Volume 142 — New York Supplement

Action by the Automatic Strapping Machine Company against the Twisted Wire & Steel Company and the Twisted Wire Box Strap Company. Demurrers of the several defendants overruled, with leave to plead over; otherwise, judgment granted for plaintiff.

Action by the C. T. Willard Company against the City of New York and others to foreclose liens under public improvement contracts. Decision suspended for want of proper parties.

Action by Rhoda M. Fisher against Alice M. Fallon and another, individually and as executrices of the last will and testament of Albert A. Bellany, deceased. Judgment for defendants, dismissing the complaint, and for the possession of the real and personal property.

In the matter of the application for an appointment of a succes- ■ sor to one of the deceased testamentary trustees of the estate of Augustus Zerega, deceased. Denied.

In the matter of the probate of a paper propounded as the last will and testament of Josephine Gedney-, deceased. Decree of probate.

Action by Augusta Williams against Lydia Snowman and others. On motion to vacate an order for examination of certain defendants before trial of an action to set aside a deed. Denied.

Action by the New York City Car Advertising Company against Rosa Greenberger. From a judgment dismissing the complaint at the close of plaintiff’s case, plaintiff appeals. Reversed and new trial ordered.

<p>Action by Victor Solberg against the Ft. Orange Construction Company. On motion for change of venue. Motion granted.</p>

/ Action by Cleonice Policastro against Hannah J. Miller. From a judgment for plaintiff for a less sum than claimed, he appeals. Reversed, and new trial ordered.

Action by Emidio de Blasi against Rosina Taddonio and another. From a judgment of the Municipal Court in favor of the plaintiff after a trial before a judge without a jury, defendants appeal. Reversed and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District."</p> <p>Action by Stephen H. Richards against Lucian H. Levison. From a judgment of the Municipal Court of the City of New York in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by the Fra-nco-American Baking Company against Herman Raub, Incorporated. From a judgment in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Emil Schlaepfer against Henry Treujhaft. Er'om an order vacating a judgment, and granting defendant leave to serve an answer, plaintiff appeals. Reversed, and motion denied.</p>

<p>1. Executors and Administrators (§ 111*)—Charges—Attorney’s Fees.</p> <p>After two of the executors under a will have retained an attorney, the third cannot retain another attorney and have his fees charged against the estate, where the first attorney had performed all the necessary services in the administration.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 448-462; Dec. Dig. § 111.*]</p> <p>2. Executors and Administrators (§ 111*)—Charges—Attorney’s Fees—</p> <p>Presumption.</p> <p>Where an executrix, who has individual interests under a will, employs counsel after her coexecutors have retained other counsel, who are taking all necessary steps, it will be presumed that the attorney was retained to protect the individual interests of the executrix, and he cannot be compensated from the estate.</p> <p>[Ed. Note.—For other eases, see Executors and Administrators, Cent. Dig. §§ 448-462; Dec. Dig. § 111.*]</p> <p>3. Executors and Administrators (§ 111*)—Charges—Attorney’s Fees—</p> <p>Amount.</p> <p>Where an attorney for one executrix brought an action under Code Civ. Proe. § -2653a, in which the other executors, who had retained a different attorney, were made defendants, an award of $500 and costs allowed in that action against the estate is sufficient compensation for the plaintiff’s attorney.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators,' Cent. Dig. §§ 448-462; Dec. Dig. § 111.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Elk Realty Company against Antionette G. Onderdonk. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by the Funk & Wagnalls Company against Louis S. Bruenn. From a judgment for plaintiff, after a trial without a jury, defendant appeals. Reversed, and new trial granted.

