Volume 143 — New York Supplement

<p>1. Injunction (§ 57*)—Violation of Contract—Cancellation.</p> <p>An injunction will not be granted to restrain defendant’s alleged violation of certain written contracts, where it appeared that before suit brought the parties on a sufficient consideration had agreed to cancel the contracts and terminate their relations by a settlement, in the absence of evidence that the settlement agreement had been modified or waived.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 111-113, 130; Dec. Dig. § 57.*]</p> <p>2. Specific Performance (§ 61*)—Partial Termination of Contract—Enforcement.</p> <p>Plaintiff, after terminating and canceling part of a contract, cannot enforce its remaining provisions in equity.</p> <p>[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 183-187; Dec. Dig. § 61.*]</p>

Action by the Northland Rubber Company, incorporated, against the International Automobile League and others, on return of an order to show cause why the defendants International Automobile League, James J. O’Shea, and others, should not be punished for contempt for violating a temporary injunction, granted ex parte July 9, 1913. Defendants found guilty and punished.

<p>1. Highways (§ 7*)-—Establishment by User.</p> <p>A road never laid out and established by the town authorities, but traveled by the public for 20 years, and either kept in repair by or taken in charge of the public authorities, is a highway.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 10, 12-14, 16, 18; Dec. Dig. § 7.*]</p> <p>2. Highways (§ 14*)-—Establishment by User—Location.</p> <p>Location of a highway established by user for 50 years is defined by substantial fences erected on both sides by the abutting owners and maintained for the last 40 years of such period.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. § 21; Dec. Dig. § 14.*]</p> <p>3. Highways (§ 83*)—Abutting Owners—Quarrying Stone.</p> <p>The owner of the abutting lands and the fee of a country highway has the right to quarry the stone under it; he constructing and maintaining a good temporary road during the time of removal and thereafter restoring the highway.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 292, 293; Dec. Dig. § 83.*]</p>

<p>1. Release (§ 28*)—Operation—Joint Debtors.</p> <p>Under the common-law rule that the release of the liability of one or more joint or joint and several obligors discharges the liability of all, the instrument must be a technical release, without any valid limitation or restriction, and must be under seal.</p> <p>[Ed. Note.—For other cases, see Release, Cent. Dig. §§ 57-62; Dec. Dig. § 28.*]</p> <p>2. Release (§ 6*)—“Parol Release.”</p> <p>Any release not under seal is a “parol release.'”</p> <p>[Ed. Note.—For other cases, see Release, Cent. Dig. §§ 12-14, 16; Dec. Dig. § 6.*]</p> <p>3. Release (§ 28*)—Operation—Joint Debtors.</p> <p>Under Debtor and Creditor Law (Consol. Laws 1909, c. 12) § 230, providing that a joint debtor may make a separate composition with his creditor, and that such composition discharges only the debtor making it, and section 231, providing that an instrument making a composition with a creditor does not impair the creditor’s right of action against any other joint debtor, or his right to proceed against another joint debtor, unless an intent to release or exonerate him appears affirmatively on the 'face of the instrument, where one of 13 makers of a note for $2,600, given for the purchase price of a horse, paid the payee $200 and received a receipt, not under seal, stating that this was in full payment of his share in the horse, the other makers were not released, since, not being under seal, it would not have the effect of releasing the other makers, even at common law, and no intent to release or exonerate any one else was apparent.</p> <p>[Ed. Note.—For other cases, see Release, Cent. Dig. §§ 57-62; Dec. Dig. § 28.*]</p> <p>4. Release (§ 25*)—Construction and Operation.</p> <p>Under the equitable rule, now prevailing, a release is to be construed according to the intent of the parties, and its object, purpose, and intent will control and limit its operation.</p> <p>[Ed. Noté.—For other cases, see Release, Cent. Dig. §§ 47, 48; Dec. Dig. § 25.*]</p> <p>5. Contribution (§ 6*)—Payment or Discharge oe Common Liability.</p> <p>Where 11 of 13 joint and several makers of a note paid the note, 8 of them paying their share in cash and 3 by discounting their individual notes, which were accepted as payment, the original note being surrendered, those paying the note were entitled to recover, from another maker, his proportionate share of the amount, .whether or not the notes given by such 3 makers had been paid, since the defendant was no longer liable on the original note, which had been surrendered.</p> <p>[Ed. Note.—For other cases, see Contribution, Cent. Dig. §§ 10-12; Dec. Dig. § 6.*]</p>

Action by the Equitable Trust Company of New York against Milford W. Childs, as permanent receiver of the Medina Gas Company, and another. On application to open and modify an order previously made. Motion denied.

