown which will sustain a recovery.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1515; Dec. Dig. § 705.*]</p> <p>2. Animals (§ 70*) — Personal Injuries — Knowledge of Previous Char-</p> <p>acter.</p> <p>A knowledge of the owner of an animal of vicious tendencies, which will render him responsible for an injury caused thereby, may be imputed to him on proof of prior acts of a similar kind committed by the animal, of which the owner had notice, or it may be imputed from its known dangerous character.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 228-237; Dec. Dig. § 70.*]</p>

. 'Action by the Tenement House Department of the City of New York against Yetta Green. From a judgment of the Municipal Court of the City of New York for defendant, plaintiff appeals. Reversed, and new trial granted.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Louis Bowslty against George William Schlichten. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Joseph F. O’Brien against William H. Mendel. From a judgment of the New York City Court, in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals. Reversed, and new trial ordered.

Action by Samuel Weisber against the Erste Boruslawer & Drohowitzer Young Men’s Benevolent Society. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

<p>1. Brokers (§ 71*) — Compensation — Contract.</p> <p>If plaintiff, in consideration of $120, agreed to procure a loan for defendant, he is only entitled to that compensation upon procuring the loan, and not to the payment of the disbursements incurred.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. § 71.*]</p> <p>2. Damages (§ 120*) — Measure — Breach oe Contract.</p> <p>Plaintiff’s measure of damages for defendant’s failure to accept a loan which plaintiff agreed to advance was the profit he lost by defendant’s failure to accept the loan.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 291; Dec. Dig. § 120.*]</p> <p>3. Contracts (§ 330*) — Actions — Parties.</p> <p>Plaintiff sued to recover for services in procuring a loan for defendant, and as a second cause of action sued for a certain sum for the services of a firm of attorneys, which the complaint alleged defendant agreed with the firm to pay for such services, and- which claim was assigned to plaintiff. Held to state no cause of action inasmuch as it sets forth a special contract with plaintiff to pay a certain sum of money, though the assignor is apparently an absolute stranger to the contract.</p> <p>TEcl. Note. — For other cases, see Contracts, Cent. Dig. §§ 1589-1614; Dec. Dig. § 330.*]</p>

Summary proceedings by George M. Reischmann, landlord, against the L. N. Hartog Candy Company, tenant, and others. From an order for the landlord for the amount of the rent claimed to be due and allowing as an offset under the tenant’s counterclaim $500, the tenant appeals. Reversed, and new trial ordered.

Actions by the Monomoy Company and by Augusta Knoepfel, administratrix of Anabel Lyons, deceased, against the City of New York. From judgments of the Municipal Court for plaintiff in each action, defendant appeals. Reversed, and new trial ordered.

<p>Attorney and Client (§ 145*) — Contract of Employment — Performance op Services — Compensation.</p> <p>An agreement signed by defendant, which recites that he accepts from plaintiff, as attorney, a loan of a specified sum on specified terms on premises described, and agrees to pay him for his fees and services a specified sum besides disbursements, and to pay to a third person a brokerage commission, is an agreement for services of an attorney, and plaintiff performing the services may recover the agreed compensation, though the loan failed because of defects in title.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 334-335; Dec. Dig. § 145.*]</p>

Action by Mary McKeon against James P. Taylor. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Reversed and remanded.

Action by Max Jaffe and others against Stephen M. Weld and others. Motion by plaintiffs for judgment on the pleadings, consisting of complaint and demurrer thereto. Demurrer to complaint sustained with leave to plaintiffs to plead over.

Action by Meyer Friedlander against Rosa Fleischhauer and others,, executors of Jacob Fleischhauer, deceased. From so much of the judgment of the City Court of the City of New York as dismissed' the first cause of action of the complaint at the close of plaintiff’s-case and as awarded judgment for defendants with costs of the action on the second cause of action, and from an order denying a new trial of the second cause of action, plaintiff appeals.

