Volume 133 — New York Supplement

<p>Appeal from Appellate Term.</p> <p>Action by Le Roy F. Hovey against Thomas D. Richardson, Jr. From a determination of the Appellate Term reversing a judgment of the Municipal Court for defendant, he, by permission, appeals.</p>

Judicial proceedings on the final settlements of the accounts of the Utica Trust & Deposit Company, as executors of the will of Alice Brooks Warren, deceased. Appeal by Grace H. Dunn and another from that portion of the decree of the Surrogate’s Court disallowing objections to the account.

<p>Telegraphs and Telephones (§ 53*)—Errors in Transmission of Messages —Proximate Cause.</p> <p>Where an agent sent a telegram to his principal for authority to make a contract, and the telegram in reply was not in response to the telegram sent, but showed an error in the transmission of one or the other of the telegrams, and the agent, without receiving authority from his principal, made the contract, causing damages’ to the principal, the negligence of the telegraph company in the transmission of either of the telegrams was not the proximate cause of the injury; but the negligent act of the agent in making the contract, in view of the telegrams, was the intervening proximate cause.</p> <p>[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 53.*]</p>

<p>Master and Servant (§ 80*)—Action for Services—Proof—Variance.</p> <p>Where the complaint in an action for services rendered relied upon actual performance of services, recovery could not be had for the time plaintiff was ill, without an amendment setting up another theory of recovery.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 80.*]</p>

<p>Municipal Corporations (§ 706*)—Negligence—Ownership of Wagon.</p> <p>In an action against defendant as the alleged owner of a wagon which ran over plaintiff, evidence of defendant’s ownership held insufficient to go to the jury.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*]</p> <p>Hotchkiss, J., dissenting.</p>

<p>Party Walls (§ 6*)—Flues—Right to BIaintain</p> <p>Blaintenance of a flue in a party wall is a lawful use of the wall.</p> <p>[Ed. Note.—For other cases, see Party Walls, Cent. Dig. §§ 14-18; Dec. Dig. § 6.*]</p>

<p>Brokers (§ 48*)—Compensation—When Earned.</p> <p>Where an owner agreed to pay a broker a specified sum for selling his business, and the broker produced a purchaser ready and willing to buy on terms agreed on with the owner, evidenced by' a written agreement, signed by them, constituting a complete contract of purchase, leaving only the delivery of a bill of sale at a subsequent date, the broker had earned his compensation.</p> <p>[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 48.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Meyer Eipschitz against Meyer Rapaport. From a judgment for plaintiff, defendant appeals.</p>

<p>In the matter of the probate of the last will of Sarah J. Bennett, late of Franklin, deceased. Judgment of probate.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth, District.</p> <p>Action by Edmond J. Curry against Charles L- Eox. From a judgment for plaintiff on the pleadings, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Leopold Harris against Edwin M. .Burns and another. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Mary Marston against Frederick W. Whitridge, as receiver of the Union Railway Company of New York City. From a judgment for plaintiff, defendant appeals.</p>

<p>Replevin (§ 102*)—Judgment—Separate Disposition of Chattels.</p> <p>Judgment in replevin between separated husband and wife for household goods stored by her may award some chattels to one and some to another.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. § 391; Dec; Dig. § 102.*]</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Nathan Bilder, as trustee in bankruptcy of the Kornit Manufacturing Company, against Charles E. Ellis. From an order granting plaintiff’s motion for judgment on the pleadings, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Catherine McKenna against George Weaver. From a judgment for plaintiff, rendered after a trial before the court without a jury, defendant appeals.</p>

<p>Judgment (§ 249*)—Pleading—Variance.</p> <p>Where a complaint alleges a cause of action for the recovery of money obtained by fraud, and is supported by a bill of particulars stating in technical language a cause of action for money obtained by false representations, on failure of plaintiff to prove the fraud, defendant is entitled to judgment, although the evidence shows that the plaintiff would have been entitled to recover, if he had sued on contract of lending.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 435; Dee. Dig. § 249.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Isaac Ipp and another against S. & W. Bauman. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Sigmund Guttman against Rolland Read Rasquin. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Reuben Cohen against Herman Ressler. From a judgment for defendant, plaintiff appeals.</p>

Action by Fannie Friedman and another against Hugo L. Lederer. From a judgment for plaintiffs, and from an order refusing a new trial, defendant appeals.