Application of the City of New York to acquire real estate at Wantagh, in the town of Hempstead, county of Nassau, for purposes of water supply. From an order confirming Commissioners’ report, Edwin H. Brown appeals. Affirmed.

<p>Vendor and Purchaser (§ 130*)—Marketable Title.</p> <p>Where plaintiff’s title to certain real property in controversy was based on a referee’s deed in foreclosure against tenants in common, one of whom was an absentee, and the record did not contain a report as to the proof of the facts stated in the complaint, and of the examination of plaintiff or his agent on oath as to any payments made as required by Code Civ. Proc. § 1216, and General Practice Rules 30 and 60, the title was not marketable so as to sustain a suit for specific performance, and this, notwithstanding that between the date of the contract of sale and the date fixed for closing it plaintiffs procured an order under which they attached to the judgment roll in the foreclosure proceedings, as of the date of the judgment, a copy of the testimony concerning the facts required.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245-247; Dec. Dig. § 130.*]</p>

<p>Master and Servant (§ 177*)—Injury to Servant—Negligence of Fellow Servant.</p> <p>A servant cannot recover of his master for Injury from explosion of a tank through negligence of a fellow servant in a detail of the work, in letting the pressure get above the point at which he was instructed to keep it, and in not sooner attempting to shut it off after seeing this.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. § 177.*]</p>

<p>Action by George H. Smith, trustee in bankruptcy oí Frank S. Eldredge, against Frank S. Eldredge and others to set aside conveyances as fraudulent. Action dismissed.</p>

Action by Margaret Archer, individually and as administratrix of Allison Archer, deceased, and others, against George Archer, individually and as executor of Michael A. Archer, deceased, and wife. Judgment for plaintiffs.

<p>1. Contracts (§ 322*)—“Performance” by Plaintiff—Burden of Proof.</p> <p>“Performance” of a contract consists in doing the things agreed to be done, and the burden is on plaintiff to show performance, not on defend-' ant to show nonperformance.</p> <p>[Ed. Note.—For other cases, sée Contracts, Cent. Dig. § 1768; Dec. Dig. $ 322*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5295.]</p> <p>2. Contracts (§ 280*)—Performance—Sufficiency.</p> <p>A heating company contracted to install in defendant’s premises a boiler of the capacity of 5,000 square feet of radiation, the boiler to be insurable. The boiler installed fell short one-third in capacity, and was not insurable. Held, in an action by the heating company on the contract, that there was no sufficient performance of the contract.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1249-1280; Dec. Dig. § 280.*]</p> <p>3. Contracts (§ 346*)—Action—Nonperformance—Necessity of Pleading.</p> <p>Defendant, in an action on a contract, may show plaintiff’s failure to perform, without pleading it as a counterclaim.</p> <p>[Ed. Note.-—For other cases, see Contracts, Cent. Dig. §§ 1714, 1718-1751; Dec. Dig. § 346.*]</p> <p>4. Contracts (§ 319*)—Action—Substantial Performance.</p> <p>For plaintiff to recover as for a substantial performance, it was incumbent on it to show the difference in value between the boiler installed and the boiler called for by the contract.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1458, 1476, 1477, 1479, 1493-1507; Dec. Dig. § 319.*]</p> <p>5. Contracts (§ 295*)—Substantial Performance—Heating Contract.</p> <p>. Where plaintiff contracted to install an insurable boiler of a specified capacity, and the boiler furnished was not insurable, and was. of only two-thirds the agreed capacity, there could be no recovery on the ground of substantial performance; such recovery being permitted only where the omissions are unsubstantial and such as the parties are presumed not to have had in contemplation when making the contract.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1353-1356, 1362; Dec. Dig. § 295.*]</p> <p>6. Sales (§428*)—Breach of Warranty—Remedies of Buyer.</p> <p>Where defendant refused to accept a boiler from a heating company because not in compliance with the contract, his remedy was not limited to an action for damages for breach of warranty.</p> <p>[Ed. Note.-—For other eases, see Sales, Cent. Dig. §§ 1214-1223; Dec. Dig. § 428.*]</p> <p>7. Contracts (§ 155*)—Construction—Correspondence.</p> <p>In construing correspondence evidencing a contract between plaintiff and defendant, it should be read together, and ambiguities and uncertainties should be construed most strongly against the writer.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 736; Dec. Dig. § 155.*]</p> <p>8. Contracts (§ 322*)—Acceptance of Performance—Sufficiency of Evidence.</p> <p>Evidence, in an action by a heating company to recover under a contract for a boiler installed in defendant’s premises, held to show that defendant did not accept the boiler.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1465, 1534;. Dec. Dig. § 322.*]</p>

