Volume 137 — New York Supplement

<p>Action by one Lichenstein against Julius R. Lorge and others. Defendants move to vacate an attachment.</p>

<p>Suit by Julia W. A. Siebrecht against Henry A. Siebrecht, Jr., to compel a reconveyance of certain premises. Judgment for defendant.</p>

<p>Action by Jessie Wallace and others against Howard Gurdon Wallace and! others. Judgment for defendants.</p>

<p>Action by Nixola Greeley Smith Ford and another against Gabrielle G. Clendenin and others. Judgment for defendants.</p>

Action for an injunction by the Board of Education of the City of Lockport against William Richmond and others, as Water Commissioners, and others. Submitted on agreed facts. Judgment granting an injunction for plaintiff, and denying other relief.

Proceedings by the People, on the relation of Albert Schoenwald and of Barney Denner, for mandamus to compel the reinstatement of relators to positions formerly held by them in the Canal Department of the State of New York, from which they were dismissed without the filing o'f charges and without hearing. Proceedings dismissed in the case of Schoenwald, and! writ granted in the case of Denner.

<p>1. Partnership (§ 244*)—Dissolution-—Duty of Surviving Partners.</p> <p>On a dissolution of a firm by the death of one of the partners, the surviving partners are charged with the active duty of liquidating the old firm’s affairs with reasonable diligence, in order that the deceased partner’s interest may be ascertained, conserved, and paid over to his personal representatives.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 511; Dec. Dig. § 244.*]</p> <p>2. Partnership (§ 301*)—Dissolution—Death of Partner—Accounting— Value of Deceased Partner’s Interest.</p> <p>Plaintiff’s deceased husband had owned a one-fourth interest in a partnership engaged in a publishing business, which was dissolved by his death in October, 1908. The business had been v.ery successful, and in November following the surviving partners offered plaintiff, who was her husband’s executrix and sole beneficiary, $15,000 for her husband’s interest in the business, including real estate. This offer was declined, and no further steps taken to liquidate the business until the summer of 1909, when the surviving partners were offered $100,000 for the business, which they declined, saying that their interests as surviving partners were not for sale, and as a result of their inaction they lost the benefit of a sale at that price. Held, that plaintiff was entitled to an accounting, and to recover the value of her interest, figured on a basis of $100,000 for the entire business.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 698; Dec. Dig. § 301.*]</p> <p>3. Partnership (§ 301*)—Dissolution—Sale of Assets.</p> <p>Where, after the dissolution of a firm by the death of one of the partners, an offer of $100,000 was made for the business, which the surviving partners promptly declined, and in which they manifested no interest, they could not successfully claim in a proceeding for an accounting that such offer should not be regarded as the value of the property, because the names of the proposed purchasers were not then disclosed.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 698; Dec. Dig. § 301.*]</p> <p>4. Partnership (§ 255*)—Liquidation-—Services of Surviving Partners.</p> <p>While in general surviving partners are not entitled to compensation for their services in liquidating the business of the firm, yet where, pending liquidation, it is necessary that the business be carried on in order to avoid great loss and to preserve a valuable good will, and it was the expectation of the personal representative of the deceased partner that the business would be conducted until an adjustment could be reached or the business advantageously sold, the surviving partners would be allowed compensation for their services so rendered, payable out of profits, during a reasonable time prior to securing an advantageous 'offer for a sale of the assets.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 552-561; Dec. Dig. § 255.*]</p> <p>*For other cases see same topic & § number in Pec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by the Humane Society against Matthew A. Ryan to restrain defendant from cutting windows in. a party wall, and to compel him to fill up openings already made therein.

