Volume 138 — New York Supplement

<p>Monet Received (§ 14*)—Deposit with Company—'Liability op Treasures.</p> <p>The treasurer of a brewing company, with which money was deposited, was not liable therefor to the depositor, though he receipted for the same in the name of the 'company, signing his own name as treasurer.</p> <p>[Ed. Note.—For other cases, see Money Received, Cent. Dig. §§ 41-43 ; Dec. Dig. § 14.*]</p> <p>:*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

. Action by the Greenwich Savings Bank against Louis Silverman and others. From an order directing defendant Max Schleimer to pay rent, he appeals. Reversed, and motion denied.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Albert S. Goldstein against Clara Jones. From an order denying defendant’s motion to open her default, defendant appeals Reversed</p>

<p>1. Municipal Corporations (§ 710*)—City Addition—Private Sewer and Water System—Extension.</p> <p>Where plaintiff, at the time she purchased certain property platted and sold by defendant’s predecessor, knew that no water or sewer pipes had ever been laid through the street on which her property abutted, and the advertisements issued to attract customers to the property, though reciting that the vendor company had completed a system of macadamized roads and sewer, water, and gas mains extended beneath, did not represent that the system had been completed through the street 'on which the property of plaintiff abutted, and there was no promise that it would ever be constructed there, the defendant association was under no obligation to extend the water and sewer system then in existence, so as to afford plaintiff such service.</p> <p>[Ed. Note.—Eor other cases, see Municipal Corporations, Cent. Dig. § 1520; Dec. Dig. § 710.*]</p> <p>2. Municipal Corporations (§ 710*)—Private Sewers—Bight to Use.</p> <p>Where an association of dwellers in certain outlying platted property owned the streets, sewerage, and water systems, etc., the tight to use such systems by dwellers on property within the plat was subject to the reasonable regulation of the association for the benefit of other members thereof; and hence plaintiff was not entitled to use the water and sewer system for the conduct of a boarding house, in violation of a prior regulation, of which she had knowledge at the time she purchased, that the system should not be further burdened by subjecting it to the use of buildings erected for boarding houses, lodging houses, and inn and hotel purposes.</p> <p>•For other cases see same topic & 5 number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1520; Dec. Dig. § 710.*]</p> <p>3. Municipal Cobpobations (§ 710*)—Private Sewers—Use—Regulations —Fraud.</p> <p>Plaintiff, before purchasing certain property in the plat, knew of the regulation as to such sewers, and, to induce defendant to extend its sewer and water systems to such property; represented that it was to be used as a private residence. Thereafter, however, she proceeded to use the same for a boarding house. Held, that plaintiff’s false representations entitled defendant to withdraw from its agreement to afford plaintiff sewer and water connections, and to sever plaintiff’s property from such connections.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1520; Dec. Dig. § 710.*]</p> <p>Woodward and Rich, JJ., dissenting.</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Bep’r Ipdexes</p>

Petition by Archie E. Baxter and others, directors of the Seneca Oil Company, for a voluntary dissolution. From a judgment'of dissolution, and an order of reference entered in such proceedings, James G. Graham and others appeal. Affirmed.

Action by William D. Faris and another against Walter C. Butler. From a judgment in their favor, but for less than they claimed, plaintiffs appeal. Reversed and remanded.

<p>1. Evidence (§ 217*)—Admissions—Party.</p> <p>In an action for damages caused by a truck, the statements of defendant as to his ownership of the truck or his connection with the accident were competent as admissions.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 760; Dec. Dig. i 217.*]</p> <p>2. Appeal and Ebrob (§ 1056*)—Harmless Erbob—Exclusion op Evidence.</p> <p>In an action for damages caused by a truck, where the negligence was clear, and where defendant’s ownership of the truck was the only real issue, the exclusion oí statements by defendant as to his ownership and his connection with the accident was reversible error.</p> <p>»For other cases see same topic & § ndmbbr in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>[Ed. Note—For other cases, see Appeal and Error, Cent Dig. §§ 4187-4193; Dec. Dig. § 1056.*]</p>

Action for rent alleged to be due under a written lease by the Thomas F. Martin Realty Company against George Cooke, Sr., and another. From an order denying a new trial on the ground of newly discovered evidence, defendant named appeals. Reversed, and new trial granted.