Action by George W. Seaward, as administrator with the will annexed of William Z. King, deceased, against Frederick H. Tasker. On motion by plaintiff to set aside the dismissal of the complaint on the merits after a trial by. the court and jury and for a new trial. Motion for new trial denied, and complaint dismissed.

Certiorari proceedings by the People, on the relation of Helen Hammond, against Frederick Becker, sheriff of Erie county, to secure relator’s discharge from imprisonment. Proceeding dismissed.

<p>Petition by William M. Farley, as State Commissioner of Excise, for an order canceling liquor tax certificate No. 20,503, issued to John Vessa. Granted.</p>

<p>Wiles (§ 302*) — Actions to Establish Lost Wiles — Sufficiency of Evidence.</p> <p>Under Code Civ. Proc. § 1861, authorizing actions to procure a judgment establishing a will where a will of real or personal property, or both, has been so executed that it might under the laws of this state be admitted to probate, but has been lost or destroyed by accident or design, section 1862 providing that, if the facts necessary to establish the validity of a will as prescribed in the preceding section are satisfactorily proved, final judgment must be'rendered establishing the will accordingly, and section 1865 providing that the plaintiff is not entitled to a judgment unless the will was in existence at the time of the testator’s death or was fraudulently destroyed in his lifetime, and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness, where there was no attempt at any proof that the will sought to be established was fraudulently destroyed in the testator’s lifetime and the evidence to show its existence at the time of the testator’s death was scanty, unconvincing, and conflicting, judgment would be denied.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 575, 581, 700-710; Dec. Dig. § 302.*] ' 1</p>

<p>Proceedings upon the judicial settlement of the accounts of executors of Mary Sliney, deceased. Decreed according to opinion.</p>

Suit for specific performance by James Moffett against Harris G. Eames, substituted trustee, and others. Heard on application of Harris G. Eames, substituted trustee, for settlement of his account.

Petition of a majority of the Board of Directors of the Suburban Construction Company for a voluntary dissolution thereof. On motion to pass a receiver’s account and to fix allowances of the receiver and his counsel. Granted.

<p>Action by Sarah A. Stebbins against John H. Myers and another.</p> <p>Judgment for plaintiff.</p>

<p>1. Master and Servant (§ 47*)—Wrongful Discharge of Servant—Offer of Reinstatement.</p> <p>Where a master’s bona fide offer to reinstate an empioyé, wrongfully discharged, was met by arbitrary demand for the discharge of a certain other empioyé, the discharged servant was not entitled to damages.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 47.*]</p> <p>2. New Trial (§ 77*)—Verdict Based on Sympathy or Prejudice.</p> <p>A verdict which must have been based on sympathy or prejudice, and not on the evidence or the charge, cannot stand.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 157-161; Dec. Dig. § 77.*]</p>

_ Action by the Pittsburgh Plate Glass Company against one Vanderbilt and others for the foreclosure of a mechanic’s lien. Rights of parties determined, and decree of foreclosure rendered.

Proceeding to assess the transfer tax on the estate of Caroline De Forest Von Bernuth, deceased. From an order of the appraiser assessing the tax, the executor appeals. Reversed and report remitted to the appraiser for correction.

