Volume 135 — New York Supplement

<p>.ers (§ 49*)—Compensation—Contract—Necessity oe Performance. Where a contract employing brokers to procure a loan stated that the agreement should be void unless the brokers procured a written acceptance from the person who was to loan the money within one day from its date, there could be no recovery thereon without a showing that such written acceptance was procured.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.*]</p> <p>2. Brokers (§ 54*)—Compensation—Procuring Customer Able, Ready, and</p> <p>Willing.</p> <p>A broker employed to procure a loan was not entitled to compensation for his services upon a showing that, while the fund was not in the lender’s hands, his customer would send him a check therefor, as a condition to the recovery of commissions is the procuring of a customer ready, able, and willing to perform.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*]</p> <p>3. Evidence (§ 201*)—Declarations—Admissions Against Interest.</p> <p>In an action for a broker’s commissions for making a loan, testimony of admissions of the plaintiff was admissible to show the agreement under which he was employed.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 687; Dec. Dig.</p> <p>*For other cases see same topic & § number fn Dec. & Am. Digs. 1907 to date. & Rep’r Indexes</p> <p>§ 201.*]</p>

Action by the Retailers’ Reporting Service against the Tanzer-Monjo Company. From a judgment of the Municipal Court of the City of New York in favor of the plaintiff, after a trial before the court without a jury, defendant appeals. Reversed, and new trial ordered.

<p>1. Partnership (§ 146*)—Representation by Partner—Negotiable Instrument.</p> <p>Where a note, signed in a partnership name, was given in part renewal of an individual note of one of the partners, given several months prior to the formation of the partnership, and was not shown to be for its benefit, no recovery thereon against the members of the partnership, other than the signer, was warranted.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 242-255;</p> <p>. Dec. Dig. § 146.*]</p> <p>2. Landlord and Tenant (§ 80%*)—Assignment op Lease—Implied Assign-</p> <p>ment.</p> <p>An assignment of a lease, which has more than 1% years to run, will not be implied from the fact that during the term of- the lessee another is also in possession of the premises.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 231; Dec. Dig. § 80%.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Louis Lewis against Moses Einhorn. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by the Bronx Borough Bank against David Carman and another, impleaded with John Rendall. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

Action by Morgan Marshall against Raymond Goodman. From a judgment entered in favor of the plaintiff in the Municipal Court of the City of New York after a trial before the court without a jury, defendant appeals. Reversed, and new trial ordered.

<p>Contracts (§ 284*)—Modification—Building Contract.</p> <p>Under a building contract, providing that no alterations should be made in the work, except on the written order of the architect, an alteration made on the architect’s verbal order was unauthorized.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1317, 1326-1338, 1340-1346, 1350, 1351; Dec. Dig. § 284.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Advice to grand jury.</p>

<p>,1. Wills (§ 627*)—Construction—Income.</p> <p>Under a bequest of the income of testator’s estate to testator’s wife and children, share and share alike, during the life of the wife, the beneficiaries were to enjoy the income in common, each having an individual share, and upon one dying her share of the income which accrued thereafter passed under Real Property Law (Consol. Laws 1909, c. 50) § 63, to the person presumptively entitled to the next eventual estate.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1452-1459; Dec. Dig. § 627.*]</p> <p>2. Wills (§ 854*)—Construction—Real Estate.</p> <p>Under a bequest to certain parties of the income of the estate in trust during the life of the testator’s wife and bequeathing the real estate upon her death to three persons in equal shares, their issue to take the share of the parent, the latter beneficiaries each took a vested remainder in one-third of the real estate subject only to the trust and to the contingency mentioned; and upon the death of one before the end of the trust period, her interest passed to the person to whom she had bequeathed it, such person being the one presumptively entitled to the next eventual estate under Real Property Law (Consol. Laws 1909, c. 50) § 63, and did not pass to her two colegatees, though she died without issue.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 2170; Dec. Dig. § 854.*]</p> <p>•For "other cases see same topic & §‘ííumbbr in Dec; & Am. Digs. 1907 to'date, & Rep’r Indexes</p>

Final accounting by Franciska Hourt as administratrix of George Heldman, deceased. From a decree settling the account and directing final distribution, the administratrix appeals. Appeal dismissed.

Proceedings for the acquisition of property under the Rapid Transit Act. On motion to confirm report of commissioners of appraisal. Report confirmed in part, and awards set aside in part.

Mandamus by the people, on the relation of William A. Grimshaw, against William A. Prendergast, register of Kings county, to compel defendant to certify to the Civil Service Commission pay rolls or supplemental pay rolls in favor of relator. Denied. Order and decision affirmed without opinion in 132 App. Div. 937, 116 N. Y. Supp. 1144, 197 N. Y. 538, 91 N. E. 1119.