<p>Appeal and Error (§ 1011?)—Findings—Conclusiveness.</p> <p>The Appellate Term must affirm a judgment on conflicting evidence, though at variance With another judgment growing out of the same transaction, rendered by the trial court_and affirmed toy the Appellate Division.</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 Bennett Aronowsky against Samuel Greenstein and others. From a judgment for plaintiff against defendants Greenstein, Gordon, and Price, and dismissing the complaint as against defendant School of Biblical Instruction, defendants Greenstein, Gordon, and Price appeal. Reversed, and new trial granted as to defendants Gordon and Price, and affirmed as to defendant School of Biblical Instruction.

<p>Carriers (§ 318*)—Actions for Injuries—Sufficiency of Evidence—Negligence.</p> <p>Evidence in an action against a street railroad tor personal injuries, alleged to have been caused by the sudden starting of the car while plaintiff was getting off, held not sufficient to sustain a judgment for plaintiff.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*]</p> <p>«For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

In the matter of the application of the City of New York as to a new avenue between Ft.

from Municipal Court, Borough of Brooklyn, First District. Action by Louis Lebowitz against Peter Burden From a judgment dismissing the complaint upon the merits, after a trial the court without a plaintiff appeals. Affirmed.

Action by John F. Schiffmacher against the Brooklyn Heights Railroad Company. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed, and new trial granted.

Action by the McKinley Music Company against Abraham Mandel. Erom a judgment dismissing the complaint after trial on the merits, plaintiff appeals. Reversed, and new trial ordered.

<p>1. Master and Servant (§ 203*)—Injury to Servant—Assumption of Risk. Where an employe, engaged by means of a pole with a “T” .end in lifting quarters of beef suspended from an overhead track by a wheel and hook, was injured by the wheel falling off the pole and on him, and the accident was obviously attributable solely to the angle at which he held the appliance, the character and condition of which were known to him, the employer was not liable at common law.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.*]</p> <p>♦For other cases see "same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p> <p>2. Master and Servant (§ 107*)—Injury to Servant—“Ways, Works, Machinery, or Plant."</p> <p>A pole, with a “T” end to aid employés in lifting quarters of beef suspended from an overhead track by a wheel and hook, is not “ways, works, machinery, or plant,” within Employer’s Liability Act (Consol. Laws 1909, c. 31, §§ 200-204).</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*]</p>

<p>Damages (§ 174*)—Evidence—Competency.</p> <p>Where plaintiff’s automobile was injured through defendant’s negligence, evidence of what the expense of hiring another automobile during the period plaintiff’s car was being repaired would have been is incompetent to determine plaintiff’s loss, although money actually expended in the hire of another may be recovered.</p> <p>[Ed. Note.—Eor other cases, see Damages, Cent. Dig. §§ 462-467; Dec. Dig. § 174.*]</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 Brooklyn, First District.</p> <p>Action by Isidor Fredel against Louis Baldinger and another. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>Action by Henry Siegel and another against Adolph Eisner. Judgment for plaintiffs.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, First District.</p> <p>Action by Helen Kennedy against the Fulton & Flatbush Storage & Warehouse Company. From a judgment dismissing the complaint on the merits, plaintiff appeals. Affirmed.</p>

<p>Money Paid (§ 9*)—Action—Evidence.</p> <p>Evidence-in an action against an owner by an architect for money advanced by him to the contractor held not to support a recovery.</p> <p>[Ed. Note.—ITor other cases, see Money Paid, Cent. Dig. §§ 27-29 Dec. Dig. § 9.*]</p> <p>«For other cases see same topic & § numbeb in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes-</p>