Action by the Equitable Trust Company of New York against Arthur'M. Stadler. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by George Neville against William H. Woolverton and Edward B. McNally. Judgment for the plaintiff, and defendants appeal. Reversed, and complaint dismissed, as to defendant Woolverton, and affirmed as to defendant McNally.</p>

<p>1. Divorce (§ 129*)—Evidence—Adultery.</p> <p>A wife’s adultery is proved by proof of her pregnancy, or the birth of a child under circumstances negativing the possibility of her husband being the child’s father.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 411-441, 454; Dec. Dig. § 129.*]</p> <p>2. Bastards (§ 3*)—Evidence—Presumption of Legitimacy.</p> <p>A husband is presumed to be the father of his wife’s child, if he had access to his wife within the required period, and nonintercourse must be established beyond reasonable doubt, or the presumption applies.</p> <p>[Ed. Note.—For other cases, see Bastards, Cent. Dig. §§ 4, 5; Dec. Dig. I 3.*]</p> <p>3. Witnesses (§ 57*)—Competency—Husband and Wife.</p> <p>In a husband’s action for divorce, he was not competent to testify to nonaccess by reason of his wife’s absence from his home for more than the ordinary period of gestation immediately prior to the birth of a child.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 157-159; Dec. Dig. § 57.*]</p> <p>4. Divorce (§ 129*)—Evidence—Adultery.</p> <p>On a trial for divorce on the ground of adultery, defendant’s admissions or confessions of guilt should be received with jealousy and weighed with caution, and are insufficient to establish the adultery unless supported by facts and -circumstances tending to demonstrate the charge to the satisfaction of the court.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 411-441, 454; Dec. Dig. § 129.*]</p>

Action for a penalty by the People of the State of New York against William Mechlowitz. From an order denying a motion to open defendant’s default and vacate the judgment, defendant appeals. Reversed, judgment vacated, and new trial ordered on condition.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>‘ Action by William H. McGrory against Ludwig W. Lange. From a judgment for plaintiff, defendant appeals. Modified and affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by William Nissen against Bernard Applebaum. Judgment for defendant on a counterclaim, and plaintiff appeals. Reversed, and new trial granted.</p>

<p>Costs (§ 42*)—Ineffectual Tender—Effect.</p> <p>Defendant’s insufficient tender will not entitle Mm, on prevailing, to costs, and an order of judgment for plaintiff for the amount of the tender should carry appropriate costs.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig.. §§ 137-164; Dec. Dig. § 42.*]</p>

Action by Clifford L. Anderson and others against Alfred M. Lazarowitz. From an order denying the motion to set aside a default, defendant appeals. Affirmed, with leave to renew.

Action by Abraham Cohen against Nathan Hurwitz and another. Judgment for the defendants, and plaintiff appeals. Reversed, and new trial ordered.

<p>Coubts (§ 188*)—City Court—Equitable Jubisdiction.</p> <p>Where there had been a complete accounting and dissolution of a co-partnership, an agreement between partners that, if a certain piece of property was thereafter sold by any or all of them, the commissions earned would be equally divided, did not create a partnership as to such sale; and hence an action by one of the former partners for a share of such commissions did not involve a partnership transaction, and was within the jurisdiction of the City Court of the City of New York.</p> <p>[Ed. Note.—For other ‘cases, see Courts, Cent. Dig. §§ 439, 440, 442, 447, 448, 451, 452, 454, 458, 464, 465, 467, 468; Dec. Dig. § 188.*]</p>

<p>Witnesses (§ 243*)—Examination of Witnesses—Leading Questions. 1</p> <p>It was error to exclude questions, asked a witness who was testifying 1 through an interpreter, and who was manifestly slow-witted, although in 1 some aspects they might be considered leading, where they .were not ob- I noxiously so. ■</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 795, 847; Dec. I Dig. § 243.*] I</p>

Action by the University Garage against Henry A. Heiser. From a judgment for plaintiff, defendant appeals. Conditionally reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Alice U. Daggers against Charles A. Mayer. From a judgment for plaintiff, after a trial by the court without a jury, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Charles Stramiello™ against the Parsons Trading Company. From a judgment involving a dismissal of a counterclaim of defendant, it appeals. Reversed, and new trial granted.</p>