<p>Action by Harry Liske against Jennie Liske for annulment of a. marriage on the ground of insanity. Judgment for plaintiff.</p>

<p>1. Statutes (§ 120*)—Title—Sufficiency.</p> <p>Laws 1902, c. 133, entitled “An act to provide for the election and to prescribe the compensation of town trustees of Southampton, and legalizing payment of compensation to the present and former trustees,” was</p> <p>* not invalid because the title did not indicate that the number of the trustees was reduced to five, since the Constitution requires only that the title express the subject of the act so as to indicate the matter with which</p> <p>. it deals. .</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 168-172; Dec. Dig. § 120.*]</p> <p>2. Towns (§ 26*)—Trustees—Statutes—Application.</p> <p>Laws 1902, c. 133, provided for the election in the town of Suffolk in April, 1903, and biennially thereafter, as successors to “the present board</p> <p>• of trustees” of five trustees for the term of two years. Section 2 provided for their compensation, and section 3 legalized payment of compensation by the town to present and former trustees for services rendered by them. Held, that such act applied to the town trustees, and not to the proprietor trustees created by Laws 1818, c. 155, which was a separate body on whom was conferred the title to the common lands of the town, etc., who were not elected by the people, and who had no public functions.</p> <p>[Ed. Note.—For other cases, see Towns, Cent. Dig. §§ 37-41; Dec. Dig. § 26.*]</p> <p>3. Constitutional Law (§ 127*)—Colonial Charter—Contract—Impair-</p> <p>ment.</p> <p>A colonial charter granting land, riparian rights, and franchises to trustees of a town ratified and confirmed by legislative action is a contract the obligation of which the state cannot impair.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 325-341; Dec. Dig. § 127.*]</p> <p>4. Constitutional Law (§ 127*)—Contracts—Colonial Grants.</p> <p>A colonial charter granted to trustees of the town of Southampton, though granting lands and water rights which the state could not thereafter impair, did not constitute a surrender of legislative control over the town officials or erect independent governmental agencies that should forever be beyond the reach of the Legislature, and hence Laws 1902, e. 133, reducing the number of trustees, providing for their compensation, and election by the public, was not invalid as impairing the obligation of the contract evidenced by such colonial grant.</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes-</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 325-341; Dec. Dig. § 127.*]</p> <p>Quo warranto by the People, on the relation of George D. Squires and others, against Alonzo P. Hand and others. Judgment for defendants.</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Mortgages (§ 513*)—Foreclosure—Order of Offering fob Sale.</p> <p>Where a husband and wife executed a mortgage on land purchased by the wife and other land owned by the husband for the price of the wife’s land, her land was primarily liable for the debt, and on a foreclosure the husband could insist that it be sold first and his land resorted to only if her land did not sell for enough to satisfy the mortgage.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 1516; Dec. Dig. § 513.*]</p> <p>2. Descent and Distribution (§ 129*)—Rights of Heirs—Foreclosure of</p> <p>Mortgage—Order of Offering fob Sale.</p> <p>The heirs of a mortgagor succeed to his equitable right to have the land of another mortgagor primarily liable for the mortgage debt sold first in satisfaction of the mortgage.</p> <p>[Ed. Note.—For other cases, see Descent and Distribution, Cent. Dig. § 471; Dec. Dig. § 129 ;* Mortgages, Cent. Dig. § 1598.]</p> <p>3. Execution (§ 268*)—Sale—Title of Purchaser.</p> <p>Under Code Civ. Proc. § 1440, providing that if land sold under- execution is not redeemed, and a deed is executed in pursuance of the sale, the grantee shall be deemed to be vested with the “legal estate,” the purchaser of mortgaged lands under an execution acquires merely the equity of redemption, and does not acquire the mortgagor’s equitable right to insist that other lands covered by the same mortgage shall be first sold, because primarily liable, since statutes for the sale of land under execution, being in derogation of the common law, should be strictly construed.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig, §§ 762-767; Dec. Dig. § 268.*]</p> <p>4. Frauds, Statute of (§. 129*)—Sale of Land—Oral Contract.</p> <p>An oral contract for the sale of land, followed by payment of the price and possession by the vendee, is good, and equity will decree a conveyance of the land.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec. Dig. § 129.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>5. Execution (§ 266*)—Sale—Title of Purchases.</p> <p>A purchaser of land at an execution sale acquires only the title and interest of the execution debtor at the time the judgment was docketed, and hence, where prior to the docketing of a judgment the execution debtor had entered into an oral contract of sale, followed by possession and payment of the purchase price in full, the purchaser at the execution sale acquired no title.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. § 760; Dec. Dig. § 266.*]</p> <p>♦Forother cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

Action by one Rachmann against Kate M. Brookfield and another. On motion for the filing of a notice of appeal from a judgment directing the registration of plaintiff’s title to real property. Granted. Cowing, White & Wait, of New York City, for the motion. David Senft, of Brooklyn (Meyer Blumberg, of counsel), opposed.

