Volume 141 — New York Supplement

Action by Donald Mitchell against the Dunmore Realty Company, John L. Murray, and others. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Carnegie Steel Company against August Mugler. Judgment for defendant, and plaintiff appeals. Reversed.</p>

<p>1. Insurance (§ 140%, New, vol. 12 Key-No. Series)—Life Policies—Con-</p> <p>ditions—Effect.</p> <p>In view of Insurance Law (Consol. Laws 1909, c. 28) § 55, providing that a person liable for the 'support of a child of the age of one year or upward may take a yearly renewable term policy of insurance on its life, the amount payable under which shall not exceed the sum specified in a table referred to, which fixes the maximum amount at 14 years as $520, a condition in an insurance policy issued by a foreign company, providing that if other policies are in force the amount payable shall not be greater than the difference between the amount specified in 'a table opposite the age at death and the total amount payable under all other policies, which table was the same as one referred to in the statute, applies to all policies, whether in favor of the beneficiary of the policy in question or not; this being manifest in view of the fact that the statute was for the protection of minor children, and that the policy in question allowed a change in beneficiaries at the option of the insured.</p> <p>2. Insurance (§ 149%, New, vol. 12 Key-No. Series)—Life Insurance—Con-</p> <p>ditions.</p> <p>Parties to a life insurance contract have the right to insert a lawful stipulation limiting the amount of insurance; and if the requirement is unambiguous it must be enforced by the courts, regardless of its apparent immateriality.</p>

Proceedings by Michael Mendola against the Illinois Surety Company. On petition by Antonio Friscia, in behalf of himself and others similarly situated, to open judgment and recommit the matter to the referee for proof of petitioner’s claims. Petition granted. Affirmed 141 N. Y. Supp. 1131.

<p>Fraudulent Conveyances (§ 95*)—Conveyances in Performance of Moral Obligation of Grantor—Validity.</p> <p>Where a wife discontinued her action for separation on obtaining absolute title to a half of the property held by the parties as tenants by the entirety, and agreed with her husband to convey the other half whenever he desired it, a conveyance by her at his request while they were living separate was in performance of a moral obligation, and was not in fraud of her creditors.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 243-288; Dec. Dig. § 95.*] ■</p> <p>Action by Rose Meguin against Mary Buehler and others. Judgment for defendants.</p>

<p>Executors and Administrators (§ 460*)—Accounting—Parties Entitled. A creditor of a distributee is not a party who can compel an accounting by an administrator, under Code Civ. Proc. § 2727.</p> <p>(Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1975-1985; Dec. Dig. § 460.*]</p>

In the matter of the appraisal under the 1'ransfer Tax Act of the ■ estate of Catherine E. Daly1. From an order assessing the same, the State Comptroller appeals. Reversed and report remitted.

<p>Costs (§ 153*)—Discontinuance in Part—Discretion of Court.</p> <p>Where plaintiff moved to vacate an order for a commission and to discontinue 7 of his 11 alleged causes of action, brought in reliance on the constitutionality of an act increasing the jurisdiction of the City Court from $2,000 to $5,000, on the ground that the act had been declared unconstitutional by the Court of Appeals, defendant, who had interposed but one answer to the several causes of action, was entitled, on the allowance of such discontinuance, to costs in a sum not exceeding $10.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 5S1, 592-595; Dec. Dig, § 153.*]</p>

In the matter of the application of the City of New York to amend the proceeding to acquire title to East 177th Street, from Tremont Avenue to Morris Park Avenue, and Bronx Park Avenue, from Tremont Avenue to Morris Park Avenue, in the borough of the Bronx, to which W. A. Soye filed objections. Application granted.

Action by the Columbia Knickerbocker Trust Company, as trustee, against the Ithaca Street Railway Company to foreclose a mortgage. Judgment for plaintiff. On motion by E. G. Wyckoff, a bondholder, to amend the judgment. Motion granted in part.

Action by Thomas F. Driscoll against the Parker Pen Company. From an order granting leave to serve an amended complaint, and an order denying a motion to resettle the first order, defendant appeals. First order reversed. Appeal from the second order dismissed.