<p>1. Executors and Administrators (§ 454*)—Judgment—Enforcement—Ex-ecution—“Final Proceeding.’’</p> <p>Where a judgment is recovered against executors in their representative capacity in the Supreme Court, an application to the surrogate to issue an execution on such judgment is a “final proceeding” de novo in the Surrogate’s Court, within Code Civ. Proc. §§ 1825, 1826, to be commenced by the filing of a verified petition and an issue of citation, or an order to show cause, unless the issue and service of such citation or order is waived by the parties affected; service being had personally on each of the executors, in the absence of a showing that such service cannot be had with due diligence, in which case notice must be given in such manner as the surrogate directs.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1909-1928; Dec. Dig. § 454.*]</p> <p>2. Appearance (§ 3*)—Appearance by Attorney—Surrogate’s Court.</p> <p>Appearance by an attorney in a Surrogate’s Court is not recognized, unless accompanied by an authorization duly acknowledged as of an instrument to be recorded within the state, except where citation or order to show cause has been issued by the court, naming the parties who are cited to appear, when an appearance by an attorney is recognized without written authority.</p> <p>[Ed. Note.—For other cases, see Appearance, Cent. Dig. §§ 9-11; Dec. Dig. § 3.*]</p> <p>3. Executors and Administrators (§ 454*)—Special Proceedings—Service.</p> <p>In a special proceeding before the surrogate for leave to issue execution against the assets of a decedent’s estate in the hands of executors, service of application on one of the executors is not sufficient to bring them all in, but service should be had on each.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. • Dig. §§ 1909-1928; Dec. Dig. § 454.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Carriers (§ 5*)—Transfers—Penalties.</p> <p>The penalty imposed by Public Service Commissions Law (Consol. Laws 1910, c. 48) § 49, for the refusal of any street surface railroad to give a transfer for a continuous trip, is a penalty provided for corporations contracting under Railroad Law (Laws 1905, e. 695) § 78, authorizing railroad corporations to contract with each, other for the use of their respective roads.</p> <p>[Ed. Note.—For other cases, see Carriers, Gent. Dig. §§ 3, 4, 7; Dec. Dig. § 5.*]</p> <p>2. Carriers (§ 5*)—Transfers—Penalties.</p> <p>An agreement between the city of Buffalo and street railway companies operating surface railroads under franchises, which binds the companies . to abolish transfer charges, and which requires them to charge a uniform fare for a continuous trip by the most direct route from any point on any of the street railroads owned by the companies to any other point thereon, is at most a contract by which each company agrees to honor the transfers of the others without charge, and is not a contract for the use of their respective roads or routes, witiiin Railroad Law (Laws 1905, c. 695) § 78, providing that any railroad corporation may contract with any other railroad corporation for the use of their respective roads or routes, or any part thereof, and a company refusing to give a transfer is not liable to the penalty imposed by Public Service Commissions Law (Consol. Laws 1910, c. 48) § 49.</p> <p>[Ed. Note.—For - other cases, see Carriers, Cent. Dig. §§ 3, 4, 7; Dec. Dig. § 5.*]</p> <p>3. Statutes (§ 241*)—Construction—Penal Statutes.</p> <p>A statute imposing a penalty must be strictly construed, and the penalty cannot he recovered, unless plaintiff, suing therefor, brings himself squarely within the statute.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 822, 323; Dec. Dig. § 241.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digé. 1907 to date, & Rep’r Indexes</p>

<p>1. Perpetuities (§ 6*)—Trusts—Suspension of Power of Alienation.</p> <p>The statute against unlawful suspension of the power of alienation and ownership of property is violated by a will giving property in trust to pay half the income to each of testator’s two daughters till she is 41 years old, and then to pay her half the principal, and in case either or both die before reaching that age to pay the income and principal to her or their children at the times the same would be paid to them if living.</p> <p>[Ed. Rote.—For other cases, see Perpetuities, Cent. Dig. §§ 4r-47, 49-53, 56; Dec. Dig. § 6.*]</p> <p>2. Wills (§ 81*)—Effect of Partial Invalidity.</p> <p>The scheme of a will being to make testator’s wife and his two daughters equal beneficiaries, and the part creating a trust, chiefly for the daughters being void, the part making an absolute gift to the wife will also fail.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 201, 202; Dec. Dig. § 81.*]</p> <p>3. Wills (§ 487*)—Construction—Evidence.</p> <p>A paper in the handwriting of testator, attached to his will, is not competent on the question of the will violating the statute of perpetuities.</p> <p>[Ed. Note.—For other cases, sqe Wills, Cent. Dig. §§ 1023, 1026-1032; Dec. Dig. § 487.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexer</p>

<p>In the matter of the judicial settlement of the account of Elizabeth Mara, executrix of Patrick Harris, deceased. Claim of William B. 'Holier & Bro. sustained.</p>

<p>In the matter of the estate of Mercy Ann Jeffrey, deceased. On accounting by Joseph A. Schantz, executor. Objections to account sustained.</p>

Judicial accounting by the executrix of the estate of Abram Lyons, deceased. On objections to an allowance to the executrix for the support of a minor child.

<p>In the matter of the estate of Vincenzo Baglieri, deceased. Letters of administration directed to be issued.</p>

<p>In the matter of the estate of Harry Jarema, deceased. Heard on question of right to administer.</p>

<p>Mandamus by the People, on the relation of William H. Hotchkiss and another, against John Smith and another, constituting the Board of Elections of Putnam County. Motion for peremptory writ granted in part.</p>

<p>Action by Tompkins C. Delavan and others against the New York, New Haven & Hartford Railroad Company and others. On motion for a temporary injunction.</p>

<p>Action by Peter A. Porter and others against the International Bridge Company and others to determine the value of real estate in possession of certain of the defendants for railroad purposes, and for the value of - the use of the property for such purposes.</p>

<p>Petition of Seymour Clark to review action of the Orleans County-Republican Committee. Order for petitioner.</p>

<p>Action by Maria A. Fatta against George B. Edgerton. Judgment for defendant.</p>

Application by Edwin S. Harris as Deputy Comptroller of the City of New York, for an order transferring the moneys and securities paid into court from the Broadway Savings Institution of the County of New York to the City Chamberlain of the City of New York.