Action by Gibson Howard and another against the City of Buffalo- and others. From a judgment for plaintiffs against all defendants-(122 N. Y. Supp. 1095), defendants appeal. Affirmed.

<p>1. Logs and Logging (§ 3*)—Sales and Conveyances of Standing Timber</p> <p>—Vendor’s Lien—Estoppel to Assert.</p> <p>Though before a sale of standing timber the owner told persons who afterwards bought it from the first vendee that he would sell it for cash, it was not a statement of an existing fact and would not estop the owner from later asserting his lien against such purchasers for an unpaid portion of the purchase price.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>2. Logs and Logging (§ 3*)—Sales And Conveyances of Standing Timber</p> <p>—Vendor’s Lien—Estoppel to Assert.</p> <p>Though persons who purchased the rights of a vendee in standing timber stated to the vendor, on being apprised that he was going to sell the timber, that they had made arrangements for the wood with such vendee, there was no such notice given as would preclude the vendor from asserting his right to a lien after such persons had purchased the timber and expended large sums of money in cutting and hauling it, as he could assume that any arrangements made with the vendee would be made subject to his rights.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>3. Logs and Logging (§ 3*)—Sales and Conveyances of Standing Timber</p> <p>—Vendor’s Lien—Rights and Liabilities of Subsequent Purchasers.</p> <p>Where wood was in the tree on the premises of the vendor of a right thereto at the time his vendee attempted to sell it, the second purchaser became impressed with a duty to inquire as to the vendor’s rights which charged it with knowledge of all that might have been discovered, and where the contract clearly showed that a portion of the purchase price was unpaid, the vendor’s lien could be asserted against such purchaser.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>4. Logs and Logging (§ 3*)—Sales and Conveyances of Standing Timber</p> <p>—Vendor’s Lien—Contract. •</p> <p>Where a contract for the sale of standing timber showed the payment by the vendee of a portion of the purchase price in cash, an agreement to pay smaller portions in sixty days, when one-third of the timber was cut “and the balance * * * to be paid when one-half of the said timber is cut,” and also gave a right to possession with a right to ingress and egress to cut ^nd remove the timber for a- period of five years, the stipulation for possession for five years must be held to limit ttie right of the vendee to cut and remove the timber to five years, rather than to grant an absolute right, to harmonize it with the provision for the payment of all of the purchase price when one-half of the timber is cut, and the contract held to grant only the right to cut one-half of the timber- and make the right to cut the remaining one-half to depend upon the payment of the full purchase price, and where all the wood had been cut and corded, the vendor was entitled thereunder to assert his lien upon the half to which he had not lost his right of possession.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>5. Logs and Logging (§ 3*)—Vendor’s Lien—Contract.</p> <p>Where a contract for the sale of growing timber provided that, in addition to a contract price, the vendee would deliver a certain number of cords of wood to the vendor, the vendor would have a right to the assertion of a lien for the value of such wood in addition to the lien for the unpaid purchase pride, where all the timber had been cut.</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>•For "other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. WOBK AND LABOB (§ 9*)-EFFECT OF EXPBESS CONTBAOT.</p> <p>A party performing work for another under a special contract may sue therefor on the common count for work, labor, and services, leaving the defendant, if in doubt as to the facts relied on, to make a motion for a bill of particulars, or to require the complaint to be made definite and certain.</p> <p>[Ed. Note.-—For other cases, see Work and Labor, Cent. Dig. §§ 23, 24; Dec. Dig. § 9.*]</p> <p>2. WOBK AND LABOB (§ 27*)-EVIDENCE—SPECIAL CONTBAOT.</p> <p>In an action on the common count for work, labor, and services, a special contract is admissible in evidence to prove the request to do the work and fix its value.</p> <p>[Ed. Note.—For other cases, see Work and Labor, Cent. Dig. §§ 50-54; ' Dec. Dig. § 27.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Action by Mabel Moore against Floyd Moore for divorce, in which defendant also asked for divorce. Divorce denied.</p>

Action by Joseph W. Cain against Royal E. Snyder and wife to, set aside defendant’s conveyance to the wife. Finding of jury that conveyance was made with intent to defraud plaintiff, a creditor, approved, and finding that conveyance was taken by the wife without, intent on her part to defraud plaintiff set aside.

