Volume 136 — New York Supplement

Action by Bernard Rosen and another against the F. W. Woolworth Company. From a judgment for plaintiffs, after a trial without a jury, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth Dis-. trict.</p> <p>Action by David Lipschitz, by Nathan Lipschitz, his guardian ad litem, against John E. Korndahl. From a judgment dismissing the complaint without prejudice at the close of plaintiff’s case, he appeals.</p>

Action by William Horgan against the Interborough Rapid Transit Company and the Rapid Transit Subway Construction Company. From a judgment of the City Court of the City of New York entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial, the Rapid Transit Subway Construction Company appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Herman Leiman against Henry M. Seely. From a judgment of the Municipal Court of the City of New York in favor of the plaintiff, defendant appeals.</p>

<p>Landlord and Tenant (§ 223*)—Rent—Actions—Failure to Repair.</p> <p>Breach of the landlord’s obligation to put the premises in repair before the tenant was required to take possession is no defense to an action for rent, where the tenant did take possession, but is available in such action only by way of counterclaim, to be supported by evidence of damages.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 885-893; Dec. Dig. § 223.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Evidence (§ 378*)—Documents—Letters—Preliminary Proof.</p> <p>Plaintiff’s testimony showed that defendant agreed^ to send plaintiff a letter guaranteeing the account of a corporation with which defendant’s son was connected. On the succeeding day plaintiff received a letter, on paper bearing the name and address of that company, complaining about delay in delivering the material purchased, asking for information, and stating that the subscriber would guarantee payment of any account engaged by the company, signed with defendant’s name. At the time of the trial defendant’s son was dead, and defendant denied that he signed the letter, or authorized any one to do it for him. Meld, that the letter did not prove itself, though it was shown to have been received in due course of mail, and was inadmissible, in the absence of other evidence that it was signed or authorized by defendant.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1648-1655; Dec. Dig. § 378.*]</p> <p>2. Guaranty (§ 25*)—Contract—Proof.</p> <p>Such letter, even though admissible, in the face of defendant’s denials, was insufficient to establish the execution of the guaranty.</p> <p>[Ed. Note.—For other cases, see Guaranty, Cent. Dig. §§ 102-104; Dec. Dig. § 25.*]</p> <p>•For other cases see same topic & § numbed in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. New Tbial (§ 102*)—Grounds—Newly Discovered Evidence—Diligence.</p> <p>It is Improper to grant a new trial for newly discovered evidence which it is not shown the party could not have discovered before the trial by reasonable diligence.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.*]</p> <p>•For other cases see same topic & $ number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p> <p>2. New Trial (§ 89*)—Grounds—Surprise.</p> <p>That defendant was taken by surprise by plaintiff’s testimony given at the trial, while it would have been ground for an adjournment, was • not ground for new trial.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 177-180; Dec. Dig. § 89.*]</p>

<p>Appeal and Error (§ 1231*)—Liability on Bonds.</p> <p>On appeal from a default judgment, a bond was given conditioned for the payment of the judgment if affirmed, or if the appeal was dismissed. The appeal was dismissed, but the default was thereafter opened, the judgment vacated, and plaintiff subsequently discontinued. Held, that the sureties were not liable on the bond in an action brought after the vacation of the judgment.</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 Appeal and Error, Cent. Dig. §§ 4751, 4752; Dec. Dig. § 1231.*]</p>

<p>1. Insurance (§ 750*)—Benefits—By-Laws—Applicability.</p> <p>Where a member of a fraternal society, entitled: under the by-laws to death benefits, did not give notice of his going abroad, as required by the by-laws of the society, declaring that a member going abroad may keep his membership in abeyance for one year without payment of dues by notice, and declaring that a member’s absence abroad without such notice should not preclude his representative from obtaining the death benefits, the right to recover death benefits on the death of a member while abroad was not controlled by such by-laws.</p> <p>[Ed. Note.-—For other cases; see Insurance, Cent. Dig. §§ 1895, 1896; Dec. Dig. § 750.*]</p> <p>2. Insurance (§ 750*)—Benefits—Nonpayment of Dues.</p> <p>Under the by-laws of a fraternal society, providing that a member who is in arrears for two consecutive months loses all rights of membership, and making dues payable personally at the monthly meeting held about the 10th of each month, a member who paid his dues on July 10th, and who died September 21st without paying further dues, had not forfeited his rights of membership, since until the meeting in August he was not in arrears, and from August 10th two months did not elapse until his death.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1895, 1896 ; Dec. Dig. § 750.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Landlord and Tenant (§ 165*)—Condition and Use of Building—Gas Explosion.</p> <p>The landlord of premises leased by plaintiff’s employer engaged a plumber to disconnect a gas fixture from his meter and to connect the same with the tenant’s meter, and the plumber without notice or warning left the pipe uncapped, so that gas could escape if turned on, and plaintiff, finding the place dark, lighted a match, opened the door, and was injured by a resulting gas explosion. Held, that the leaving of the gas pipe uncapped was an act of gross negligence, for which the landlord was liable.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 630, 631, 633-637, 640, 641; Dec. Dig. § 165.*]</p> <p>*For other cases see same-topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r .Indexes</p>

Action by Charles Peterson against Joseph Wannop and others, Prom, a judgment for plaintiff after trial by the court without a jury, the defendant named appeals.

