Volume 139 — New York Supplement

<p>Landlobd and Tenant (§ 164*)—Negligence of Landlord.</p> <p>A landlord was not guilty of negligence for failure to nail a rug to the floor in the hall of a tenement house, as a result of which an infant child of tenants was injured.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 630-641; Dec. Dig. § 164.*]</p>

Action by the Marine & Contractors’ Supply Company against Harry Paltrowitz. From a judgment for plaintiff, after a trial by the court without a jury, defendant appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Henry Schroeder against Meyer Jarmulowsky. Erom a judgment for plaintiff, defendant appeals.</p>

Action by Ben A. Buxton, doing business, under the firm name and style of the Meacham-Buxton Mercantile Agency, against Charles L. Lietz. From a judgment (136 N. Y. Supp. 829) dismissing the.complaint, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by the Martin L. Hall Company against J. Jackson Todd. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Guaranty (§ 87*)—Contracts—Construction—“Company.”</p> <p>Plaintiff, who furnished materials to the T. Co., a corporation, under a guaranty executed by defendant for the furnishing of goods to T. & Co., may recover, even though it appeared that there was a partnership by the name of T. & Co.; the difference in names not constituting an actual variance, or requiring a departure from the rule that a contract of guaranty must be strictly construed, and cannot be varied by parol, and the use of the word “company” not necessarily implying a partnership.</p> <p>[Ed. Note.—For other cases, see Guaranty, Cent. Dig. § 101; Dec. Dig. § 87.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1347-1350.]</p> <p>2. Guaranty (§ 16*)—Contracts—Consideration.</p> <p>Where the form of a guaranty contemplated subsequent deliveries in reliance thereon, the deliveries themselves are sufficient consideration.</p> <p>[Ed. Note.—For other cases, see Guaranty, Cent. Dig. §§ 14-17; Dec. Dig. § 16.*]</p>

Appeal frpm City Court of New York, Special Term. Action by Morris Davidson against Pincus Unger. From, an order denying defendant’s motion to set aside a judgment, on the ground that he was not served with summons, defendant appeals.

<p>Usury (§ 56*)—Contract—Attorney’s Fees.</p> <p>Defendant G., being in financial straits, applied to bis attorney to procure Mm a loan of $5,000 on an undivided interest in certain real property, which was already incumbered by a prior mortgage. The attorney advised him as to the difficulty of obtaining the loan, and that it would be necessary to pay a bonus of 10 per cent. The attorney applied to plaintiff, who was another client, who agreed to make the loan on certain conditions, which were complied with, gave the attorney a check for $5,000, and left the preparation of the necessary papers to.him. These having been executed, the attorney distributed the proceeds of the loan for G., charging Mm $500 for Ms services in procuring it. Plaintiff received no bonus, and had no knowledge of the attorney’s act in retaining a part of the proceeds as commissions, did not authorize it, and was no party to G.’s agreement therefor. Held, that the attorney represented . plaintiff only in preparing the necessary papers to secure the loan, and was the attorney for G. in receiving and disbursing the proceeds, and that the loan was not usurious because of the charging of .such attorney's fees or commissions.</p> <p>[Ed. Note.—For other cases, see Usury, Gent. Dig. §§ 122-127; Dec. Dig. § 56.*]</p>

<p>Interest (§ 37*)—Mortgage—Maturity of Debt.</p> <p>Where a bond secured by a mortgage provided that the obligor should pay to the obligee the principal sum in five years, with interest at 4% per cent., and thereafter interest to be paid semiannually on the 1st day of June and December until the principal sum shall be paid, the last provision did not preclude the obligee from raising the rate of interest after maturity of the loan; the provision fixing the rate of interest applying only to payments before maturity, and the mortgagee upon default being entitled to claim the interest as damages.</p> <p>[Ed. Note.—Ear other cases, see Interest, Cent. Dig. §§ 77, 78; Dec. Dig. § 37.*]</p>

Application by Mary M. Nyce for a writ of certiorari to review the action of Robert Johnson, County Treasurer of Orange County, in refusing to issue to relator a liquor tax certificate.

<p>Action by Arthur G. Fries against Frank Parr and another. Judgment of dismissal.</p>

Action by Maurice Kraus, doing business as the Kraus Manufacturing Company, against the Comet Film Company. From a judgment by default in favor of the plaintiff, and from an order denying defendant’s motion to open the default, defendant appeals. Order reversed, and default opened, upon defendant’s repayment of $10 costs and upon his deposit of the amount of the judgment or his undertaking as provided for by Municipal Court Act, § 256; and appeal from judgment dismissed.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Ernest Booth against the A. Eeldman Construction Company. From a judgment of the Municipal Court of the City of New York in favor of plaintiff, defendant appeals.</p>

<p>Judgment (§ 161*)—Opening Default—Sufficiency of Showing.</p> <p>Defendant’s motion to open a default should have been granted, where-his affidavits, if true, showed that he probably had a meritorious defense, though his proposed answer was improperly verified.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 317, 318; Dec. Dig. § 161.*]</p>

Action by Bessie Craig against Stephen J. Roach. From an order •denying a motion to preclude the giving of evidence for failure to serve a bill of particulars, defendant appeals.