Action by the San Rente Copper Mining Company against Elie J. Moneuse. Plaintiff’s motion to overrule demurrer denied, and defendant’s motion for judgment on the pleadings granted. Defendant’s agreement was to advance the necessary funds to redeem plaintiff’s property from a foreclosure sale and to operate the mine.

Application of Leopold Goldman for a writ of mandamus to compel the City of Schenectady and its corporation counsel to proceed to appoint commissioners of appraisal of damages resulting from the closing of a street. Denied.

Action by the Lawyers’ Title Insurance & Trust Company against James Allison Kelly and another, doing business under the firm name of Kelly & Hoeninghaus. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed, and new trial ordered.

Action by Nache Sandzig against Jacob Eckstein and another. From a judgment in favor of plaintiff, defendants appeal. Reversed, and new trial ordered.

Action by Hyman Lewis against Simon Harris and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

Action by I. Jules Mayer against E. Mortimer Boyle and others. From a judgment of the Municipal Court for plaintiff, defendant Boyle appeals. Reversed, and new trial ordered.

Action by Jacob Ahlbach and others against the American Bonding Company of Baltimore. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. . Reversed, and demurrer sustained.

Action by Harry A. Harris against the Fifth Avenue Coach Company. From a judgment of the Municipal Court for plaintiff entered on the verdict of the jury, defendant appeals. Reversed, and new trial ordered.

Supplementary proceedings by Whitley P. Westervelt, judgment creditor, against Isaac Shapiro, judgment debtor. Motion by the judgment creditor to resettle an order of the Supreme Court, Appellate Term (132 N. Y. Supp. 338), modifying and affirming an order of the City Court of the City'of New York refusing to vacate a subpoena issued to Sophie Shapiro and an order adjudging her in contempt for failure to appear pursuant to the subpoena from which she' appealed.

Action by Sam Goldberg and another against Samuel H. Costuma and another. From a judgment for defendants, and an order denying their motion for new trial, plaintiffs appeal. Affirmed.

Action by Timothy D. Sullivan and another against James A. Quinn. Judgment for defendant, and plaintiffs appeal. Reversed, and new trial ordered.

Action by Bernard Livingston against Jacques Pollatschek. From a judgment for defendant, and an order denying a motion for a new trial, plaintiff appeals. Reversed, and new trial ordered.

<p>Damages (§ 79*) — Liquidated Damages — Validity of Stipulation.</p> <p>Agreement under a lease of an electric sign that the lessee should pay $3.75 per week for its use, and that on breach by him the company could remove the sign, and should be entitled to $8.75 for each unexpired month of the term specified in the agreement, constituted a valid provision for liquidated damages.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 164-169; Dec. Dig. § 79.*]</p>

Action by Morris Gordon and another against the French American Stores Company. From a judgment of the Municipal Court for defendant, plaintiffs appeal. Reversed, and new trial ordered. Argued before SEABURY, LEHMAN, and PAGE, JJ.

<p>1. Appeal and Error (§ 927*) — Review — Presumptions—Question op Fact</p> <p>—Dismissal.</p> <p>Where a complaint is dismissed at the close of the plaintiff’s case, the plaintiff is entitled on appeal to the most favorable inferences deducible from the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3748, 4024; Dec. Dig. § 927.*]</p> <p>2. Sales (§ 359*) — Action for Price — Sufficiency of Evidence.</p> <p>Evidence in an action for the price of goods sold held sufficient to put the defendant to his proof.</p> <p>[Ed. Note. — For other eases, see Sales, Cent.- Dig. §§ 1056-1059; Dec. Dig. § 359.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Anna G. Melville against Catherine McAvoy. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.</p>

Action by Jacob Windt against Abraham. Schlitt and another. From a judgment of the Municipal Court in favor of plaintiff, defendant Schlitt appeals. Reversed,- and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Joseph L. Rosenschein against Bella Friedman. From certain orders, defendant appeals. Appeal dismissed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Jacob Diamond against Herman T. Mendelsohn and another. From a City Court judgment in favor of plaintiff, and from an order denying defendants’ motion for a new trial, they appeal. Reversed and remanded.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Abraham L. Dahlman against the White Company. From a judgment of the Municipal Court for plaintiff, defendant, appeals. Reversed, and complaint dismissed.</p>