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

Action by William Rubin against the Interborough Rapid Transit Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Evidence (§ 434*).—Pabol Evidence—Vabying Wbitten Contbacts.</p> <p>Where a written contract stipulated that it was not subject to cancellation, a party who signed the contract after reading it may not show that it was procured by fraudulent representations that it could be canceled at the end of each week, and thereby contradict the written contract; the representations being promissory in nature.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. § 434.*]</p> <p>2. Evidence (§ 413*)—Pabol Evidence.</p> <p>Where a party to a written contract for a display advertisement on the “advertising drop” of a theater knew that the “advertising drop” was a curtain which was to be rolled up and down, and was not constantly in view, parol evidence that the adverse party represented that the advertisement was to be permanent and constantly in view of the audience in the theater was inadmissible,. as varying the written contract.</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 Evidence, Gent. Dig. §§ 1855-1857, 1859, 1860; Dec. Dig. § 413.*]</p> <p>3. Appeal and Error (§ 878*)—Questions Reviewable—Rulings Against Adverse Party.</p> <p>The court, on the appeal of a party, cannot consider errors in rulings in the admission of evidence of the adverse party.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Gent. Dig. §§ 3573-3580; Dec. Dig. § 878.*]</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, Third District.</p> <p>Action by Walter E. Coe, as receiver of the Zust Motor Company, against Ralph L. Spotts. From a judgment of the Municipal Court for plaintiff, defendant appeals.</p>

<p>1. Sales (§ 442*)—Measure of Damages—Breach of Warranty.</p> <p>In an action for breach of warranty of a ventilating apparatus, the measure of the buyer’s damages was the difference in value between the articles delivered and as warranted.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1284r-1301; Dec. Dig. § 442.*]</p> <p>2. Trial (§ 47*)—Exceptions—Support.</p> <p>Where defendant’s first question to an expert in order to prove damages was erroneously excluded on objection, and an exception taken, defendant was not required to offer further proofs in support of such exception, in order to preserve its rights with reference thereto.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 118, 119; Dec. Dig. § 47.*]</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, First District.</p> <p>Action by Louis Friedman against Morris Cohen and another; From an order refusing to open a default, defendant George. Laubentracht appeals.</p>

<p>Innkeepers (§ 11*)—Loss of Property of Guests—Liability.</p> <p>Where the proprietor of a restaurant maintained a check system for the safe-keeping of the coats and hats of his patrons, and printed on his bill of fare and on signs on the wall that he would not be responsible for personal property unless checked at the desk, he was not liable for the loss of a customer’s coat hung on a hook on the wall, in the absence of proof of negligence.</p> <p>[Ed. Note.—For other cases, see Innkeepers, Cent. Dig. §§ 3, 17-40; Dec. Dig. § 11.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by the Reischmann Company against Matthew F. Mulvihill. From a judgment for plaintiff for less than the relief demanded, it appeals.

<p>Appeal from. Municipal .Court, Borough of Manhattan, First District.</p> <p>Action by John R. McNeil against Columbia Engineering Works, Incorporated. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal- from City Court of New" York, Trial Term.</p> <p>Action by Charles J. Petterson against James C. Thomas. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Sales (§ 406*)—Actions by Seller for Breach-—Tender.</p> <p>In an action by the buyer of a motor car for failure to deliver the car, uncontradicted evidence that the seller did not have the car at the time, while an excuse for the buyer’s failure to tender the price, is not an excuse for his failure to aver and prove readiness to pay it.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1156-1158; Dec. Dig. § 406.*]</p> <p>2. Trial (§ 164*)—Directed Verdict—Right to Go to Jury.</p> <p>Defendant’s motion to dismiss the complaint at the close of the whole case does not deprive him of the right to go to the jury upon seasonable request after the denial of his "motion. •</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 372; Dec. Dig. § 164.*]</p> <p>•For other cases see same topic & § number in Dec. & Am., Digs., 190.7 to date, & Rep'r Indexes</p>

<p>Brokers (§ 49*)—Performance of Contract—Right to Compensation.</p> <p>Plaintiffs, brokers employed by defendant to secure a loan, went with defendant’s president to a bank, and were informed that the bank would reply to the application within 48 hours, which defendant’s president stated would be satisfactory. Within that time plaintiffs notified defendant’s president that the bank had agreed to make the loan; but defendant discharged plaintiffs, with the information that the money had been procured elsewhere. Held, that plaintiffs Were entitled to commissions.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.*]</p> <p>♦For other cases see same topic & § numbeb in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Sheriffs and Constables (§ 140*)—Conversion—Evidence.</p> <p>Whore a wife, suing an officer for the conversion of a stock of goods taken by him under an attachment against her husband, conclusively showed that she had paid to her husband $500 of her own money, and that he gave her a chattel mortgage on the stock, and subsequently transferred it to her absolutely in satisfaction of the mortgage, that the levy was subsequently made at a time when the stock, some of which had been purchased by her with her own money, was worth $553, and offered evidence to-rebut"the presumption of fraud raised by Personal Property Law (Consol. Laws 1909, c. 41) I 44, the case was for the jury.</p> <p>. «For other cases see same topic & § number in. Dec. & Am. Digs. 1907 to date, & Eep'r Indexes</p> <p>[Ed. Note.-—For other cases, see Sheriffs and Constables, Cent. .Dig. §§ 308-313; Dec. Dig. § 140.*]</p>