<p>Courts (§ 189*)—Municipal Courts—Judgment—Body Execution.</p> <p>Under the direct terms of Municipal Court Act (Laws 1902, e. 580) § 251, no body execution lies under a judgment which does not provide for arrest and imprisonment.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]</p>

<p>Contracts (§ 165*)—Employment of Architect—Liability.</p> <p>Defendants orally represented to plaintiff, an architect, that they desired plans for houses on land they had purchased. An instrument reciting the employment was signed in the name of a corporation not in existence, by one of the defendants. The architect completed plans and obtained the approval of the city departments. Neither defendants nor the corporation ever procured title to the land. H}eM, that defendants, ordering the work done, were liable to the architect, though the instrument must be disregarded, except, possibly, as fixing the rate and time of payment for the services, though the architect obtained the approval of the city departments after he had been informed not to go any further with the plans, and both defendants were liable though only one signed the agreement.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 165.*]</p>

<p>1. Replevin (§ 105*)—Judgment.</p> <p>A judgment in replevin, which awarded the defendant damages on a counterclaim, but failed to award possession of the goods, is defective, as failing to dispose of all the issues raised.</p> <p>[Ed. Note.—For other cases, see Replevin, Dec. Dig. § 105.*]</p> <p>2. Appeal and Erbor (§ 1177*)—Disposition of Cause.</p> <p>While an appellate court may review the findings and judgment of a lower court, it cannot try the issues anew; and where, in replevin, the lower court did not award the possession of the goods, the case must be reversed for a new trial, where there is no stipulation permitting the proper judgment to be entered.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1177.*]</p>

<p>1. Pleading (§ 317*)—Bill of Particulabs.</p> <p>Where the account annexed to the complaint in an action for money due did not state the items comprising an item, “Bill rendered, $390,’’ defendant is entitled to a bill of particulars showing such items.</p> <p>[Ed. Note.—Eor other cases, see Pleading, Cent. Dig. §§ 954-962; Dec. Dig. § 317.*]</p> <p>2. Account Stated (§ 18*)—Cause of Action.</p> <p>Where the complaint does not aver an account stated, plaintiff may only recover money claimed to be due by proving the original indebtedness.</p> <p>[Ed. Note.—For other cases, see Account Stated, Cent. Dig. §§ 85-90; Dec. Dig. § 18.*]</p>

Action by Barnet Cohn against the Reliable Fur Dressing & Dyeing Company. From a judgment for plaintiff, and an order denying, a new trial, defendant appeals.

<p>Interpleader (§ 8)—Right to Order.</p> <p>Where plaintiff sued as assignee of one of a firm for a debt due the firm from defendant, and the other partner notified defendant not to pay the debt to the assigning partner or his assignee, and demanded payment to himself, defendant was entitled to an order of interpleader, making such other partner a defendant, so that he and plaintiff could litigate their claims as to the defendant.</p> <p>[Ed. Note.—For other cases, see Interpleader, Cent. Dig. §§ 8, 9, 11; Dec. Dig. § 8.*]</p>

Action by Arje Barnett against Max L, Typermass & Co. and others, interpleaded. From a judgment for defendant named, and awarding a sum to an interpleaded defendant, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Alfred Freeman, marshal of the city of New York, against Robert Friedman. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and Error (§ 1099*)—Law of the Case—Subsequent Appeal.</p> <p>Where the evidence has been held on appeal insufficient to support the judgment, a second judgment for the same party on substantially the same evidence must be reversed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. § 1099.*]</p>

<p>Fixtures (§ 15*)—Landlord and Tenant—Steam-Heating Plant.</p> <p>A steam-heating apparatus, including a heater, two radiators, piping, coil, and tanks, installed by a tenant on. premises used as a store and office, were not trade fixtures, but became a part of the realty, not removable by the tenant.</p> <p>[Ed. Note.—For other cases, see Fixtures, Cent. Dig. §§ 23-29; Dec. Dig. § 15.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Bonta Hotel Company against Abraham Benedict. From an order granting defendant’s motion to make the complaint more definite and certain, plaintiff appeals.</p>

Action by Antonette Fagelle against the Etna Importing Company. From a judgment of the Municipal Court for plaintiff, entered on a verdict rendered by direction of the court, defendant appeals.