Action by the Buffalo Commercial Bank against John L. Nice and another. Demurrer to complaint overruled, with leave to answer within 20 days upon payment of costs. Appeal dismissed, 138 N. Y. Supp. 1109.

Action by Frank L. Cole against Lutz & Sheinkman. From a judgment for plaintiff, and an order denying its motion for new trial and to set aside the verdict or reduce the amount thereof, defendant appeals.

Action by John Kenny against Edith Phyfe. From an order denying defendant’s motion to require plaintiff to separately state and number the causes of action alleged in the complaint, and to make it more definite, defendant appeals.

Action by Mary Kramer against Max Barth , and another. From an order-denying defendants’ motion to vacate and set aside execution, and compel plaintiff to enter an interlocutory judgment on demurrer, defendants appeal.

Action by Girard Nugent, an infant, by Arthur A. Nugent, his guardian ad litem, against the Brooklyn Heights Railroad Company. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Arthur A. Nugent against the Brooklyn Heights Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Rachel Dutcher against John Wanamaker. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.</p>

<p>1. Bills and Notes (§ 47*)—Delivery on Condition.'</p> <p>A note being given on condition that the maker should not be called on to pay it, if, when it was due, the indebtedness of the payee to another, payment of which the maker had guaranteed, existed to .the amount of the note; and,' the indebtedness having so existed at such time, the noté never had a valid' inception. •</p> <p>[Ed. Note.—For other cases, see Bills and' Notes, Cent. Dig. § 64;' Dec. Dig. § 47.*] "</p> <p>2. Bills, and Notes (§ -92*)—Consideration.</p> <p>D.’s- contract of purchase from C. providing that he should give a bond for $1,000 to C.’s wife payable in future installments, and she refusing to sign a deed unless she received $200 down, and C. having paid it, on ' ' D!’s refusal "to do só,'D.’s note for $200 then given'C., on suggestion.of another, was without consideration.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-212; Dec. Dig. § 92.*]</p>

<p>Application for letters of administration de bonis non of the goods, chattels, and credits of Emma Hagan, deceased.</p>

<p>Application for the probate of a codicil to the last will and testament of Oscar Egerton Schmidt.. deceased. Decree entered, admitting the codicil to probate.</p>

<p>Action to construe the will of Charles Rau, deceased. Frieda Rau Cormier found entitled under the will to bank stock only.</p>

<p>1. Electbicity (§ 19*)—Actions—Sufficiency of Evidence.</p> <p>Where a street lamp, from contact with which plaintiff’s intestate received an electric shock causing his death, was suspended in the usual and ordinary way, so that it could be lowered for the purpose of trimming, and was intended to be and at frequent intervals was so lowered, and the evidence showed that there was no defect in the light or apparatus by which it was raised or lowered, in so far as the raising or lowering, or security of it when raised, were in question, the mere fact that the lamp in some way had been lowered from its normal position until it hung about four feet above the street was not evidence of negligence, or that the lamp fell by reason of some defect in the apparatus which held it in place.</p> <p>[Ed. Note.—Eor other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]</p> <p>2. Electbicity (§ 16*)—Defects—Constbuctive Notice.</p> <p>Where a street lamp had been lowered from its normal position only about an hour and a half, and the fact was in no way indicated at the power house, the finding that the electric light company had constructive notice was contrary to the evidence.</p> <p>[Ed. Note.—For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16.*]</p> <p>3. Electbicity (§ 19*)—Findings—Inconsistent Findings.</p> <p>In an action for death from an electric shock, caused by contact with a street lamp which had in some way become lowered from its normal position, the jury’s answer to special interrogatories that they did not know whether the electric light company exercised reasonable care in erecting its lamps, poles, and apparatus thereon, or in maintaining them, was inconsistent with a special finding that the lamp fell because of a defect in the apparatus holding it in place, and with a general verdict for plaintiff.</p> <p>[Ed. Note.—For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*],</p> <p>4. Tbial (§ 352*)—Special Intebbogatobies—Fobm.</p> <p>While special interrogatories as to whether an electric light company exercised reasonable care in the erection of its lamps, poles,' and apparatus, and in maintaining them, were objectionable because plural in their character, their submission did not prejudice plaintiff, since, if there was negligence in the maintenance of any lamp or .pole, the jury should have so answered the questions.</p> <p>« [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.*]</p>

<p>Sunday (§ 29*)—Criminal Prosecution—Persons Indictable—Theater Managers and Performers .</p> <p>Penal Law (Consol. Laws 1909, c. 40) § 2152, entitled “Theatrical and Other Performances on Sunday,” forbids performances on Sunday, and makes every person aiding in such performance, by advertisement, posting, or otherwise, and every owner or lessee of any building who leases it for such performance, guilty of a misdemeanor. Performers at a theater were informed against, jointly with the managers thereof, for giving a stage exhibition of jugglery on Sunday of a kind forbidden by the Penal Law, and in that the managers, by advertisement and otherwise, aided the performance by permitting the stage to be used therefor, by admitting persons who had paid an admission, and by distributing programs. Held, on demurrer, that the information charged more than one offense, the purpose of the statute not being to change the status of actors or others who labor in a theater on Sunday, who should be proceeded against under section 2145, providing for a fine of not more than $10.</p> <p>[Ed. Note.—For other cases, see Sunday, Cent. Dig. §§ 13, 67-72; Dec. Dig. § 29.*]</p> <p>O’Keefe, J., dissenting.</p>