<p>Tbial (§ 236*)—Credibility of Witnesses—Question fob Juey.</p> <p>Where all the witnesses of a party were in his employ, the jury must determine to what extent their relationship affected their credibility; and the refusal to charge that the jury might infer that the fact that a witness was in the employ of a litigant and received a salary from him had some bearing on his testimony, and charging that employment was not the basis for the creation or claim of interest, necessitated the setting aside of a verdict for such party.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 531-533; Dec. Dig. § 236.*]</p> <p>‘For other cases see same topic & § NUMBER In Dec. & Am. Digs. 1S07 to date, & Rep’r Indexes</p>

<p>1. Account (§ 1*)—Jurisdiction of Court, of Equity.</p> <p>There must be some trust or fiduciary relation between the parties to give a court of equity jurisdiction to order an accounting; the mere necessity of an accounting to ascertain the amount due on a contract being wholly insufficient.</p> <p>[Ed. Note.—For other cases, see Account, Cent. Dig. §§ 1-8; Dec. Dig. § 1.*]</p> <p>2. Pleading (§ 193*)—Complaint—Sufficiency.</p> <p>Where a complaint states a cause of action for legal relief and an accounting, it is not demurrable because the action is also one for ' equitable relief.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 425, 428-435, 437—443; Dec. Dig. § 193.*]</p> <p>3. Account (§ 6*)—Right—Long Accounts.</p> <p>Under Code Civ. Proc. §§ 1013, 1015, authorizing reference in trials at law, where long accounts are to be examined, an accounting may be had in an action to recover money, merely to determine the amount.</p> <p>[Ed. Note.—For other cases, see Account, Cent. Dig. §§ 17, 18; Dec. Dig. § 6.*]</p> <p>4. Pleading (§ 8*)—Declaration—Conclusions.</p> <p>An allegation of indebtedness is not an allegation of fact, but a mere conclusion.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 12-28%; Dec. Dig. § 8.*]</p> <p>5. Pleading (§ 8*)—Conclusions—Complaint—Sufficiency.</p> <p>A complaint, merely stating that defendant was indebted to plaintiff and that an accounting was necessary to determine the amount, is insufficient to state a causé of action; Code Civ. Proc. § 481, subd. 2; requiring a concise and plain statement of facts, and the allegation of indebtedness being a mere conclusion.</p> <p>*For other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 12-28%; Dec. Dig. § 8.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

_ Action by the Willis Cab & Auto Company against the General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland. From a judgment for defendant on its counterclaim by direction of the court, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Frank N. Weber, an infant, etc., against Ernest Bécker and the New York Telephone Company. From a judgment of the Buffalo City Court in favor of plaintiff, defendant telephone company appeals.

Action by Michael B. Ryan, on behalf of himself atid of other stockholders of the Automatic Chain Company, against Elwood Gris-singer and another. Demurrer to complaint by defendant Grissinger.

<p>Injunction (§ 42*)—Dealing in Carrier’s Tickets. •</p> <p>Equity has jurisdiction to restrain purchasers of commutation tickets, forfeited if used by others than the purchasers, from engaging in the business of selling or hiring such tickets for compensation for use by others.</p> <p>[Ed. Note.—For other cases, see Injunction, Dec. Dig. § 42.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Walter H. Bartindale against Cushing Adams. From a judgment for plaintiff, after a trial by the court without a jury, defendant appeals.

Action by the People against David Hyman and the Empire Limestone Company. On plaintiff’s motion for judgment on the ground that the demurrer interposed by defendant Limestone was frivolous.

<p>Execution (§ 372*)—Supplementary Proceedings—Statutory Provisions. An order for the examination of a judgment debtor in aid of an outstanding execution, under Code Civ. Proc. § 2436, may be granted more than 10 years after the return of a prior execution unsatisfied; that section not providing, as does section 2435, relative to such an order after the return of execution, that it can be granted only within 10 years after the return of an execution, and such examination not constituting a substitute for a creditors’ bill, requiring the exhaustion of all other legal remedies, as does a proceeding under section 2435, especially in view of section 1377, authorizing a second execution at any time during the life of the judgment, where one was issued and returned unsatisfied within 5 years after judgment.</p> <p>[Ed. Note.—Eor other cases, see Execution, Cent. Dig. § 1099; Dec. Dig. § 372.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Kep'r Indexes</p>

<p>Action to register title to land by Dina Barkenthien against the People of the State of New York and others.</p>