Action by Morris Levin and another, copartners doing business as Morris Levin & Sons (amended from Julius Levin), against the New York Central & Hudson River Railroad Company. From a judgment for defendant, plaintiffs appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Percival A. Ridden against Edward B. Lynch. From- a judgment for defendant, plaintiff ■ appeals.</p>

<p>1. Gifts (§ 82*)—Causa Mortis—Evidence—Sufficiency.</p> <p>Evidence held to sustain a gift causa mortis of a bank deposit.</p> <p>[Ed. Note.—For other cases, see Gifts, Cent. Dig. §§ 154, 155; Dec. Dig. § 82.*]</p> <p>2. Gifts (§ 59*)—Causa Mortis—Requisites.</p> <p>While a mere meticulous fear of death will not support a gift causa mortis, where there is a present illness or other menace of such nature as to reasonably cause apprehension by the donor that death may result therefrom, there may be a valid gift.</p> <p>[Ed. Note.—For other cases, see Gifts, Gent. Dig. § 108; Dec. Dig. § 59.*]</p>

<p>1. Landlord and Tenant (§ 298*)—Recovery of Possession—Counterclaim for Breach of Covenant.</p> <p>In proceedings by a landlord to recover possession, damages for Ms breach of a covenant in the lease are available as a defense or counterclaim to the extent of the rent due.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 298.*]</p> <p>2. Landlord and Tenant (§ 159*)—Breach of Landlord’s Covenant to Equip Premises—Measure of Damages.</p> <p>The measure of damages for the failure of a landlord to equip the premises in accordance with a covenant of the lease is the difference between the rental value of the premises for the purposes specified in the lease equipped as therein provided and the rental value of the premises as furnished.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 159.*]</p> <p>3. Landlord and .Tenant (§ 159*)—Breach oe Landlord’s Covenant to Equip Premises—Evidence—Admissibility.</p> <p>On the issue of the amount of damages for the failure of a landlord to equip the premises in accordance with the covenants of the lease, evidence of the rental value of the premises equipped in the manner provided for in the lease is admissible; the parties contemplating a subletting of the premises.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 159.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Richard L. Brewster against Samuel J. Silverstein. From a judgment' for defendant, plaintiff appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Charlotte E. Bartlett against Robert Blei and others. From a judgment for plaintiff on demurrer to complaint, defendant James C. Stewart appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Supplementary proceedings by Denis J. Shea against Thomas Lynskey. From an order refusing to vacate an order directing the defendant to turn over property to a receiver, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Oliver Typewriter Company against the United Publishers’ Association. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by Rosanna Batchelor against Eugene E. Hinkle and another. From a judgment for plaintiff, defendants appeal.</p>

Action by William Strathman against the Williams & Morford Company, with counterclaim by defendant. Judgment for defendant on the merits on plaintiff’s claim and in his favor on his counterclaim for $15. Motion by plaintiff to strike out an allowance of $20 costs to defendant. Order disallowing the item of $20 costs, and directing that such sum be credited, upon the judgment and upon any execution or other mandate issued to enforce it.

Action by the Lafayette Street Church Society of Buffalo against Herbert F. J. Norton to have certain moneys in the hands of defendant decreed to be the property of plaintiff. Judgment for plaintiff.