<p>Evidence (§ 271*)—Self-Serving Declarations.</p> <p>Where, in an action for breach of an alleged contract to employ plaintiff for a year, the only issue was whether plaintiff was employed for a year, or from week to week, a letter written by plaintiff to defendant, after she had been discharged, protesting against notification that, in order to retain her position, she must suffer a reduction in salary of from $60 to $40 per week, and that she was writing defendant to keep his agreement, made with her in September, 1911, was inadmissible as a self-serving declaration.</p> <p>[Ed. Note.—Por other cases, see Evidence, Cent. Dig. §§ 1069-1079, 1081-1104; Dec. Dig. § 271.*]</p>

<p>1. Trover and Conversion (§ 16*)—Right oe Action—Party in Interest.</p> <p>Where plaintiff .presented a check of defendant to be cashed by a third person, and indorsed it to him, and it was returned to rectify a variance between the amount stated in the body of the check and in the figures, and defendant, receiving it for correction, destroyed it, plaintiff had a sufficient equitable title to the check to have the right to maintain an action against defendant for conversion.</p> <p>[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. §§ 119-147; Dec. Dig. § 16.*]</p> <p>2. Biles and Notes (§ 516*)—Action on Note—Evidence.</p> <p>In an action by a bank to recover on a note discounted by it, evidence held to entitle plaintiff to a directed verdict.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1800-1806; Dec. Dig. § 516.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>* Action by the Wilkesbarre Realty Company against Harold B. Atkins. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.</p>

<p>1. Principal'and Agent (§ 122*)—Agency—Statements of Agent.</p> <p>The authority of an agent to bind his principal by a lease of real property cannot be established by admissions of the agent.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§</p> <p>416-419; Dec. Dig. § 122.*]</p> <p>2. Principal and Agent (§ 100*)—Authority of Agent — Execution of Lease.</p> <p>A salesman of a corporation, with power to sign checks and attend to routine business, did not have implied power to execute a lease of real property for Ms principal.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§</p> <p>262-273, 345, 364, 368-373; Dec. Dig. § 100.*]</p> <p>3. Evidence (§ 148*)—Telephone Conversation—Identity of Person Speaking.</p> <p>A telephone communication cannot be proved, without evidence of the actual identity of the person speaking.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 438; Dec. Dig.</p> <p>§ 148.*]</p>

Action by Adolph Hershkopf against George Engel and another. From a final order in favor of plaintiff, as landlord, upon a verdict rendered-by direction of the court, defendant, as tenant, appeals. Reversed, and new trial granted.

<p>Master and Servant (§ 25é*)—Injury to Servant—Action—Complaint— Sufficiency.</p> <p>A complaint in an action for injuries to an employé while painting, which alleges that he used a stepladder supplied by the employer, and that without any fault on his part the ladder broke, causing injuries, that prior to the accident the employer had used the ladder, which was unfit for use, that the employer had knowledge thereof, that on the day of the accident the employer represented that the ladder had been repaired and directed the employé to use it, and that the repairs were so made that no inspection could disclose its defective condition, states a cause of action as against a demurrer.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.*]</p>

Action by Philip Siegel against Max Kinstler. From an order granting defendant’s motion to set aside the verdict in plaintiff’s favor, plaintiff appeals. Affirmed.

In the matter of Sixteenth Street, from Broadway to Mitchell Avenue, Third Ward, Borough of Queens, in the City of New York. On objections to the confirmation of the report of the commissioners. Report confirmed.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Tobe Kleinberg against Henry Feinberg. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered:</p>

<p>Judgment (§ 297*)—Lien—Memoranda on Docket—Order by Court.</p> <p>As the county clerk, in entering judgments of the Supreme Court and keeping a docket thereof, acts as clerk of the court, it has inherent power over the docket, as it has over the judgment ;• and so, the Bankruptcy Act preventing a judgment against a bankrupt, docketed after the filing of the involuntary petition in bankruptcy, becoming a lien on property of the bankrupt, such court can, on summary application, make orders declaring that fact and directing the clerk to mark the docket book accordingly.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 581, 584-586; Dec. Dig. § 297.*]</p>

<p>Proceedings on exceptions to the report of referee in an accounting by the trustee in the matter of the estate of Hudson Hoagland.</p>

Action by Abraham M. Alterman, guardian ad litem of Freda Alter-man, an infant, against Jonas Weil and others. Judgment for plaintiff, and defendants appeal. Reversed, and complaint dismissed.