<p>Courts (§ 189*) — Municipal Courts — Attachment — Affidavits.</p> <p>Municipal Court Act (Laws 1902, c. 580) § 74, subd. 2, provides that, to entitle plaintiff to an attachment, he must show to the satisfaction of the court, if defendant be a natural person, etc., that he has removed, or is about to remove, property from the county wherein defendant last resided to a place outside of New York City with intent to defraud his creditors, or has assigned, disposed of, or secreted the property; or is about to do so, with like intent. Held, that the attachment was properly vacated, where the affidavits did not show facts that point with any degree of clearness to defendant’s intention to remove property from the county, or that he has assigned, disposed of, or secreted property, or was about to do so, with the intent prescribed by statute.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 409, 412; Dec. Dig. § 189.*]</p>

Action by Michael Doyle against the City of New York. From a judgment of the Municipal Court for plaintiff, entered on a directed verdict in his favor, defendant appeals. Reversed and remanded. Argued before SEABURY, LEHMAN, and PAGE, JJ.

<p>1. Evidence (§ 420*) — Pabol Evidence Affecting Note.</p> <p>In an • action on a note, it was error to exclude testimony for defend- ' ant that he signed upon condition that the note would be enforceable only on plaintiff issuing a life policy entirely satisfactory” to defendant.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 1929-1944; Dec. Dig. § 420.*]</p> <p>2. Appeal and Error (§ 172*) — Answer — Defects—Waiver.</p> <p>A judgment for plaintiff cannot be sustained on appeal on account of an amendable defect in the answer, consisting in an obvious clerical error, where the defect was not pointed out at the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 172.*]</p>

Action by Beny Deventer against the Sheffield Farms-SlawsonDecker Company. From a judgment of the Municipal Court, entered on the verdict of the jury for plaintiff, defendant appeals. Reversed, and new trial ordered.

<p>Courts (§ 190*) — Municipal Courts — Appeal — Correction op Errors.</p> <p>The Appellate Term, on appeal from a judgment of the Municipal Court of the City of New York, will correct an error in the computation of the damages as disclosed by the record, though the computation .was accepted as correct, and though appellant has not called the attention of the Appellate Term to the error.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 190.*]</p>

Action by George H. Makepeace against Edwin Ferris. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by George F. Fish against Jacob Martin and another. Judgment for defendants, and plaintiff appeals. Modified and affirmed.</p>

Action by George Ba.cker against Nathan Passman. Prom a City Court judgment in favor of defendant, and from an order denying plaintiff’s motion for a new trial, he appeals. Reversed, and new trial ordered.

<p>1. Gas (§ 13*) — Right to Shut Off Supply — Entry ofi Premises — Trespass.</p> <p>Transportation Law (Consol. Laws 1909, c. 63) § 64, provides that an agent of a gas company may, upon exhibiting a written authority, signed by the president and secretary of the corporation, enter premises to inspect and examine the meters. Section 65 provides that, upon the neglect or refusal to pay rent due for gas, the corporation supplying the gas may cut it off from the premises of such person, and may enter the premises at appropriate times to separate and carry away the meter used in supplying such gas. Held, that section 65 gives an absolute right to enter premises to disconnect a meter, which is not dependent upon the exhibition of written authority under section 64, and peaceable entry by an agent of the corporation for that purpose, though without consent, was not a trespass.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 9; Dec. Dig. § 13.*]</p> <p>2. Gas (§ 13*) — Right to Shut Off Supply — Trespass — Damages.</p> <p>Where a meter rental was paid between the time when an employe of the gas company left the company’s office to disconnect the meter and the time of his entry into the premises, the company was guilty of a mere technical, trespass, and should be held responsible in nominal damages only.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 9 ;■ Dec. Dig. § 13.*]</p> <p>3. Gas (§ 13*) — Right to Shut Off Supply — Trespass — Damages—Exem-</p> <p>plary — Insult — Evidence.</p> <p>A recovery cannot be had for insulting words, accompanying a trespass made by an agent of a gas company, where the words were spoken at a time other than that at which the alleged trespass was committed.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 9; Dec. Dig. § 13.*]</p>