<p>Appeal from Special Term, New York County.</p> <p>Action by Leo Oppenheimer, as trustee in bankruptcy, against the City of New York. From an order directing that the Security Bank of the City of New York be made a party defendant, plaintiff appeals.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Application by David Blumiberg for an order discharging a mechanic’s lien. From an order denying a motion to vacate an order for the discharge of the lien, and to reinstate the lien, Lena Greenbaum, assignee of the lien, appeals.</p>

<p>Habeas corpus by Joseph Sarcona for the custody of his infant daughter, Gioconde Sarcona, in the custody of Lina Berado.</p>

<p>Pleading (§ 336*)—Service by Mail—Refusal to Accept.</p> <p>Where defendant’s attorney inclosed an answer in a properly prepaid wrapper and deposited the same in the post office, directed to plaintiff’s attorney, the service was complete when the answer was deposited in the post office, notwithstanding plaintiff’s attorney refused to accept the same because a clerk in the post office erroneously demanded additional postage.</p> <p>[Ed. Note.— For other cases, see Pleading, Gent. Dig. §§ 1017-1021,1024; Dec. Dig. § 336.*]</p>

<p>Appeal from "Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Lewis Squires against the Fitzhugh Smith Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Edith A. Hulbert against the Felber Engineering Works. From a Municipal Court judgment in favor of defendant, after trial without a jury, plaintiff appeals.</p>

<p>Courts (§ 189*)—Municipal Court—Disposition of Counterclaim.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 230, requiring the court upon issue joined to decide all questions of fact and law and render judgment accordingly, the failure of the Municipal Court to make any disposition of a counterclaim for rent in an action by a sublessee for damages for eviction was reversible error.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412; Dec. Dig. § 189.*]</p>

<p>1. Courts'(§ 190*)—New York Municipal Court—Appealable Orders.</p> <p>An order of the Municipal Court, denying plaintiff’s potion for reargument of defendant’s motion for judgment on the pleadings, is not appeal-able.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190;* Appeal and Error, Cent. Dig. §§ 103, 3379%.]</p> <p>2. Courts (§ 190*)—New York Municipal Court—Appealable Orders— Motion for Judgment on Pleadings.</p> <p>An appeal will not lie from an order of the Municipal Court denying or granting a motion for judgment upon the pleadings, such order not being enumerated in Municipal Court Act (Laws 1902, e. 580) §§ 253-255; but the appeal, if any, should be taken from the judgment.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190;* Appeal and Error, Cent. Dig. §§ 103, 3379%.]</p>

Action by Isaac Saretsky against Morris Steinberg and Abram B. Cohen. Defendant Steinberg died pending the action, and it abated as to him. From a judgment for plaintiff against both defendants, and from an order denying a new trial, defendant Cohen appeals.

<p>Parent and Child (§ 12*)—Purchase by Child—Ratification of Authority.</p> <p>In an action for the price of clothing furnished defendant’s son, evidence that, after several statements rendered, defendant promised to pay the bill, was proper to show ratification of the son’s authority to buy, regardless of the effect of the evidence as an independent promise to pay.</p> <p>[Ed. Note.—For other cases, see Parent and Child, Cent. Dig. §§ 141-144; Dec. Dig. § 12.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Hyman Schulman against George W. Linch, as receiver of the Second Avenue Railroad Company. From a judgment for plaintiff on a verdict, and from an order denying a new trial, defendant appeals.</p>

<p>1. Principal and Agent (§ 148*)—Authority oe Ageni^-Lease.</p> <p>Where an agent, in charge of rentable property, had authority to make leases only from week to week, the execution of a.lease for a year, to one who had been living in the premises for several years under a tenancy from week to week, is not binding on the principal, when not ratified.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 534r-552; Dec. Dig. § 148.*]</p> <p>2. Principal and Agent (§ 119*)—Authority oe Agent—Burden oe Proof.</p> <p>In an action for the possession of property, which the tenant claimed under a lease for a year made by an agent, the- burden was on the tenant to prove, not only that the agent executed the lease, but that he was authorized to do so.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 391-401; Dec. Dig. § 1Í9.*]</p>

.Action by Louis Silverblatt, trading as Silverblatt & Michaelson, against Isidor Rosenberger and another, copartners, trading as Rosenberger & Co. From a judgment for defendants, and from an order-denying a new trial, plaintiff appeals.