<p>1. Wills (§ 166*)—Contest—Undue Influence—Evidence.</p> <p>In a will contest, 'evidence held, to show that the will was not the result of coercion and undue influence asserted upon the decedent by the beneficiary.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. 8 166.*]</p> <p>2. Wills (§ 405*)—Probate—Contest—Assessment of Costs.</p> <p>Costs in an application for the admission of a will to probate will not be taxed personally against contestants on a finding against them, but will be made payable out of the estate, where the circumstances apparently justified the contest.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 879-884; Dec. Dig. § 405.*]</p> <p>•3. Wills (§ 164*)—Contest—Undue Influence—Latitude of Examination.</p> <p>In a will contest, in which undue influence on the part of the beneficiary is charged, wide latitude in the examination of witnesses is permissible, where it is shown that the will contested was executed soon after another of a different character.</p> <p>■«For other cafes see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 403-414; Dec. Dig. § 164.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from Justice Court.</p> <p>Action by William A. Davis against Edward O’Day before a justice. From a judgment for plaintiff, defendant appeals.</p>

<p>In the matter of the probate of Peter J. Crofoot’s will. On application for a construction of such will. Decree directed.</p>

Action by William H. Pierce against Hugh G. Kinney and another, impleaded with Jane E. Benedict. From a judgment dismissing the complaint on the merits, with costs (75 Mise. Rep. 328, 135 N. Y. Supp. 537), plaintiff appeals.

Lawrence County. In the matter of the application of the State of New York to acquire a toll bridge in St. Lawrence county owned by the Black Lake Bridge Company. From an order confirming the report of commissioners in awarding, to the bridge company taxable costs and an additional allowance of $300, the State appeals.

In the matter of the claim of Jessie I. Lester and others against the Village of Blaisdell. On motion to confirm the report of a referee.

Proceedings for the voluntary dissolution of the Soules Hospital and Training School for Nurses. On motion to set aside the final order confirming the report of the referee.

<p>Corporations (§ 201*)—Stockholders—Right to Restrain Majority Stockholder from Voting His Stock.</p> <p>During the pendency of an action to compel the president, the majority stockholder, to account for moneys received by him as president, and director, the president, after having been removed, compelled the-issuance of a call for a special meeting to amend the by-laws in certain particulars. Held that, though the stockholders at such meeting might increase or decrease the number of directors, and thus remove plaintiff from the directorate, no injunction to restrain the president from voting his stock will be issued, on the theory that a new directorate may be selected, which may release the president from an accounting to the corporation.</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. §§ 765, 766, 774, 775; Dec. Dig. § 201.*]</p> <p>•«■For other cases see same topic & § number m Dec. & Am. Digs. 1907 to date, & 3-tep’r Indexes.</p>

<p>Habeas Corpus (§ 99*)—Children—Custody and Support—Right oe Father.</p> <p>A nonresident father held not entitled, on the facts, to recover the custody of certain of his children from his divorced wife.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 84’; Dec. Dig. § 99.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes •</p>

<p>Theaters and Shows (§ 3*)—“Public Exhibitions.”</p> <p>An entertainment provided by the management of a restaurant, consisting in dancing, singing, etc,, does not constitute a “public exhibition,” within Greater New York Charter (Laws 1897, c. 378) §§ 1472, 1473, 1474, which make it a misdemeanor to conduct a public exhibition without a license, where the entertainment constitutes a gratuitous contribution by the management to the guests’ entertainment.</p> <p>[Ed. Note.—For other cases, see Theaters and Shows, Cent. Dig. § 3; Dec. Dig. § 3.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5788.]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Reference (§ 8*)—Ground for Reference—Long Account.</p> <p>Plaintiff telegraph company sued for telegraph services alleged to have been rendered defendants, and annexed to the complaint an account containing 380 items, each referring to a single ihessage. Defendants denied promising to pay for 47 messages delivered to them, and as to 18 sent by defendants they deny knowledge whether plaintiff delivered the same, and as to 12.others denied having authorized them to be sent. Held, that the facts were insufficient to justify a compulsory reference on the ground that the trial would require the examination of a long account within Code Civ. Proe. § 1013.</p> <p>[Ed. Note.—For other cases, see Reference, Cent. Dig. §§ 13-23; Dec. Dig. § 8.*]</p> <p>•For other cases see same topic ft § otjmbbb In Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Isaac Goldowitz and another against Henry Kupfer & Co. From an order vacating an order for an examination of defendant’s president before trial, plaintiffs appeal.