<p>Account Stated (§ 19*)—Documents Constituting.</p> <p>A letter written by plaintiff on January 29, 1912, to defendant, stating plaintiff’s version of tbeir mutual accounts, was evidence that plaintiff did not accept defendant’s statement of their accounts, so as to rebut a claim that defendant’s letter of January 21st, conceding that a certain amount was due,- constituted an account stated.</p> <p>[Ed. Note.—For other cases, see Account Stated, Cent. Dig. §§ 91-93; Dec. Dig. § 19.*]</p>

<p>Bills and Notes (§'470*)—Actions—Complaint—Nonpayment.</p> <p>In an action on notes, a complaint failing to allege their nonpayment is demurrable.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 1462; Dec. Dig. § 470.*]</p>

Action by Katharine Martin against Isabella Berwick. From an order denying a sheriff’s application for poundage, he appeals. Order reversed, and payment of fees directed.

<p>Evidence (§ 571*)—Expert Testimony—Effect.</p> <p>In an action for fraudulent misrepresentations as to the profits of a joint venture, by which the plaintiff was induced to relinquish his rights therein, where the only evidence as to the value of the inventory, upon which the accounting was based, was an estimation by an expert accountant of the inventory upon the date of dissolution, based upon the average profits shown by selected sales slips, there is not sufficient evidence of the profits to permit a recovery.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2395-2398; Dec. Dig. § 571.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Johnston & Collins Company against Erank E. Davis. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Evidence (§ 405*)—Pabol Evidence—Insurance Contracts.</p> <p>In an action by an indorsee before maturity of a note for premiums on insurance policies, defendant, who does not set up the defense of failure of consideration, may not by parol contradict the applications, calling for the identical policies delivered to him.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1818-1824; Dec. Dig. § 405.*]</p>

<p>Negligence (§ 136*)—Taking Case from Jury—Questions of Fact.</p> <p>Where the record does not show that the plaintiff was chargeable with contributory negligence as a matter of law, it is error to dismiss the complaint on the ground of contributory negligence at the close of his case.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec.</p> <p>Dig. § 136.*)</p>

<p>Work and Labor (§ 12*)—Actions—Defenses—Nonperformance by. Plaintiff.</p> <p>Where a party to a contract for the installation of a refrigerating plant agreed to furnish refrigeration or a temporary substitute therefor on or about a certain date, its failure to substantially perform this provision of the contract, which was neither waived nor excused by the other party, defeated a recovery for labor performed and materials furnished under the contract, although, instead of suing on the contract, it brought suit on a quantum meruit.</p> <p>[Ed. Note.—For other cases, see Work and Labor, Cent. Dig. § 27;</p> <p>Dec. Dig. § 12 ;* Contracts, Cent. Dig. § 1366.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Joseph Derrico against John Muller. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>1. Judgment (§ 151*)—Default—Vacation—Jurisdiction.</p> <p>An application for an order to show cause why judgment taken against defendant by default should not be vacated, and defendant “allowed to come in and .defend said action,” in form conferred jurisdiction upon the court to grant the relief asked for.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 296-298, 727, 730; Dec. Dig. § 151.*]</p> <p>2. Judgment (§ 158*)—Default—Vacation—Affidavit of Merits.</p> <p>Defendant’s failure to file an affidavit of merits or proposed answer was fatal to his application to vacate a default judgment.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 311; Dec. Dig. § 158.*]</p>

Petition by John E. Henry, Jr., for an order revoking and canceling the liquor tax certificate issued to Alexander Maletta and transferred to Albert Zapfe for alleged false statements in the application for the certificate in respect to the number of dwellings, from the owners of two-thirds of which consents were required. Denied.