Action by Teddy Connolly against Rodgers & Hagerty, Incorporated. From a Judgment for plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.

<p>Brokers (§ 84*)—Real Estate Brokers—Suit for Commission—Burden of Proof.</p> <p>In an action for a real estate broker’s commission for procuring a purchaser for a manufacturing plant, the burden was not on him to show why the contract of sale which he brought about was not carried out.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 104, 105; Dee. Dig. § 84.*]</p>

Action by Moses Smith against Samuel Leiman and others. From a judgment of the New York City Court in favor of plaintiff as against Nathan Messer, and from an order denying his motion for a new trial, defendant Messer appeals.

<p>Action (§ 69*)—Undertaking—Liability or Sureties.</p> <p>An appeal from a judgment having been dismissed, an action was brought on the bond on appeal. It appearing that a separate appeal had been taken from an order denying a new trial, the sureties’ time to answer was extended until after the decision of that appeal. Held error, since, if the action was prematurely brought, that fact could be set up in the answer, while, if the reversal of the order denying a new trial would not, under the terms of the undertaking, discharge the sureties, there could be no reason for extending their time for answer.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 744r-751; Dec. Dig. § 69.*]</p>

Action by the Eagle Waist Company against the Ocean Accident & Guarantee Corporation, Limited. From an order of the New York City Court, denying defendant’s motion to compel plaintiff to reply to the first and! second defenses of defendant’s answer, it appeals.

<p>1. Frauds, Statute of (§§ 85, 129*)—Sales—Value of Goods—Part Payment.</p> <p>The statute of frauds is not available in an action for the price of goods sold, where the value of the goods is less than $50, or where a part payment has been made.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 141, 287-292; Dec. Dig. §§ 85, 129.*]</p> <p>2. Frauds, Statute of (§ 118*)—Sale of Goods—“Memorandum.”</p> <p>Defendant gave plaintiff an order for goods amounting to $329.60, November 25, 1910, having previously given two other orders, and also one of later date. There was no sufficient memorandum to satisfy the statute of frauds, because not signed by defendant. On January 11, 1911, defendant by letter requested plaintiff not to ship any goods before March 10, 1911, or some time later, and on receiving a bill, dated March 27, 1911, again wrote requesting plaintiff not to ship any goods for the present stating that the amount called for by the hill was more than he had ordered or would want and requested shipment of one-half of the amount with the September dating; otherwise, he could not accept the goods. EeM, that such letters, not being physically attached to the memorandum, could not be used in connection therewith to make out a sufficient “memorandum” of the sale within the statute of frauds.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 262-265; Dec. Dig. § 118.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4472, 4473; vol. 8, p. 7720.]</p>

<p>1. Waters and Water Courses (§ 40*)—Natural Water Courses—Natural Condition.</p> <p>Where a stream was widened., deepened, and altered by commissioners appointed under Laws 1869; c. 419, the altered channel was, as between the owners of the lands affected, to be regarded as the natural condition of the stream.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 32; Dec. Dig. § 40.]</p> <p>2. Waters and Water Courses (§ 40*)—Natural Water Courses—Natural Condition—Presumption.</p> <p>Where one, by permission, or at least without objection, did work on the lands of another upon the bed of a stream which flowed through his own lands, and which had several years previously been altered by commissioners appointed under Laws 1869, c.- 419, the presumption was that he stayed within his rights and merely restored the stream to the condition it was in after the work done by the commissioners.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 32; Dec. Dig. § 40.*]</p> <p>3. Waters and Water Courses (§ .171*)—Riparian Rights—Obstruction.</p> <p>A lower riparian owner cannot rightfully alter a stream by damming It and providing insufficient tiling and drainage pipes, and thereby damage higher lands belonging to another by causing them to be flooded in time of high water.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 216-222; Dec. Dig. § 171.*J</p> <p>4. Waters and Water Courses (§ 62*)—Riparian Rights—Obstruction— —Insufficient Tiling.</p> <p>Where a lower riparian owner places in the channel of a natural stream a tiling which is too small to carry off the water in ordinary high-water times, and then fills the channel above the tiling, an upper owner, whose lands are affected thereby, may require the tiling to be removed and the stream to be restored to its former condition.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 52; Dec. Dig. § 62.*]</p> <p>5. Waters and Water Courses (§ 167*)—Riparian Rights—Obstruction— Dam.</p> <p>Where a lower riparian owner dams a stream so as to raise water in ordinary times in that part of the stream flowing through the lands of the next higher owner, and so as in high-water times to cause such lands to be flooded, the upper owner may require the dam to he altered so that in ordinary times the water in the stream at the boundary line will stand at its natural level.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 192, 19-1-202; Dec. Dig. § 167.*]</p> <p>6. Waters and Water Courses (§ 52*)—Riparian Rights—Obstruction-— Damages.</p> <p>Where land was flooded from another’s wrongful obstruction of a stream and from natural causes, and it was impossible to distinguish the injury to the land from each cause, the wrongdoer was liable for the entire damage.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 44; Dec. Dig. § 52.*]</p>