<p>Action by Gardner L. Field against Adelaide F. Field for separation.</p>

<p>Application by maternal aunt for letters of guardianship of the</p> <p>person and estate of Mildred Lamb, minor, opposed by the father. Father not appointed, but his religious faith respected, and application granted, with qualifications.</p>

<p>1. Trusts (§ 298*)—Accounting by Trustee—Scope of Surrogate’s Jurisdiction.</p> <p>While the surrogate cannot decide abstract questions, he may on an accounting by the trustee under a will for testator’s daughter, a domiciled Italian by marriage, and the remaindermen, decide a motion by one respondent surviving husband of the daughter to overrule a defense set forth in the answer of an adverse respondent as insufficient in law, in that the construction of the daughter’s will, made in New York as an execution of a power given by testator, was to be determined by the laws of the state of New York, and not by the laws of Italy.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 417; Dec. Dig. § 298.*]</p> <p>2. Courts (§ 202*)—Probate Jurisdiction—Pleading in Surrogate’s Court —Demurrer—Admissions.</p> <p>Although there is no such thing as a demurrer in the Surrogate’s Court, a motion by a respondent in an accounting to overrule a defense set up in an answer of an adverse respondent as insufficient in law necessarily involved the admission of all the allegations of the petition so far as they are not denied by the answer, and also the admission of all of the allegations contained in such answer.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 480-486; Dec. Dig. § 202.*]</p> <p>3. Powers (§ 36*)—Execution—Reference to Power.</p> <p>A will of the donee of a power of appointment making no reference to the power would not at common law be an exercise of the power.</p> <p>[Ed. Note.—For other cases, see Powers, Cent. Dig. §§ 137-149, 155; Dec. Dig. § 36.*]</p> <p>4. Wills (§ 436*)—Construction—What Law Governs.</p> <p>It is a general principle, both of international and municipal law, that wills of personalty are to be construed and effect given them by the law of the domicile.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 947-950; Dec. Dig. § 436.*]</p> <p>5. Powers (§ 36*)—Execution—What Law Governs.</p> <p>Where a power is a purely beneficial power or assets of the donee, the lex loci domicilii'of the donee may govern the construction of the testamentary execution and distribution under the will. ■</p> <p>[Ed. Note.—For other cases, see Powers, Cent. Dig. §§ 137-149, 155; Dec. Dig. § 36.*]</p> <p>6. Powers (§ 25*)—Construction—Interest of Donee.</p> <p>The beneficiary under a testamentary ■ trust, giving her the income of personal property for life, and with a power upon her death to appoint the principal to her issue surviving the donor, and, if there was no surviving issue, to make a testamentary appointment as to one-half of it, in default of which it should go to the donor’s next of kin, was merely the instrument through which the donor’s will was effected, and had no estate in the property affected by his will.</p> <p>[Ed. Note.—For other cases, see Powers, Cent. Dig. §§ 71-75; Dec. Dig.. § 25.*]</p> <p>7. Powers (§ 1*)—Personalty—Construction.</p> <p>Technical powers in connection with personal property are authorities to do an act in relation to such property, or to create and revoke interests therein or charges thereon which the owner granting the power might himself lawfully perform.</p> <p>[Ed. Note.—For other cases, see Powers, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>8. Powers (§ 25*)—Interest of Donee—“Beneficial Power”—“Power in Trust.”</p> <p>A power to appoint to others than the donee of the power is a “power in trust,” and not a “beneficial power.” It is a mandate rather than the property of the donee.</p> <p>[Ed. Note.—For other cases, see Powers, Cent. Dig. §§ 71-75; Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 748-749; vol. 6, p. 5480.]</p> <p>9. Powers (§ 36*)—What Law Governs—Domicile of Donor.</p> <p>In respect of powers of testamentary appointment over settled property in England or America, the law of the domicile of the donor of the power, and not that of the donee, determines, in most cases, whether there is sufficient testamentary execution of the donee’s power of appointment.</p> <p>[Ed. Note.—For other cases, see Powers, Cent. Dig. §§ 137-149, 155; Dec. Dig. § 36.*]</p> <p>IQ. Domicile (§ 5*)—Domicile by Operation of Law—Marriage.</p> <p>The marriage of a New York lady to a subject of Italy, there domiciled, made Italy her domicile.</p> <p>[Ed. Note.—For other cases, see Domicile, Cent. Dig. §§ 24r-35; Dec. Dig. § 5.*]</p> <p>11. Powers (§ 36*)—Execution—What Law Governs—Statutes.</p> <p>A lady domiciled in Italy because of her marriage to an Italian subject domiciled there, having a power of appointment under the will of her father, which was executed and probated in New York as to personal property in the hands of trustees domiciled in New York, while herself in New York, executed her will giving all her real and personal property to her husband, which will was proved in Italy and also by ancillary proceedings in New York. Held that, the factum of the will having been adjudicated, the execution of the power of appointment was to be construed according to the law of New York.</p> <p>[Ed. Note.—For other cases, see Powers, Cent. Dig. §§ 137-149, 155; Dec. Dig. § 36.*]</p> <p>12. Powers (§ 36*)—Execution—Reference to Power—Statutes.</p> <p>Under Personal Property Law (Consol. Laws 1909, c. 41) § 18, which dispenses with the necessity of a special reference to personal property embraced in a power to bequeath, unless the intent that the will of the donee shall not operate as an exercise of the power expressly or impliedly appears, a will which gave all testatrix’s real and personal property to her husband, without malting any reference to her power of appointment, under her father’s will, of personal property in the hands of trustees in New York, operated as an exercise of the power.</p> <p>[Ed. Note.—For other cases, see Powers, Cent. Dig. §§ 137-149, 155; Dec. Dig. § 36.*]</p> <p>13. Wills (§ 436*)—Testamentary Disposition—What Law Governs—Statutes.</p> <p>Decedent Estate Law (Consol. Laws 1909, c. 13) § 47, which declares that, in the absence of special statutory provision, the effect of the testamentary disposition of the personal property situated in the state, and the disposition of it where not disposed by will, are regulated by the law of the state or country of which decedent at the time of his death was a resident, as well as Code Civ. Proc. § 2694, from which it was taken, are only declaratory of the prior law, and the law of the state as to the validity and effect of testamentary disposition as depending upon the rules of private international law stand as if neither section 47 nor section 2694 had been enacted.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 947-950; Dec. Dig. § 436.*]</p>