<p>1. Contracts (§ 307*)—Lithographing Contract—Construction.</p> <p>Under a contract to lithograph post cards, which provided that plaintiff should be responsible for the lithograph stones until delivered on defendant’s order, providing for the billing of stones ordered out, and providing terms of payment of “Cash, less 2y2 per cent, within 60 days from the date of the invoice,’’ the lithograph stones did not become plaintiff’s property, and defendant is entitled to them under the terms of credit without payment therefor on demand.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 307.*]</p> <p>2. Bailment (§ 18*)—Possession—Necessity of Tender.</p> <p>Where the right of one party to demand possession of chattels is concurrent with the right of the other party to demand payment, he has no right to such possession without a tender of such payment.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 77-79, 81-84; Dec. Dig. § 18.*]</p> <p>Bijur, J., dissenting.</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Records (§ 9*)—Registration of Titles to Land—Judgment—ConclusivbNESS.</p> <p>Under Real Property Law (Consol. Laws 1909, c. 50) § 391, as amended by Laws 1910, c. 627, § 11, making judgments of registration binding and conclusive on all persons, a judgment of registration rendered pending an appeal from an order denying intervention by an abutting owner claiming an easement in the premises is binding on him, unless, it is set aside in an action brought for that purpose, thereby enabling him to litigate the issue raised by him as authorized by section 392, and he may not affect the validity of the judgment by filing the order reversing the order denying intervention.</p> <p>[Ed. Note.—For other cases, see Records, Dec. Dig. § 9.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Courts (§ 189*)—Buffalo City Court—Summons—Service—Statutory Requirements.</p> <p>The statutory requirements that a summons in the Buffalo City Court must be returned not less than six nor more than twelve days from its date, and must he served at least six days before its return, must be followed to give the court jurisdiction; and where the return shows that a summons was issued on May 10th, returnable May 19th, that such summons was returned and reissued June 3d, returnable June 14th, a default judgment on a summons returnable June 19th was invalid, and defendant could attack it for invalidity of process.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]</p> <p>2. Courts (§ 190*)—Buffalo City Court—Appeal—Review.</p> <p>The Supreme Court reviewing proceedings in the Buffalo City Court must, if possible, sustain them by every reasonable and ■ warrantable intendment.</p> <p>[Ed. Note.—For other case's, see Courts, Dec. Dig. § 190.*]</p> <p>3. Courts (§ 189*)—Buffalo City Court—Process—.Change of Dates.</p> <p>The clerk alone has authority to change the dates of the issue and return of. process from the Buffalo City Court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, . , 429, 458; Dec. Dig. § 189.*]</p> <p>♦For other- cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes!</p>

<p>Landlord and Tenant (§ 28*)—Cancellation oe Lease—Misrepresentations.</p> <p>The lessee of an apartment at an annual rental of $2,000 is entitled to a cancellation of the lease for misrepresentation as to the floor space of the several rooms, where the actual area is 9% per cent, less than " that stated on a plan shown the lessee as an inducement to lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §S 82-84; Dec. Dig. § 28.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am, Digs. 1907 to date, & Rep’r Indexes</p>

Action for injunction by Jerry L. Gardner and others against the Town of Cameron and the Buffalo Steam Roller -Gompany. Motion by plaintiffs to punish defendant Buffalo Steam Roller Company for contempt for violation of a permanent injunction. Defendant adjudged to be in contempt and fined.

<p>Action by Matthew Gabryszak against Eelix J. Gabryszak and others.</p>

<p>1. Officers (§ 83*)—Title to Office—Action—Statutory Proceedings.</p> <p>Title to public office can be determined only by action under Code Civ. Proc. § 1948, providing that the Attorney General may maintain an action against a person who usurps or unlawfully holds a public office, so that an action under General Municipal Law (Consol. Laws 1909, c. 24) §§ 50,-51, which authorizes a taxpayer to sue those occupying a municipal office to restrain them from doing illegal acts, and is framed to afford relief where the official to be restrained is lawfully in office, is improperly brought, where it was claimed that the officer had no right to hold the office.</p> <p>[Ed. Note.—For other cases, see Officers, Cent. Dig. §§ 115-123; Dec. Dig. § 83.*]</p> <p>2. Municipal Corporations (§ 138*)—Officers—Eligibility—Ownership of Property.</p> <p>Village Law (Consol. Laws 1909, c. 64) § 42, which provides that a president or trustee must, at the time of his election, own property assessed to him in the last preceding assessment roll, is merely designed to insure that those elected as trustees of a village shall be property owners and taxpayers, and where one elected as trustee was both a property owner and a taxpayer, and requested the board of assessment to assess the property owned by himself and wife, he was sufficiently qualified to act, though his name did not appear on the list</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 Municipal Corporations, Cent. Dig. § 242; Dec. Dig. § 138.*] •</p> <p>tFor other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Municipal Corporations (§ 706*)—Use of Street—Violation of Ordinance—Evidence.</p> <p>The violation of an ordinance regulating travel on streets is not ordinarily necessarily negligence, but evidence from which negligence may be found as a matter of fact.</p> <p>[Ed. Note.—For,other cases, see Municipal Corporations, Cent. Dig. § 1518,; Dec. Dig. § 706.*]</p> <p>2.. Street Railroads (§ 117*)—Collisions—Contributory Negligence—Evidence.</p> <p>Where, in an action for injuries in a collision with a street car at the junction of two streets, the evidence showed that the rules of the street railway company required motormen to stop their cars before reaching the intersecting street, and that the car in question violated such rule, and that a traveler undertook to cut a short corner in violation of an ordinance, and that while so doing the collision occurred, the question of contributory negligence was for the jury.</p> <p>[Ed, Note.—For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]</p> <p>3. Street Railroads (§ 111*)—Collisions—Actions—Issues, Proof, and Variance.</p> <p>Where, in an action for injuries in a collision with a street car near the junction of two streets, the issues were whether the plaintiff was guilty of contributory negligence and the street railway company guilty of negligence, the question whether the collision occurred just west or just east of the center line of the intersecting street did not change the issues and did not amount to a variance.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 225, 226; Dec. Dig. § 111.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by the People against the German Bank. In the matter of the final accounting of Albert J. Wheeler, as receiver. Application for directions as to the disposition of dividends.