Action by Jacob Davis and another against Austin J. Blanchard. From an order setting aside a judgment for defendant and granting a new trial,- defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Queens, Third District.</p> <p>Action by H. Stanley Clutsam against Charles McC. Chapman. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Seventh District.</p> <p>Action by Mary E. Pate, as administratrix, against the Prudential Insurance Company of America. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

<p>1. Brokers (§ 35*)—Conversion by Broker—Acts Constituting.</p> <p>Plaintiff, through a real estate brokerage' company of which defendants B. and D. were officers or employés, purchased furniture on which was a chattel mortgage. Before closing the sale, she told defendants that they must see that the mortgage was satisfied, and must have the mortgagee present when the sale was closed. At the time of closing the sale the mortgagee delivered a satisfaction piece of the mortgage to D., and plaintiff paid the purchase price to B., who handed it to the seller, with instructions to pay the amount of the mortgage to the mortgagee. The seller, after reading, signing, and acknowledging the bill of sale, left the office without paying the mortgagee. Plaintiff gave defendants no instructions when she paid them, the money, and made no protest against the payment to the seller. Held, that the facts failed to show a conversion of the money by defendants.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 27; Dec. Dig. § 35.*]</p> <p>2. Trover and Conversion (§ 25*)—Acts Constituting Conversion.</p> <p>If such facts did show a conversion by B., they wholly failed to show any conversion by D., who neither handled the money, nor gave any directions concerning its payment.</p> <p>[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. §§ 173-180; Dec. Dig. § 25.*]</p> <p>*For other cases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by the Lovejoy Company against the Stewart Printing Company. From a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Third District, rendered in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered.

<p>Master and Servant (§ 73*)—Contract or Employment—Security—Right oe Servant to Recover—Breach on His Part.</p> <p>Where a contract of employment as deliveryman provided that the employé would “faithfully account for all money collected by him as such driver,” such employé could not recover money deposited as security, where he had committed a breach of the contract by failing, after demand, to account for a sum nearly equal to the amount of his security, collected by him as driver.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 90-102; Dec. Dig. § 73.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & RepT Indexes</p>

Action by Joseph Rimland against Louis Marcus. From a_ judgment for defendant and an order denying a new trial, plaintiff appeals. Reversed, and new trial ordered.

Action by Herman Leczycki against Szoel Kuczynski, etc. From a judgment dismissing the complaint, with costs, plaintiff appeals. Reversed and remanded.

<p>Carriers (§ 158*)—Action for Nondelivery—Damages.</p> <p>In an action against an express company for damages for nondelivery, the shipper, upon whose valuation of the goods at a certain amount the contract was based, could not show or recover a greater amount.</p> <p>TEd. Note.—For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-703%, 708-710, 718, 718% ; Dec. Dig. § 158.*]</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Third District.</p> <p>Action by Louis Mehr against Nathan Starr. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>1. Courts (§ 189*)—Municipal Courts—Nonsuit.</p> <p>A judgment, rendered after defendant ^entered upon Ms defense, In the words, “For defendant, dismissing the complaint without prejudice on defendant’s motion at the close of the case,’’ constituted a judgment of nonsuit, under Municipal Court Act (Laws 1902, c. 580) § 248, providing that judgment that the action be dismissed, with costs, without prejudice to a new action, shall be rendered in the cases provided.</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>2. New Trial (§ 38*)—Grounds—Grant of Nonsuit.</p> <p>Where the complaint alleged facts constituting a cause of action, which were admitted at trial by defendant, a judgment of dismissal upon the merits was contrary to law, requiring a new trial.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 56; Dec. Dig. § 38.*]</p> <p>3. Appeal and Error (§ 671*)—Record.</p> <p>Orders specified in the notice of appeal, which have not been returned to the appellate court, cannot be reviewed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dee. Dig. § 671.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Husband and Wife (§ 19*)—Liabilities—Necessabies—Wife’s Agree-</p> <p>ment to Charge Herself.</p> <p>A wife may, by an agreement to that effect, charge herself personally for necessaries purchased by her for the family, while living with her husband.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§.121— 138; Dec. Dig. § 19.*]</p> <p>2. Husband and Wife (§ 23%*)—Liabilities—Necessaries—Wife as Hus-</p> <p>band’s Agent.</p> <p>Where a married woman, living with her husband, ordered groceries at plaintiff’s store, which were delivered to her home, and where bills were-sent to her, and, on demand for payment, she told plaintiff he would have to wait, the presumption was that the purchases were made as-the agent of the husband, and that he alone was liable.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig.- §§ 145, 146; Dec. Dig. § 23%.*]</p> <p>3. Frauds, Statute of (§ 23*)—Promise to Pat Debt of Another.</p> <p>A married woman’s promise to pay for necessaries purchased by her, and for which her husband was primarily liable, was, at most, an oral-promise to pay the debt of another, within the statute of frauds.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.</p>

• Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Richard Moerman against Marie E. Johnson. From a judgment for plaintiff, defendant appeals, and from an order denying plaintiff’s motion to set aside the judgment plaintiff appeals. Judgment reversed, with costs on defendant’s appeal, and plaintiff’s appeal dismissed.

In the matter of the application to probate the will of Elizabeth Connell, deceased. On motion of persons claiming to be heirs at law and next of kin of deceased to vacate an order granting ancillary administration. Reference ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Theodore Zinsmeister against Christian Fauth. From a judgment for defendant, plaintiff appeals. Reversed, and directed for plaintiff.</p>

<p>1. Appeal and Error (§ 1002*)—Review—Verdicts—Effect.</p> <p>Upon appeal all disputed questions of fact must, by the appellate tribunal, be resolved in favor of the party receiving verdict.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3935- ' 3937; Dec. Dig. § 1002.*]</p> <p>2. Attorney and Client (§ 145*)—Compensation Contract.</p> <p>Where an attorney was unable to secure a compromise within the limits set by bis client, and the client, in authorizing a compromise for a greater sum, limited the amount he would pay for the compromise and attorney’s fee to a fixed sum, the attorney could not, after effecting the compromise under the last authorization, claim the fee which it was agreed he would be entitled to in case he effected the compromise for the first sum.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 334-335; Dec. Dig. § 145.*]</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Gimmi Crapanzano against Joseph Leone, Sr., and another. Judgment for defendants, and plaintiff appeals. Reversed.</p>

<p>Landlobd and Tenant (§ 182*)—Lease—Suspension of Rent.</p> <p>On January 1st the owner of an apartment house told the tenants that he could not afford to heat the premises longer, and that they must either heat them, in which case he would deduct $5 a month for rent, or vacate, but that the tenants could have a few days to decide, whereupon they decided to heat the house themselves, but afterwards became dissatisfied with that arrangement, and about January 25th the landlord again undertook to furnish the heat. Held, that the conversation on January 1st did not operate as a suspension of the rent during January, at most only entitling them to deduct $5 from the rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 731, 732-735; Dec. Dig. § 182.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Hep’r Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Anne T. Bedell against Bernard J. Abrahams and another. From a judgment in favor of defendants, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>1. Appeal and Error (§§ Í011, 1151*)—Findings—Judgment—Correction.</p> <p>A finding on conflicting evidence, rendered without prejudicial error, will not be disturbed on appeal; but errors in computing the amount of the judgment on the finding will be corrected, and the judgment, as corrected, will be affirmed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989, 4498—4506; Dec. Dig. §§ 1011, 1151.*]</p> <p>2. Costs (§ 146*)—Amount oe Recovery in Municipal Court.</p> <p>Where the amount recovered in the Municipal Court, of the City of New York in an action for the reasonable value of. services is less than $300, the costs must be reduced to $20.</p> <p>[Ed. Note.-—For other cases, see Costs, Cent. Dig. § 533; Dec. Dig. § 146.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

Action by Andrew Kohler against August A. Kimmel. Erom a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered.