<p>Action by Arthur T. Reilly against the City of New York. Defendant is entitled to. judgment.</p>

<p>Appeal from Special Term, Erie County.</p> <p>Action by Newton E. Farnsworth against the Boro Oil & Gas Company. From a judgment for plaintiff (76 Mise. Rep. 37, 134 N. Y. Supp. 348), defendant appeals.</p>

<p>Action by William Gabriel against Barbara Gabriel and1 others.</p> <p>Judgment for defendants.</p>

Action by the Union National Bank of Franklinville against Dan-ford W. Dean, impleaded with another. From a judgment for plaintiff, and an order denying a new trial, defendant Dean appeals. The action was commenced on the 15th day of October, 1901, by service of the summons upon the defendant. Dean.

<p>Action by Lillian Carpenter against B. L. Chapman and another, in which defendants counterclaimed. Complaint and counterclaim dismissed.</p>

Action for money had and received by John Brady against Margaret A. Donohue, executrix of Philip Donohue, deceased. From.a judgment for plaintiff, defendant appeals.

<p>Corporations (§ 642*)—Foreign Corporation—“Doing Business” in the State.</p> <p>Where orders for special building reports were sent to a Chicago publishing company having no capital invested in New York, but having an office there for soliciting business, the transaction did not constitute “doing business” in New York by the publishing company, within General Corporation Law (Consol. Laws 1909, c. 23) § 15, requiring foreign corporations doing business in the state to obtain a certificate and pay a license tax.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2155-2160; vol. 8, pp. 7640, 7641.]</p>

<p>1. Evidence (§ 332*)—Documents—Judicial Records—Entire Record.</p> <p>In an action to recover money represented by certificates of deposit claimed to belong to plaintiff’s intestate, it was error to admit the record of proceedings in the Surrogate’s Court, and his findings in pro.ceedings against defendant herein to discover assets of the estate, since the certificates could have been produced by subpoena duces tecum if they were in the surrogate’s custody.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1237-1246 Dec. Dig. § 332.*]</p> <p>2. Appeal and Error (§ 1052*)—Harmless Error—Admission of Evidence.</p> <p>Where, in an action to recover money represented by certificates of deposit claimed to belong to plaintiff’s intestate, defendant did not make out a prima facie case of ownership of the certificates or their proceeds, any error in admitting evidence would not require reversal of a judgment for plaintiff.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*]</p> <p>3. Evidence (§ 265*)—Certificates of Deposit—Title.</p> <p>Mere admissions of intestate, while certificates of deposit were in her possession, that they belonged to defendant, or that intestate had agreed that they or the proceeds should be his, did not show prima facie title in defendant, in’ absence of proof of assignment, indorsement, or delivery to him.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec; Dig. § 265.*]</p>

<p>1. Execution (§ 386*) — Supplementary Proceedings — Examination of Third Person.</p> <p>Under Code Civ. Proc. § 2441, providing that upon satisfactory proof that an execution against property has been issued and returned wholly or partly unsatisfied, or has not been returned, and that a person or corporation has “personal property" of the judgment debtor exceeding $10 in value, or is indebted to him in a sum exceeding that amount, the judgment creditor is entitled to an order for his examination, a third party, who is not claimed to have in his possession any property of the judgment debtor, except a dower interest in real estate claimed to have been fraudulently assigned, cannot be examined.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. § 1123; Dec. Dig. § 386.*]</p> <p>2. Execution (§ 386*) — Supplementary Proceedings— Examination of Third Person.</p> <p>When a receiver of the. judgment debtor’s property has been appointed in supplementary proceedings, real estate belonging to the debtor in the hands of third persons can be reduced to possession only by such receiver, and an order for the examination of third persons on the judgment creditor’s application is improper.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. § 1123; Dec. Dig. § 386.*]</p> <p>3. Execution (§ 386*) — Supplementary Proceedings — Examination of Third Persons.</p> <p>Under Code Civ. Proe. § 2441, authorizing a proceeding supplemental to execution for the examination of a third party having in its possession property of the judgment debtor, a third party, who is under subpoena as a witness in supplementary proceedings against the judgment debtor, cannot be examined under a third party order until after his examination as a witness under the subpoena. „</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. § 1123; Dec. Dig. § 386.*]</p>