<p>Executors and Administrators (§ 24*) — Aliens — Right to Administer — Vice Consul.</p> <p>Where a subject of Hungary died testate but her property passed as in cases of intestacy, due to the death of the sole beneficiary under the will prior to the .death of testatrix, the Austria-Hungarian vice consul was authorized to apply to the surrogate’s court for the removal of the executor and for letters of administration to be issued to himself as the representative of testatrix’s next of kin under the express provisions of the Austria-Hungary Treaty of June 26, 1871, art. 8 (17 Stat. 825), and the most favored nation clause of the Spanish Treaty of July 3, 1902, arts. 21, 27 (33 Stat. 2114, 2119), made applicable to Austria-Hungary by articles 4b and 15 of its treaty with the United States.</p> <p>[Ed. Note.—-For other cases, see Executors and Administrators, Cent. Dig. §§ 132-140; Dec. Dig. § 24.*]</p>

<p>Application for the removal of an administrator appointed for the estate of Mile Vukelic, deceased. Application 'granted.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by William Clare against William A. Engeman and another.</p> <p>From an order granting his motion to open his default on condition, the defendant named appeals. Modified.</p> <p>The action was one for damages claimed to have been sustained by reason of false representations by which plaintiff was induced to enter into a contract. It appeared from defendant’s affidavit on the motion to open the default that the summons and complaint were served on August 1st; that he thought he had 20 days in which to answer, until he received a letter from plaintiff’s attorney on August 14th informing him that he was in default; and that he at once saw his attorney, who began preparation of his answer. An order to show cause why the motion should not be granted was made August 18th.</p>

<p>New Trial (§ 42*)—Grounds—Disqualification of Juror.</p> <p>That after bis examination a juror recalled that he had met some years before a partner of plaintiff’s attorneys was not sufficient ground for setting aside the verdict, where there was nothing to show that he knowingly answered falsely, or that his mind was influenced thereby.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 74-79; Dec. Dig. § 42.*]</p>

Action by Zemro M. Fickett against Joseph R. Marquette, Jr. From an order denying defendant’s motion to open a default, defendant appeals. Reversed, and default opened.

Action by Samuel A. Maguire against O. U. Bean & Co., Incorporated. From an order of the City Court adjudging Charles Geely and Frederick Yung in contempt for disobedience to an ofder entered in supplementary proceedings, said Geely and Yung appeal. Order reversed.

Action by Reginald Whamond against the North Side Board of Trade in the City of New York. From an order denying defendant’s motion for judgment on the pleadings, defendant appeals. Order reversed.

Action by Jesse L. Lasky against Minerva Coverdale and another. From an order of the City Court, denying defendants’ motion for judgment on the pleadings, defendants appeal. Order reversed.

Action by William Bernard, Incorporated, against Bernard Cowen. From an order of the City Court, denying motion to vacate an order for defendant’s examination in supplementary proceedings for' the collection of an award of costs made by the Appellate Term (80 Mise. Rep. 394, 141 N. Y. Supp. 252), in granting an interlocutory motion, the defendant appeals. Order reversed.

<p>1. Action (§ 45*)—Joinder of Causes—Foreclosure of Chattel Mortgages.</p> <p>An action to foreclose several chattel mortgages is a proper proceeding.</p> <p>[Ed. Note.-—For other cases, see Action, Cent. Dig. §§ 378-383, 385-448; Dee. Dig. § 45.*]</p> <p>2. Chattel Mortgages (§ 277*)—Foreclosure—Complaint—Showing Interest.</p> <p>The complaint of G. to foreclose chattel mortgages, some of them given to L. and others assigned to L., not showing an assignment from L. to plaintiff, or that L. was a fictitious name under which plaintiff was doing business, or how plaintiff got title, is bad.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 564-566; Dec. Dig. § 277.*]</p>

<p>Action by the Village of Bronxville against the Lawrence Park Realty Company. Judgment for plaintiff.</p>

<p>1. Infants (§ 81*)—Guardian Ad Litem—Pecuniary Responsibility.</p> <p>Under Code Civ. Proc. § 469, requiring a “competent and responsible person” to be appointed to appear for an infant plaintiff, defendants are entitled to have a guardian ad litem appointed who is pecuniarily responsible.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 222-229; Dec. Dig. § 81.*]</p> <p>2. Infants (§ 81*)—Action—Guardian Ad Litem.</p> <p>The rights of an infant plaintiff should not be prejudiced because the guardian ad litem appointed was not a competent and responsible person, as required by Code Civ. Proc. § 469, and an irresponsible guardian ad litem will be given an opportunity to file an undertaking with sureties conditioned for the payment of costs before a motion will be granted revoking his appointment.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 222-229; Dec. Dig. § 81.*]</p>

<p>Action by Charles P. Barnes ag.ainst Richard P. Martin for an injunction and damages. Judgment for plaintiff.</p>

Application of the City of New York to improve Cruger Avenue, Holland Avenue, and Maple Street. Application to dismiss an appeal from an order confirming a report of commissioners of estimate and assessment. Granted.