<p>Action' by Gustav Meyer against Clayton M. Wilcox on demurrer to complaint.</p>

<p>Application by the People, on the relation of Realty Associates, for mandamus against Edward T. O’Loughlin, as registrar of titles.</p>

<p>1. Divobce (§ 219*)—Temporary Alimony—Arbeabs—Final Judgment.</p> <p>An order for the payment of temporary alimony is superseded by a final judgment in the action denying relief to both parties, on a finding that both had been guilty of adultery.</p> <p>■ [Ed. Note.—‘For other cases, see Divorce, Cent. Dig. §§ 640, 735-737; Dec. Dig. § 219.*]</p> <p>2. Divorce (§ 182*)—Notice of Appeal—Modification op Judgment.</p> <p>An order modifying a final judgment in a divorce action, by striking out provisions for payment by plaintiff of the costs of the action, nullifies a prior notice of appeal, so that a motion for counsel fees and disbursements on the appeal could not be granted, without the filing of a new notice, of appeal.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 568, 587, 588, 625, 638; 641, 657; Dec. Dig. § 182.*]</p> <p>3; Divobce (§ 164*)—Final Judgment—Costs.</p> <p>Where, in a suit for divorce, relief was denied to both parties because each had been guilty of adultery, a provision in the final judgment requir* ing plaintiff to pay the costs of the action was inadvertent, and may1 be stricken on motion.</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 Divorce, Cent. Dig. §§ 533-540; Dec. Dig. § 164.*]</p>

<p>1. Divorce (§ 219*)—Temporary Alimony—Continuance.</p> <p>Temporary alimony runs until the entry of judgment granting or denying the relief asked.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 640, 735-737; Dec. Dig. § 219.*]</p> <p>2. Divorce (§ 277*)—Temporary Alimony—Arrears—Final Judgment.</p> <p>Arrears for temporary alimony are superseded by the entry of a final judgment denying plaintiff the relief asked.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 733-734%; . Dec. Dig. § 277.*]</p> <p>‘For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Banks and Banking (§ 156*)—Collection op Notes—Agency of Bank.</p> <p>Makers of a note selected their own bank as its place of payment and on its receipt by the bank at the time it became due directed it to pay the note from their funds on deposit. The bank failed without having paid the note as directed. Held, that the direction to pay made the bank the agent of the makers rather than of the owners for collection, and the owners were not precluded by its neglect to proceed with the collection of the note.</p> <p>[Ed. Note.—For other eases, see Banks and Banking, Cent. Dig. §§ 539-546; Dec. Dig. § 156.*]</p> <p>2. Estoppel (§ 72*)—Collection of Notes—Negligence of Maker and Owner.</p> <p>Though the holders of a note were negligent in sending it to a bank for collection, and making no effort for a week to see whether it bad been paid, where the bank which the makers had designated as the place for payment was in the town of their residence, and, in spite of a notification on the arrival of the note and a direction to pay it, such makers made no effort to see whether their wishes had been complied with until the failure of the bank a week later without its having paid the note, the doctrine that, where one of two innocent persons must suffer, the one who put the conditions in motion is responsible, will apply so that the negligence of the holders will not relieve the makers from liability.</p> <p>[Ed. Note.—For other cases, see Estoppel, Cent. Dig. § 188; Dec. Dig. § 72.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Petition by Lillie B. Cornish against the Village of South Nyack for the assessment of damages for a change of grade. Motion to confirm commissioners’ report opposed by the village.

Certiorari by the People, on the relation of Joseph M. Smith, against George W. Bennett, County Treasurer, under Liquor Tax Law (Con-sol. Laws 1909, c. 34) § 27, to review the county treasurer’s refusal to issue a liquor tax certificate on the ground that the certified statement of the result of the vote on local option questions at the previous town meeting in the town of Murray showed a vote in the negative thereon.

Proceedings for an intermediate accounting of Sidney J. Cowen, as committee of Mary Ann Dunn, an incompetent. From orders confirming the referee’s report, denying a motion for an extra allowance, granting an allowance to Gilbert H. Montague as special guardian, and denying a motion for the special guardian’s removal, the committee appeals.