<p>Petition by the Young Women’s Christian Association to cancel water charges on its property. Motion denied.</p>

Action by Samuel Fine against Mary Lyons. From an order of the City Court of the City of New York, denying the defendant’s motion to vacate a warrant of attachment, defendant appeals. Reversed, and motion to vacate the attachment granted.

Action by Samuel Fine against Mary Lyons. From a portion of .an order of the City Court of the City of New York, denying plaintiff’s application to be allowed to file additional papers, he appeals. Affirmed.

Action by William J. Hein and Carl Kuehn, doing business as the Empire Moulding Company, against Eisik Liberman and another.

<p>Pleading (§ 323*)—Bill of Particulars—Particulars of Counterclaim.</p> <p>Defendant could not be required to furnish a bill of particulars of his counterclaim before issue was joined by the service of a reply, where it did not appear that the particulars ordered were required to enable plaintiff to plead.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 976-979; Dec. Dig. § 323.*]</p>

Action by Morris Feinsot and another against Maurice J. Burstein. ‘Gn motion by defendant at the close of the evidence to dismiss the •complaint as matter of law. Motion granted.

. Action.by Bernard Lachman against William R. Young, Jr. From a judgment for plaintiff, rendered by the Municipal Court of the City of New York, defendant appeals. Reversed, and new trial ordered.

•Action by Rose Isaacs against the New Haven'& New York Realty Corporation. From a judgment of the. Municipal Court for defendant, plaintiff appeals. Reversed, and new trial granted.

<p>On motion for reargument. Denied.</p> <p>For former opinion, see 140 N. Y. Supp. 410.</p>

Action by Joseph H. Guttentag against the Bache Realty Company.. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Reversed and remanded.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by William D. Glasscock, professionally known as William Leon, against the Lotus Theatre Company. Judgment for plaintiff, and defendant appeals. Reversed.</p>

<p>1. Evidence (§ 355*)—Private Memoranda—Admissibility.</p> <p>A plaintiff, suing for the. balance due for iron sold to defendant under a contract requiring payment on certificates of weight from a public weigher, who produced undated and unidentified scraps of paper with figures thereon in lead pencil, and who testified that they were given him by the man from the scales, but who did not show that the man was a public weigher, did not make the papers admissible as memoranda.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1444, 1484-1491; Dec. Dig. § 355.*]</p> <p>2. Sales (§ 357*)—Action for Price—Evidence.</p> <p>That a buyer of iron waived the requirement of the contract to pay on certificates of weight from the public weigher by making payments on account did not relieve the seller, suing for the price, from proving his case by competent evidence.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 511, 1044-1048; Dec. Dig. § 357.*]</p>

<p>Payment (§ 89*)—Voluntary Payment—Evidence.</p> <p>Defendant, acting as Municipal Court marshal under an execution against another, appeared at plaintiff’s store and threatened to make an immediate levy and remove goods from the store unless paid the amount required by the execution and costs. The clerk communicated with plaintiff by telephone, and was directed to pay the marshal under protest, which he did, taking a receipt, reciting that the officer had received the full amount “under protest.” Held, that a finding that the payment was voluntary was contrary to the weight of the evidence.</p> <p>[Ed. Note.—For other cases, see Payment, .Cent. Dig. §§ 291-296; Dec. Dig § 89.*]</p>

<p>. Master and Servant (§ 6*)—Contract for Services—Evidence.</p> <p>In an action for work, labor, and services, evidence held insufficient to warrant a finding that plaintiff was employed by defendant, or on his behalf, to do a part of the work.-</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 6; Dec. Dig. § 6.*]</p>

Action by the Singer Sewing Machine Company against the Independent Waist Band Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Action by Herman Lobel against Ellison Van Hoose. From an order setting aside a verdict for defendant, and granting a new trial, he appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Gaetano Picini against Luigi Vitelli and another, copartners doing business as L. Vitelli & Son. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by Marcellano Di Lello against Frank Gmelin and others. From an order denying the motion of defendant Louise Gmelin to open her default, she appeals. Reversed and vacated, on terms.

