Volume 134 — New York Supplement

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Isaac Levison and another against Henry Harris. Erom an order of the City Court of the City of New York, denying the motion of defendant to vacate a body execution issued against him, he appeals. Reversed.</p>

<p>1. Libel and Slander (§ 9*)—Words Actionable—Special Damage.</p> <p>The words; “he drove that man to suicide,” referring to a subagent oí the plaintiff, who was a- managing agent of a life insurance company, are not actionable, as slander, in the absence of an allegation of special damage, as they are not slanderous per se, as tending to injure the person of whom uttered in his trade or occupation.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 80-90; Dec. Dig. § 9.*]</p> <p>2. Libel and Slander (§ 89*)—Special Damages — Allegations — Sufficiency.</p> <p>Special damages were hot charged by an allegation of a complaint in slander that the plaintiff’s “business has been and will be damaged in the sum of $500.”</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 213, 214; Dec. Dig. § 89.*]</p> <p>3. Arrest (§ 35*)— Order of Arrest—Amendment of Complaint.</p> <p>Under Code Civ. Proc. § 558, which provides that, where an order for the arrest of a defendant is granted to accompany the summons, it must be vacated on motion, if the complaint fails to set forth a sufficient cause of action; but where the order is applied for after the filing or service of the complaint, the court, before granting same, may without notice direct the service of an amended complaint, where an order was granted to accompany the summons and complaint, leave to file an amended complaint, after the determination of the insufficiency of the original and a motion to vacate the order of arrest, was improperly given.</p> <p>[Ed. Note.—For other cases, see Arrest, Cent. Dig. §§ 84-87; Dec. Dig. § 35.*]</p> <p>4. Arrest (§ 35*)—Amendment—Failure to State a Cause—Order of Arrest—Vacation.</p> <p>Under Code Civ. Proc. § 768, as amended in 1911 (Laws 1911, «. 763), which provides that where, upon a motion to set aside or vacate any paper filed for technical defects, or defects or insufficiency in the papers or proceedings upon which it was made or entered, the court shall direct that the defects or insufficiencies be cured or supplied nunc pro. tunc, where it is possible without prejudice, a total failure of a complaint to state a cause of action may not be regarded as such a defect as is contemplated, so that the court may permit its amendment after a motion to vacate an order of arrest accompanying it.</p> <p>[Ed. Note.—For other cases, see Arrest, Cent. Dig. §§ 84-87; Dec. Dig. § 35.*]</p>

<p>Action by Henry J. Mierke, as administrator of the estate of Minnié Mierke, deceased, against the Jefferson County Savings Bank. Complaint dismissed.</p>

<p>Action by Julia W'endling against William Wending for separation. Judgment for plaintiff.</p>

Action by Ernest H. Smiley, as administrator, against Thomas W. Finucane and others. Motion to set aside order granted requiring security for costs. Denied.

Action by the Crocker-Wheeler Company against the Genesee Recreation Company. Motion for new trial by defendant after verdict for plaintiff. New trial granted.

<p>1. Bankruptcy (§ 166*)—“Preference”—Acts Constituting.</p> <p>A bankrupt within four months of adjudication of bankruptcy conveyed his interest in mill property to his wife, who paid full value. He owned no other property at the time, and the wife knew his financial condition, and that the conveyance was made to enable him to- pay a creditor, and thereby relieve an indorser from liability. She had no nse for the property conveyed. HeM,"that the conveyance was a “preference” within the bankruptcy act, and must be set aside at the suit of the trustee in bankruptcy.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 250-258; Dec. Dig. § 166.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5498-5499; vol. 8, p. 7759.]</p> <p>2. Bankruptcy (§ 165*)—Conveyances by Bankrupt—Fraud—Evidence.</p> <p>Where an insolvent more than four months before adjudication of bankruptcy purchased land, and procured the taking of the conveyance in the name of his wife, who was his creditor, and who indorsed on her claim the purchase price, and there was no bad faith on the part of the husband or wife, the conveyance could not be set aside by the trustee in bankruptcy.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dec. Dig. § 165.*]</p> <p>3. Bankruptcy (§ 139*)—Conveyances by Bankrupt—Fraud—Evidence.</p> <p>Where an insolvent husband expended money of his own in improving a lot of his wife, who knew of his insolvency, the amount expended by the husband must at the suit of his trustee in bankruptcy be declared a lien on the property.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 193, 198, 199, 210-225; Dec. Dig. § 139.*]</p> <p>4. Bankruptcy (§ 154*)—Improvements by Bankrupt on Property op Wife —Lien—Set-Off.</p> <p>Where the wife of an insolvent, within four months of adjudication of bankruptcy, purchased his property with knowledge of his insolvency .and of his purpose to pay a creditor and thereby relieve an indorser from liability, she was not entitled to a set-off for the price paid as against a lien in favor of the trustee in bankruptcy impressed on her real estate for the amount expended by the husband in making improvements thereon.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 451-455; Dec. Dig. § 154;* Set-Off and Counterclaim, Cent. Dig. § 123.]</p>

<p>1. Brokers (§ 103*)—Excess of Authority—Ratification.</p> <p>A broker employed procured a purchaser who contracted to purchase for a specified sum, $200 cash, but who executed a note for $200 due in 30 days. The owner, with knowledge of the facts and of the recital in the contract of the receipt of $200, signed the contract. The purchaser within the 30 days paid the note to the broker, but the owner when tendered the money for the first time complained that the contract had been broken and refused to proceed further. Held, that the owner waived the express terms as to payment of the $200 cash, and he could not justify his refusal to carry out the contract.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 147; Dec. Dig. § 103.*]</p> <p>2. Specific Performance (§ 128*)—Contracts Enforceable—Damages.</p> <p>Where it is doubtful if a vendor is able to perform his contract, and justice will best be served by awarding judgment to the purchaser for the money paid with interest and damages suffered by the vendor’s refusal to perform, the court in its discretion will refuse to decree specific performance and will render judgment for the money paid and the damages.</p> <p>[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 412-419; Dec. Dig. § 128.*]</p>