<p>Action by the St. Lawrence County National Bank against Frank FI. Watkins and others. On demurrer to the complaint. Demurrer sustained, with leave to amend.</p>

<p>Pleading (§ 245*)—Complaint—Amendment.</p> <p>Where plaintiff had been slow in discovering the deficiencies in his complaint, but there was no suggestion that he had been guilty of bad faith, his application to amend should have been granted.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 635, 653-675; Dec. Dig. § 245.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Judicial settlement of the account of the executor of Eliza Alden, deceased. Proceeding to establish a claim of Eannie Hood against the decedent’s estate for care and board of John S. Alden. The claim was presented to the executor of Eliza Alden, and by him disputed, and a stipulation was made for the hearing and determination of the claim on judicial settlement of the account of the executor. Proceeding dismissed.

Action by Jacob Perlman, an infant, against the Brooklyn Heights. Railroad Company. On motion for new trial after verdict for plaintiff. New trial granted.

1 Appeal from Municipal Court, Borough of Manhattan, First District. Action by Michael Sheriff against George F. Drew. From a judgment for defendant, plaintiff appeals. Reversed and remanded. Argued May term, 1912, before SEABURY, LEHMAN, and PAGE, JJ.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Tónnele-Martin Realty Company against Elizabeth E. W. Adams. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.</p>

. Action by Eugene A. Gerdy against Harry L. Tissot, as administrator of Aline Tissot, deceased. From a judgment' for plaintiff, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Lester O. Peck against Thomas J. McLaughlin. From a judgment for defendant upon a dismissal of the complaint, plaintiff • appeals. Reversed, and new trial ordered.</p>

Action by Saks & Co. against Walter W. Ife. Judgment for defendant, and plaintiffs appeal. Reversed, and new trial ordered. ■ Argued May term, 1912, before SEABURY, LEHMAN, and PAGE, JJ.

Action by Samuel Friedman and another against Rachael Lowenstein and another. From a judgment for defendants on a trial without a jury, plaintiffs appeal. Affirmed in part and reversed in part for new trial.

Action by Joseph T. Shipman against the New York-Pennsylvania Real Estate Associates. From a judgment in favor of plaintiff and from an order denying the defendant’s motion for a new trial, it appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Moses Dalleck against the Duval Company. From a judgment of the Municipal Court of the City of New York in favor of the plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial granted.</p>

Action by the Realty Advertising & Supply Company against Mary J. Lynn, doing business as the McDowell Dressmaking & Millinery School. Judgment for plaintiff, and defendant appeals. Reversed), and complaint dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Henry P. Adams against Assik Bur stein. From a judgment for plaintiff, defendant appeals. Judgment vacated, and new trial granted.</p>

Action by the Hudson Companies against Minnie Briemer, as executrix. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Action by Samuel A. Levené against Isaac Denker. From an order of the Municipal Court of the City of New York setting aside the verdict of a' jury, plaintiff appeals. Reversed, and verdict reinstated.

<p>Appeal" from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Benjamin Sherman against C. Wilhelm Oelsner and another, doing business under the firm name of Gerhard & Hoy. From a judgment for plaintiff, defendants appeal. Reversed, and complaint dismissed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Henry Sugarman and another, copartners doing business as Sugarman & Kahn, against Adolph Stelling and Theodore Brickenstein, doing business as Stelling & Brickenstein. From a judgment dismissing the complaint on the merits, plaintiffs appeal. Reversed, and new trial granted.</p>

<p>Courts (§ 189*)—Municipal Courts—Amendment of Pleading.</p> <p>Under Municipal Court Act (Laws 1902, c. 580) § 166, providing that the court may allow a pleading to be amended at any time to promote substantial justice, the court should have permitted the defendant to amend his answer at commencement of the trial, so as to put in issue the plaintiff’s allegations as to value, where a refusal to permit the amendment resulted in a judgment reluctantly entered by the court against the defendant.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412; Dec. Dig. § 189.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by- Vasily Owcharoffsky against Max Lambert. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Street Railroads (§ 98*)—Injuries to Persons near Tracks—Contributory Negligence.</p> <p>Where one took a position so near a street car track that the overhang of an approaching car struck her as it rounded a curve, she could not recover; the street railway not being guilty of negligence, and she being guilty of contributory negligence herself.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*]</p> <p>•For oilier cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Henry Roth and another against Benjamin Light and others. From an order of the City Court of the City of New York denying a motion to vacate a judgment on the ground of nonservice of process and nonappearance, and to vacate an order in supplementary proceedings, Simon Weisman appeals. Order denying the motion to vacate the judgment affirmed, and order denying the motion to vacate the order in supplementary proceedings reversed, and order vacated and set aside.