<p>Appeal from City Court of New York; Trial Term.</p> <p>Action by Louis Meyer against Benjamin Schwinger. From a judgment dismissing the complaint, and also from an order denying plaintiff’s motion for a new trial, he appeals. Reversed, and new trial ordered.</p>

Action by Stephen Acunto against Abraham Weintraub, impleaded with Joseph Weintraub. From a judgment in favor of defendant Abraham Weintraub, the action having been discontinued against Joseph Weintraub, plaintiff appeals. Modified and affirmed.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Annie Smith against Louis J. Kahn. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Harry Hirschfeld and another against Terence E. Monahan. From an order denying a motion to open a default, defendant appeals. Reversed, and judgment vacated on condition, and new trial ordered.</p>

<p>1. Witnesses (§ 275*)—Cross-Examination—Actions for Compensation—</p> <p>Evidence.</p> <p>In an attorney’s action to recover the reasonable value of services, defendant was entitled to cross-examine plaintiff in detail as to the nature and extent of such services, and the exclusion of cross-examination as to their character and details was error.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 924, 926, 967-975; Dec. Dig. § 275.*]</p> <p>2. Trial (§ 191*)—Actions for Compensation—Instructions—Province of</p> <p>Jury.</p> <p>In an attorney’s action for compensation for services, it was error to charge that, if defendant agreed to pay the reasonable value of the services, the jury should not hesitate to render a verdict for the full amount claimed by plaintiff; the reasonable value of the services being a question of fact for the jury.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 307, 308; Dec. Dig. § 191.*]</p>

Action by Michael Josephson against Frank Gens, impleaded with Max Bierman and Solomon Jam. From a judgment entered in favor of defendant Gens, on dismissal of the complaint as to him at the close of plaintiff’s case, plaintiff appeals. Reversed, and new trial granted.

Action by Charles Parke against James Murphy. From a judgment for defendant on a trial without a jury, plaintiff appeals. Reversed, and new trial ordered.

Action by Maggie Wegmann, as administratrix with- will annexed of the goods, chattels, and credits of Wilhelmina Kress, deceased, against Christian Kress. On motion for new trial after judgment for ■defendant (152 App. Div. 937, 137 N. Y. Supp. 1148). Motion denied.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Mathias Smolowitz against Julius Orbach. From a judgment for plaintiff after a jury trial, defendant appeals. Reversed, and new trial ordered.</p>

<p>Trial (§ 191*)—Instructions—Assuming Facts.</p> <p>In an action for the nondelivery of pony coats, sold plaintiff at $27.50 apiece, an" instruction that plaintiff testified that the market value of the coats at the date when they should have been delivered was $35, and that the difference between that price and the contract price would be the measure of damages, was erroneous, where the evidence was conflicting as to the market value.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p>

<p>Vendor and Purchaser (§ 335*)—Recovery of Deposit by Purchaser.</p> <p>Upon the failure of negotiations for the sale of land, the purchaser was entitled to recover a deposit made by him, although the failure of the negotiations was due to his fault, where it was not shown that the vendor had suffered any actual damage, and the receipt for the deposit did not indicate, and there was no proof, that the deposit was given as a penalty or as liquidated damages; it being assumed under such circumstances to have been given as security for actual damages.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 981-983; Dec. Dig. § 335.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Ella Pearl against the Metropolitan Life Insurance Company. From a judgment for defendant, entered by direction of the court at the close of the entire case, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Application for limited letters of administration on the estate of ■Carlo Grande. Letters granted.</p>

Action by the American Ink Company against the Riegel Sack Company. On demurrer to first and second separate defenses in reply to counterclaim in defendant’s answer. Sustained in part, and overruled in part.

Action by the Simon Cloak & Suit Company against the 2Etna Insurance Company. Verdict for plaintiff, and defendant moves for judgment notwithstanding the verdict. Motion denied.

Actions by Joseph Bass against the Williamsburgh City Fire Insurance Company, against the Phoenix Insurance Company, and against the Royal Exchange Insurance Company. From judgments, dismissing the complaints without prejudice after a trial without a jury, plaintiff appeals. Affirmed.