<p>Action by "William Underwood against the Pennsylvania Fire Insurance Company. Judgment for defendant.</p>

<p>Action by Harold P. Butler against Josephine E. Butler for divorce-judgment for plaintiff. '</p>

<p>1. -Easements (§ 30*)—Abandonment—Intention.</p> <p>Though there was no expressed intention not to abandon an easement in the stairways of a store building upon the closing up of openings from another building, an intention to abandon will not be presumed so as to defeat a later assertion of the right, in the absence of an estoppel created by the apparent freedom from servitude.</p> <p>[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 77-79; Dec. Dig. § 30.*]</p> <p>2. Estoppel (§ -30*)—Abandonment—Closing Openings—Estoppel bt Deed.</p> <p>Where, though owners of a building closed the openings between it and another building which was charged with an easement by deed giving the occupants of the first building the right to the use of stairways and halls, a conveyance by the servient owners eight years thereafter with a subjection of the premises to the easement would estop persons who derived title under the will of the grantee from asserting that the acts in question amounted to an abandonment.</p> <p>[Ed. Note.—For other cases, see Estoppel, Cent. Dig. § 74; Dec. Dig. §) 30.*]</p> <p>3. Basements :(§ 30*)—Abandonment—Closing Openings—-Easement in Favob oe Sebvient Estate.</p> <p>Though, by closing the openings in the wall between two buildings, the owners of one prevented the use of a right of access to and use as a footway of its halls and passages by occupants of the other, where such right afforded no means of reaching the street or other - property, and there was no adverse possession with the openings closed for 20 years, the persons claiming such right cannot complain of the reopening of the passageway and the reassertion of an easement in the use of their stairways and halls as a means of ingress and egress to the other building.</p> <p>[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 77-79; Dee. Dig. § 30.*]</p>

<p>1. Chattel Mortgages (§ 98*)—Renewal— Sufficiency.</p> <p>Lien Law (Consol. Laws 1909, c. 33) § 235, makes chattel mortgages invalid as against subsequent creditors and purchasers, unless the mortgagee, within 30 days before the expiration of each year, files statement containing, among other facts, the interest of the mortgagee, or any person who has succeeded to his interest. A mortgagee wrote to the town clerk, in whose office a chattel mortgage was originally recorded, stating that on a certain date he filed in such office a mortgage for a certain sum, given by the mortgagor, naming him, and stating that it had not yet been satisfied, and requesting that it again be recorded. Held, that the statute must be strictly followed, and that the letter was not a sufficient renewal of the mortgage, not stating the mortgagee’s interest in the property.</p> <p>[Ed. Note.—Eor other cases, see Chattel Mortgages, Cent. Dig. § 182; Dec. Dig. § 98.*]</p> <p>2. Bankruptcy (§ 279*)—Action by Trustee.</p> <p>A trustee in bankruptcy represents the bankrupt’s creditors, and may maintain an action to recover property claimed under a chattel mortgage executed by the bankrupt, on the ground that the renewal of the mortgage was Invalid as to creditors of the bankrupt.</p> <p>[Ed. Note.—For othef cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*]</p>

<p>1. Landlord and Tenant (§ 78*) — Assignment of Lease — Recording — “Real Pboperty.”</p> <p>A lease 'for 99 years, not assignable except with the written consent of the lessor, is a chattel real and real property, within Real Property Law (Consol. Laws 1909, c. 50) §§ 290, 291, defining the term “real property” as including .chattels real, and providing for the recording of conveyances of real property, and an assignee of the lease with the lessor’s consent is protected by the recording acts and acquires a valid title as against a • prior assignee holding under an unrecorded assignment and of which he had no notice.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 233-243; Dec. Dig. § 78.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 5939-5951; vol. 8, pp. 7778, 7779.]</p> <p>2. Pledges (§ 44*)—-Payment of Debt—Effect.</p> <p>A payment of an indebtedness secured by collateral discharges the collateral, and the debtor is entitled thereto.</p> <p>[Ed. Note.-—For other cases, see Pledges, Cent. Dig. §§ 103-107; Dec-Dig. § 44.*]</p>

<p>Certiorari by the People, on the relation of the City of Oswego, against the Board of Assessors of the Town of-Oswego to review an assessment. Assessment vacated.</p>

<p>Action by James Pappademetriou, as trustee of Peter Dorton, against Nicholas Bouboulis and another. Complaint dismissed!.</p>

<p>Appeal from Justice Court.</p> <p>Action by Abner S. Levine against the Delaware, L. & W; Railroad Company. From a judgment of a justice of the peace for plaintiff, defendant appeals. Affirmed.</p>

<p>In the matter of the estate of Edward L. Clark, deceased. On accounting by the executor. Decree ordered.</p>