Petition of Max M. Hoffman and others for a special town meeting in the Town of Webster for a resubmission of the local option question.

<p>1. Contracts (§ 171*)—Separable Contracts.</p> <p>A contract to compile a card list of names and addresses of persons in various cities, as shown by the latest directories of the cities, for a specified sum per card and name, respectively, is separable; and the contract price for work properly done is recoverable, though other work furnished is improper.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 754—757; Dec. Dig. § 171.*]</p> <p>2. Contracts (§ 322*)—Breach of Contract—Measure of Damages.</p> <p>Where plaintiff, contracting to furnish to defendant a card list of names and addresses of persons in various cities, as shown by the latest directories of the cities, furnished, with knowledge of defendant’s purpose to use the list, a list not corresponding with the directories, defendant, if such noncorrespondence with the directories resulted in the failure of the envelopes so addressed to reach the addressees, could recover for the postage thus expended by it; but it was not sufficient for defendant to show merely that the envelopes failed to reach the addressees, nor could defendant recover for postage put on envelopes addressed to names which contained on the plaintiff’s list no addresses.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1306, 1307, 1339, 1347, 1348, 1465, 1492, 1534-1542, 1768; Dec. Dig. § 322.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Patrick J. Shea against Joseph Oussani. From a part of an order consolidating four actions, defendant appeals.</p>

<p>1. Costs (§ 112*)—Secubity fob Costs—Application.</p> <p>Defendant, in order to be entitled to security for Costs as a matter of right, must apply therefor before answer.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 463-468; Dec. Dig. § 112.*]</p> <p>2. Costs (§ 112*)—Secubity fob Costs—Application—Delay—Excuse.</p> <p>Where no reasonable excuse was offered for defendant’s failure to apply for security for costs, because of plaintiff’s nonresidence, before answer, an order granting security was not a proper exercise of discretion.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 463-468; Dec. Dig. § 112.*]</p>

Action by Herman Fi'iedlander against Lachman, Hirsch & Co. From a judgment for plaintiff, and an order amending the judgment, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Ernest L. Blake against George Lauder, Jr., and another. From a judgment for defendants, plaintiff appeals.</p>

Action by Josiah T. Miller against Thomas J. Clary and others. From a judgment for plaintiff, certain of the defendants appeal. On motion of plaintiff for extra allowance.

Action by Esther Bellesky against Diedrich Gronholz and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered. Adolph Waxenbaum, for appellants. Fannie Horovitz, for respondent.

<p>Action by Ada L. Ballard against the Village of Hamburg.</p>

<p>Action by Joseph Biehl against the Erie Railroad Company.</p>

<p>Action by Dana J. Bugbee against William I. Overstreet.</p>

<p>Action by Elizabeth J. Campbell against Louis Black.</p>

<p>Action by Antonio Carcione against John B. McDonald and Andrew Onderdonk, defendant.</p>

<p>Action by William H. Coonan against the Hamburg-American Packet Company. (Appeal No. 2.)</p>

<p>Action by Zealey Cohen, by his guardian ad litem, against the New York Times Company.</p>

In the matter of the compulsory judicial settlement of the account of Henry S. Dollard and Albert H. Dollard, as executors, etc., of Samuel H. Dollard, deceased.