of Manhattan, First District. Action by Thomas K. Hughes against George Constantin. From a judgment of the Municipal Court for defendant in an action for work, labor, and services performed, plaintiff appeals.

<p>Contracts (§ 198*)—Building Contract—Construction.</p> <p>A building construction contract, which provided for the payment 'of a certain sum by the owners upon the completion of the house, “$300 to be allowed to us from said price for foundation walls to be built By us,” did not cover the work of constructing the foundation walls, but, when unexplained, left with the owners the responsibility of their construction.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 861-883: Dec. Dig. § 198.*]</p>

<p>Good Will (§ 7*)—Sale of Established Business—Fbaud—Evidence.</p> <p>In an action on a note, evidence held to show that defendants were induced to make such note through the false and fraudulent representations of the plaintiffs that a certain restaurant, for which it was given, would pay the owner $200 a month profit, so that judgment for plaintiff thereon was erroneous.</p> <p>[Ed. Note.—For othér cases, see Good Will, Cent. Dig. §§ 6-9; Dec-Dig. § 7.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Herman Brandt against A. Lincoln Stadler. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Biles and Notes (§ 316*)—Assignment—Consideration.</p> <p>, It is no defense to a note, as against an assignee thereof, that the assignee paid no consideration therefor, and he is entitled to the' rights possessed by the assignor.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 752; Dec. Dig. § 316.*]</p> <p>2. Bills and Notes (§ 493*)—Consideration—Evidence.</p> <p>Where there is no evidence that a note sued on was without consideration, and it shows on its face that it was given for value, judgment should be given for plaintiff.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Gent. Dig. §§ 1652-1662; Dec. Dig. § 493.*]</p>

<p>Mandamus by the People, on relation of Ered J. Wheeler and .another, as Commissioners of Election of the County of St. Lawrence, against George M. Holmes, as County Treasurer. Peremptory writ' denied.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Wiertz Silk Manufacturing Company against Louis Metzger & Co. Erom a judgment for plaintiff, less the amount of defendants’ counterclaim, plaintiff appeals.</p>

<p>1. Landlord and Tenant (§ 152*)—Lease—Construction—Alteration— “Premises.”</p> <p>A lease o£ the ground or first floor of a building allowing the tenant to make alterations on the “premises,” did not permit the tenant to lower the floor three feet at one end for the purpose of making a moving picture house out of it, since that would be extending the alterations off the “premises”; the basement being rented to another tenant.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 538-557; Dec. Dig. § 152.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5509-5513; vol. 8, p. 7761.]</p> <p>2. Evidence (§ 393*)—Lease—Written Instrument—Parol Evidence.</p> <p>In an action by a tenant, suing for a deposit, having canceled the lease on the ground that the owner would not let him lower the floor, where the lease provided that he could make alterations “on the premises,” being the first floor, the basement being rented to another party, conversations had before the execution of the lease as to lowering the floor were not admissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1736-1744; Dec. Dig. § 393.*]</p>

<p>1. Landlord and Tenant (§ 22*)—Parol Lease.</p> <p>Where the parties only agreed in oral discussion on the term of a lease and the rental, without discussing other terms, except that it should be reduced to writing and other conditions added, there was a mere agreement for a lease, and not a parol letting.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 55-59; Dec. Dig. § 22.*]</p> <p>2. Landlord and Tenant (§ 23*)—Creation of Lease.</p> <p>A parol lease for a year arises when the parties agree upon all the terms, though they intend thereafter to reduce them to writing.</p> <p>[Ed. Note.—Fdr other cases, see Landlord and Tenant, Cent. Dig. § 60; Dec. Dig. § 23.*]</p> <p>8. Landlord and Tenant (§ 23*)—Execution of Lease—Parol Lease.</p> <p>Where the tenant knew that the landlord expected him to execute a valid lease for a year before taking possession, and the landlord stated the terms upon which he . would lease when the printed lease was submitted, to which terms the tenant did not object, but took and continued in possession for several months without objection, there was a valid parol lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 60; Dec. Dig. § 23.*] -</p> <p>4. Landlord and Tenant (§ 231*)—Actions for Rent—Defenses—Surrender and Acceptance.'</p> <p>■The defense of surrender of the premises and their acceptance by the landlord must be established by the tenant, when sued for rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.*]</p> <p>5. Landlord and Tenant (§ 194*)—Surrender of Premises—Evidence.</p> <p>The delivery and acceptance of the keys to an apartment, though evidence of a surrender by the tenant, does not of itself constitute a surrender, relieving from liability for rent, unless delivered to one authorized to accept them, and under circumstances justifying an inference that the parties thereby intended to terminate the lease.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §] 788, 7S9; Dec. Dig, § 194.*]</p> <p>6. Landlord and Tenant (§ 231*)—Actions for Rent—Sufficiency of Evidence-Surrender of Premises.</p> <p>Evidence in a landlord’s action for rent hold not to show that the keys to an apartment were delivered to the landlord’s agent when the lease was claimed to be terminated, so as to constitute a surrender.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934.; Dec. Dig. § 231.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Harry C. Gamage against William H. Llewellyn. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Morris Goldberg against Hyman Lackshin. From a judgment for defendant, plaintiff appeals.</p>