\ Action by David Harris against the National Reserve Bank of thd City of New York. From a judgment of the Municipal Court for, plaintiff, defendant appeals. Reversed, and new trial ordered. I Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ.t

Action by Jacob Guberman against Dennis Mullins and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

<p>1. Master and Servant (§ 89*) — Injury to Servant — Negligence — Work-</p> <p>ing After Hours.</p> <p>, Whether a servant, sustaining a personal injury by the giving way of a floor of a building, was working after hours, is immaterial, in determining the liability for the injury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 89.*]</p> <p>2. Master and Servant (§§ 124, 270*) — Injury to Servant — Evidence — Ad-</p> <p>missibility.</p> <p>Where, in an action for injuries to a servant by the giving way of a floor of a building, a witness was permitted to testify that he repaired the building at the request of the owner, and to state what he did, and that the owner informed him that the building was to be used for heavy storage, the exclusion of evidence that the owner told the witness, who was a carpenter, to fix the floor so that it could not give way, was not erroneous, because such instructions would not exonerate the owner from an inspection to determine whether the instructions had been carried out.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. §§ 124, 270.*]</p> <p>^Evidence (§ 528*) — Experts — Personal Injuries.</p> <p>It is not error to permit a physician to testify that plaintiff, suing for a personal injury, was suffering from one of two diseases which might have been caused by the accident complained of.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2335-2337; Dec. Dig. S 52S.*J</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Sixth District.</p> <p>Action by Louis L- Richman against Julian Robinson. From a Municipal Court judgment dismissing plaintiff’s complaint, he appeals. Affirmed.</p>

<p>Action by the People of the State of New York against the Brooklyn Cooperage Company and Cornell University. Judgment for plaintiff.</p>

Application of Lewis M. Isaacs, adversely to East Ridgelawn Cemetery and others, to vacate a subpoena duces tecum issued to him and others. From an order denying the application, applicant appeals. Reversed, and motion granted.

Action by Theodore P. Balaban against Basile D. Dugundji. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. Charles W. Gould, for appellant.

<p>Action by Vincenzo Brangaccio against the Weber Piano Company.</p>

<p>Action by Ulysses B. Brewster and another against the F. G. Brewster Company; Eugene L. Parodi, petitioner. R. R. Reed, for appellant. J. A. Foley, for respondent. .</p>

<p>Action by Jacob S. Butcher against the City of New York.</p>

<p>Action by Comenaroiz Cepenobuiz, as administrator, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Michael Callahan against the Munson Steamship Line, and others.</p>

<p>Action by the City & Suburban Homes Company against the People of the State of New York and others.</p>

In the matter of the application of the City of New York, to acquire certain real estate in the Towns of Lewisboro, etc., for the purpose of a dam or reservoir on Cross river etc#

<p>Action by the Continental Securities Company and Clarence H. Venner, stockholders, etc., against August Belmont and others.</p>

Action by the Equitable Trust Company of New York against William Stephens. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. McLear & McLear, for appellant. George Murray Hulbert, for respondent.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by the Equitable Trust Company of New York against Alexander L. Singer. From a judgment for defendant, plaintiff appeals. Reversed. McLear & McLear, for appellant. Samuel Blumberg, for respondent.</p>

<p>In the matter of the judicial settlement of the account of Magdalena Eysel, as administratrix, etc., of Ferdinand E. Eysel, deceased.</p>

<p>Action by Albert G. Gotts, as administrator, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by the George H. Rice Company against Louis Saul. „</p>