Action by John Leslie Spahn and another, partners in the name of the Cora Youngblood Corsen Sextette, against the Winter Garden. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.

Action by George II. Sunderman against the People of the State of New York and others to compel the registration of lands. Motion by plaintiff for judgment on the pleadings. Denied.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Frederick A. Stokes Company against William F. Carell. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Isaac H. Leiter, doing business as the National Sanitary Flooring & Roofing Company, against Innis, Speiden & Co. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

Action by Joseph A. Carey against Gottlieb Heim and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted.

<p>■ Application by Michael A. Verdi to punish for contempt Guiseppe ■Da Russo and others. Guilty.</p>

In the matter o-f the application of the City of New York relative to acquiring title for the purpose of opening Remsen Avenue. From a judgment denying confirmation off the report of commissioners of estimate and assessment, the City appeals. Order affirmed.

Action by Louis Saks and another, doing business as the American Showcase Company, against Herbert B. Drake and others, doing business as H. B. Drake & Co. Judgment for plaintiffs, and defendants appeal. Modified.

<p>Action by Joseph Rourke against Herbert Turrell. On motion to vacate an order appointing a receiver. Order modified, and motion denied.</p>

Action by Joseph Keller against Edward Friedman. On motion for reargument of a motion for a retaxation of costs. Motion for reargument granted. Neither the plaintiff nor the defendant filed a written notice of appearance. There were, however, on file several stipulations of adjournment signed by the attorneys for the respective parties. These stipulations did not contain the address of the attorneys, nor were there any other papers in the action containing the address.

Condemnation proceeding by Charles L. Marshall and others against Albert R. Hatfield and others. On motion to strike from the interlocutory judgment a provision for costs, and to cancel the docket thereof. Motion granted.

<p>1. Trusts (§ 25*)—Creation—Form.</p> <p>No particular form of words being necessary to create a trust, the word “trustee” need not be used.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 31-37; Dec. Dig. I 25.*]</p> <p>2. Deposits in Court (§ 4*)—Trust Funds—“Monets and Securities Paid</p> <p>into Court.’.’</p> <p>Funds held by a trust company under Laws 1896, c. 110, which authorized appointment of a person or trust company to hold them in trust under a will, and.under a judgment pursuant to that act providing for the care of the fund and payment of income to beneficiaries under the will, are not “moneys and securities paid into court,” within Code Civ. Proc. § 744a, added by Laws 1908, c. 182, which provides that where moneys and securities paid into court under order and held by a trust company have not been paid to the chamberlain of the city of New York, or to the county treasurer, the comptroller may obtain an order directing transfer from such company to the chamberlain or the proper county treasurer.</p> <p>•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Bep’r Indexes</p> <p>[Ed. Note.—For other cases, see Deposits in Court, Cent. Dig. §§ 5, 6; Dec. Dig. § 4.*]</p> <p>Dowling, J., dissenting.</p> <p>♦For other cases see same topic & § ktumbee in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Insurance (§ 750*) — Mutual Benefit — Forfeiture —: Nonpayment of</p> <p>Dues.</p> <p>The last regular meeting of a beneficial association having been on November 5, 1911, and no dues having been paid thereafter, it cannot be said a member had on January 7,-1912, failed to pay dues for two consecutive months, and so, under a by-law, was in arrears and had forfeited all rights to benefits; a by-law providing that monthly dues are regular, if made on the day fixed for regular meetings, and the financial month shall be computed from regular meeting to regular meeting, and another providing that the regular meeting shall be held on “a Sunday” of the month.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1S95, 1896, 1903; Dec. Dig. § 750.*]</p> <p>2. Insurance (§ 805*)—Claims Against Society—By-Laws.</p> <p>The provision of a by-law of a beneficial association that all cases must first be passed on by the board does not apply to claims against the society, as that would make it a judge of its own case.</p> <p>[Ed. Note.—E'er other cases, see Insurance, Cent. Dig. §§ 1987, 1988; Dec. Dig. § 805.*]</p> <p>3. Insurance (§ 798*)—Right to Benefits-^Conditions.</p> <p>The provision of a by-law of a beneficial association that money for payment of a benefit “will be drawn from the mortuary assessment fund” does not make the presence of a sufficient amount in such fund at the time the right to the benefit accrues a condition of liability.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1981, 1985; Dec. Dig. § 798.*]</p> <p>«For other cases see same topic & I number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