<p>Sales (§ 173*)—Refusal to Deliver—Shipping Directions.</p> <p>The contract of sale by defendant to plaintiffs of tomatoes to be packed by defendant giving plaintiffs’ address, providing for shipment “as soon as packed,” and not providing for further shipping instructions, defendant could not refuse to deliver because further shipping instructions were not promptly given; the letter of the broker who made the sale, sent by him, with the-contract, to defendant, stating that he had asked for immediate shipping instructions and hoped to have same in a day or two, being no part of the contract, and not being binding on plaintiffs.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 431-433; Dec. Dig. § 173.*]</p>

Action by Dennis McCarthy and another against James P. Fitzgerald. On motion of defendant for judgment on the-pleadings, consisting of the complaint and a demurrer thereto, on the ground that the complaint is insufficient. Motion granted.

Action by Willoughby E. Sawyer, as executor of the last will, and testament of Florence E. Dearstyne, against Charles Dearstyne and others to construe the will. Will construed, and findings to be prepared accordingly.

<p>1. Highways (§ 17*)—Establishment by User—Record of Usee. .</p> <p>Where there was evidence to show such user by the public as would have justified a record of the road as a highway by the public authorities, their failure to enter such record did not change the statutory mandate that the road should be a public highway.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. § 24; Dec. Dig. § 17.*]</p> <p>2. Municipal Corporations (§ 697*)—Streets—Obstruction—Injunction.</p> <p>A court of equity had jurisdiction of a cause of action by a municipality to restrain the obstruction of streets, although the statute provided that highway commissioners could maintain such action.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1502-1505; Dec. Dig. § 697.*]</p> <p>3. Highways (§ 6*)—Establishment by User—Duration and Continuance of Use.</p> <p>A road through defendant’s premises had been used since 1866 by all wishing to do so, and soon afterwards it was worked by the pathmaster of the road district, and since about 1886 was used by the public as a highway, and a wooden bridge was built over a creek to accommodate public travel, with the consent of the owner and without interference until 1895, when he fenced the road and posted notices thereon forbidding its use as a public highway. Held, under Highway Law- (Consol. Laws 1909, c. 25) § 209, providing that land used by the public as a highway for 20 years or more shall become a public highway, that by public user for the statutory period the road had become a public highway.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 8, 9; Dee. Dig. § 6.*]</p> <p>4. Highways (§ 7*)—Permission by User—Adverse Character op Use— Mandamus by Public Authorities.</p> <p>Permitted use of land as a public highway for 20 years, and the working or maintaining of the same by public authorities, creates a highway; but without adverse user, or if it is not taken charge of and repaired by public authorities, a mere public use for 20 years, with the consent of the owner, will not make it a highway.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 10, 12-14, 16, 18; Dec. Dig. § 7.*]</p> <p>5. Dedication (§ 38*)—Consent—Acceptance—Revocation.</p> <p>Where the owner of land, over which a roadway had been used since 1866, in 1902 consented to the use of a part thereof as a highway, to be constructed three rods in width to connect with an iron bridge erected by a village, and moved his fence to the boundary of the highway, he could not, after alterations by the village on the faith of his oral consent, revoke it, and allege that there was no highway over that part of his premises.</p> <p>[Ed. Note.—For other eases, see Dedication, Cent. Dig. §§ 77, 78; Dec. Dig. § 38.*]</p> <p>6. Dedication (§ 16*)—Acts Constituting—Highway.</p> <p>Where the owner of land, over which a roadway had been long used, in 1902 consented to the use of a part of it as a highway, over which village authorities constructed a roadway three rods in width to connect with an iron bridge erected by the village, and the owner moved his fence to such boundary, and afterwards took a deed of the premises in which the grantor reserved all street rights of way, such acts constituted a dedication of the highway to the public.</p> <p>[Ed. Note.—For other cases, see Dedication, Cent. Dig. §§ 15-49; Dec. Dig. § 16*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1908-1918; vol.,8, pp. 7629, 7630.]</p> <p>7. Dedication (§ 35*)—Acts Constituting Acceptance.</p> <p>Such acts on the part of the authorities constituted an acceptance of the road as a legal highway.</p> <p>[Ed. Note.—For other cases, see Dedication, Cent. Dig. §§ 68-71, 75, 76; Dec. Dig. § 35.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Antonio Mattiaccio against the Illinois Surety Company. From judgment for plaintiff, and denial of new trial, defendant appeals.</p>