<p>Proceeding by the Board of Water Supply of the City of New York to acquire real estate. On application by Waldo G. Morse and another, commissioners of appraisal, for the appointment of an additional commissioner to fill a vacancy. Application denied.</p>

<p>Appeal fiom Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Charles Hamilton against Lewis Smith. From a judgment for plaintiff, after a trial without a jury, defendant appeals. Reversed, and new trial ordered.</p>

Appeal, from -City Court of New York, Trial Term. Action by Marie Waltz against the Workmen’s Sick and Death-Benefit Fund of the United States of America. From á judgment for plaintiff (78 Mise. Rep.. 499, 139 N. Y. Supp. 1016), and an order denying a new trial, defendant appeals. Reversed, and complaint dismissed.

In the matter of proving the last will and testament of Sarah W. Kathan, deceased. Will admitted to probate, but codicils denied.

Judicial settlement of the account of Solomon Klingenstein, as surviving trustee of the estate of Bernhard Klingenstein, deceased, in which Lippman Altmayer, as testamentary guardian, appealed from that portion of the decree requiring him to give security. Reversed.

Action by one Whitman against one O’Donovan. On motion for leave to discontinue certain causes of action alleged. Motion granted.

<p>1. Counties (§ 113*)—Board of Supervisors—Creation of Offices—Statu-</p> <p>tory Authority.</p> <p>Where there was no statute in force authorizing the creation of the position of clerk to the county judge of Suffolk county in December, 1907, a resolution of the board of supervisors on December 30, 1907, allowing $500 a year as salary for a clerk to the county judge, payable by the county treasurer out of moneys not otherwise appropriated, was unauthorized.</p> <p>[Ed. Note.—For other cases, see Counties, Cent. Dig. §§ 174-180; D,ee. Dig. § 113.*]</p> <p>2. Counties (§ 113*)—Employes—Clerk to County Judge—“Employé in</p> <p>County Office.”</p> <p>County Law (Laws 1909, c. 16; Consol. Laws 1909, c." 11) § 12, subd. 5, as amended by Laws 1911, c. 359, confers on county supervisors power to fix the salary of any county officer or employé, except a judicial officer, and the mode of appointment, number, and grade of the clerks, assistants, or employés in any county office, etc. Held that, while a county judge was a county officer, he did not maintain a county office; and hence such section did not authorize the board of supervisors to provide for the appointment and fix the salary of a confidential clerk to the county judge.</p> <p>[Ed. Note.—For other cases, see Counties, Cent. Dig. §§ 174-180; Dec. Dig. § 113.*]</p> <p>3. Injunction (§ 114*)—Action Against Supervisors—Termination of Of-</p> <p>fice—Substitution of Defendants.</p> <p>Where, during the pendency of a taxpayer’s action against a county board of supervisors to restrain them from making or permitting certain payments alleged to be illegal, but not to compel, any affirmative action on their part, their term expired, and all but two were not re-elected, it was not necessary that their successors should be substituted as defendants.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.*]</p>

. In the matter of the estate of Oliver Ames, deceased. From an order fixing the transfer tax, an appeal was taken by the State Comptroller and the executors of the estate. Order reversed.

<p>1. Nuisance (§ 3*)—Use of Property.</p> <p>An owner of land holds his right to enjoyment thereof subject to such annoyance as is the consequence of the natural use by his neighbor of his land, so that whether the neighbor’s use of his land constitutes a nuisance depends on whether it is a natural and reasonable exercise of his dominion over the property, having regard to all interests affected, and having also in view public policy.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.*]</p> <p>2. Nuisance (§ 3*)—Use of Property.</p> <p>The maintenance by the proprietors of an artificial ice plant, in a sparsely settled portion of a city, where there were several stables and no sewer system, the sewage and waste drainage being taken care of by cesspools, of a cistern into which to drain their surplus water, which was colorless, odorless, and in fact fit for drinking purposes, 9 feet in diameter. 40 feet in depth, and lined throughout with brick, which, at the depth of about 40 feet, reached the water table level of that vicinity, the soil being clay for the first 8 or 9 feet and sand and gravel for the rest of the way down, and which was about 5 feet from the house of an adjoining owner, was a reasonable use of their property, and not a nuisance.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.*]</p> <p>3. Nuisance (§ 3*)—Use of Property—Noises.</p> <p>Where a manufacturing plant is operated with only such noise as is necessarily and usually incident to the proper working of machinery, and such noise as is not a bar to conversation held even in close vicinity to the machinery, it is not a nuisance.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.*]</p>