Action by John J. Reisler against the Interborough Rapid Transit Company. From an order of the City Court of the City of New York extending defendant’s time to serve proposed amendments to plaintiff’s proposed case on appeal, plaintiff appeals. Modified.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Cyclops Realty Company against Joseph Levy and others. From a judgment for Joseph Levy, and another, doing business as Joseph Levy & Co., plaintiff appeals. Reversed, and new trial granted.</p>

Action by Henry M. Guenther and another against Maurice B. Patch and others. Injunction granted. This is a taxpayers’ action to restrain defendants from closing a part of Dearborn street in connection with the elimination of the gradie crossing at Niagara street in the city of Buffalo.

<p>1. Landlord and Tenant (§ 186*)—Rent—Actions—Defenses—Interfer-</p> <p>ence with Use of Premises.</p> <p>Where a lease of premises expressly provided that .the tenants should pay no rent for the privilege of using a hall and that the rent of the premises should not include rent therefor, the use granted was independent of the use of the premises rented, and a failure to permit such use would not avoid liability for rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 755-762; Dec. Dig. § 186.*]</p> <p>2. Landlord and Tenant (§ 235*)—Action for Rent.</p> <p>Where, in an action for rent, the plaintiff proved the execution and delivery of the lease, the receipt and retention of the keys to the premises by the defendant, and the nonpayment of the rent sought, and the defendants interposed no sufficient defense, a judgment for defendants was improperly granted.</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 946 ; Dec. Dig. § 235.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by William Jacobs against Harry Allen and another. Erom a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Aimee Clark against Clarence D. Martin, as Treasurer of the United States Express Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Evidence (§ 424*)—Testimony Affecting Written Agreement—Admissi-</p> <p>bility.</p> <p>The rule that a written agreement cannot be contradicted by parol evidence, as between the parties to such agreement, does not preclude contradiction in a suit brought by a third person.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1966-1968; Dec. Dig. § 424.*]</p> <p>2. Sales (§ 480*)—Action for Price—Evidence.</p> <p>In an action for the price of building material sold conditionally by plaintiff to its president as an individual, and claimed by defendant under assignment, the assignment agreement was properly admitted in evidence, since, if the transfer was made as defendant claims, plaintiff could not recover; plaintiff being entitled to show, on the contrary, that there was no such assignment, except upon defendant’s promise to pay for the material if he used it.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1439-1448; Dec. Dig. § 480.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Osias Godt against Samuel Henigson. From an order of the City Court of the City of New York denying a motion for a new trial, plaintiff appeals. Reversed,- and new trial ordered.

Action by Bernard. Fink against Samuel Brenner and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

<p>Landlord and Tenant (§ 198*)—Summary Proceedings—Warrant—Action for Rent.</p> <p>The Issuance of a warrant In summary proceedings on a final order in favor of a landlord, awarding him the delivery of the leased premises for nonpayment of rent, severs the relation of landlord and tenant, and the landlord cannot thereafter maintain an action for rent.</p> <p>[Ed. Note.—For othér cases, see Landlord and Tenant, Cent. Dig. § 763; Dec. Dig. § 198.*]</p> <p>"*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Isaac Moraff against Samuel ICohn. On motion for discovery and inspection of defendant’s books. Denied, without prejudice to further application.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Miriam Streich against Morris Markowitz. From an order denying defendant’s motion to open his default, he appeals. Reversed, and motion granted.</p> <p>.Argued May term, 1912, before SEABURY, LEHMAN, and PAGE, JJ..</p>

<p>Appeal from Surrogate’s Court, New York County.</p> <p>Application for letters of administration de bonis non on the estate of Frank C. Meehan, deceased. Appeal from a decree granting the 1/a-t-Fp-rc T~)pf‘1*(aFl offlTTff</p>

<p>Action by George Gasse against the Development & Funding Company. Judgment for plaintiff.</p>