<p>Action by Alfred P. Delcambre, Sr„ against Marie H. Delcambre and others.</p>

<p>Action by Antonia Di Napoli, as administratrix, etc., of Giovanni Di Napoli, deceased, against the New York, New Haven & Hartford Railroad Company.</p>

<p>Action by William Estabrook against the Newburgh Light, Heat & Power Company and the Orange County Traction Company.</p>

<p>Action by Anson E. Fletcher against Bruce O. Johnson.</p>

<p>Action by Jennie A. Griffith, as administratrix, etc., against the Long Island Railroad Company and another.</p>

<p>In the matter of the last will and testament of Ellen Haggerty, deceased.</p>

<p>Action by Granulator Soap Company against William Haddow.</p>

<p>Action by Catherine Hayes against Edmond J. Hayes.</p>

<p>Action by Oliver W. Hicks against John Serano.</p>

<p>Action by the Long Island Railroad Company against Mary T. Mulry and others.</p>

<p>Action by Daniel B. McCoy against the Gas Engine & Power Company and another.</p>

<p>Action by Michael Mannion against Edward G. Vail, Jr.</p>

<p>Action by Knowlton Mixer against James N. Adam, as mayor of the city of Buffalo, and others.</p>

<p>Action by Herman J. Meyers against the North American Watch Company.</p>

<p>Action by Mary O’Brien, as administratrix, etc., of John O’Brien, deceased, against the Erie Railrdad Company.</p>

<p>In the matter of George F. Paddock, an alleged incompetent person.</p>

<p>Proceeding by the People of the State of New York against Vernon Earing.</p>

<p>Action by Henry- Paul, an infant, etc., against the Consolidated Fireworks Company of America.</p>

<p>In the matter of Arza O. Peck, deceased.</p>

<p>Proceeding by the People of the State of New York against James Butler, Incorporated.</p>

<p>Proceeding by the People of the State of New York against the New York Central -<S? Hudson River Railroad Company. (No. 2.)</p>

<p>Proceeding by the People of the State of New York, on the relation of C. Stewart Cavanagh, against Rhine-lander Waldo, as Police Commissioner, etc., and others.</p>

<p>Action by Rastus S. Ransom against Frazier Gilman, as committee of Anna K. Gilman, a lunatic.</p>

<p>In the matter of Maurice Propping an attorney.</p>

<p>In the-matter of the probate of the last will and testament of John J. Reynolds, deceased.</p>

<p>Action by Latham G. Reed against Frazier Gilman,' as committee of Anna K. Gilman, a lunatic.</p>

<p>Action by Edward A. Richards against the City of New York.</p>

<p>Action by Eugene A. Rudiger and another against James S. Coleman and others.</p>

<p>Action by Michael Schuhman, an infant, by George Schuhman, his guardian ad litem, against the Brooklyn Heights Railroad Company.</p>

<p>Action by John B. Spotten against William W. De Freest and another.</p>

<p>Action by Irving W. Street against Eugene Van Schaick.</p>

<p>Action by the Title Guarantee & Trust Company, individually and as executor, etc., against Philip Sugerman and others.</p>

<p>Action by the Town of Hempstead against Newbold T. Lawrence and others.</p>

<p>In the matter of the examination of Union Bank of Brooklyn. Appeal No. 1.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by George Watral against Saint Matthews Society. Prom a judgment of the Municipal Court of the City of New York in favor of the plaintiff, defendant appeals. Reversed, and complaint dismissed.</p>

<p>Action by Frederick Winckler and another, as executors, etc., against Louis Winckler, individually and as executor, etc.</p>

<p>Action by Daniel Williams against George L. Conover and another.</p>

<p>Action by Alfred S. Witherbee and another against Thomas H. Bowles and another.</p>