<p>1. Taxation (§ 799*)—Action to Try Title—Title and Possession of Plaintiff.</p> <p>Land in possession of one holding as trustee for his children was sold for taxes in 1878, and the children in 1880 quitclaimed the premises to their mother, who by will leased all the real estate to a daughter for the use of all the children, and thereafter the daughter resided upon the premises and had exclusive possession and paid the taxes thereon to about 1904, and also acquired the interests of the other children. Held, that the daughter’s title and possession were sufficient to support an action to remove the cloud of the tax title.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1584, 1585; Dec. Dig. § 799.*]</p> <p>2. Taxation (§ 788*)—Tax Deeds—Effect as Evidence.</p> <p>A tax deed, regular upon its face, is prima facie evidence that all proceedings taken prior to and including the giving of the deed were regular.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1555, 1557, 1559-15G9; Dec. Dig. § 788.*]</p> <p>3. Taxation (§§ 701, 696*)—Redemption—Notice and Service of Notice-Statutory Provisions.</p> <p>Tax Law 1855, c. 427, § 68, relating to tax sales and deeds, made it necessary for the purchaser to give notice to redeem where the premises sold were occupied, and required that such notice, together with the proof of service, be recorded with the conveyance before the title of the purchaser could become absolute. Laws 1878, c. 65, enacted as an amendment to the tax laws of Oswego County, by section 8 provided for redemption within two years, by section 9 that after that period the county treasurer should execute a conveyance vesting an absolute estate in the purchaser, and by section 12 that the existing laws should remain in effect as to all matters not covered by the amendment, but made no provision as to notice to redeem or for the record of proof of notice. Land in Oswego county was thereafter sold for taxes, and the county treasurer executed a deed to the purchaser which was regular on its face and was recorded, hut the purchaser gave no notice of redemption and recorded no proof of notice. Held, in an action to remove the cloud of the tax title, that the provisions of the Tax Law as to notice were not repealed by the amendatory act, and that without notice of redemption and- record of notice thereunder the purchaser’s tax deed could not ripen into an absolute title.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1407-1411, 1393; Dec. Dig. §§ 701, 696.*]</p> <p>4. Constitutional Law (§ 285*)—Dub Process of Law—Notice to Redeem from Tax Sale.</p> <p>A taking of property under a tax sale without a notice to redeem, as required by the Tax Law of 1855 (Laws 1855, c. 427) and subsequent tax laws, violates the constitutional guaranty of due process of law.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 897-903; Dec. Dig. § 285.*]</p> <p>5. Taxation (§ 727*)—Retroactive Laws—Curative Act—Jurisdictional Defect.</p> <p>A tax sale was made in 1878, but the purchaser did not comply with Tax Law 1855, c. 427, § 68, which made a notice to redeem necessary where the premises were occupied, and required that proof of such notice be recorded with the conveyance, and which was then in force, notwithstanding Laws 1878, c. 65, which made no provision for the giving of notice to redeem or for recording proof of such notice. Laws 1882, c. 322, amended the act of 1878 and in effect incorporated the provisions of the Tax Law of 1855 relating to notice to redeem and record of notice, and by section 15 the sales of lands for nonpayment of taxes made in the county of Oswego under Laws 1878, c. 65, and all acts done thereunder, were in all respects ratified and confirmed. Held, that it was not within the power of the Legislature by Laws 1882, c. 322, to cure the de^ fects and validate the proceedings- and the record.</p> <p>[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 727.*] ^</p> <p>6. Taxation (§ 788*)—Tax Deeds—Effect as Evidence—Statutory Provisions.</p> <p>Under Laws 1878, c. 65, § 10, which provided that the county treasurer’s tax deed should be conclusive evidence that the sale was regular, as amended by Laws 1882, c. 322, a tax deed, regular on its face and recorded, was not conclusive evidence of the validity of the proceedings, where the record was void for failure to comply with Tax Law 1855, c. 427, § 68, requiring proof of notice to redeem to be recorded with the deed.</p> <p>[Ed. Note.—For other cases, see Taxation, dent. Dig. §§ 1555, 1557, 1559-1569; Dec. Dig. § 788.*]</p> <p>7. Taxation (§ 805*)—Retrospective Laws—Statute of Limitations.</p> <p>Tax Law (Consol. Laws 1909, c. 60) § 132, which provided that every conveyance by a county treasurer and the taxes and tax sales on which it was based should be subject to cancellation by reason of any defect in the proceedings affecting the jurisdiction, provided action therefor was brought within one year from June 15, 1896, was constitutional, since the principle that jurisdictional defects in tax titles cannot be cured by a retrospective act does not apply to a statute of limitations.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*] '</p> <p>S. Taxation (§ 805*)—Tax Deeds—Action to Quiet Cloud of Tax Title-Limitations.</p> <p>Where the holder of a tax deed failed to give notice to redeem or to record proof of service of notice, as required by the statute in force at the time the proceedings were had, the record itself was void, and the one-year limitation for the commencement of actions to cancel such tax deeds provided by Tax Law (Consol. Laws 1909, c. 60) § 132, never began to run.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*]</p> <p>9. Taxation (§ 805*)—Tax Deeds—Action to Quiet Cloud of Tax Title-Limitations.</p> <p>Where land had been sold at tax sale in 1878, and. the possession of the owner having the right to redeem was in no way disturbed or contested by the purchaser until after 1904, when the owner, after a tender, brought an action to quiet the cloud of the tax title, the one-year statute of limitations for bringing actions for cancellation of tax deeds provided by Tax Law (Consol. Laws 1909, c. 60) § 132, never began to run.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*]</p> <p>10. Taxation (§ 743*)—Tax Deeds—Right oe Purchaser from Grantee.</p> <p>Where the grantee under a tax deed was never in possession of the property described therein, which was held adversely to any claim or right which he had, the grantee’s deed to a purchaser was void.</p> <p>[Ed. Note.—For other eases, see Taxation, Cent. Dig. §§ 1485-1488; Dec. Dig. § 743.*]</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Luciano Restrepo and another against Alfonso Jaramillo and others. From an order denying defendants’ motion to vacate an attachment, they appeal. Reversed, and motion granted.</p>