<p>1. Carriers (§ 269*)—Carriage of Passengers—Regulations—Validity.</p> <p>A street car passenger, who accepts a transfer subject to reasonable rules, must comply therewith, and in the absence of an emergency he may not take a line not specified in the transfer, but where such line is temporarily. blockaded, the company must tender the fare back to the passenger or provide proper transfers for the next best available route, and the passenger, on arriving at the transfer point and learning of the blockade of the line called for in his transfer, need not wait indefinitely for transportation on that line, but he is entitled to transportation to destination by any reasonably available means open to the company.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1060-1063; Dec. Dig. § 269.*]</p> <p>2. Carriers (§ 20*)—Performance of Obligations.</p> <p>Where a street car passenger paid a single fare and obtained a transfer on a designated line, but after a delay at the transfer point, caused by a temporary blockade of such line, he proceeded by another route, and the conductor on a car thereon, authorized to issue emergency transfers, accepted his transfer, but refused to give another essential to complete the journey to the destination, and the passenger was required to pay a second fare, the company failed to perform its contract obligations and was liable to the statutory penalty, since the conductor, accepting the transfer instead of rejecting it as he might have done, was required to provide the passenger with a transfer good to the point of destination.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 28, 31; Dee. Dig. § 20.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indey*»</p>

<p>1. Eminent Domain (§ 82*)—Fees in Streets—Acquisition—Compensation.</p> <p>Where, on the platting of land and a sale of lots, the fee to the streets was retained in the grantor, subject to the easement of necessary access appurtenant to all of the lots sold, upon the later taking of the fee in the streets by the city by eminent domain, abutting owners whose land was not taken lost nothing and were entitled to no compensation.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 215-219; Dec. Dig. § 82.*]</p> <p>2. Dedication (§ 35*)—Streets—Acceptance.</p> <p>The construction of a sewer and laying of a water main in a street laid out by an individual amounts to an acceptance of the dedication tendered by the filing of the maps of plats made, as it will be presumed that the improvements were made by public authority.</p> <p>[Ed. Note.—For other cases, see Dedication, Cent. Dig. §§ 68-71, 75, 76; Dec. Dig. § 35.*]</p> <p>3. Dedication (§ 35*)—Streets—Acceptance.</p> <p>The institution of a proceeding to take by eminent domain a street laid out by an individual is an acceptance of the dedication tendered.</p> <p>[Ed. Note.—For other cases, see Dedication, Cent. Dig. §§ 68-71, 75, 76; Dec. Dig. § 35.*]</p> <p>4. Eminent Domain (§ 85*)—Assessment of Damages—Encroachment of</p> <p>Abutting Owners.</p> <p>In proceedings to take by eminent domain the fee of a street laid out by a private individual and retained in him, abutting owners are not entitled to damages for fences,' stoops, and house fronts which are within the .street line and are encroachments.</p> <p>*For other cases see same topic & §■ number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 221-226; Dec. Dig. § 85.*] ,</p> <p>5. Eminent Domain (§ 237*)—Assessment of Damages—Action of Commissioners.</p> <p>Where commissioners of estimate and assessment in a proceeding to take land for a street had the advantage of a view of the premises, and heard the advisory testimony of expert witnesses, their award will not be disturbed, in the absence of a showing that they adopted an erroneous principle or proceeded on an erroneous theory in making it.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 604-613; Dec. Dig. § 237.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Action by David O’Conner against John L. Schwartz Brewing Company and C. Royce as County Treasurer of Orleans County. Judgment for plaintiff.</p>

Application by the City of New York to acquire title to lands for the opening of Hallett and Howland Streets. Motion for confirmation of report of Commissioners of Estimate and Assessment. Motion to confirm granted.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Kalman Goldberger against Lipa Kaufman. From a judgment of the Municipal Court of the City of New York in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by Isadore ICashare against Jacob Robbins. From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, he appeals. Reversed, and new trial ordered.

<p>New Trial (§ 71*)—Insufficiency of Evidence to Sustain Verdict.</p> <p>A verdict on conflicting evidence, rendered under correct instructions, cannot be set aside as contrary to the evidence.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 144, 145; Dec. Dig. § 71.*]</p> <p>•For other cases see same topic & 3 number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by James Dick against Charles L. Leonori. From so much of an order of the City Court of the City of New York as imposed only $20 costs as a condition of vacating a judgment in favor of defendant, after a trial and appeal taken therefrom, and granting the plaintiff leave to amend his complaint, defendant appeals. Modified and affirmed.

<p>Appeal from-Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Abraham Deitch against Edward Maher. From a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Pauline Dietz against Henry Dietz. Prom a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed, and complaint dismissed.</p>

Action by the Pittsburg-Westmoreland Coal Company against John K. Kerr and others as administrators of William B. Kerr, deceased, and others., On demurrer to plaintiff’s complaint for want of facts. Overruled.