<p>Judgment (§ 145*)—Deeault—Vacation.</p> <p>Vacation of a default is error where it appears that the default was deliberate, and that the defense relied upon is palpably unavailable as a matter of law. . ,</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 271, 292-295; Dec. Dig. § 145.*]</p> <p>•Eor other cases see same topic & § ntjmbeb in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by John Specker against Charles O. Peterson and another. From an order staying all proceedings on plaintiff’s part as against defendant Peterson until the costs in a prior -action had been paid, plaintiff appeals.</p>

<p>Appeal from City Court of New York, .Special Term.</p> <p>Action by Cagliano Pierini, by guardian ad litem, against Nathan Ullman and others. Prom an order denying his motion for bill of particulars, the defendant named appeals.</p>

Action by Browning, King & Co. against Mary A. O’Brien. From an order denying a motion to vacate an order limiting the scope of defendant’s examination before trial, plaintiff appeals.

Action by Margaret Nugent, individually and for the benefit of all other creditors of Jeffrey Powers, deceased, against Anastasia Foley, to set aside a conveyance of certain real property.

<p>.Discovery (§ 40*)—Examination Before Trial—Facts Necessary to Deifense.</p> <p>Plaintiff sued to recover the amount of checks, the proceeds of which were improperly paid by defendant bank to others, covering a period of about four years, which plaintiff alleged bore his forged indorsements, and it appeared that the circumstances under which the alleged forgeries were made, the relation existing between the persons making the indorsements and plaintiff, his knowledge as to the forgeries, and when it was obtained, were solely within plaintiff’s knowledge, and were essential to the defense. Held, that defendant was entitled to examine plaintiff before trial on the matters indicated to aid in the preparation of its defense.</p> <p>•For other cases see same tonic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 53; Dec. Dig. § 40.*]</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>Appeal and Error (§ 569*)—Record—Sufficiency—Improper Argument of Counsel.</p> <p>One of the issues was whether a strike called in defendant’s factory, in which plaintiff participated, was a genuine strike, or was instigated by defendant merely to give him an opportunity to discharge plaintiff, which involved the question of whether the prices to be paid were fixed by defendant’s foreman and a price committee of workmen, and plaintiff’s counsel commented on defendant’s failure to call as witnesses the members of such price committee, adding, “Doubtless they are still in the employ of defendant.” Defendant’s counsel requested the court, by reason of such comment, to charge that no inference could be drawn against defendant by reason of his failure to call the price committee, which was refused, and on settlement of the case the remarks of plaintiff’s counsel in summing up were stricken from the record. Held, that such remarks should be included in the record, as the objection thereto was substantial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. §■ 569.*]</p>

In the matter of the proceedings *or the revocation of letters of guardianship of the person and estate of Virginia M. Pearce. Application denied.

<p>Appeal from Municipal Court, Borough 6f Manhattan, Ninth District.</p> <p>Action by the Hatasatah Realty Company against Ernestos Gulick. From a judgment for plaintiff, after a trial by the court without a jury, defendant appeals.</p>

Application by Peter Donnelly for a peremptory writ of mandamus, directed to Charles S. Devoy, County Clerk of Kings County, to compel .respondent to reinstate relator in the position of chief clerk of the law department in the county clerk’s office. Motion granted. Order affirmed, 135 N. Y. Supp. 1108.

<p>1. Fraudulent Conveyances (§ 281*)—Retention of Possession by Debtor —Effect.</p> <p>The retention by a judgment debtor of apparent possession of property placed in the bands of a receiver for several months after the debtor bad delivered an alleged bill of sale therefor to his son, and up to the time the receiver took possession, would raise a presumption that the bill of sale was fraudulent, so as to make out a prima facie case of ownership by the receiver upon his taking possession.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig.. §§ 800, 816; Dec. Dig. § 281.*]</p> <p>2. Receivers (§ 74*)—Interference with Receiver’s Possession.</p> <p>While the interference by a judgment debtor with the possession of his property in the hands of a receiver would constitute a contempt by the debtor, such interference by a third person without his participation would not make him guilty of contempt.</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 Receivers, Cent. Dig. §§ 132-135; Dee. Dig. § 74;* Contempt, Cent. Dig. § 56.]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Appeal from City Court of Buffalo.</p> <p>Action by Jennie Schmidt against Adelaide Schweitzer. From a judgment for plaintiff, defendant appeals.</p>

Action by John C. Scheeler against the Casualty Company of America. On defendant’s motion for new trial after verdict for plaintiff. New trial granted.

Action by Samuel Galitzka against Henry Fields. From a judgment for plaintiff, rendered in the Municipal Court after trial with a jury, •defendant appeals.

<p>Action by Fitz Beresford McAllister against Maisie McAllister. Complaint dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Charles D. Mower against Charles M. Eriglis and others. Judgment for plaintiff, and defendants appeal.</p>

Action by Frank T. Staples and another, as ancillary executors of John S. Mead, against Sarah Frances Mead and another, executrices and trustees under the will of John J. Studwell. From a portion of an interlocutory judgment, plaintiffs appeal, and from the whole, defendants appeal.