<p>Ambassadors and Consuls (§ 5*)—Foreign Consul General—Representation op Nonresident Aliens.</p> <p>Under the treaty between Austria-Hungary and the United States, giving the representatives of the former country all of the prerogatives and privileges granted to the same functionaries of the most favored nation, the consul general of Austria-Hungary is entitled to represent and appear for all nonresident alien next of kin who are subjects of Austria-Hungary and interested in an estate in this country.</p> <p>[Ed. Note.—For other cases, see Ambassadors and Consuls, Cent. Dig. §§ 12-15; Dec. Dig. § 5.*]</p>

Action by Barclay Ball against Sarah E. Elliott, as administratrix of William J. ’Elliott, deceased. From a judgment for defendant, after a trial before the court without a jury, plaintiff appeals. Reversed, and new trial granted.

<p>1. Brokers (§ 64*)—Compensation—Failure to Complete Contract.</p> <p>• Where a contract for the sale, of a business provided that a certain broker brought about the sale, and that the seller thereby agreed to pay the broker a specified commission, the broker’s right to such commission was not contingent upon the purchaser paying the balance due. under the contract.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. § 64.*]</p> <p>2. Brokers (§ 64*)—Compensation—Failure to Complete Contract.</p> <p>Where one who entered into a contract to purchase a business refused to complete the purchase, because the seller’s guaranty as to the profits of the business was untrue, his refusal did not preclude the broker, who brought about the sale, from recovering his commission.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. § 64.*]</p>

Action by Ferdinand Jacobson and another against Isaac Kaplan and others. From a Municipal Court judgment in favor of plaintiffs, after trial by the court without a jury, defendants appeal.. Modified and affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Louis Silverman against Alexander ICogut. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

<p>1. Bills and Notes (§ 60*)—Accommodation Maker.</p> <p>It is immaterial whether an accommodation note was complete when delivered to the payee or whether the maker’s name was originally signed to an otherwise blank note.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 85-94; Dec. Dig. § 60.*]</p> <p>2. Bills and Notes (§ 452*)—Want of Consideration.</p> <p>Want of consideration is a good defense to an action by the payee against the maker of a note.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1303, 1352-1364,1367-1376 ;J Dec. Dig. § 452.*]</p> <p>3. Bills and Notes (§ 493*)—Actions—Burden of Proof—Accommodation Note.</p> <p>Though the note has been admitted or proved, the burden of proving that it was an accommodation note is on the maker in an action against him by the payee.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. § 493.*]</p> <p>4. Evidence (§ 432*)—^Parol Evidence—Promissory Notes.</p> <p>The maker may show by parol evidence, in an action against him by the payee of a note, the real agreement between the parties at the time of its execution in order to show that it was accommodation paper.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1981-1989; Dec. Dig. § 432.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the National Discount Company against the William R. Jenkins Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.</p>

Action by the Equitable Trust Company of New York against William Wehrenberg. From an order of the Municipal Court denying a motion to vacate a judgment of dismissal and to open plaintiff’s de- . fault, plaintiff appeals. Reversed, and judgment vacated.

<p>1. Evidence (§ 441*)—Parol Evidence—Varying Contract—Prior Negotiations.</p> <p>All parol negotiations prior to the signing of a written contract are merged therein.</p> <p>[Ed. Note.—For other eases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.*]</p> <p>2. Master and Servant (§ 20*)—Contract of Employment—Hiring at Will.</p> <p>A hiring at the rate of so much a year, without specifying any definite time of employment, is a hiring at will, which may be terminated at any time by either party.</p> <p>[Ed. Note.—For other eases, see Master and Servant, Cent. Dig. § 19: Dec. Dig. § 20.*]_</p>

<p>1. Sales (§ 359*)—Actions for Price—Sufficiency of Evidence.</p> <p>Evidence in an action for the price of goods sold held not to sustain a verdict for defendant.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. § 359.*]</p> <p>2. Sales (§ 189*)—Actions for Price—Sufficiency of Evidence.</p> <p>Evidence in an action for the price of calendars sold defendant held not to show that a substantial part of the calendars delivered was defective.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 504, 505; Dec. Dig. § 189.*]</p>