<p>1. - Sales (§ 179*)—Rights of Buyer—Acceptance of Goods—Waives ob Right to Recover Damages.</p> <p>A buyer accepting goods after the time fixed for delivery does not thereby waive his right to damages for breach of contract to deliver at the time specified.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 456-468; Dec. Dig. § 179.*]</p> <p>2. Sales (§ 418*)—Contracts—Breach—Damages.</p> <p>Where a seller of tomatoes at 80 cents per dozen for delivery during September delayed until November and December, but the market price at the time fixed for delivery and in November and December was 85 cents per dozen, the buyer accepting the goods did not suffer damages, in the absence of any showing of damage in fact.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1174r-1201; Dec. Dig. § 418.*]</p> <p>3. Sales (§ 176*)—Breach of Contract—Right of Buyer.</p> <p>A buyer accepting goods after the time fixed for delivery may pay the price and subsequently sue for breach of contract to deliver within the time fixed, since the right of the seller to sue for the price is separate and distinct from cause of action by the buyer for damages for the delay.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 436-444; Dec. Dig. § 176.*]</p> <p>4. Accord and Satisfaction (§ 11*)—Liquidated Demand—Part Payment.</p> <p>The demand of a seller for the contract price for goods delivered is a liquidated demand, and part payment does not bar an action for the balance, though the part payment is specified to be in full, and though the seller delayed the delivery beyond the time fixed in the contract.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-83; Dec. Dig. § 11.*]</p> <p>5 Sales (§ 418*)—Contract—Breach—Promise to Pay Damages.</p> <p>A promise by a seller to pay the damages sustained by the buyer for delay in the delivery is void, unless supported by a valid consideration.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]</p> <p>6. Accord and Satisfaction (§ 11*)—Acts Constituting.</p> <p>A buyer accepted goods delivered after time fixed for delivery and sent to seller a check for the contract price, less the sum claimed as damages for the delay, and notified the seller that the acceptance of the check should be deemed a settlement in full of the mutual demands of the parties. The seller accepted the check. Held, that the transaction did not constitute an accord and satisfaction, and the seller could sue for the balance unpaid on the contract price.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-83; Dec. Dig. § 11.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Divobce (§ 214*)—Alimony and Counsel Fees—Allowance—Sufficiency of Showing.</p> <p>A wife’s motion, in her action for divorce, for alimony and counsel fee, though not appeared against, will not be granted, she alone having made affidavit to defendant’s adultery; her testimony not being competent to prove it, and she, in order to obtain either alimony or counsel fee, being required to make a showing of fair prospect of success in the action.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 626-631; Dec. Dig. § 214.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

' Action by Nellie R. Kimball against Harry James, Mayor, etc., of the City of Dunkirk, and others, to compel specific performance of a contract to purchase real property.

<p>Action by William H. Dailey against the Bobbs-Merrill Company and another.</p>

In the matter of the application of Michael J. Mantón for an order for the continuance of a mechanic’s lien against property- of the Brooklyn & Flatbush Realty Company. From so much of an order as granted a motion to set aside a prior order extending the lien and directing the clerk to vacate and cancel the redocket of the lien, Man-ton appeals.

<p>Prostitution (§ 6*)—Punishment—Statutory Provisions—Repeal.</p> <p>Laws 1886, c. 353, authorizing the commission to reformatory institutions of any female over the age of 12 years found, in a house of prostitution, in the company of thieves or prostitutes, associating with vicious and dissolute persons, who is willfully disobedient to parents or guardians, and in danger of becoming morally depraved, or who is a prostitute or of intemperate habits and professes a desire to reform, is not inconsistent with, or repugnant to, and was not impliedly repealed by, Laws of 1910, c. 659, § 88, relative to the punishment of persons convicted in the city of New York of public intoxication, disorderly conduct, or vagrancy.</p> <p>[Ed. Note.—For other cases, see Prostitution, Cent. Dig. § 6; Dec. Dig. § 6.*]</p>

<p>Application for the appointment of a trustee under the last will and testament of Albanus Hallowell Snyder.</p>