<p>Evidence (§ 474*)—Knowledge—-Value.</p> <p>In an action for the reasonable value of laundry work, it was improper to permit the owner and manager of the laundry to state what the work was worth, where he had no personal knowledge of the work done, except as shown by his books.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*]</p>

<p>1. Wills (§ 303*)—Execution—Subscription by Testator—Sufficiency of Evidence.</p> <p>Where three unimpeached witnesses swore that they saw testatrix sign the will with her own hand, and the contestant, husband of deceased, who was not present at the execution of the will, simply stated that, in his opinion, the subscription was not that óf testatrix,' subscription of the paper propounded was sufficiently shown.</p> <p>[Ed. Note.—For other cases, see Wills, Cent Dig. §§ 711-723; Dec. Dig. § 303.*]</p> <p>2. Wills (§ 163*)—Undue Influence—Burden of Proof.</p> <p>Undue influence is an affirmative assault on the validity of a will, and the burden of proof is on the contestant, and does not shift throughout a probate proceeding; and this rule applies to an original proceeding in the Surrogate’s Court.</p> <p>[Ed. Note.—For other cases, see Wills, Cent.'Dig. §§ 388-402; Dec. Dig. § 163.*]</p> <p>3. Evidence (§ 90*)—“Burden of Proof”—Definition.</p> <p>“Burden of proof,” onus probandi, is an equivocal term, referring, primarily, to the obligation resting on a party who has the affirmative of an issue of fact to establish it by a preponderating weight of evidence, and, secondarily, to a duty to go forward with the evidence at a precise mo^ ment in a judicial proceeding.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 112; Dec. Dig. § 90.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 904r-907; vol. 8, p. 7593.]</p> <p>4. Wills (§ 274*)—Probate—Averments of Petition.</p> <p>The proponent in a proceeding for probate must aver, in the first instance, testator’s capacity and freedom from restraint.</p> <p>[Ed. Note,—For other cases, see Wills, Cent. Dig. §§ 628, 631; Dec. Dig. § 274.*]</p> <p>5. Wills (§ 163*)—Validity—Presumptions—Freedom from Restraint.</p> <p>Freedom from restraint in the execution of a will cannot be presumed. [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig. § 163.*]</p> <p>6. Wills (§ 248*)—Probate—Jurisdiction of Appellate Division.</p> <p>The Appellate Division serves' as the real ordinary, and is vested with co-ordinate and original power over contested probates.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 584, 585; Dec. Dig. § 248.*]</p> <p>7. Wills (§ 163*)—Validity—Presumptions—Fraud or Undue Influence.</p> <p>There is no presumption of fraud or undue influence in a probate cause from mere relations of confidence.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig. § 163.*]</p>

Petition by William P. Prentice and another, attorneys for Richard Sandiford, to enforce liens. From an order denying a motion by Sandiford to file an amended answer, he appeals.

<p>1. Partition (§ 48*)—Parties—Rights of Adverse Parties.</p> <p>Although some of the defendants in partition are not tenants in common, their rights may be tried and determined.</p> <p>[Ed. Note.—For other cases, see Partition, Cent Dig. §§ 118-129; Dec. Dig. § 48.*]</p> <p>2. Boundaries (§ 20*)—Mortgages—Highways—Descriptions.</p> <p>Descriptions in a mortgage of city lots beginning at the intersection of the exterior lines of two streets reserve the fee in the highway to the mortgagor.</p> <p>[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 123-130, 132; Dec. Dig. § 20.*]</p> <p>3. Partition (§ 16*)—Holder of' Tax Title—Enforcement of Rights.</p> <p>The purchaser at a tax sale of the fee, conducted by the registrar of arrears pursuant to Laws 1883, c. 114, relating to tax sales, has a good title as against previous owners and all persons claiming under them, which can be enforced in partition.</p> <p>[Ed. Note.—For other cases, see Partition, Cent. Dig. § 52; Dec. Dig. § 16.*]</p>

Action by Mary S. Croxson against the Flynn Plumbing & Heating Company for an injunction to restrain defendant from foreclosing a chattel mortgage and from removing thereunder any plumbing fixtures installed in a building. Judgment for defendant. On. October 28, 1910, the owners of certain real property in the city of New York entered into a building loan agreement with the plaintiff provid,ing for the erection of two apartment houses thereon.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Harry V. Dougherty, doing business as Dougherty’s Detective Agency against the Southern Pacific Company. From a portion of an order of the City Court of the City of New York requiring plaintiff to serve a verified bill of particulars, he appeals..</p>

<p>Action by Emanuel Baruch against George W. Young. A. C. Coxe, Jr., of New York City, for appellant. J. A. Leve, of New York City, for respondent.</p>

<p>Action by Helen W. Biggs against the Sea Gate Association.</p>

<p>In the matter of the application and petition of John A. Bensel and others, etc., to acquire real estate, etc., in the towns of Mt. Pleasant and Greenburg, etc. Southern Aqueduct Department, Sections 15 and 17, Parcels 1072, etc.</p>