<p>Supplementary opinion on application to register title. Granted.</p>

<p>1. Execution (§ 402*)—Execution Against Wages—Provisions of Obdeb.</p> <p>Under Code Civ. Proc. § 1391, providing that, where any wages, etc., are or shall become due the judgment debtor, the court shall, upon application, order that execution issue against such wages, which “shall become a lien and a continuing levy upon the wages, and said levy shall be a continuing levy until said execution and the expenses thereof are fully satisfied,” an order directing an execution to issue against wages should not provide that the levy shall become a continuing levy until the execution and expenses thereof, “together with $2.85, actual disbursements incurred since obtaining said judgment, which are hereby allowed upon this proceeding, are fully satisfied and paid”; the allowance of the additional sum not being authorized.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1156-1159; Dec. Dig. § 402.*]</p> <p>2. Execution (§ 402*)—Obdeb Directing Issuance—Place of Application.</p> <p>Orderly practice requires that an order directing the issuance of an execution against wages should be applied for in the judicial district where the judgment debtor lives.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1156-1159; Dec. Dig. § 402.*]</p> <p>♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes</p>

<p>1. Execution (§ 364*)—Supplementary Proceedings—Power oe Court—</p> <p>Property in Possession of Third Person.</p> <p>Code Civ. Proe. § 2447, which empowers the court to direct a third person in the possession of specific personal property of a judgment debtor to deliver such property to a sheriff or receiver, is expressly limited to property as to ■ which the rights of the debtor are not substantially disputed.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1100, 1101; Dec. Dig. § 364.*]</p> <p>2. Execution (§ 405*)—Supplementary Proceedings—Receiver.</p> <p>Under Code Civ. Proc. § 2447, the proper procedure, where the question of title to property in the hands of a third person is raised, is to appoint1 a receiver, who can test the question by action, and not to determine the question upon motion.</p> <p>[Ed. Note.—For other cases, see Execution, Dec. Dig. § 405.*]</p> <p>*For other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep r Indexes</p>

Action by one O’Flynn against the New York Central & Hudson River Railroad Company. There was a verdict for plaintiff, and defendant moves for a new trial. Motion granted.

Action by one Rathers against one Kaplan. On motion by third party to vacate the restraining provision of a third party order. Motion granted.

Action by Davis, Dorland & Co. against August Husing. From a judgment for plaintiff, after a trial before the court without a jury, defendant appeals. Affirmed. '

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Pauline Berlcowitz against the United Dressed Beef Company of New York. Prom an order denying a motion to open a default in summary proceedings, rendered in the Municipal Court of the City of New York, defendant appeals. Reversed, and motion to open default granted on terms.</p>

Action by Winifred E. Harding against Eva K. Conlon. Application by judgment creditor for the appointment of a receiver of property belonging to the judgment debtor, in the hands of the receiver of the premises in which such debtor was entitled to a dower interest. Order made.

Action' by Isaac Brink against George G. Goodelle. Judgment for defendant. Plaintiff and defendant entered into a contract whereby the defendant, a real estate broker, was authorized to procure a purchaser for certain property on certain terms, and to enter into a written contract in the name of the plaintiff with any such purchaser upon such terms.