<p>Appeal and Error (§ 1015*)—Review—Grant op New Trial—Insuppioient Grounds.</p> <p>Where the evidence was conflicting, the order setting aside a verdict recites no grounds for granting it, no opinion was written, and the record fails to disclose any sufficient reason for setting aside the verdict, it will be reinstated especially where two juries have reached the same conclusion.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876; Dec. Dig. § 1015.*]</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 Mary Jenkins against Fanny Gruen and others. From a judgment for plaintiff, defendants appeal.</p>

Action by Louis Stackell against George B. Hayes and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial granted.

<p>'Trial (§ 62*)—Rebuttal—Issues.</p> <p>Though, in an action for an employe’s wages, the question of whether defendant retained a certain sum a week from plaintiff’s salary as security against plaintiff’s striking, or whether it was retained as compensation for wasting material, was not raised by the pleadings, if it was raised by plaintiff’s proofs and was material, defendant was entitled to offer counter proof.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 148-150; Dec. Dig. § 62.*]</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 the National Perfume Company against Pauline Jacobson. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Elliott Schenck against Louis Eischer. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the George C. Flint Company against Moses L. Malevinsky. From a judgment entered by direction of the court in plaintiff’s favor, defendant appeals.</p>

<p>1. Carriers (§ 284*)—Injuries to Passenger—Liability—Acts of Fellow Passenger.</p> <p>A rapid transit company is not liable for injuries sustained by a passenger from a fellow passenger jumping over the gate of its closed car and striking her, unless such act could reasonably have -been anticipated by its employés.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. § 284.*]</p> <p>2. Carriers (§ 321*)—Injuries to Passenger—Liability.</p> <p>In an action against a carrier for injuries to a passenger from the act of a fellow passenger, an instruction that it was the carrier’s duty to carry the passenger safely, thus making it an insurer of the passenger’s safety, and withdrawing the question of negligence from the jury, was erroneous.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dee. Dig. § 321.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1807 to date, & Rep’r Indexes</p>

<p>1. Evidence (§ 148*)—Telephonic Communications—Recognition oe Voice.</p> <p>In an action for the price of certain dresses, evidence of a telephone conversation claimed to have been had by the defendant with an officer of the plaintiff was improperly admitted, where the witness did not even claim to have recognized the voice of the officer with whom he spoke.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 438; Dec. Dig. § 148.*]</p> <p>2. Tender (§ 12*)—Amount—Insufficiency.</p> <p>Where, in an action for the price of dresses, the defendant admitted the ordering of part of the dresses, judgment should have been entered for their full value, although the defendant, without any justification,, claimed the right to deduct a discount of 10 per cent., and alleged a tender of the reduced amount, and paid it into court.</p> <p>[Ed. Note.—For other cases, see Tender, Cent. Dig. §§ 21-28; Dec. Dig. § 12.*]</p> <p>«Fot other cases see same topic & § nombeb in Dec. & Am. Digs. 1907 td date, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Funk & Wagnalls Company against Augusta Roemer. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Action by the Manhattan Real Estate Company against Charles R. Fitz, County Treasurer, to enjoin a tax sale. Complaint dismissed, except as stated.</p>

<p>Taxation (§ 434*)—Assessment—Conflict Between Assessment Roll and Return.</p> <p>The realty assessed is shown on a map filed in the county clerk’s office, entitled “North Babylon Park, Property of the Manhattan Real Estate Company.” At the beginning of the assessment, under the column headed “Description,” contained in two lines, is the phrase “North Babylon Park, North Babylon, L. I.,” nothing else being in the columns on that page; but on the 30 remaining pages, under the. column “Description," occupying three lines on each page, is “Map of North Babylon Park, North Babylon, L. I.” The return of unpaid taxes contained under the description, on the first two pages, only the words “North Babylon Park,” occupying one line, and on the. remaining 30-odd pages, occupying two lines, the words “Map of North Babylon Park.” Held, that there was a substantial compliance with the statute with reference to the description in the return conforming to that in the assessment roll.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig.'§§ 754-757; Dec. Dig. § 434.*]</p> <p>*JTor other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Frank Gens against Abraham Blinder, doing business as the Trans-Continental Tobacco Company, and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth-District.</p> <p>Action by Julius G. Kugelman and another, surviving members of the firm of Kugelman, Frankland & Foreman, against Aaron B.. Mergentheim. From an order, defendant appeals.</p>

<p>Landlord" and Tenant (§ 231*)—Burden of Proof—Eviction.</p> <p>In an action upon a lease against the guarantor of the lessee for unpaid rent, the burden is upon the defendant to establish that an act of eviction complained of was done by the landlord, or under his authority.</p> <p>[Ed. Note.—.For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.*]</p> <p>‘For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by the Underwood Typewriter Company against Martin A. Driscoll. From a judgment of the Municipal Court in favor of thp plaintiff, and also from an order denying a motion to set aside said judgment, defendant appeals. Return remitted to lower court for amendment.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Mechanical Equipment Company against Samuel Lewis. From a default judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§ 870*)—Waiver Affecting Right—Appearance— New Trial.</p> <p>Where plaintiff did not appeal from an order setting aside a judgment for him and ordering a new trial, but proceeded with the new trial without objection, he was precluded from afterwards contesting the validity of that order on appeal from a judgment for defendant.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3451, 3487-3489, 3491-3512; Dec. Dig. § 870.*]</p> <p>2. Appeal and Error (§ 1011*)—Conclusiveness of Finding—Conflicting Evidence.</p> <p>A judgment on a question of fact as to which the evidence is conflicting will not be disturbed.</p> <p>[Ed. Note.—For other cases,, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