<p>Action by John Klein, as trustee in bankruptcy of Samuel Gallin, against Samuel Gallin, Louis Grossman, and Harry Goldfisch. Judgment in favor of defendants Grossman and Goldfisch, and complaint dismissed.</p>

<p>1. Fraudulent Conveyances (§ 47*)—Sales in Bulk.</p> <p>Where the continuing partner of a mercantile firm became indebted to his relatives, and then while insolvent transferred, without complying with Personal Property Law (Consol. Laws 1909, c. 41) § 44, relative to the sale of merchandise in bulk, the merchandise to a newly created corporation in consideration of its stock, a part of which was at once transferred to the relatives pursuant to a scheme to exclude other creditors, the transfer was in fraud of the other creditors.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. § 47.*]</p> <p>2. Fraudulent Conveyances (§ 269*)—Pleading and Proof—Return of</p> <p>Execution.</p> <p>A judgment creditor, who seeks to set aside a conveyance as fraudulent, must allege and prove the return unsatisfied of an execution, because equity should not be invoked until all legal remedies are exhausted.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 789-795; Dec. Dig § 269.*]</p> <p>3. Fraudulent Conveyances (§ 230*) — Remedies — Execution—Replevin—</p> <p>Defenses.</p> <p>Where a transferee of a judgment debtor replevied the property levied on under execution, the levying officers could rely on the fact that the transfer was in fraud of the creditors of the debtor.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent.- Dig. §§ 660-664; Dec. Dig. § 230.*]</p>

<p>Sales (§ 342*)—Contracts—Remedies of Seller.</p> <p>A contract of sale, which stipulates that any part of the purchase not accepted by the buyer may, without notice, be sold at the market price for the account of the buyer, who will pay to the seller any loss through difference in price, and the carrying charge, ff the sale is made by the seller, stipulates for an exclusive remedy of the seller, who may not store the property for the buyer and sue for the price, or keep the goods as his own and recover the difference between the market pricei at the time and place of delivery and the contract price.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 943-946; Dec. Dig. § 342.*]</p>

Action by Isaac Morah against Edgar W. Steele. Erom a judg7 ment upon a verdict and from an order denying defendant’s motion for new trial, defendant appeals. Reversed, and complaint dismissed:

Cross-appeals from City Court of New York, Special Term. Action by John Hudson Storer against Mark Harris. From the disposition of the City Court of the City of New York of an order for the examination of plaintiff before trial, the parties take cross-appeals. Modified and affirmed.

<p>Courts' (§ 189*)—Municipal Courts—Summons—Substituted Service—Deposit in Post Office.</p> <p>Where an order for substituted service of summons aud complaint,, under Municipal Court Act (Laws 1902, c. 580) § 33, directed that it be-deposited in the post office, a service by depositing it in a post office-box or mail chute was insufficient.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413,. 429, 458; Dec. Dig. § 189.*]</p>

<p>Mabbiage (§ 65*) — Annulment — Final Judgment—Entey—Amendment oe Pleadings.</p> <p>Code Civ. Proc. § 724, allowing relief to a party from a judgment for mistake, inadvertence, surprise, or excusable neglect, was not amended or its force curtailed by section 1774, providing that, within 30 days after the expiration of 3 months from the entry of an interlocutory judgment dissolving a marriage, final judgment shall be entered as of course, unless for sufficient cause the court in the meantime shall have otherwise ordered; and hence the court, on the return of a motion for final judgment or at any time prior to the entry thereof, was authorized to refuse to grant final judgment, to open the interlocutory judgment, and to allow an amendment of the pleadings to afford defendant an opportunity to try an issue then raised, that because her prior marriage was illegal she was competent to marry plaintiff at the time she did so, and that such marriage was therefore a legal one.</p> <p>[Ed. Note.—For other cases, see Marriage, Cent. Dig. § 139; Dec. Dig. § 65.*]</p>

<p>Appeal from Municipal Court, Borough of Queens, Second District.</p> <p>Action by the Kissena Park Corporation against Katherine E. Fradkin. Judgment for plaintiff, and defendant appeals. Reversed and remanded.</p>