<p>Accord and Satisfaction (§ 11*)—Compromise and Settlement (§ 5*)—Re-ceipt in Full—Acceptance of Check.</p> <p>Tiie act of a creditor in accepting and collecting a check upon which was written the words “in full payment to date,” following an honest dispute as to the balance due on an account, constituted a satisfaction of the account.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-83; Dec. Dig. § 11;* Compromise and Settlement, Cent. Dig. §§ 10-16; Dec. Dig. § 5.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6329.]</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, Ninth District.</p> <p>'Action by Albert Epstein against Samuel Hugel. From a judgment on a verdict for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by Charles S. Hirsch and others, partners as Hirsch, Eilienthal & Co., against the Military-Naval Corporation. From a judgment for plaintiffs, defendant appeals, also bringing up for review an order denying its motion to interplead Edward Farrow in its place and stead, on its paying into court the amount claimed. Reversed, and new trial ordered.

Action by the Toric Optical Company against August C. Bechtold. From a judgment entered in favor of the plaintiff on a verdict for $700.27 and costs, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered. '

Action by Jacinto Laria Gutierrez against Alvaro Garcia and another. From a judgment for defendants upon the verdict of a jury, and from an order denying a motion for a new trial, plaintiff appeals. Reversed, and a new trial ordered.

Action by Morris Levy against Ransom E. Wilcox and another, doing business under the firm name and style of Wilcox & Shelton. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Brie Railroad Company against William Hills, Jr. From so much of an order of the New York City Court as requires defendant to make his answer more definite and certain, he appeals. Modified and affirmed.</p>

<p>Attachment (§ 113®)—Affidavits—Sufficiency.</p> <p>Under Code Civ. Proc. § 3169, subd. 3, providing that attachment shall issue upon proof that the defendant is about to remove property from the state with intent to defraud his creditors, an affidavit charging that the defendant told affiant that he wanted to leave for Washington, and thence go to California, where he intended to remain, and that affiant knew him to be irresponsible, and that his only purpose in leaving the state was to remove his property with intent to defraud his creditors, will not warrant the issuance of an attachment; it not authorizing the inference that defendant intended to defraud his creditors and not stating any facts tending to establish fraudulent intent.</p> <p>[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 307-311; Dec. Dig. § 113.®]</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 J. Oppenheimer & against Samuel Lehman and others, copartners, doing business as Lehman Bros. From a judgment for defendants, plaintiff appeals.' Affirmed.</p>

<p>Master and Servant (§ 270*)—Injury to Servant—Admission of Evidence.</p> <p>In an employe’s action for injuries from the falling of a coal hopper lid, which became disengaged from the hook which held it open, it was error to exclude evidence of the condition of the hook before and after the accident.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*]</p> <p>*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes</p>

Boland against the Pennsylvania Railroad Company. From a judgment 'dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Giuseppe Rapone against the Illinois Surety Company. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Reversed and remanded.</p>

Action by Charles E. Grünewald against Joseph Brinkworth. Erom a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by John F. Reynolds against Orestes U. Bean. From an order vacating an attachment, plaintiff appeals. Affirmed.</p>

<p>Action by the Adams Laundry Machinery Company against Joseph H. Prunier.</p>

<p>Action by Giovanni Banchetli, as administrator, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Edmund Batchis_ against George Leask and others.</p>

<p>Action by Anton Bisinger against the Renault Taxi Service.</p>

<p>Action by Vincent Bottega against Peter C. Campbell.</p>

<p>Action by the Brooklyn Mason Contracting Company against Max Berger and another.</p>

<p>Action by Vacil D. Bozovsky against the 'Buffalo & Lake Erie Traction Company.,</p>

<p>Action by James N. Butterly against James A. Deering.</p>

<p>Action by Michael J. Craven against the Eccentric Association of Engineers No. 1 and others. E. P. ICilroe, of New York City, for appellants. M. S. Schector, of New York City, for respondent.</p>

<p>Action by Adam Dickey against the International Railway Company.</p>

<p>Action by John- J. Dickinson against David J. Tysen, impleaded with others.</p>

<p>Action by the Eddy Glickman Building, Concreting & Improvement Company against the Gainsborough Construction Company and others.</p>