Action by Florence Pearlman against the Wahlig & Sonsin Company. From a judgment of the Municipal Court, rendered in favor of plaintiff, defendant appeals. Reversed, and complaint dismissed, with costs, and without prejudice to a new action.

<p>Conteacts (§ 350*)—Action fob Bbeach—Sufficiency of Evidence.</p> <p>A judgment for plaintiff in an action to recover the difference between his expenditures and his receipts in the conduct of a business alleged to have been conducted at the request and on the personal responsibility of defendant held to be against the weight of the evidence.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 93, 1819-1823; Dec. Dig. § 350.*]</p> <p>-*For other cases s,ee same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Bankruptcy (§ 436*)—Promise to Pay-from Future Earnings—Sufficiency of Evidence.</p> <p>In an action on a debtor’s" conditional promise, made pending bankruptcy proceedings, to pay plaintiff’s, debt out of bis future earnings after securing bis discharge, proof of parol declarations that defendant was in business, doing the best he could, and expected to get another</p> <p>. store, and was doing well, was insufficient to sustain a finding that he had earned enough money to pay, or was able to pay, plaintiff.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 840-842, 865; Dec. Dig. § 436.*]</p> <p>‘For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

<p>Contracts (§ 295*)—Actions—Allegation of Performance—Proof of Substantial Performance—Recovery.</p> <p>A plaintiff, pleading performance of the contract sued on, and proving substantial performance, may recover the contract price, less an allowance for the negligible portion of the work not done.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1353-1356, 1362; Dec. Dig. § 295.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Contracts (§ 212*)—Time of Execution.</p> <p>Where a contract to install an elevator failed to provide the time within which it was to have been installed, it will be held that it was to have been installed within a reasonable time from the date of the contract.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 944r-955; Dec. Dig. § 212.*]</p> <p>2. Contracts (§ 237*)—Evidence (§ 445*)—Written Agreements—Parol Evidence.</p> <p>In an action for damages from failure to install an elevator under a written contract which failed to provide for the time within which it was to have been installed, evidence of a subsequent oral agreement under which the defendant agreed to complete the work within three weeks was inadmissible, because it tended to vary the terms of the written agreement, and because the oral agreement was without consideration.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1119-1122; Dec. Dig. § 237 ;* Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.*]</p> <p>3. Appeal and Error ($ 1064*)—Prejudicial Error—Instructions.</p> <p>In an action for breach of a written contract, an instruction that predicated the liability of a defendant upon a finding of the making of a subsequent oral contract, which lacked consideration, and the evidence of which was improperly admitted, was erroneous and prejudicial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</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, Seventh District.</p> <p>Action by Frederick L. Cuneo and another against Alfred Freeman, as Marshal of the City of New York, and another. From a judgment for defendants, plaintiffs appeal.</p>

<p>Usury (§ 117*)—Usurious Transactions—Evidence.</p> <p>Where, in an action on a note for $251.30, defendant testified that plaintiff exacted $50 more than the legal rate of interest for the note, by deducting $7.50 from the amount advanced, and by receiving $17.50 in cash, and a note of defendant’s son for $25, and the documentary evidence showed that plaintiff deducted $7.50, and that defendant paid plaintiff $27, and plaintiff denied that the usurious agreement was made, a finding for plaintiff for the amount claimed, less $27, must be set aside, on the ground that the court, in deducting $27 from plaintiff’s claim, credited defendant’s testimony as establishing the usurious agreement, necessitating a dismissal, notwithstanding the suggestion that the $27 was paid on account of a note given by defendant’s son to a brother-in-law of plaintiff; the transactions between the parties not being a family affair.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 328-340; Dec. Dig. § 117.*]</p> <p>*Ivor other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Evidence (§ 211*)—Admissions—Testimony in Other Case—Bes Judicata.</p> <p>Where an execution creditor of a corporation sued defendant for the value of goods surrendered to him in reliance on his false assertion of ownership, the testimony of a witness as to the statements made by defendant in the course of his testimony in his action against the corporation, disclosing admissions against interest, was competent, and such testimony could not be excluded on any theory relating to the subject of res judicata.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 738-744; Dec. Dig. § 211.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexed</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Albert Wooster against the Niven Company. From a judgment of the City Court, entered upon the verdict of the jury in favor of plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Otto L. Spannhake against the Mounain Construction Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Annie Jenner, administratrix of William J. Jenner, deceased, against Julian B. Shope. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by John Finck against Francis A. Carlson. From a j'udgrnent of the City Court in favor of plaintiff, entered upon the verdict of the jury, defendant appeals.