<p>Judgment (§ 570*)—Conclusiveness—Dismissal.</p> <p>A judgment dismissing the complaint because of plaintiffs’ failure to make out a prima facie case is not an adjudication on the merits, which will support a plea of res judicata.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1028-1034 1036-1040, 1042-1045, 1165; Dec. Dig. § 570.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Joseph F. Butler against the R. P. Bolton Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.</p>

<p>1. Accobd and Satisfaction (§ 11*)—Acceptance of Check Masked in Full. Payment.</p> <p>Where defendant wrote plaintiff, inclosing a statement purporting to-v show its entire indebtedness to plaintiff, and a check indorsed “in full , settlement as per contract,” which plaintiff deposited and used, there was an accord and satisfaction, though the cheek was indorsed by plaintiff’s son, who had authority to indorse checks for deposit, without plaintiff’s. having seen it, and plaintiff wrote two days later that it would be credited on account.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§■ 75-82; Dec.. Dig. § 11.*]</p> <p>2. Contbacts (§ 232*)—Modification—Altebation of Terms.</p> <p>Plaintiff cannot recover for extra work in addition to the amount called for by contract, where such extra work was only a modification of the-contract, changing the character of some of the work to be done, and such modification was made before the contract was accepted.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1071-1094;. Dec. Dig. § 232.*]</p>

Action by Stathes Bellos against the Athens Hotel Company. From a judgment dismissing complaint at the close of plaintiff’s case, plaintiff appeals. Reversed, and new trial granted.

<p>Damages (§ 113*)—Injuries—Machine—Loss of Usable Value.</p> <p>In an action for injuries to plaintiff’s motor cab in a collision with defendant’s furniture van, the measure of damages for loss of usable value of plaintiff’s machine was the cost of hiring such a machine in the market for the period while plaintiff was deprived of the use of the machine; the evidence of the profits derived from use thereof béing incompetent.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.*]</p>

<p>Sales (§ 161*)—Deliveby—Liability fob Loss.</p> <p>Where defendant ordered a suit of clothes from plaintiff, and telephoned him to ship them to a certain point, without designating any carrier, defendant is liable for the price of the goods, upon their loss in route, under the general rule of law, as well as under Sales Law (Personal Property Law [Consol. Laws 1909, c. 41]) § 127, subd. 1, as added by Laws 1911, c. 571, making delivery to a carrier, whether named by the buyer or not, a delivery to the buyer.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 377-380; Dec. Dig. § 161.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Henry M. Schmitt against the Bradford Woolen Mills and another. From an order, defendants appeal. Modified and affirmed.</p>

<p>Courts (§ 190*)—Municipal Courts—Default Judgment—Absence of Process.</p> <p>It being shown, on appeal from a default judgment of the Municipal Court, that there was no service of process, the judgment will be reversed, and the complaint dismissed.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Nathan Rosen against Antonio Bonagur and another. From a judgment for plaintiff, defendant Bonagur appeals. Reversed, and complaint dismissed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Charles V. Schmidt, Jr., against Martin Ungrich. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Michael McGinley against the Interborough Rapid Transit Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

<p>Sales (§ 316*)—Sale by Sample—Rejection—Ownership.</p> <p>Where plaintiff sold defendant certain belts by sample, part of which were accepted, and the balance rejected, as not conforming to the sample, and left in the hands of an express company, and plaintiff recovered only. for the belts accepted, he was entitled to receive back those in the hands of the express company, and it was error to award them to defendant.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 890-895; Dec. Dig. § 316.*]</p>

In the matter of the judicial settlement of the estate of Esther J. W. Sutton. From a decree in favor of Mary Sutton Lakin establishing a° claim against the estate, the administrator, Henry J. Williams, appeals. Affirmed as modified.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Jacobus J. Haslinghuis and others against Hencken, Haaren & Co. From a judgment for plaintiffs, defendants appeal.</p> <p>Reversed, and new trial granted.</p>

Action by Max Mande! and Charles Leef, copartners doing business under the style of Mandel & Leef, against Joseph ,H. Steinhardt and Richard F. Kelly, Jr., copartners doing business as Steinhardt & Kelly. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered.