Action by the Acme Wood Carpet Flooring Company against the Broadway & Fifty-Third Street Company. From a judgment on a verdict for plaintiff, defendant appeals. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, First District. - Action by the Broderick & Bascom Rope Company against Margaret Mc-Grath. From a judgment for defendant, plaintiff appeals. Reversed and remanded.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Joseph Ajello against the Albrecht & Meister Company. From a judgment for plaintiff, defendant appeals. Reversed arid remanded.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Gertrude Lichtenstein against Anna M. Konig. From a judgment on a verdict for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by James Mitchell against Ann Farley. From a judgment for "plaintiff, defendant appeals. Reversed, and new trial granted.</p>

Action by Arthur Title against the Cowen Company. Judgment for. plaintiff for $347 damages and costs, and defendant appeals. Modified and affirmed.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Abraham L. Kass against Abraham Blumberg and others, impleaded with Emil Reibstein. From a judgment for plaintiff, defendant Reibstein appeals. Reversed, and new trial granted.</p>

<p>Landlobd and Tenant (§ 173*)—Constructive Eviction.</p> <p>The misconduct of the elevator man in an apartment house, in throwing water on the 11 year old nephew of a tenant’s wife and in applying to the wife an insulting epithet in the altercation which ensued, does not amount to a constructive eviction, authorizing the cancellation of the lease, on reporting the incident to the landlord’s superintendent, though the landlord must use care in the selection of the servants, and, if necessary to the future enjoyment of the tenant, discharge a servant guilty of misconduct.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 705-707; Dec. Dig. § 173.*]</p>

<p>Costs (§ 90*)—Pbev ailing Pabty—Two ob Mobe Defendants.</p> <p>Under Code Civ. Proc. § 3229, relating to cases in which plaintiff recovers against only part of defendants, the right to costs of the successful defendant rests in the court’s discretion, and judgment therefor should not be entered, except by order of the court; the proper practice being for the successful defendant to apply for permission to enter judgment.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 350-355; Dec. Dig. § 90.*]</p>

<p>Action by the Chadwick Park Athletic Club against Wallace A. Peasley, as Sheriff of the County of Albany. Demurrer to complaint sustained.</p>

<p>Actions by Leonie B. Luhman and by William Luhman against the New York, Westchester & Boston Railway. Judgment for plaintiff in each case.</p>

<p>Action by the People, on the relation of Isaiah Perkins, against Alfred Pelcher. Complaint dismissed on the merits.</p>