<p>Contempt (§ 21*)—Discharge of Lien—Unauthorized Order.</p> <p>Under Lien Law (Consol. Laws 1909, c. 33) § 19, subd. 4, providing for a release of a lien on an undertaking in not less than the amount claimed in the notice of lien, an order discharging a mechanic’s lien as to one-of two lots upon which a single lien was docketed, on an undertaking in an amount less than the amount of lien against both parcels, is unauthorized; and hence the county clerk is not punishable as for contempt in failing to comply with the order.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. §§ G3-66; Dec. Dig. § 21.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Nathan Sater against Walter J. Salomon. From an order setting aside the verdict, plaintiff appeals. Reversed, and judgmerit reinstated</p>

Certiorari by the People, on the relation of the City of New York, against Julia E. Goosen and others, to review the proceedings of the board of assessors. Writs sustained, and proceedings before the board of assessors dismissed.

<p>Certiorari by the People, on the relation of the City of New York, against the Bronx Bath Company and others, to review the proceedings of the board of assessors. Writ sustained, and proceedings before the board of assessors dismissed.</p>

Application of Seth Low and others relative to acquiring a perpetual underground right, easement, and right of way. Report of commissioners confirmed, but without review of condemnation proceedings. Application for extra allowance denied.

<p>Action by Herman Heidenreich against Israel Doushkess to rescind sale for fraud. Finding for plaintiff.</p>

Action by the Equitable Trust Company of New York against Herbert B. Tiedemann. From a Municipal Court judgment dismissing the complaint without prejudice, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Richard A. R. Wolf against the Mellwin Realty & Construction Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.</p>

On reargument. Former judgment, reversing the judgment of the trial court and ordering a new trial, affirmed. For former opinion, see 132 N. Y. Supp. 1120.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Abraham Newman against the Acme Metal Ceiling Company. From a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>1. Judgment (§ 197*)—Dismissal—Failure of Proof.</p> <p>Where a counterclaim is dismissed for failure of proof, a dismissal on the merits is improper; the merits only being involved where a prima facie case is made out and proof offered to rebut it.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 357, 359; Dea Dig. § 197.*]</p> <p>2. Evidence (§ 441*)—Parol—Varying Writing.</p> <p>An agreement to renew a note, made by the payee at the time the note was executed, cannot be proved by parol, since it would vary the written contract.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1719-1845, 2030-2047; Dec. Dig. § 441.*]</p>

<p>Contracts (§ 79'*)—Consideration—Past Consideration.</p> <p>The prior assignment of a patent by plaintiff to defendant would not support a subsequent agreement by defendant to pay a part of the profits from the sale of the patent to plaintiff.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 357-381; Dec. Dig. § 79.*]</p>

Alternative writ of mandamus by the People, on the relation^ of Miller Hay, against John Rowe, as Superintendent of Public Buildings, to require the defendant to reinstate the relator in the department of public buildings. Writ dismissed.

Action by Hegedorn Bros, against Charles O’Rourke and wife. From a judgment of the Municipal Court, dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

<p>1. Principal and Agent (§ 24*)—Actions—Jury Question.</p> <p>In an action for work and labor performed at the request of defendant, held a question for the jury whether defendant was personally lia: Me, or was merely the agent of another.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 722, 723; Dec. Dig. § 24.*]</p> <p>2. Contracts (§ 51*)—Consideration.</p> <p>Where one who performed services as a stenographer rendered a bill for a stated amount, and the parties agreed on that amount as the price, an agreement to pay a higher price, based on the charge of another stenographer, was wholly without consideration, and could not be enforced.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 223, 224; Dec Dig. § 51.*]</p>

In the matter of the application of the Board) of Rapid Transit Railroad Commissioners for and on behalf of the City of New York to acquire easements for the construction, maintenance, and operation of an elevated railroad in Westchester avenue, Southern Boulevard, and BostorkRoad in the borough of the Bronx. On motion to confirm report of commissioners of appraisal appointed under the Rapid,Transit Act. Motion granted.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Rocco Ferraro against Michael Stramiello. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Licenses (§ 39*)—Legality.</p> <p>A plumber, who is not duly licensed and registered, and had never received a certificate of competency from the examining board of plumbers, as required by General City Law (Consol. Laws 1909, e. 21) § 45, cannot maintain an action on a plumbing contract.</p> <p>[Ed. Note.—For other cases, see Licenses, Cent. Dig. §§ 76-78; Dec. Dig. §39*3</p>

<p>Final accounting by Elmer L. Milmine and another, as executors of James W. Sanders. Disposition of proceeds of an insurance policy directed.</p>

<p>Compromise and Settlement (§ 16*)—Accord and Satisfaction (§ 11*)— What Constitutes—Payment of Insubanoe Policy.</p> <p>Insured’s retention and collection of a draft, forwarded to Rim by a casualty company with a statement that it was in full payment of its obligations under an employer’s liability insurance policy, constituted an accord and satisfaction, preventing insured from recovering further under the policy.</p> <p>[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig. §§ 54-65; Dec. Dig. § 16 ;* Accord and Satisfaction, Cent. Dig. §§ 75-83: Dec. Dig. § 11.*]</p>

<p>Fbatjds, Statute of (§ 158*)—Acceptance—Evidence.</p> <p>In an action for the price of goods, evidence held to show that a delivery of the goods was conditional upon their conforming to a sample; and hence, the buyer having refused to accept them because they were not equal to the sample, an acceptance sufficient to take the case out of •the statute of frauds was not shown, although the buyer had directed a change of labels on the goods.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. § 158.*]</p>

Action by Bernard Lustgarten and another against Sol. Hecht. From a judgment in favor of the plaintiffs, rendered in the City Court of the City of New York, defendant appeals. Reversed, and new trial ordered.