<p>In the matter of the Grade Damage Commissioners. With this case has been consolidated in this court cases bearing titles as follows: In re Astor; In re Janes; In re Morrison; In re Neil. Applications granted.</p>

<p>Action by Saul Heinitz against Erank Darmstadt.</p>

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

<p>Action by Anna L. Healy and others against the City of New York and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Nathan Hutkoff against Jacob I. Eiferman. From a judgment of the Municipal Court of the City of New York for the plaintiff, defendant appeals. Modified and affirmed. S. Goodelman, for appellant. Samuel A. Berger, for respondent.</p>

<p>Action by Charles Keener against Willett Kidd.</p>

<p>Action by Andrew Kurz, as administrator, etc., of Katharina Kurz, deceased, against Frances Schraefel.</p>

<p>Action by Frank Logerto against the Central Building Company.</p>

<p>Action by Benjamin A. Levine against the Foundation Company. M. Feltenstein, for plaintiff. J. G. Saxe, for defendant.</p>

<p>Action by Nora Lowe McKee against the City of New York.</p>

<p>Action by Annie McDonnell, as administratrix, etc., of James J. McDonnell, deceased, against the Metropolitan Bridge & Construction Company.</p>

<p>Actions by the Mack ■ Paving Company of New York and by the Barber Asphalt Company against the City of New York. L. L. Kellogg, for appellants. T. Farley, for respondent.</p>

<p>In the matter of the petition of George B. McClellan, etc. Action by the City of New York against the New York Dry Dock Company and others.</p>

<p>In the matter of the petition of George B. McClellan and others in relation to lands at Joralemon and Furman Streets, etc.</p>

<p>Action by Thomas Maloney against the Hudson River Water Power Company.</p>

<p>Action by Salathiel Mastín against the City of New York.</p>

<p>Action by the National Contracting Company against the Hudson River Water Power Company.</p>

<p>In the matter of the application of N. Dain’s Sons Company for an order for the examination of John Lowry, Jr.</p>

<p>Action by Mary E. Pelletier against James Larimer Graham and others, doing business under the firm name and style of Graham, Taylor & Co.</p>

<p>Action by Adam Partenfelder against the People of the State of New York and others.</p>

<p>Action by John H. Parks against the National Park Bank of New York. O. Goldzier,'for appellant. L. F. Doyle, for respondent.</p>

<p>Action by Carlton M. Prankard and another against James S. Cooley, as School Commissioner, and others.</p>

Action by Meyer Reikes and another against Joseph Berkowitz. From an order in favor of plaintiffs, defendant appeals. Affirmed. Jacob I. Berman, for appellant. Isaac Steinhaus, for respondents.

<p>Action by Marguerite Romeo against Vincenzo Romeo.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Henry Rogowski against Max Brill. From a judgment of the Municipal Court of the City of New York, entered in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered. See, also, 132 N. Y. Supp. 370. S. C. Sugarman, for appellant. Swan, Beardsley & Moore, for respondent.</p>

<p>Action by Guillaume Reusens against William J. Morton, impleaded with others.</p>

<p>Action by Sage Brothers, Incorporated, against Lena Halpern.</p>

<p>Action by Henrietta F. Scharles against N. Hubbard, Jr.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Louis Siegel against John M. Cantwell and another. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Appeal dismissed. Edward H. Kelly, for appellant. Oliver E. Davis, for respondent Cantwell.</p>

<p>In the matter of the application and petition of J. Edward Simmons and others to acquire real estate, etc. Hill View Reservoir, section No. 2, parcels Nos. 95 and 117.</p>

<p>Action by Tomassina Spila, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>In the matter of James Taylor, an attorney.</p>

<p>Action by Theodore F. Tompkins against Howard P. Barnes.</p>

<p>Action by Mary Thomas against the Newburgh Savings Bank and others.</p>

<p>Action by John H. Voorhees and others against Harry Unger and others.</p>

<p>Action by Frederick Whittlesey, as trustee, etc., against Philip Becker & Co.</p>