<p>1. Wills (§ 448*)—Construction—Avoiding Intestacy.</p> <p>A construction of a will which will prevent intestacy will be favored, if possible.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 964; Dec. Dig. § 448.*]</p> <p>2. Wills (§ 629*)—Construction in Favor of Vesting of Estates.</p> <p>The law favors that construction of wills which permits the vesting of devises as closely as possible after the testator’s death, and avoids the disinheritance of remaindermen who may happen to die before the determination of the precedent estate.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1461, 1462; Dec. Dig. § 629.*]</p> <p>3. Wills (§ 439*)—Construction—Intention of Testator.</p> <p>The fundamental principle for construing wills is that the intention of the testator is the dominating guide.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*]</p> <p>4. Wills (§ 634*)—Construction—Vested or Contingent Interests.</p> <p>Where a testatrix gave real and personal property to a daughter for life, with remainder to a son should he be living at the death of the daughter, and; should he be dead at the time, to his- then living children, sharé and share alike, the fee in' the real estate remained in the heirs of the testatrix subject to the life estate and to the contingency that the son should survive the life tenant .or leave children surviving her, and the son took a vested title only in the event that he survived the daughter, and his children only in the event that he should die before the daughter leaving children surviving her.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*]</p> <p>5. Wills (§ 456*)—Construction—Meaning of Language.</p> <p>The language of a will should be given its natural and rational meaning, and not a forced and unnatural meaning, for the purpose of spelling out a theory by which it can be said that the testatrix intended something which her language shows she did not intend.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 974; Dec. Dig. § 456.*]</p> <p>6. Wills (§§ 523, 524*)—Construction—Gift to Class—Time fob Ascertain-</p> <p>ing Class.</p> <p>Where a testatrix devised property to a daughter for life with remainder to a son if he survived the daughter, and, if not, to his children should he leave any who survived the daughter, there being an uncer-. tainty not only as to whether there would be any children living upon the death of the daughter, but also as to their number, the gift was to a class and the division was to be made among the persons coming within the class at the date when the division was to be made.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1115, 1116-1127; Dec. Dig. §§ 523, 524.*]</p> <p>7. Bankruptcy (§ 143*)—Property Passing to Trustee—“Estate in Ex-</p> <p>pectancy.”</p> <p>Under Beal Property Law (Consol. Laws 1909, c. 50) § 35, defining an “estate in expectancy” as one in which the right of possession is postponed to a future time, section 36, providing that a future estate is one limited to commence in possession at a future date, and section 40, providing that a future estate is vested when there is a person in being who would have an immediate right to the possession of the property on the determination of all intermediate or precedent estates, and is contingent while the person to whom, or the event on which, it is limited to take effect remains uncertain, where a testatrix devised land to a daughter for life with remainder to a son if he survived the daughter and if not to his children living at the time of the daughter’s death, the interest of a child of the son, after his father’s death, was “an estate in expectancy” and assignable under Beal Property Law, § 59, providing that expectant estates are descendible, devisable, and alienable in the same manner as estates in possession, and hence it passed to the trustee in bankruptcy under Bankr. Act July 1, 1898, c. 541, § 70, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), providing that the trustee shall be vested with the bankrupt’s title to all property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. § 143.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2588.] :</p> <p>8. Champerty and Maintenance (§ 6*)—Assignments of Choses in Action</p> <p>and Contingent Interests.</p> <p>The common-law doctrine of maintenance, prohibiting the assignment of choses in action and contingent interests to strangers, does not obtain in this state except as preserved by statute.</p> <p>[Ed. Note.—For other cases, see Champerty and Maintenance, Cent. Dig. .§§ 5-8, 17-19; Dec. Dig. § 6.*]</p>

In re application of Orren B. La Pelle against Benedict Lahey, Town Clerk, Town of Long Lake, Hamilton county, N. Y., to give notice of submission of a liquor tax question. From an order denying the application, applicant appeals. Order affirmed.

Action by the Birkett Mills against William B. Fenner to enjoin defendant from interfering with a right to the use of certain switch tracks over his land. Judgment for plaintiff.

Action by Selwyn & Co. against one Waller and one Shubert. On demurrer of the plaintiff to,the answer of the defendant Shubert. Demurrer sustained. . '

Action by Martin A. Leonard against Thomas Donohoe. From a judgment of nonsuit against the plaintiff in.the City Court of Albany, the plaintiff appeals. Reversed, and new trial ordered.

<p>Action by the Magnetite Mining Company against the Wilmore Realty Company and another. Judgment rendered for the plaintiff.</p>

<p>Action by Walter Althause against the Guaranty Trust Company.</p>

<p>Action by the Abendroth & Root Manufacturing Company against W. S. Frazier & Co. J. Ewen, of New York City, for appellant. G. H. Mallory, of New York City, for respondents.</p>

<p>In the matter of the judicial settlement of the accounts of Anson Baldwin, as trustee, etc., of Abijah Curtiss, deceased.</p>

<p>Action by Sarah H. Barnes and others against the Midland Railroad Terminal Company.</p>

<p>Action by Fred Bauer, an infant, by Jacob Bauer, his guardian ad litem, against the Montague Mailing Machinery Company.</p>

<p>Action by the Belmont Powell Holding Company against the Serial Building Loan & Savings Institution and others.</p>

<p>Action by William Beckstein against the Central Star Laundry Company.</p>

<p>Action by Jeanette S. Brownrigg against Leo W. Brownrigg.</p>

<p>Action by Rudolph Braun, an infant, against William R. H. Martin and others. J. J. Coughlan, of New York City, for appellants. 0. L. Mills, of New York City, for respondent.</p>

<p>Action by Jeanette S. Brownrigg against Leo W. Brownrigg.</p>

<p>Action by Bernard J. Carr against the New York Central & Hudson River Railroad Company.</p>