<p>Cabbiebs (§ 135*)—Injury to Shipment—Damages.</p> <p>A carrier is liable for injury caused, and not for expense of discovering whether there was injury; and so, 11 cases of a car of eggs being broken,</p> <p>and an examination of 20 unbroken cases showing internal injury in 17, the consignee cannot collect of the carrier for expense of examining the other 252 cases, having no external injury, and showing, on examination, no internal damage.</p> <p>[Ed. Note.—Eor other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 603; Dec. Dig. § 135.*]</p>

<p>Appeal from Municipal Court, Borough, of Brooklyn, Second District.</p> <p>Action by Benjamin Erde against Isaac Fenster and Nathan Weiss. From a judgment for plaintiff, defendants appeal. Reversed, and new trial granted.</p>

Action by the American Institute of Scientific Research against Charles W. Randolph.' From an order settling proposed interrogatoríes and refusing to disallow all of defendant’s cross-interrogatories, excepting enumerated interrogatories, plaintiff appeals. Modified and affirmed.

<p>Appeal from Special Term, Kings County.</p> <p>Action by the Elway Company against Louie R. Pettit and another. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District</p> <p>Action by the Fifty-Fourth Street Realty Company against Fred F. Goodman. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Application by the City of New York for the acquisition of title to lands required for the opening and extending of Bragaw street, from Skillman avenue to Borden avenue, in the borough of Queens, city of New York. Report of commissioners of estimate and apportionment confirmed in part and denied in part, and referred back to the commissioners in part.</p>

<p>1. Executors and Administrators (§ 26*)—Appointment — Security — Ac-</p> <p>tions— Statutory Provisions.</p> <p>An action to vacate satisfaction of judgments rendered in an action for negligent death is within Code Civ. Proc. § 2664, providing for the giving of security by an administrator, granted a right of action by a special provision of law, and limited letters of administration may be issued to entitle the administrator to maintain the action.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 144-170; Dec. Dig. § 26.*]</p> <p>2. Courts (§ 472*)—Exclusive Jurisdiction—Action fob Negligent Death</p> <p>—Distribution of Proceeds.</p> <p>Under Code Civ. Proc. §§ 1902, 1903, authorizing an action for negligent death for the benefit of enumerated persons, and declaring that the damages recovered shall be distributed as unbequeathed assets, etc., the surrogate has exclusive jurisdiction to determine and allow for the expenses of an action for death resulting in judgment for plaintiff, and the Supreme Court has no jurisdiction, and an order made by it is void for want of jurisdiction of the subject-matter, and a payment made pursuant to the order does not discharge the liability.</p> <p>[Ed. Note.—For other eases, see Courts, Cent. Dig. §§ 442, 451, 459, 465, 619, 1199-1202, 1204r-1224, 1247-1259; Dec. Dig. § 472.*]</p> <p>3. Judgment (§ 898*)—Satisfaction—'Vacation—Cbedits.</p> <p>Where an administrator, obtaining a, judgment for the negligent death of his intestate, expended his own money for the benefit of decedent’s next of kin, and he had not been reimbursed therefor, the court, in vacating satisfaction of the judgment on the ground that the payment made under a void order did not release the judgment debtor from liability, could not allow the judgment debtor a credit for the sum expended by the administrator.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1714r-1717; Dec. Dig. § 898.*]</p>

In the matter of the judicial settlement of the account of George' Weaver, as executor of the last will and testament of Rueben FL Weaver, deceased. From an order of the Surrogate’s Court, denying a motion by Ethel D. Weaver to set aside a decree settling the account of George Weaver, as executor, the moving party appeals. Reversed, and motion granted.

Action by Cora May Hatch, as administratrix of the estate of Elmer H. Hatch, deceased, against the Lake Shore & Michigan Southern Railway Company. From a judgment for plaintiff, and an order denying its motion for new trial, defendant appeals. Reversed and remanded.

Application by Giovanni D’Adamo, a brother of Carmine D’Adamo,. deceased, for the revocation of letters of administration issued to. Germano P. Racelli, Italian consul, and for letters to himself and a third person. Denied.

<p>In the matter of John H. Atkins, an attorney.</p>

In the matter of acquiring title by the city of New York, to certain land, etc., situated in the block bounded by Chauncey and Marion streets and Hopkinson and Rockaway avenues, in the borough of Brooklyn, etc.