<p>Appeal from' Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by David Moskowitz against George S. Mawhinney. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Charles H. Levitt and another against Thomas Sliman. From a judgment for plaintiffs, defendant appeals.</p>

<p>Evidence (§ 263*)—Admissions—Right to Explain.</p> <p>Wliere, in an action for the value of goods alleged to have been delivered by the plaintiff to the defendant, plaintiff placed in evidence,, to show a delivery, admissions of the defendant’s agent, a refusal to permit such agent to explain the admissions, by showing the circumstances under which they were made, was improper.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1022-1027;. Dec. Dig. § 263.*]</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, Fifth District.</p> <p>Action by Mary S. M. Bryant against Ellen S. Auchmuty. From a judgment for defendant, plaintiff appeals.</p>

<p>Master and Servant (§ 330*)—Injuries—Necessity of Proof on the Part of the Plaintiff—Res Ipsa Loquitur.</p> <p>Though the defendant, in an action for injuries to a person from a block of wood, which fell from a house in course of construction, was a plumbing contractor, and at work in the house at the time of the-accident, when there were servants of several other contractors at work in the building at the same time, the mere allegation that his negligence caused the injury would not relieve the plaintiff from the obligation of proving the defendant’s negligence, and cast upon such defendant the burden of explaining the accident.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330;* Negligence, Cent. Dig. § 240.]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes,</p>

<p>Couets (§ 190*)—Municipal Courts—Submission op Controversy on Agreed Statement op Facts—Affidavits.</p> <p>Where the agreed statement of facts submitted to the Municipal Court contains no affidavit in accordance with the requirements of Municipal Court Act (Laws 1902, c. 580) § 241, that court has no jurisdiction to render a judgment.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>Wills (§ 469*)—Construction—Absolute • Gifts—Restrictions.</p> <p>Where testator made an absolute gift to his wife, and subsequently created a trust to invest and collect the income and pay the same for the maintenance and education of the children until their marriage or death, that the provision creating the trust included the wife did not affect the gift to her, under the rule that, where one estate is given in one part of the will, it cannot be cut down by raising a doubt as to the extent or application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear as the words of the clause giving the estate.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 987; Dee. Dig. § 469.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Morris Goldstein against the Mason Seamon Transportation Company. From an order denying a motion to vacate a judgment of dismissal and open plaintiff’s default, he appeals. Reversed, and cause restored to the calendar.

<p>■Contracts (§ 319*)—Performance—Sufficiency.</p> <p>Where plaintiff’s contract for repairing defendant’s fire escapes provided that the contract price should be $180, payable $90 on completion of the work, and $90 when plaintiff obtained all dismissals of the violation of the tenement house regulations from the tenement house department, plaintiff could not, on completing the work, recover the remaining $90, if all of the work necessary to dismiss the violation had not been done, and the violation had never been dismissed.</p> <p>■ [Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1458, 1476, 1477, 1479, 1493-1507; Dec. Dig. § 319.*]</p> <p>■•For other cases see same topic &. § number 1r Dec. & Am. Digs. 1907 to date, & Rep’r Iu4ex,es</p>

<p>1. Appeal and Ebbob (§ 1212*)—Revebsal—Second Tbial—Questions Concluded.</p> <p>A former trial is final only as to such matters as were necessary to the determination of the issue, and findings concerning nonessentials do not preclude a subsequent trial; but where a question of fact is determined, which in view of the issue framed is material, the decision is thereafter binding.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4713; Dec. Dig. § 1212.*]</p> <p>2. Appeal and Ebbob (§ 1212*)—Revebsal—'Second Tbial—Questions Concluded.</p> <p>Where, in an action by an architect to recover on a lien filed by him as architect in charge of the construction of a building of' the owner, such owner pleaded the general denial and a counterclaim based on a breach of the contract, and the court found that the architect had been negligent, and the complaint and counterclaim were dismissed, and the court, on the appeal of the owner, reversed the judgment as to the counterclaim, the judgment of the trial court was conclusive on the issue of negligence of the architect, and the only question remaining on a second trial was the amount of damages sustained by the owner.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4713; Dec. Dig. § 1212.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Proceedings by S. O’Brien and others, under Election Law, § 125, to determine the validity of a certificate filed under sections 122, 123, with the Secretary of State on October 11, 1912, nominating Gilbert D. B. Hasbrouck for the office of Justice of the Supreme Court in the Third judicial district. Prayer of petitioners denied.

Action by Helen R. Zeggio and another against Duryea E. Robinson and others. From an order of Special Term denying defendants’ motion to open default, they appeal.