<p>1. Infants (§ 31*)—Satisfaction of Mortgage—Disaffirmance.</p> <p>Where an infant’s father executed a mortgage on real estate to her as a wedding present, and later induced her to execute a satisfaction thereof while still a minor, in consideration of a conveyance of an interest in other property, in order that he might execute a new mortgage to plaintiff on the land mortgaged, the daughter could disaffirm the release and claim under her mortgage when she became of age.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 46, 50-63; Dec. Dig. § 31.*]</p> <p>2. Infants (§ 31*)—Contract—Disaffirmance—Return of Consideration.</p> <p>Where an infant to whom her father had given a mortgage on land as a wedding present was induced by him to release it while still an infant, in consideration of a conveyance of an interest in other land, she was bound on disaffirming the release on becoming of age to surrender and retransfer the property received as a consideration.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 46, 50-63; Dec. Dig. § 31.*]</p> <p>Ingraham, P. J., dissenting.</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Street Railroads (§ 28*)—Franchises—Duty to Build and Operate— Profit.</p> <p>Where a franchise was granted to defendant’s predecessor to.construct and operate a street railway through 116th street in New York City to the East River, but the railway was built and. operated only to a point one block west of the river, it was no sufficient answer to a mandamus proceeding to compel defendant to extend its line to" the river that such extension would not be financially profitable, since the state grants such franchises primarily for the benefit of the public and the development of property, and not for the immediate enrichment of stockholders.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 39-42, 44, 45, 56, 61, 63-65; Dec. Dig.' § 28.*]</p> <p>2. Street Railroads (§ 28*)—Franchises—Construction—Extension.</p> <p>operate a railroad through a street to a river, but built the terminus of its line one block short of the river, it could not thereafter successfully claim that, because the necessity for construction to the river was not obvious at the time the road was built, it could not be compelled to carry out the terms of its franchise when the necessity was shown to exist.</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 Street Railroads, Cent. Dig. §§ 39-42, 44, 45, 56, 61, 63-65; Dec. Dig. § 28.*]</p> <p>3. Street Railroads (§ 28*)—Franchises—Public Necessity.</p> <p>Whether a street railway company should be compelled to extend its line to the terminus specified in its franchise depends on public necessity and convenience, and not on private advantage.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 39-42; 44, 45, 56, 61, 63-65; Dec. Dig. § 28.*]</p> <p>4. Street Railroads (§ 28*)—Franchises—Practical Construction.</p> <p>Where a street railway franchise provided for the construction of a line through a street to a river, the fact that the authorities apparently acquiesced in the termination of the line when it was originally constructed one block short of the river did not constitute a practical construction of the franchise so as to relieve the railroad company from thereafter extending the line to the river.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 39-42, 44, 45, 56, 61, 63-65; Dec. Dig. § 28.*]</p> <p>5. Mandamus (§ 132*)—Exercise of Franchise—Scope of Remedy.</p> <p>Where a street railway company refused to extend its line to the terminus specified in the franchise, the remedy of the public was not limited to an action by the Attorney General on behalf of the people to forfeit the franchise, the Public Service Commission being authorized by Public Service Commissions Law (Consol. Laws 1910, c. 48) § 57, to maintain mandamus to compel such construction; it being competent for the Legislature to extend the remedy by mandamus so long as the constitutional guaranty of due process of law was observed.</p> <p>[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 266, 267; Dec. Dig. § 132.*]</p> <p>6. Street Railroads (§ 18*)—Charter—Acceptance.</p> <p>Since a street railroad corporation owes a duty to the public to exercise the franchise granted to it, it cannot abandon a portion of its road and incur a forfeiture as to the balance at its pleasure, but it must accept or reject its charter in toto.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 39-41; Dec. Dig. § 18.*]</p> <p>7. Street Railroads (§ 28*)—Construction—Obligation to Build.</p> <p>Where a street railway company accepted its franchise and built a substantial portion of its route, it was estopped thereafter to claim that it was under no legal obligation to complete the same, nor was its right to build lost by mere delay, unless by reason thereof a forfeiture had been enforced or the grant canceled, nor was the right of the public to compel an extension under the franchise affected by the delay of public officers in compelling the construction of such extension.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 39-42, 44, 45, 56, 61, 63-65; Dec. Dig. § 28.*]</p> <p>8. Mandamus (§ 3*)—Other Remedy—Adequacy.</p> <p>Where a street railroad company refused to complete a portion of its road, the remedy of the public by suit to annul the corporation was inadequate, and mandamus would lie.</p> <p>[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 8, 10,11, 16-34; Dec. Dig. § 3.*]</p> <p>‘For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>9. Constitutional Law (§ 133*)—Street Railroads (§ 4*)—Obligation op Contract—Franchises—Exercise—Mandamus.</p> <p>Where at the time a franchise for the construction of a street railway •was granted, providing only for forfeiture of a deposit as a penalty for failure to perform the same, there was no public service commission or officers charged with the duty of compelling performance, such fact did not render tbe Public Service Commissions Law (Consol. Laws 1910, c. 48), providing for such a commission with power to compel performance, nor section 57 thereof, creating a new remedy by mandamus, a violation of Const. U. S. art. 1, § 10, as an impairment of the obligation of a corn tract.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 376, 402; Dec. Dig. § 133;* Street Railroads, Cent. Dig. §§ 2-7; Dee. Dig. § 4.*]</p> <p>♦For other cases see same topic & § number in1 Dec. & Am. Digs. 1907 to date, & Rep’r Indexes"</p>

<p>Condemnation proceedings by the Long Island Railroad Company against J. K. O. Sherwood and others. Same against John Adikes.</p>

Action by Hugh J. O’Brien against the Federal Union Surety Company. From judgment for defendant and order denying new trial, plaintiff appeals.

Judicial settlement of the accounts of Henry MacKay and another, as executors of Charles C. MacKay, deceased. Proceeds of sale ordered disposed of as will directs.

<p>1. Attobney and Client (§ 4*)—Nature oe Office.</p> <p>The privilege of practicing law is not open to all, but is a special personal franchise limited to persons of good moral character, with special qualifications ascertained and certified after study and examination.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 4r-9; Dec. Dig. § 4.*]</p> <p>2. Attorney and Client (§ 130*)—Privileges and Disabilities—Mercantile Agency.</p> <p>Under Penal Law (Consol. Laws 1909, c. 40) § 270, providing that any person not duly licensed to practice law who holds himself out as an attorney and counselor at law, or who attempts to practice law, is guilty of a misdemeanor, a contract for services or commissions made with an individual engaged in the business of a mercantile agency for collection of accounts on behalf of clients and instituting suits for that purpose when necessary is illegal and unenforceable.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 292, 293, 295, 296, 306, 307, 311; Dec. Dig. § 130.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Application of the City of New York for the acquisition of lands for the opening and extending of Lawrence Street, from Flushing Avenue to Winthrop Avenue, in the First Ward, Borough of Queens. City of New York. Heard on motion to confirm final report of commissioners of estimate and assessment. Report confirmed in part, and referred back in part. ^

In the matter of the appraisal of taxable transfers of property of the estate of Euphemia Kneeland Haight. Decree that the estate was nontaxable.