<p>In the matter of the Blackwell’s Island Bridge.</p>

In the matter of acquiring title by the City of New York to certain land, etc., situated in the block bounded by Chauncey and Marion Streets and Hopkinson and Rockaway Avenues in the borough of Brooklyn, etc.

<p>Action by Samuel Broadbent against the New York Evening Journal Publishing Company.</p>

<p>Action by the Brooklyn, Queens County & Suburban Railroad Company against Maria A. Bird and the City of New York.</p>

<p>Action by Della M. Buckley against William H. Stansfield, impleaded with others.</p>

<p>Action by Hermann H. Camman and others against Susannah G. Bailey and others.</p>

<p>Action by Walter C. Carr and others against Horatio G. Kimball and others.</p>

<p>Proceedings by the City of New York against Uvalde Asphalt Paving Company and another. B. M. Grout, of New York City, for appellants. T. Farley, of New York City, for respondent.</p>

<p>Action by William F. Connell against Louis V. Heydenreich and others.</p>

<p>Action by Henry S. Cox against the Hewlett Bay Company and another.</p>

<p>Action by William Crompton againsi William H. Seaich. P. P. Salford, of New York City, for plaintiff. A. G. Fox, of New York City, for defendant.</p>

<p>Action by Frederick Currie and others against George F. Vreeland. W. W. Irwin, of New York City, for appellants. H. F. Mela, of New York City, for respondent.</p>

<p>Action by Daniel Daly and another against the City of New York. C. L. Barber, of New York City, for appellant. A. L. Davis, of New York City, for respondents.</p>

<p>Action by Josephine T. Deady against E. Virgil Neal.</p>

<p>In the matter of the probate of the last will and testament and codicil of Mary Augusta Davis, deceased.</p>

<p>Appeal from Trial Term, New York County. Action by Emma Decker and another, as administrators of the estate of Peter Decker, deceased, against the New York Realty Owners, a corporation. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed. Renwick F. H. Macdonald, of New York City, for appellants. Clarence Alexander, of New York City, for respondent.</p>

<p>Action by T. H. Walter Duff against the Queensbro Heights Land Corporation.</p>

Action by Herman Fallert, as administrator, against the Massachusetts Bonding & Insurance Company and another. From a judgment on an order granting plaintiff’s motion for judgment on the pleadings, and from said order, defendant named appeals. Reversed. Horace L. Cheyney, of New York City, for appellant. Milton Mayer, of New York City, for respondent.

<p>Action by Berthan Evans and another against Charles J. Pelta and another. H. A. Rosenberg, of New York City, for appellants. N. Friedman, of New York City, for respondents.</p>

<p>Action by George Gabel against the Hastings Homes Company.</p>

<p>Action by Carolina Goettlieher against Carolina Wide and others, in which Rosanna Archer appeals.</p>

<p>Action by Joseph L. Hart against the Abels Gold Realty Company and others, in which Harry A. Hanbury appeals.</p>

<p>In the matter of the application of Hamilton R. Halsey for payment of award made in proceedings for acquiring title to premises on Main street, etc., Elmhurst, etc., for a school site.</p>

<p>Action by Lillian B. Hoffstaetter against Charles G. Sehinkel and others. O. O. Maas, of New York City, for appellants. L. H. Porter, of New York City, for respondent.</p>

<p>Action by Edwa Hollander against Charles J. Hudson and another. N. D. Stern, of New York City, for appellant. J. G. Saxe, of New York City, for respondents.</p>

<p>Supplementary proceedings by Jacob Hurwitz against Hyman Bernstein.</p>

<p>Action by Mary Jenkins against Fanny Gruen and others. S. H. Stuart, of New York City, for appellant. W. G. Evans, of Rome, for respondents.</p>

<p>In the matter of Matthew J. Keeffe, deceased.</p>

<p>Action by Louis Korn against Joseph H. Freed-lander. D. Leventritt, of New York City, for appellant. M. D. Steuer, of New York City, for respondent.</p>

<p>Action by Arvilla King against the Syracuse, Lake Shore & Northern Railroad Company.</p>

Action by Philip Lehrer against the Assurance-League of America and others. From a City-Court judgment for plaintiff, and for defendant Solomon Augenblick against the defendants-the Assurance League of America and Good-hart, and from an order denying the motion of the latter to set aside the verdict and for a new trial, they appeal. Reversed in part, and affirmed in part. William A. Goodhart, in pro. per.