<p>In the matter of the application and petition of John A. Bensel and others to acquire real estate, etc., in the towns of Mt. Pleasant and Greenburgh, etc., Southern Aqueduct Department, Consolidated Sections Nos. 15 and 17.</p>

<p>Action by Leonhard Bohringer, as administrator, etc., against, Samuel O. Campbell.</p>

<p>Action by Charles E. Bowman against Alfred P. W. Seaman and others.</p>

<p>Action by Lillian Cantwell against the City of New York.</p>

<p>Action by Mary Carew against the City of New York.</p>

In the matter of acquiring title by the City of New York to certain land and premises situated in the block bounded by Chauncey Street, Marion Street, Hopkinson Avenue, and Rockaway Avenue, in the Borough of Brooklyn, etc.

<p>Action by Robert L. Dunn against the New York Herald Company, a corporation.</p>

Action by Rudolph Fixel against Samuel Marks and others. Judgment for plaintiff, and defendants appeal. Reversed, unless a remittitur is accepted. Samuel D. Shwitzer, of New York City, for appellants. Isaac Josephson, of New York City, for respondent.

<p>Action by Austin B. Fletcher, as trustee, against the 416 West Thirty-Third Street Realty Company and others. A. S. Gilbert, of New York City, for appellant. Weschler & Rotschild, of New York City, for respondents.</p>

<p>Action by Henry Jacobs, as administrator, etc., against the H. J. Koehler Sporting Goods Company.</p>

<p>Action by Ohauncey S. Horton' and others against the Thomas McNally Company.</p>

<p>Action by Carroll L. Hook against the German-American Bank and others.</p>

<p>In the matter of the estate of Mary Killan, deceased.</p>

<p>Action by Giuseppa Marino, as administratrix, against Runkel Bros. R. Maggio, of New York City, for appellant) Edward P. Mowton, of New York City, for respondents.</p>

<p>Action by John H. May, as administrator, etc., of Charles Nelson May, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Charles F. Muller and others against the City of Philadelphia and others.</p>

<p>Proceeding by the People of the State of New York against Giuseppe Elefante.</p>

<p>Proceeding by the People of the State of New York against Robert Love.</p>

<p>Proceeding by the People of the State of New York, on the relation of Frances V. Halloek and others, as administrators, etc., against Joseph P. Hennessy and others.</p>

<p>Proceeding by the People of the State of New York, on the relation of, the Coney Island Jockey Club, against Lawson Purdy and others, as Commissioners, etc.</p>

<p>Proceeding by the People of the State of New York, on the relation of Michele Seiarillo, against Joseph P. Hennessy and others. J. R. McMullen, of New York City, for appellant. C. J. Nehrbas, of New York City, for respondents.</p>

<p>Action by the Pittsburgh-Westmoreland Company against John K. Kerr and others.</p>

<p>Action by Thomaso Quaranta against the Griffin-White Shoe Company.</p>

<p>Actions by Henri Rogowski against Max Brill.</p>

<p>Action by Elizabeth M. Rogers against the Atlantic, Gulf & Pacific Company.</p>

<p>Action by George C. Sehminke and another against Anna Rosenberg.</p>

<p>Action by Elijah W. Sells and others against the Auto-graphic Register Company.</p>

<p>Action by Mary S. Sidway against Harold S. Sidway.</p>

<p>Action by Alexander F. Slaughter against Bernard Turkel and another. A. I. Spiro, of New York City, for appellants. G. H. Francoeur, of New York City, for respondent.</p>

In the matter of supplementary proceedings by Lewis Squires, judgment ereditor, against Fitzhugh Smith, judgment debtor. From an order adjudging the judgment debtor' .in contempt for evasive answers, he appeals. Reversed. Jere Liebermann, of New York City, for appellant. Richard S. Harvey, of New York City, for respondent.

<p>Action by Lewis Squires against the Fitzhugh Smith Company and others.</p>

<p>Action by Richard A. Springs and others against the Hanover National Bank. J. R. Abney, of New York City, for appellants. C. F. Brown, of New York City, for respondent.</p>

<p>Action by the State Bank against Jacob Cohen and another. Motion to compel receiver to pay over moneys granted. See, also, 124 N. Y. Supp. 433; 137 N. Y. Supp. 1145. Walter T. Kohn, of New York City, for the motion. 'Hays, Hersehfield & Wolf, of New York City, opposed.</p>

<p>Action by George W. Wears against Stan! Johnson and another.</p>

<p>Actic by the Westminster Presbyterian Churc against the Trustees of the Presbytery of Ne York. C. M. Parsons, of New York City, f< appellant. H. W. Jessup, of New York Cit: for respondent.</p>

<p>Action by Robert C. Whitten against William J. Gaynor, etc.</p>

<p>Action by Julius G. Wetzr against Catherine S. Wood and others.</p>

<p>Action by John A. Wilkens and another against the American Bank of Torreen, S. A. G. T. Hogg, of New York City, for appellant. M. Mackenzie, of New York City, for respondent.</p>

<p>Action by Alexis Witte against Elizabeth Koerner.</p>