Action by Mollie Nasberg, an infant, by Joseph Nasberg, her guardian ad litem, against Adrian H. Joline and Douglas Robinson, as receivers of the Metropolitan Street Railway Company. From an order setting aside a verdict for plaintiff and ordering a new trial, plaintiff appeals. Reversed, and judgment reinstated.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the C. G. Braxmar Company against Charles F. Olpp. From a judgment for defendant, after a trial by the court without a jury, plaintiff appeals. Reversed, and new trial granted.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by H. E. Taylor & Co. against John H. Fitzgerald. Judgment fdr defendant on a counterclaim, andi plaintiff appeals. Reversed, and new trial granted.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by the Mohegan Athletic Club against Marcus Bberhart. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.</p>

<p>Action by the Admiral Realty Company against the City of New York and others.</p>

<p>Action by Minnie Adlin, as administratrix, etc., of Elimelech Adlin, deceased, against the Excelsior Brick Company of Haverstraw, impleaded with others.</p>

<p>Action by William S. Andrews against Daniel L. Dresser.</p>

<p>Action by George C. Belden, as administrator de bonis non, etc., against William Belden and others, impleaded with George L. Record.</p>

<p>Action by Nicholas Bardnarcyzk against Samuel Weil. With this case has been consolidated in this court cases bearing titles as follows: Arje Barnett v. Max L.. Typermass; Slawson & Hobbs v. Edward Rafter; Mayer Cohen v. Arthur Lundberg; Teddy Connolly v. Rodgers & Hagerty; Edith A. Hulbert v. Felber Engineering Works; Louis Eschen v. Madison Iron Works.</p>

<p>Action by Charlotte E. Bartlett against Robert Blei. With this case has been consolidated in this court cases bearing titles as follows: Arje Barnett v. Samuel Gallucci; Scheer Ginsberg Co. v. Susan Devin; Charlotte Moser v. Angelo Legniti (two cases); _ William Moser v. Same (two cases).</p>

<p>Action by Charles W. Clowe, as trustee in bankruptcy, etc., against Elizabeth S. C. Seavey and others.</p>

<p>Action by George Clinton against Fred H. Krull.</p>

<p>Action by May Collins against the Buffalo, Lockport & Rochester Railway Company impleaded with Edgar Knapp and another.</p>

<p>In the matter of Jacob Cohen.</p>

<p>Action by the Continental Securities Company and another, stockholders in the Interborough Rapid Transit Company, etc., against August Belmont and others.</p>

<p>Action by Jane Darcy against the Presbyterian Hospital of New York. C. Norwood, for appellant. R. Thorne, for respondent.</p>

<p>Action by Emile G. Des Jardins against Walter B. Hotchkin and another.</p>

<p>Action by Philip F. Donohue and another against the Lawyers’ Advertising Company.</p>

<p>(Supreme Court, Appellate Term.</p> <p>Appeal from Municipal Court, Borough of Manhattan, Sixth. District. Action- by Solomon Epstein, an .infant, by Charles Epstein, his guardian ad litem, against Mollie Hirschfield. From a judgment dismissing the complaint at the close of plaintiff’s case, entered in the Municipal Court of the City of New. York, plaintiff appeals. Modified and affirmed.</p>

<p>In the matter of the petition of William W. Farley, as State Commissioner of Excise, for an order enjoining William J. Dreeland from trafficking in liquors contrary to the provisions of the Liquor Tax Law.</p>

<p>Action by Bridget J. Fleming against the City of New York. L. Leale, for appellant. W. E. Murphy, for respondent.</p>

<p>Action by Barney Gelder against the International Ore Company.</p>

<p>Action by Barney Gelder against the International Ore Company.</p>

<p>Action by David Gring against the American Pipe & Construction Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Hackensack Coal & Lumber Company against Ernest C. Vanderbilt. From a judgment of the ¡Municipal Court for plaintiff, defendant appeals. Reversed, and complaint dismissed.</p>

<p>Action by Henry Hirschberg against John L. Kruger.</p>

<p>Action by Thomas J. Hooks against the City of Utica.</p>

<p>In the matter of the mechanic’s lien filed by Keshin, Blitstein & Co. against the Beckerman Construction Company.</p>

<p>Appeal from Special Term, Kings County. Action by John Klein, as trustee, against Samuel Gallin and others. From a judgment for plaintiff, defendants Louis Gross-man and another appeal. Reversed, and new</p> <p>trial granted.</p> <p>See, also, 146 App. Div. 891, 130 N. Y. Supp. 1117.</p>

<p>Action by George M. La Duke against the Hudson River Telephone Company.</p>

<p>Action by the Lyell Avenue Lumber Company, suing in its own behalf, etc., against Margaret V. Lighthouse and others.</p>

<p>Action by Uriah H. Lewis against the New York, Ontario & Western Railway Company.</p>