<p>Proceeding by Otto R. H. Ludewig against Andre-as O. Bosselman. R. Marks, of New York City, for appellant. B. N. Cardozo, of New York City, for respondent.</p>

<p>Action by Minnie Long, as administratrix, against the City of New York. C. L. Barber, of New York City, for appellant. D. C. Myers, of New York City, for respondent.</p>

<p>Action by Grace E. Lewis against Chas. De K. Townsend and others.</p>

<p>Action by Daniel B. McCoy against the' Gas Engine & Power Company and others.</p>

<p>Appeal from Surrogate’s Court, New York County. In the matter of the application of Nicholas Meyer, as executor of Mary R. Meyer, deceased. From an order of the Surrogate’s Court, denying an application, and affirming an order fixing a transfer tax, applicant appeals. Order affirmed. Robert H. Griffin, of New York City, for appellant. Effingham N. Dodge, of New York City, for respondent.</p>

<p>Action by Charles A. Morse and another against Carolyn T. Kelsey and others. J. W. Middle-brook, of New York City, for appellants. O. G. Walter, of New York City, for respondents.</p>

<p>Action by Milliken Bros., Incorporated, against the City of New York and others.</p>

<p>Action by Thomas Muller against the Pope-Hartford Auto Company.</p>

<p>Action by Mary Murtha against the Central Park, North & East River Railroad Company.</p>

<p>In the matter of the Parkway, etc. In the matter of Woolf.</p>

<p>Action by William A. Overton against Arline A. Wilson, impleaded with others.</p>

<p>Action by Louis Oppenheimer , against Emanuel Van Raalte and another. E. H. Sykes, of New York City, for appellant. M. 0. Katz, of New York City, for respondents.</p>

<p>Proceeding by the People of the State of New York against John Adell.</p>

<p>Proceeding by the People of the State of New York against P. Friedman.</p>

<p>Proceeding by the People of the State of New York against John H. Gelhardt, Jr.</p>

<p>Proceeding by the People of the State of New York against Christian S. Juell.</p>

<p>Proceeding by the People of the State of New York against Marie Rappa.</p>

<p>Proceeding by the People of the State of New York against Barausch (or Baruch) Schneider and others.</p>

<p>Action by Thomas E. Powers against Henry Ridder. J. E. Donnelly, of New York City, for appellant. M. De Witt, of New York City, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Louis Robison and others against Jacob Merbaum and another. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered. Boudin & Liebman, of New York City (L. B. Boudin, of New York City, of counsel), for appellants. Eugene Cohn and Julius Levy, both of New York City, for respondents.</p>

<p>Action by Harry C. Schlappendorf against the American Railway Traffic Company.</p>

<p>Action by J. L. Emil Schueler against Mary Louise Dooley.</p>

<p>In the matter of the appraisement, etc., of the property of Ervin Saunders, deceased, wherein the Westchester County Society for the Prevention of Cruelty to Children and another appeal.</p>

<p>Action by Charles Smith against the Excelsior Brewing Company.</p>

<p>Action by William E. T. Smith and others against John J. Bartlett.</p>

<p>Action by Henrietta-Simon against _ Julius Etgen and others, executors, etc., of William H. Burgess, deceased.</p>

<p>Action by Genevieve C. Skelly and others against Mary A. Mortimer. A. I. Elkus, of New York City, for appellant. R. H. Clarke, for respondents.</p>

<p>Action by Robert S. Smith against Max Rubel.</p>

<p>Action by John W. Storandt against the Vogel and Binder Company.</p>

<p>Action by Christopher Terrence against Jacob' Autenrieth.</p>

<p>Action by Herman Van Slochem against Harold G. Villard, impleaded with others. M. J. Hirsch, of New York City, for appellant. F. E. Mygatt, of New York City, for respondent.</p>

<p>Action by Juan E. Wester and others against the Casein Company of America.</p>

<p>Action by Justus Ñ. Williams against Reno R. Billington.</p>

<p>Action by David L. Whitmore, etc., against the New York Interurban Water Company.</p>