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

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

<p>Appeal from City Court of New York, Trial Term. Action by Raymond Cavanagh, an infant, by Mary Cavanagh, his guardian ad litem, against the Crest Realty Company. From a jucfgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered. Simpson & Cardozo (Benjamin N. Cardozo, of New York City, of counsel), for appellant. Edward A. Scott (S. J. Bischoff, of New York City, of counsel), for respondent.</p>

<p>Action by Charles _S. Danziger and others against Joseph Gottlieb.</p>

<p>Action by Amelia Di Domenico, as administratrix, etc., of Salvatore Di Domenico, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Guilford Dudley, as ancillary administrator, etc., against Harry Raymond. W. M. Beard, of New York City, for appellant. D. P. Hays, of New York City, for respondent.</p>

<p>Action by Albert Farjeon against the Indian Territory Oil Company. W. E. Kisselburgh, for appellant. W. F. Parker, for respondent.</p>

<p>In the mattei of the application of the Federal Union Surety Company.</p>

<p>Action by the First National Bank of Amityville against the Thomas Kells Sons Company and others. Defendant Louis H. Strouse, assignee, appeals.</p>

<p>In the matter of Benjamin Frindel, an attorney.</p>

<p>In the matter of Benjamin Ftindel, an attorney."</p>

<p>Action by Elizabeth BlcBl. Godley against the Crandall & Godley Company and others.</p>

<p>Action by Malcolm Gibson against Lawrence Barnum.</p>

<p>Appeal from Municipal Court, Borough of Manhattan. Sixth District. Action by Hagedorn Bros, against John Marquardt. From a judgment for defendant, plaintiffs appeal. Reversed. Samuel Ecker, of New York City, for appellants. Martin G. Lippman, of New York City, for respondent.</p>

<p>Action by Samuel I. Hartman and another against Frank Netschert.</p>

<p>Action by Leroy M. Kellas, as trustee in bankruptcy for Patrick J. Murtagh, against the St. Andrew’s Roman Catholic Church of Norwood, N. Y., and another.</p>

<p>Action by Jennie Jacoby against the Brooklyn, Queens County & Suburban Railroad Company and another.</p>

<p>Action by Sigmund Kornberg against Bogumil Laski and others. S. Meyers, of New York City, for plaintiff. E. P. Mowton, of New York City, for defendants.</p>

<p>Action by Hannah London against the City of New York.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, hirst District. Action by David Lowy and another against the Bradley Contracting Company. Judgment for plaintiffs, and defendant appeals. Reversed. James A. Lynch, of New York City (Jacob Bernstein, of Mt. Vernon, N. Y., of counsel), for appellant. William Hauser, of New York City, for respondents.</p>

<p>Action by Aaron Lubash against the Charles A. Sigmond Realty Company.</p>

<p>In the matter of John B. Lord, an attorney.</p>

<p>Action by Mary Lutkins against Theodore L. Lutkins, Jr.</p>

<p>Action by Thomas A. McGee against George W. Felter.</p>

<p>Action by Aaron Lubash against Charles A. Sigmond.</p>

<p>Action by Marcus Mayer and others against Angelo R. Monzo. E. D. Brown, of New York City, for appellants. J. S. Sumner, of New York City, for respondent.</p>

<p>Action by Charles E. Metzger agamst Edward M. Knox and others.</p>

<p>Action by the North Side Bank of Brooklyn against Hattie E. Burger and others.</p>

<p>Proceeding by the People of the State of New York against Max Naimark.</p>

Proceeding by the People of- the :State of New York, on the relation of William Simon and others, as and constituting the Terminal Station Commission of the city of Buffalo, against John. H. Bradley and others, as Aldermen, and as constituting the Board of Aldermen of the City of Buffalo, and others.

<p>Proceeding by the People of the State of New York against David Warblinsky.</p>

<p>Proceeding by the People of the State of New York against the Trust Company of America.</p>

<p>Action by Cora A. Prince, as ancillary administratrix, etc., against the Central New England Company.</p>

<p>Action by Jacob Schneider and others against Emil Gold-finger.</p>

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

<p>Action by Richard F. B. Seaman against Fitzhugh Smith and others.</p>

<p>Action by Ida Silberman against Louis Scher.</p>

<p>Action by Joseph W. Stern and another against the Carl Laemmle Music Company. W. G. Morse, of New York City, for appellant. T. B. Richter, of New York City, for respondents.</p>

<p>Action by William H. L. Swan against Milo E. Woodcock and another.</p>

<p>Action by Susie T. Stewart against the F. ,W. Woolworth Company and another.</p>

<p>Action by John A. Sylvester against Henry J. Mullen and another.</p>

<p>In the matter of the application of the City of New York, etc., relative to acquiring title, etc., for ferry purposes. Thirty-Eighth Street, etc. The City of New York appeals, and David Porter and Thomas P. Graham are respondents.</p>

<p>Action by Max F. Utess against the Erie Railroad Company.</p>

<p>Action by Walter F. Trotter, as receiver, against William A. Dick and others. R. P. Buell, of New York City, for appellants. H. A. Bayne, of New York City, for respondent.</p>

<p>Action by Justus N. Williams against Reno R. Billington and others.</p>