<p>1. Insurance (§ 616%*)—Oonclusiveness of Judgment Against Insured.</p> <p>The judgment for plaintiff in an employe’s action for personal injury is conclusive against the employer, in its action on its employer’s liability insurance policy, of the facts specially found by the verdict in the servant’s action, that the machine on which the employe was injured was a dangerous machine within the meaning of Labor Law (Laws 1897, c. 415) § 81, as amended by Laws 1899, e. 192, § 1, and that the employe when injured was under 16 years of age.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 616%.*]</p> <p>2. Insurance (§ 435*) — Employer’s Liability Insurance — Policy — “Employed in Violation of Law.”</p> <p>Within a policy insuring an employer against liability for accidents to employes, excepting to any “employed in violation of law,” employment of one under 16 years of age, being prohibited by Labor Law (Laws 1897, c. 415) § 71, unless an employment certificate issued as provided shall have been theretofore “filed” in the office of the employer, is in violation of law, where such a certificate was not so filed, though one had been issued and lost.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. § 435.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2377-2380; vol. 8, p. 7649.]</p> <p>3. Insurance (§ 435*) — Employer’s Liability Insurance — Policy — “Employed.” »</p> <p>An employs under 16 years of age “permitted to operate” dangerous machinery prohibited by Labor Law (Laws 1897, c. 415) § 81, as amended by Laws 1899, c. 192, § 1, is “employed in violation of law” within an employer’s liability policy, excepting liability for injury to one so employed; “employ,” when so used, having a broader meaning than “hiring,” and meaning “to have in service, to cause to be engaged in doing something.”</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 Insurance, Cent. Dig. § 1144; Dec. Dig. § 435.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2377-2380; vol. 8, p. 7649.]</p> <p>4. Insurance (§ 435*) — Employer’s Liability Insurance — Policy — “Employed in Violation of Law”—Belief of Employer.</p> <p>Neither the fact that a master who employed one under 16 years old Without having a certificate filed, as required by Labor Law (Laws 1897, c. 415) § 71, and at dangerous machinery, in violation of section 81, as amended by Laws 1899, c. 192, § 1, and for longer hours than permitted by section 77, believed the employé was 16 years old, nor the fact that a certificate had been issued misstating the facts as to his age, prevents the child from having been “employed in violation of law,” within an employer’s liability policy, excepting the insurer from liability in the case óf one so employed.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1144; Dec. ■ Dig. § 435.*]</p> <p>6. Insurance (§ 616%*)—Action on Policy—Presumption—General Verdict.</p> <p>There having been a general verdict for plaintiff in an action by an employé against his employer for injury, it may tie assumed for the purposes of an action by the employer on its indemnity policy that every issue of fact litigated in the employe’s action was decided adversely to the defendant therein.</p> <p>[Ed. Note.—For- other cases, see Insurance, Dec. Dig. § 616% ;* Judgment, Cent. Dig. § 1224.]</p> <p>6. Insurance (§ 435*)—Employer’s Liability Insurance—“Employed in Violation of Law.”</p> <p>Under an employer’s indemnity policy excepting insurer from liability for injury to an employé “employed in violation of law,” it is immaterial whether the accident to one so employed was due to or caused by violation of the law.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. § 435.*]</p> <p>7. Insurance (§ 168*)—Construction of Policy—“Employed in Violation of Law.” .</p> <p>There being no ambiguity in the clause of an employer’s liability policy providing it “does not cover * * * injuries * * * to * * * any person employed in violation .of law,” there is no place for construing it as though the words “knowingly or negligently” preceded “employed.”</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 325; Dec. Dig. • § 168.*]</p> <p>8. Insurance (§ 388*)—Employer’s Liability Insurance—Defense by Insurer of Action by Employé Against Employer—Waiver.</p> <p>An employer’s liability insurance company by defending an action brought by an employé against an employer does not waive right to deny that the accident to the employé was within an exception to the policy, and therefore one for which it was not liable; it having been understood between it and the employer that it should defend with a full “reservation of policy rights.”</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1026-1040, 1057; Dec. Dig. § 388.*]</p> <p>‘For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Margaret A. Hogan, as administratrix, etc., against the New York Central & Hudson River Railroad Company, to recover for the alleged wrongful death of her husband. A verdict was rendered in favor of plaintiff for $18,375, and defendant moves for a new trial. Verdict ordered set aside as excessive unless plaintiff consent to a reduction to $12,000.

<p>Action by Arvilla Flint against Ray V. Pierce. On demurrer to plaintiff’s reply.</p>

<p>Corporations (§ ■ 610*) — Dissolution — Publication of Obder to Show Cause—Sufficiency.</p> <p>Under General Corporation Law (Consol. Laws 1909, c. 23) § 179, which requires publication in one or more newspapers of the order to show cause before final order dissolving a corporation “at least once in each of the three weeks immediately preceding” the return day, á first publication, though within 21 full days of the return day, was a sufficient compliance with the statute.</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 Corporations, Cent. Dig. §§ 2424—2430; Dec. Dig. § 610.*]</p>

<p>Municipal Corporations (§ 220*)—Employés—Compensation—Waiver— Estoppel.</p> <p>A city employé, having, to escape an authorized removal or suspension, necessary because of lack of funds, and to avoid the hazard of not being re-employed within the year during which he' was permitted under the law to remain on the civil service list, voluntarily waived his pay for the rest of the year, is estopped to claim against his agreement.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 599-608; Dec. Dig. § 220.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

Action by Rozwadow Young Men’s Association against Samuel Langweil, as president, etc. Motion by plaintiff for judgment on demurrer to the complaint. Motion denied, with leave to plaintiff to amend its complaint within 20 days on payment of costs.

<p>Judicial settlement of the accounts of the executors and trustees under the last will of Mary Nevins Mayo.</p>

In the matter of the probate of the will of Alice Eliza, Benjamin, deceased, contested by Adelia A. Crawford, on the grounds of want of execution, want of testamentary capacity, and undue influence.

<p>In the matter of the probate of a paper propounded as the last will and testament of Maria L. Campbell, deceased.</p>