<p>Action by Michael W. Flynn against the New Xork, Westchester & Boston Railway Company and another.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Samuel Gordon against Photias Boondas. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Action by the Granite Associates against the Lippman Realty Company and others.</p>

<p>Action by Katerina Haberland against the City of New York, impleaded with others.</p>

<p>Action by the Gutta Percha & Rubber Manufacturing Company against Charles J. Holman, as treasurer, etc.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Third District. Action by Joseph P. Hamblen against George Wirsching. From a judgment for plaintiff,' defendant appeals. Reversed, and new trial ordered.</p>

<p>Action by Rudolph Heiser against the Cincinnati Abattoir Company.</p>

<p>Action by the Howard Estates Development Company against Benjamin E. Valentine and others.</p>

<p>Action by Lorena Ridgely Jones against Carolyn A. Dow.</p>

<p>Action by Lorena Ridgely Jones against Carolyn A. Dow.</p>

<p>Action by Elizabeth Klein, as executrix, etc., of Peter Klein, deceased, against the Long Island Railroad Company.</p>

<p>In the matter of Garrett Kirby.</p>

<p>Action by George S. Kidder against the Port Henry Iron Ore Company of .Lake Champlain and others.</p>

<p>Action by Silverius Koellhoffer against BAnry Hillebrand and others.</p>

<p>Action, by the Long Island Railroad Company against Laura M. Fairchild and .others.</p>

<p>Action by Arthur G. Marceau against the Rutland Railroad Company.</p>

<p>Action by Joseph Masel against the Brooklyn Heights Railroad Company.</p>

<p>Action by the M. Steinert & SonsOompany, a corporation, against Anselmo Gironda.</p>

<p>Action by the National League of Commission Merchants of the United States against George Homung.</p>

<p>Action by Henry J. Pase against Julia Bernheimer.</p>

<p>Action by Spencer B. Parker against the Erie Railroad Company.</p>

<p>Proceeding by the People of the State of New York against Stephen Kramer.</p>

<p>Proceeding by the People of the State of New York against Henry Kressie.</p>

<p>Action by Eva K. Rowley against James A. Gorham, etc.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Third District. Action by Samuel Sheingold against Alfred Baer. From an order denying defendant’s motion for a new trial on the ground of fraud and newly discovered evidence, defendant appeals. Reversed, and motion for new trial granted. See, also, 145 App. Div. 943, 130 N. Y. Supp. 1131.</p>

<p>Action by Gertrude D. Shaw against William Barrett Shaw and another,</p>

<p>Action by Tomassina Spila, as administratrix, etc., of John Spila, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Appeal from Special Term, Kings County. Action by Charles Smith against the Excelsior Brewing Company. From an order allowing an amendment to the complaint, defendant appeals. Afirmed.</p>

<p>Action by the Société Anonyme Des Glaces Nation ale Beiges against Jacques Kahn.</p>

<p>Action by the Southern Cotton Oil Company against the Charles F. Garrigues Company.</p>

<p>Action by John D. Stem against Benjamin V. W. Owens.</p>

<p>In the matter of Benjamin Steinman and another against Eva K. Conlon.</p>

<p>In the matter of the application of the City of New York, etc., Thirty-Ninth Street Ferry.</p>

<p>Action by Vitacreseenza Summo, as administratrix, against the Snare & Triest Company and another.</p>

<p>Action by Florence E. Townsend against George S. Townsend.</p>

<p>Action by John Henry Wallace against the Village of Canandaigua.</p>

<p>Actions by Julius G-. Wetzlar against Catherine S. Wood and the New York Finance Company, impleaded with others.</p>

<p>Action by Marcella Weil against the People’s Surety Company of New York.</p>

<p>Action by Rudolph Weiss against Bernath Weiss and another.</p>

<p>In the matter of William R. Will-cox and others.</p>

<p>Action by John J. Wood against William Hofmann.</p>

<p>Action by William Ziener against George W. Dinch, as receiver.</p>