<p>Evidence (§ 116*)—Documentary—Admissibilty.</p> <p>Where, in an action on a contract of employment, the evidence was conflicting as to the terms of the contract and as to the amount which had been paid thereunder, a bank book and deposit slip of the plaintiff, showing a deposit, in no way corroborated his story that he received a similar payment on the same day.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. § 116.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Clara Fingerhut against Sam Golkins. From judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Galway & Co. against Louis Prignano. Prom a Municipal Court judgment in favor of plaintiffs, defendant appeals. Reversed, and new trial ordered.</p>

<p>Contbacts (§ 350*)—Action—Evidence.</p> <p>In an action on a contract employing plaintiff to obtain the consent of a church located within 200 feet of defendant’s premises, to the granting of a liquor license to defendant, evidence held insufficient to sustain a judgment for plaintiff.</p> <p>[Ed. Note.-—For other cases, see Contracts, Cent. Dig. §§ 1819-1823; Dec. Dig. § 350.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Lembeck & Betz Eagle Brewing Company against Louis M. Crudo. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal and Error (§ 569*)—Record—Case on Appeal—Settlement.</p> <p>While it is the province of the trial judge to settle a case on appeal, the settlement must be according to the stenographer’s record, and not in disregard thereof; and matter extraneous thereto should not be included, except as to matters within the trial judge’s independent recollection and improperly omitted from the stenographer’s minutes.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. § 569.*]</p>

<p>Contracts (§ 111*)—Legality—Contracts Aiding Divorce.</p> <p>A contract between persons, who were husband and wife, executed after decree of divorce, the consideration of which was that the wife abandon her appeal from the divorce decree, was' not invalid, as collusive or against public policy.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 515-520; Dec. Dig. § 111.*]</p> <p>Lehman, J„ dissenting.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Maurice A. Sturm against Carl C. Parsons. From an order adjudging the defendant in contempt, he appeals. Reversed.</p>

<p>Judgment (§ 167*)—Default Judgment—Vacation—Teems.</p> <p>A default judgment against defendant should be opened on terms securing payment of any judgment finally obtained and a speedy trial, with payment of proper costs to plaintiff’s attorney, where there have been numerous defaults in the cause, chargeable in equal degree to the parties.</p> <p>[Ed. Note.—Por other cases, see Judgment, Cent. Dig. §§ 326, 330, 333, 334; Dec. Dig. § 167.*]</p>

<p>1. Master and Servant (§ 330*)—Negligence of Servant—Prima Facie Case.</p> <p>Where plaintiff was run into and injured by a vehicle on a city street, evidence that the wagon bore an inscription comprising the name, oceupation, and address of defendants was sufficient to establish a prima facie case of defendants’ negligence.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330.*]</p> <p>2. Master and Servant (§ 330*)—Injuries—Evidence.</p> <p>In an action for injuries to a traveler by being run into by a vehicle, evidence held to sustain a verdict finding that defendants were the owners of the vehicle and responsible for the accident.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§. 1270-1272; Dec. Dig. § 330.*]</p> <p>3. New Trial (§ 78*)—Successive Verdicts—Vacation.</p> <p>The first verdict in favor of plaintiff for $65 was set aside for newly discovered evidence, and to obtain the presence of an important witness who had inadvertently absented himself. A verdict for plaintiff on the second trial was set aside as contrary to the evidence and the law, and the order affirmed on appeal. On the third trial the court directed a verdict for defendants, but subsequently set it aside on the ground that there were questions of fact that should have gone to the jury, and on the fourth trial plaintiff recovered a verdict of $150. Held, that an order setting it aside as against the weight of the evidence would be reversed, and the verdict reinstated.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 191; Dec. Dig. § 78.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by George Schroeder against Samuel Fine and Abrahama Fine, doing business under the firm name of A. Fine & Son. From an order of the City Court, granting plaintiff’s motion to retax defendants’ bill of costs, defendants appeal. Modified and affirmed.</p>

<p>1. Depositions (§ 37*)—Application fob Commission.</p> <p>Where defendant’s affidavit in support of her motion for a commission to take the testimony of a witness stated that she had been unable to locate the witness until that very day, and it did not appear that the application was made in bad faith for delay, and an adequate bond was given to secure the plaintiff’s possible recovery, it was error to deny the motion and to vacate a stay of the trial.</p> <p>[Ed. Note.—For other cases, see Depositions, Gent. Dig. § 52; Dec. • Dig. § 37.*]</p> <p>2. Depositions (§ 37*)—Application for Commission.</p> <p>It was not a sufficient ground for denying an application for a commission to take the testimony of a witness before trial that the testimony was sought to prove facts defectively pleaded in the answer.</p> <p>[Ed. Note.—For other cases, see Depositions, Cent. Dig. § 52; Dec. Dig. § 37.*]</p>

<p>Action by Jerome E. Bates and another against Barnet Rosenberg and another. Judgment for plaintiffs was reversed on appeal (121 N. Y. Supp. 335), and the attorney, who was then counsel for plaintiffs, moves to expunge and remove from the files of the court its opinion then rendered, or to modify it in its references to petitioner. Motion denied.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Louis Karp against William Krone. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by Nicholas Sakelos against Costas Sakelos. From an order denying defendant’s motion to open a default and set aside a judgment for plaintiff, he appeals. Judgment vacated, and motion granted.