<p>Action by the Catholic Foreign Mission Society of America, Incorporated, against Joseph Oussani and J. Alva Jenkins,</p>

<p>Appeal from City Court of New York, Special Term, Action by William T. Canton against the Atlantic Fruit & ■ Steamship Company. From an order denying a motion for a bill of particulars, defendant appeals. Modified and affirmed, Ralph James M. Bullowa, of New York City, for appellant. Alexander Marks, for respondent</p>

<p>Appeal from Trial Term, New York County. Action by Margaret Casey against the City of New York. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and complaint dismissed. Harry Crone, of New York City, for appellant. L. F. Fish, of New York City, for respondent.</p>

Aetion by the City & Suburban Homes Company against the People of the State of New York and others, m which George F. Martens, Jr., and another, appear as executors, etc.

Action by the Charles Wissman Company against William E. D. Stokes. From an order denying its motion to open its default, and from other subsequent orders in the action, plaintiff appeals. Crder denying motion to open default reversed, judgment vacated, and new trial ordered. Appeals from other subsequent orders dismissed. Emanuel Jacobus, of New, York City (Joseph J. Dreyer, of New York City, of counsel), for appellant.

<p>_ In the matter of acquiring title by the City of New York to certain lands, etc., on the easterly side of Pennsylvania Avenue, etc.</p>

<p>Action by the Cooper Company against Bernard Naumburg and another.</p>

<p>Action by Patrick J. Conlin against Willard V. King and Paul T. Brady, as receivers of the South Shore Traction Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the Cosmopolitan Boarding & Livery Stables against the American Society for the Prevention of Cruelty to Animals. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed. J. Mayhew Wainwright, of New York City, for appellant. Israel M. Lerner, of New York City, for respondent.</p>

<p>Action by Tompkins C. Delavan and others against the New York, New Haven & Hartford Railroad Company and others. S. Untermyer, of New York City, for appellants. E. D. Robbins, of New York City, for respondents.</p>

<p>Action by Okas. S. Danziger against Joseph Gottlieb.</p>

Action by Joseph Frackman against the Bijou Real Estate Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Bennett B. Siegelstein, of New York City, for appellant. Leonard Bronner, of New York City, for respondent.

<p>Action by Alexander V. Fraser and another, as executors, etc. against the City of New York. W. B. C. M'ayer, of Brooklyn, for appellant. H. Green, of New York City, for respondents.</p>

<p>Action by Patrick A. Fogarty against William P. Fogarty. D. McCurdy of New York City, for appellant. B. Frayer, of New York City, for respondent.</p>

<p>Action by Rosa Gunderson, as administratrix, etc., against the Roebling Construction Company.</p>

<p>Action by David Greenberger against the Queens County Water Company.</p>

<p>Action by George A. Hall against Edward C. Hyle, as trustee, etc., and others.</p>

<p>Action by Stephen Hasbrouck against Sarah Harris and others.</p>

<p>Ac-yon 3y Edward C. Hyle, as trustees, etc., and others, against George A. Hall and another. ’</p>

<p>In the matter of the application of Charles W. Jannicky to compel John Henigin, Jr., to deliver books, papers, etc.</p>

Action by Max Keve against the Columbia Kid Hair Curlers Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed. Meyer D. Siegel, of New York City, for appellant. Harry Stackell, of New York City, for respondent.

<p>In the matter of the Kings County Trust Company, as administrator, etc., of Charles S. Fowler, deceased.</p>

<p>Action by Frederick Kroll against the Associated Operating Company.</p>

<p>Action by John W. Kinney against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Lottie Loew against Charles A. Mclnemey and others.</p>

Action by Anna Lenahan, an infant, by John Lenahan, her guardian ad litem, against the City of New York. From a judgment entered on verdict, and from an order denying motion for new trial, defendant appeals. Reversed, and complaint dismissed. Harry Crone, of New York City, for appellant. Morris W. Hart, of New York City, for respondent.