<p>Action by John McCann and another, as executors, etc., against James Sullivan, impleaded with others.</p>

<p>Action.by Ailene Ely McNeir against Burrows McNeir. In the matter of the petition of George McNeir. In the matter of the petition of Caroline S. Ely.</p>

<p>Action by Albert Miller, also known as “the great Howard,” against Joe Meyers. A. F. Driscoll, for appellant. G. E. Joseph, for respondent.</p>

<p>Action by J. Hewitt Morgan and another, as trustees, etc., against the United States Mortgage & Trust Company.</p>

<p>Action by the Oliver Refining Company against Adolph Aspegren and others.</p>

<p>Action by Joseph Ohmann against the Morning Journal Association.</p>

<p>In the matter of Bayard L. Peck, as assignee of Girard N. Whitney, etc.</p>

<p>Proceeding by the People of the State of New York against Charles Sherman.</p>

<p>Proceeding by the People of the State of New York against the Metropolitan Surety Company. In the matter of Leonhard Bauer, doing business as the L. Bauer Iron Works, claimant, against John F. Yawger, as receiver of the Metropolitan Surety Company.</p>

<p>Proceeding by the People of the State of New York, on the. relation of the Bridge Operating Company and others, against the Public Service Commission and others.</p>

<p>Proceeding by the People of the State of New York, on the relation of the Interborough Rapid Transit Company, against William Sohmer, as Comptroller of the State of New York.</p>

<p>Proceeding by the People of the State of New York, on the relation of Henry E. Janes, as administrator, etc., against William D. Dickey, chairman, etc., and others.</p>

<p>Proceeding by the People of the State of New York, on the relation of John W. Mann, against William F. Baker, as Police Commissioner of the City of New York.</p>

<p>Proceeding by the People of the State of New York, on the relation of Richard S. Steves, against John E. Kraft and others, constituting the Civil Service Commission of the State of New York.</p>

<p>Action by Marjorie Pitkin against Patrick Mulderry and others.</p>

<p>Action by the Peter Barrett Manufacturing Company against Fred Van Ronk and Everett E. Wheeler.</p>

<p>Action by Abraham Robinson against the Merida Realty Company and others. J. J. Corn, for appellants. M. D. Steuer, for respondent.</p>

Action by Charles Schlesinger and another, doing business under the firm name and style of Schlesinger & Gilman, against the O’Connor Construction Company. . From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Modified and affirmed. Francis X. Kelly, of New York City, for appellant. Nathan Friedman, of New York City, for respondents.

<p>Action by Joseph E. Schloss against Frank Wilson. With this case has been consolidated in this court cases bearing titles as follows: John Chojnacki v. Interborough Rapid Transit Co. (two cases); Andros Jasinski v. Same (two cases); Chas. C. Taft v. Smith, Gray & Go.; A. Victor Gardner v. New York Transportation Co. (two cases); Bernard Lustgarten v. Sol Hecht; Edward N. Dickerson v. Mashek Engineering Company; Herbert H. Chute y. Herbert H. Talmage; John Felix v. Louis M. Josephthal.</p>

<p>Action by Anton V. Schweitzer against the Hamburg-Amerikanische Packetfahrt Actien Gesellschaft.</p>

<p>Action by Emil Schweinburg against Benjamin Altman.</p>

<p>In the matter of the proceedings for drainage of certain lovvlands, known as the Spring Valiey Swamp, etc.</p>

<p>Action by Starr M. Stanton against the Lehigh Valley Railroad Company.</p>

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

<p>Action by Lewis Squires against -the Fitzhugh Smith Company. With this case have been consolidated in this court cases bearing titles as follows: John F. Smith v. Suburban Land Co.; Louis Bowsky V. Geo. W. Schlichten; Helen A. French v. Chas. T. French; Alfred Koscherak v. Arthur G. Wunderle.</p>

<p>Action by McWalter B. Sutton against William E. Butler.</p>

<p>Action by Francis M. Sutphen against the United States Trust Company, individually, etc.</p>

<p>Action by James Thedford against Henry L. Herbert.</p>

<p>Action by Clare F. Thomas against John H. Springer.</p>

<p>Action by Lillian M. Tanner against Benn Conger and ■others.</p>

<p>Action by Philip Van Alstine against Gertrude Burt.</p>

<p>In the matter of the application of M. J. Walsh, as Deputy Comptroller of the State of New York, for an order transferring certain court and trust funds, etc. (Kings County Proceeding.)</p>

<p>Action by Harry J. Welts against Joseph C. Anderson, as executor, etc.</p>

<p>Action by Dennis White against the New York Military Academy Realty Company.</p>