<p>Appeal and Error (§ 1154*)—Disposition—Modification.</p> <p>In an action on two causes of action, where the trial court apparently overlooked the fact that the defendant had conceded his liability on one of the causes, a judgment for defendant will be modified on appeal, by directing judgment for plaintiff on such cause of action.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4497; Dec. Dig. § 1154.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Walter G. Douglas against George C. Reynard. From a judgment for plaintiff, he appeals. Modified and affirmed.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Herman Wallenstein against Sol. Desser. From an order denying a motion to vacate an order directing an examination of plaintiff before trial, plaintiff appeals. Modified and affirmed.</p>

<p>Complaint by Wade H. Roy against George W. Salisbury, as trustee in bankruptcy for John H. Roy. Action dismissed.</p>

Action by George S. Barnett against the Anheuser-Busch Agency. From a judgment in favor of plaintiff, entered in the Municipal Court of the City of New York after a trial by a judge without a jury, defendant appeals. Reversed, andi new trial ordered.

<p>Pleading (§ 338*)—Answer—Refusal to Accept—Justification.</p> <p>An attorney of plaintiff may return an improperly verified answer on that ground, and may refuse to accept the second answer, attempted to be served after default.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1022, 1023; Dec. Dig. § 338.*]</p>

Action by William J. Helm against Michael J. Day, as Commissioner of Public Safety of the City of Watervliet, and the City of Watervliet. Motion by plaintiff for the continuance of a preliminary injunction restraining defendant Day from taking any further proceedings against certain police officers in respect to charges preferred against them.

<p>Action (§ 57*)—Consolidation.</p> <p>Two actions between the same parties, upon the same written instrument, with substantially the same issues, one in the City Court, and the other in the Municipal Court of New York City, should on motion be consolidated.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 632-675; Dec. Dig. § 57.*]</p>

Action by Lena Tebbins against the Grand Court of the State of New York, Foresters of America. From a judgment of the Municipal -Court of the City of New York, dismissing the complaint for failure of proof, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the United Electric Eight & Power Company against J. Stewart Blackton. From a judgment for plaintiff, defendant appeals-Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Harper Machinery Company against Donegan & Swift. From a judgment awarding defendants affirmative relief, plaintiff appeals. Reversed and remanded.</p>

Action by Margaret McQuillan against Jane McQuillan and others. Motions to compel the completion of a purchase at a partition sale and to be relieved therefrom. Motion to compel completion of purchase granted, and motion to be relieved therefrom denied.

Action by Giuseppe Rossano and another against Abraham Kaminsky and another. From a judgment dismissing the complaint, plaintiffs appeal. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Frank Walker against Charles Kaye. From ah order setting aside a verdict for plaintiff, and granting a new trial, plaintiff appeals. Reversed, and verdict reinstated.</p>

<p>1. Carriers (§• 158*)—Shipment op Goods—Liability for Loss—Amount.</p> <p>Where three articles shipped were covered by a shipping receipt providing that the express company should not be liable for more than $50, and “in case of partial loss or damage shall not be liable for more than such proportion of the same as $50 * * * bears to the actual value, if greater,” and only one was lost, the shipper could recover only such proportion of $50 as the value of the article lost bore to the whole shipment.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-703%, 708-710, 718, 718% ; Dec. Dig. § 158.*]</p> <p>2. Carriers (§ 163*)—Shipment of Goods—Action for Loss—Burden of Proof.</p> <p>Where, in an action against an express, company for the loss of one of three articles shipped, the plaintiff introduces as the basis of his action the shipment receipt, which provides that in case of partial loss of the shipment he can recover only such part of $50 as the value of the part lost bears to the whole shipment, he must prove the relative value of the article lost to the value of the whole shipment.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 722-725; Dec. Dig. § 163.*]</p> <p>Lehman, J., dissenting.</p>

Action by the Class Journal Company against the Valveless Inner Tube Company. From a judgment of the City Court of the City of New York, dismissing the complaint at the close of plaintiff’s case, plaintiff appeals. Reversed, and new trial ordered

<p>Landlord and Tenant (§ 194*)—Rent—Right of Recoveby.</p> <p>Where the tenant of an apartment paid the rent for a certain month, but told the landlord that he had moved, and the lease provided that, if the premises became vacant by the voluntary removal of the tenant, the landlord could re-enter and re-lease for the tenant’s benefit, the landlord could recover rent subsequently becoming due under the lease, though he re-entered and cleaned the apartment during the month for which the rent was paid.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 788, 789; Dec. Dig. § 194.*]</p>

Action for injunction and for damages by J. Caroline Jennings ■against Frederick Bohner. Judgment for plaintiff for damages, and permanent injunction denied# with leave to bring action for permanent injunction or for damages.

Action by S. F. Bowser & Co. against John S. Coleman. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed, and new trial ordered.