<p>In the matter of the settlement of the accounts of Edward A. McQuade, as executor, etc., of John McQuade, deceased.</p>

<p>Action by James McGowan against the New York Contracting Company, Pennsylvania Terminal. J. B. Leavitt, of New York City, for appellant. J. C. Toole, of New York City, for respondent.</p>

<p>Action by Harry Marra against the New York Central & Hudson River Railroad Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Lemuel E. Nathan against the Uvalde Asphalt Paving Company. From a judgment of the Municipal Court of the City of New York, rendered in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulates to a modification of the judgment by reducing it to the sum of $134.90, in which event, judgment, as modified, affirmed. M. S. & I. S. Isaacs, of New York City (Lewis M. Isaacs, of New York City, of counsel), for appellant. Aaron Morris, of New York City, for respondent.</p>

<p>Action by Rose L. Nicoud against the New York Life Insuranee Company.</p>

<p>Action by Adam Partenfelder against the People of the State of New York and others, in which the Realty Associates appeal.</p>

<p>Action by Nunzio Orsino against Grace Orsino and others.</p>

Action by Ellis W. Peetluk against Samuel Jacklowitz. From a judgment for plaintiff after a ^il137»116 °°uart wijhout a>7- defendant appeals. Reversed, and new trial ordered. Reu-'Bílm?rdf^a^ent«^Wn?NewG^rlr0rií?Pfnlare’ -^eutsc^’ ^ew York City, for respondent.

<p>In the matter of the probate of a paper writing purporting to be the last will and testament of Sarah H. Pattison, deceased.</p>

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

<p>Proceeding by the People of the State of New York against Arthur D. Stilwell and others.</p>

<p>Proceeding by the_ People of the State of New York, on complaint of Theresa Soriano, against Joseph Soriano.</p>

<p>Proceeding by the People of the State of New York, on the relation of Joseph O'Connor, against Rhinelander Waldo, as Police Commissioner of the City of New York.</p>

<p>Proceeding by the People of the State of New York, on the relation of the New York & Rockaway Beach Railway Company, against the State Board of Tax Commissioners, in which the City of New York intervened.</p>

<p>Action by Alexander Potter against the Pictorial Review Company.</p>

<p>Action by Eben Plympton against Theodore A. Liebler and another.' H. W. Rudd, of New York City, for appellant. M. D. Josephson, of New York City, for respondents,</p>

<p>Action by Elizabeth B. Riley against Eleanor M. Ransom and others.</p>

<p>Action by Lillian Schmitt against Andrew Schmitt, Jr., and others.</p>

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

In the matter of the application and petition of J. Edward Simmons and others, etc., to acquire real estate, etc., in the City of Yonkers, etc.; Hill View Reservoir, Section No. 1, Parcel No. 4.

<p>Action by Charles Serota and others against Adolph ICiendl.</p>

In the matter of the application and petition of J. Edward Simmons and others, etc., to acquire real estate, etc., in the city of 1'“parceleNÓ’ VÍCW Reservoir’ Sectlon Na

<p>Action by Arthur Sirois against Alexandrine Sirois and others.</p>

<p>Action by Morris Solomon against the North British & Mercantile Insurance Company of New York. H. S. Dottenheim. of New York City, for appellant. J. R. Schiff, of New York City, for respondent.</p>

Action for nuisance by the United States Leasing & Holding Company against the New York Central & Hudson River Railroad Company. Judgment for the plaintiff, and defendant appeals. Reversed, and complaint dismissed. Robert A. I&utschback, of New York City, for appellant. Joseph A. Shay, of New York City, for respondent.

<p>Action by William J. Wagner against C. Le Roy Butler and others.</p>

<p>Action by Charles M. R. Ward against the Textile Commission Company. P.- S. Dudley, of New York City, for appellant. J. B. Doyle, of New York City, for respondent.</p>

<p>Action by Edwin A. 'Williams against Frederick W. Zingsem, as executor, etc., and the Dime Savings Bank of Brooklyn.</p>

<p>In the matter of William H. White, an attorney.</p>

<p>Action by Hyman Zeitz and another against Harry Cook and Aaron Benjamin.</p>