<p>1. Courts (§ 489*) —State and F-ederai^-Jurisdiction—Patents.</p> <p>The federal courts have exclusive jurisdiction over questions of infringement of patents.</p> <p>fFd. Note.—For other cases, see Courts. Cent. Dig. §§ 1324^-1341, 1372-1374; Dec. Dig. § 489 ;* Patents, Cent. Dig. § 177%.]</p> <p>2. Trade-Marks and Trade-Names (§ 68*)—Unfair Competition—Use of Unpatented Article.</p> <p>One creating a more convenient instrument or combination of instruments than had theretofore been known, but who does not obtain a patent, may not complain of unfair competition by one using a similar contrivance not copying features not affecting its working capacity, but only serving as identification marks.</p> <p>r'ld. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 79; Dec. Dig. § 68.*]</p> <p>3. Trade-Marks and Trade-Names (§ 3*)—Nature of Trade-Marks—Descriptive Character.</p> <p>The words “egg carrier and tray manufacturing company” are descriptive in their primary sense, and cannot be appropriated as a trade-mark for the exclusive use of the manufacturer.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. § 3.*]</p> <p>4. Trade-Marks and Trade-Names (§ 75*)—Unfair Competition.</p> <p>The words “egg carrier and tray manufacturing company” may acquire, when used in the name of a manufacturer, a predominating meaning throughout the trade, and an intentional use of the words as a trade-name by a new concern to deceive or confuse the purchasing public is unfair competition which will be restrained in equity.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 86; Dec. Dig. § 75.*]</p> <p>5. Trade-Marks and Trade-Names (§ 75*)—Unfair Competition—Acts Constituting.</p> <p>A manufacturer at Rochester, N. X., of egg carriers adopted the name “Star Egg Carrier & Tray Manufacturing Company.” A competitor located at Rochester used the words “Rochester Egg Carrier Company,” and his advertisements made it easy for the public to confuse the two-concerns. Held, that the competitor was guilty of unfair competition.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 86; Dec,- Dig. § 75,*]</p>

<p>1. Taxation (§ 40*)—Special Franchises—Inequality.</p> <p>Assessments of special franchises in a city at their full and true value, while under the general and prevailing practice real estate in the city is assessed below its actual value, make them open to the objection of inequality, for which they should be reduced proportionately.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 68-89; Dec. Dig. § 40.*]</p> <p>2. Evidence (§ 333*)—Documents—Memoranda in Tax Records.</p> <p>That a special report was demanded by the State Board of Tax Commissioners of one subject to taxation on a special franchise, with the result that, having failed to furnish it, he, under the provision of Tax Law (Consol. Laws 1909, c. 60) § 44, forfeited the right to review the assessment by certiorari, is not sufficiently shown by a mere memorandum in a book kept in the office of the board to the effect of the demand having been mailed on a certain day; receipt of any such demand being disaffirmed.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.*]</p> <p>•3. Taxation (§ 496*)—Special Franchises—Review of Assessment—Forfeiture—Burden of Proof.</p> <p>The State Board of Tax Commissioners claiming that one subject to taxation on a special franchise has, under Tax Law (Consol. Laws 1909, c. 60) § 44, forfeited his right tv review the assessment by certiorari by not furnishing a special report within the time specified in its demand,, has the burden of showing, not only the demand, but that it allowed a reasonable time.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 890-910; Dec.. Dig. § 496.*]</p> <p>4. Taxation (§ 496*)—Special Franchises—Review oe Assessment—PoueettuR'E—Reports.</p> <p>One subject to taxation on a special franchise did not, under Tax Law (Consol. Laws 1909, c. 60) § 44, forfeit right to review by certiorari the-assessment, because of failure to furnish the State Board of Tax Commissioners a general financial statement, the statute not in terms requiring such a report annually, he having furnished one the year before, and not having been chargeable with notice of any general custom of the board to require one every year, and there being no sufficient evidence of a demand by it therefor, but its correspondence indicating that a special report as to tangible property was all that it required.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 890-910; Dec-Dig. § 496.*]</p>

Action by Frank Moran against the Dake Drug Company. The verdict for the plaintiff, and defendant moves for a new trial. Motion denied.

Quo warranto by the People, on the relation of John Martin, against Charles H. Kenyon, to oust defendant from the office of Supervisor of the Town of Hamlin. Plaintiff moves for judgment on the pleadings. Motion denied.

Action by Franz Pirl against Arthur L,. Cary. From a judgment of the Municipal Court for plaintiff, after a trial before the court without a jury, defendant appeals. Reversed, and new trial ordered.

<p>1. Assignments fob Benefit of Cbeditoes (§ 180*)—Rights Acquired.</p> <p>A general assignment for the benefit of creditors, made by a defendant after the issuance of an attachment against him and a levy under it. transfers to the assignee all rights which he has under the undertaking given by plaintiff if the attachment is subsequently vacated, and defendant may not sue on it on the vacation of the attachment.</p> <p>[Ed. Note.—For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 532-539; Dec. Dig. § 180.*]</p> <p>2. Set-Off and Counterclaim (§ 11*)—Attachment—Undertaking—Ac-tions—Counterclaim.</p> <p>Where defendant, who made a general assignment for the benefit of •creditors after the issuance of an attachment against him and a levy thereon, brought an action on the undertaking subsequent to the vacation of the attachment and the rendition of judgment for plaintiff in the. action, a judgment on a counterclaim for the amount of the judgment was proper, though defendant could not sue on the undertaking.</p> <p>[Ed. Note.—For other- cases, see Set-Off and Counterclaim, Cent. Dig. § 14; Dec. Dig. § 11.*]</p>

Action by Jacob Goller, as president of the First Neustadter Congregation Sick & Benevolent Association, against Abraham Stubenhaus and others, to- restrain defendants from interfering with the rights and property of plaintiff’s association. Judgment for plaintiff.

Summary proceedings by Joseph A. Goldstein against William Bloom and others. From a judgment in favor of defendants, and from an order denying a motion for a new trial, and to vacate and set aside the judgment and verdict as being contrary to the evidence, plaintiff appeals. Reversed, and new trial ordered.

<p>Set-Off and Counterclaim (§ 44*)—Mutuality of Claims—Partnership. Partners, sued on a debt of the partnership to a bankrupt, cannot set off a debt of the bankrupt to one of the partners individually.</p> <p>[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig §§ 82-96, 98, 99; Dec. Dig. § 44.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action to recover a penalty by the People of the State of New York against Thomas W. Russell. From a judgment for defendant, the People appeal. Reversed, and new trial ordered.</p>

<p>Evidence (§ 441*)—Parol Evidence—Varying the Terms of a Written Contract.</p> <p>In an action for the price of a cash register sold under a written contract, evidence of an oral contract with plaintiff’s salesman, giving the privilege of returning the register, if not satisfactory, etc., was inadmissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 203072047; Dec. Dig. § 441.*] Í</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by James A. Hogg against the Larchmont Yacht Club. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Dispossess proceeding by Moses Maas against Arthur Lowy and another. From an order denying a motion to open defendant Eowy’s default, he appeals. Affirmed, with leave to renew motion.</p>

<p>1. Arrest (§ 34*)—Order of Arrest in Civil Actions—Undertaking—Requisites.</p> <p>An undertaking for an order of arrest,, under Municipal Court Act (Laws 1902, c. 580) § 57, providing that, before an order of arrest shall issue, plaintiff must execute and deliver a written undertaking, approved by the court, with approval indorsed thereon, is fatally defective, when not executed by plaintiffs, or either of them, and not approved by the court.</p> <p>[Ed. Note.—For other cases, see Arrest, Cent. Dig. § 83; Dec. Dig. § 34.*]</p> <p>2. Arrest (§ 34*)—Order of Arrest in Civil Actions—Undertaking—Requisites.</p> <p>A defect in an undertaking for an order of arrest, arising from the fact that it was not executed by plaintiffs, or either of them, and not approved by the court, and approval indorsed thereon, as required by Municipal Court Act (Laws 1902, c. 580) § 57, cannot be cured by substituting another undertaking after the granting of the order.</p> <p>[Ed. Note.—For other cases, see Arrest, Cent. Dig. § 83; Dec. Dig. § 34.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Solomon Bernstein and another against the Standard Ice Cream Company. From a judgment for plaintiffs, and an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered.</p>

<p>Costs (§ 32*)—Statutory Provisions.</p> <p>As the only authority for the taxation of costs upon the dismissal of a defendant’s counterclaim is Municipal Court Act (Laws 1902, c. 580) § 332, subd. 4, which provides that, upon a judgment for a plaintiff on the counterclaim in an action brought for a sum less than $50 in which the defendant interposed a counterclaim amounting to $50 or over, the court shall allow as costs the sum the plaintiff would be entitled to recover if the amount of his claim were the amount of the defendant’s counterclaim, costs were improperly taxed in favor of a plaintiff, suing for more than $50, upon the dismissal of a counterclaim for $175 and a judgment for plaintiff in the sum of $43.80.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 108, 111-114; Dec. Dig. § 32.*]</p>

<p>Landlord and Tenant (§ 22*)—Lease—Proposal and Acceptance.</p> <p>A proposal by a landlord to lease bis premises for a certain term, which proposal was accepted by the tenant only conditionally, and was followed with a rejection by the tenant of a written lease proposed by the landlord, placed the tenant under no obligation to pay rent for the premises for the term proposed.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 55-59; Dec. Dig. § 22.*]</p>

<p>Appeal from Municipal Court, Borough of - Manhattan, Eighth District.</p> <p>Action by Harris Averbuck against Nathan Becher and another. From a judgment for defendant Solomon Becher, plaintiff appeals.</p>

Action by Charles A. Nack against Samuel Michaeliski and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

Action by the Schwartzwaelder Company against Charles Silver-man, doing business under the firm name and style of the Eagle Raincoat Company. From a judgment of the Municipal Court of the City of New York, rendered for plaintiff, defendant appeals. Reversed, and complaint dismissed.

Accounting by Obadiah W. F. Randolph, as substituted trustee under the will of Charles F. Randolph, deceased, and as trustee under the will of Edward F. Randolph, deceased. On objections to a loan of trust funds by the trustee. Objections overruled on condition. Affirmed, without opinion, by Appellate Division, April 19, 1912.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by John H. Briggs, doing business as the Standard Coat & Apron Supply Company, against August Husing. Judgment for plaintiff, and defendant appeals. Modified, and s.ffirmed conditionally. Morris Kamber, of New York City, for appellant. Kendrick & Kendrick, of New York City, for respondent.</p>

<p>from _ Special Term, Kings _ County. Action by William H. Coonan against the Hamburg-American Packet Company From certain orders of the Special Term, defendant appeals. Orders affirmed. See, also 145 App. Div. 941, 130 N. Y. Supp. 1108. A Leonard Brougham, for appellant. Fredericl S. Lyke, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. „ Action by the Equitable Trust Company of New York against Diedrich Arpen. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered. McLear & McLear, of New York City (Herbert G. McLear, of counsel), for appellant. Mary Coleman, of New York City, for respondent.</p>

<p>In the matter of the application of the City of Buffalo to acquire lands in fee simple for the purpose of widening Girder street, between Delavan avenue and Kensington avenue.</p>

<p>Action by- Cecilia W. Niles, as administratrix, against Leopold Winkler and others. H. H. Gibbs, for appellant. W. G. Cooke, for respondents.</p>

<p>Action by Sanford Peters against the Macmillan Book Company.</p>

<p>Action by Leonard H. Shipman, as receiver of the F. Gray Company, against George Curtis Treadwell .and another.</p>

<p>Action by William D. Tyndall against the Pinelawn Cemetery and others. J. M. Gardner, for appellant. A. D. Kneeland, for respondents.</p>

<p>Action by Elsa Wittgren, as administratrix, etc., against the Wells Bros. Company of New York.</p>