<p>Attorney and Client (§ 166*)—Actions for Compensation—Evidence.</p> <p>In an attorney’s action against his client, where he relied on the client’s written agreement to pay $300 as a retainer, while she was permitted to orally testify that she only agreed to pay that amount in case she was successful in an action brought by the attorney for her, a verdict for the client was so contrary to the evidence as to lead to the conclusion that it was induced by prejudice, or some consideration other than the evidence.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent Dig. §§ 368-372; Dec. Dig. § 166.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Roy W. Martindale against the B. F. Cummins Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

<p>1. Witnesses (§ 350*)—Impeachment—Cross-Examination.</p> <p>In an action for money loaned, defended on the ground of usury, defendant’s son testified that plaintiff brought him a check for the amount of the loan, made payable to one of the indorsers of the note given for it, and told the witness to indorse the payee’s name on the check, which he did, and then he used the check. Held, that the indorsement was not a vicious or criminal act, which would warrant cross-examination as to his similar indorsement of another check on another occasion.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.*]</p> <p>2. Trial (§ 133*)—Argument of Counsel—Comment on Witness—Action of Court.</p> <p>Characterizing such act as a forgery by counsel in his argument was wholly improper, and the refusal of the court to rebuke counsel and properly instruct the jury lent the weight of the court’s support to the assertion, and was error.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*]</p>

<p>Action by Ben H. Atwell against Max Rabinoff. N. G. Goldberger, of New York City, for appellant. E. Sondheim, of New York City, for respondent.</p>

<p>Action by Patrick M. Barry, as administrator,’ etc., against the Solváy Process Company.</p>

<p>Action by the Bankers’ Trust Company against the R. E. Dietz Company and others.</p>

<p>Appeal from City Court of New York, Special Term. Action by Wolf Berkowitz against Joseph Bauman and Samuel Bauman, doing business as J. Bauman & Bro. and J. & S. Bauman, Incorporated. From an order vacating an order for the examination of plaintiff before trial, defendants appeal. Order reversed. Nadal, Jones & Mow-ton, of New York City (Bernard G. Barton, of New York City, of counsel), for appellants. Lester M. Friedman, of New York City, for respondent.</p>

<p>Action by Emma L. Barton and others against Jennie B. Reynolds and another, as administrators, etc.</p>

In the matter of the application of the Board of Rapid Transit Railroad Commissioners, etc., for the appointment of three commIssioners, etc., Brooklyn and Manhattan Loop Lines, Brooklyn sections.

<p>Actiou by Saverio Burdi against Angelo Giordano.</p>

<p>Action by Edward E. Cady against Jeanette Holmes.</p>

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

<p>Actions by James C. Bushby against Lancelot M. Berkeley.</p>

<p>Action by Frederick W. Coon against James A. Miller, ~Tr. El. H. Taylor, of Mt. Vernon, for appellant, ID. Goidmark, of New York City, for respondent.</p>

<p>In the matter of William F. Crerand, deceased.</p>

<p>In the matter of Daniel Cunningham.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Sadie Davis against the Long Island Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and complaint dismissed. Joseph F. Keany of New York City (Edward Kelly, of New lork City, of counsel), for appellant. Charles S. Rosenthal, of New York City, for respondent</p>

<p>Action by Maurice Deiches, as receiver, etc., against the Western Development Company.</p>

<p>Action by Paul Dickey against Christopher A. Gortner.</p>

<p>Action by John Derbyshire against the Keystone Varnish Company.</p>

<p>Action by Sarah Di hiarco against the Buffalo & Ft. Erie Ferry & Railway Company.</p>

<p>Action by William F. Dreyer against the McCormack Real Estate Company.</p>

<p>Action by the Edison Electric Illuminating Company of against the Horace E. Frick Company and others.</p>

Action by Austin B. Fletch~r and others, as trustees, etc., against the 416 West Thirty-Third Street Realty Company and others. F. Hulse, of New York City, for appellants. B. H. Arnold and D. Bernstein, both of New York City, for respondents.

<p>Action by George H. D. Foster against John 0. Wait.</p>

<p>Action by Arthur Gibbs, a taxpayer of the city of Olean, against George H. Luther and others, as Commissioners of Public Works, etc., and others.</p>

<p>Action by the German Savings Bank against Phillip Wagner, as committee, etc.</p>

Action by Edwin H. Haines against Abraham Levy and another. From a judgment dismissing the complaint at the close of plaintiff’s case, he appeals. Reversed, and new trial ordered. Paul N. Turner, of New York City, for appellant. Albert T. Scharps, of New York City (Oswald N. Jacoby, of New York City, of counsel), for respondents.

<p>Action by percival L. Harden against William T. Hoops, B. Hymes, of New York City, for appellant, L N. Jacobson, of New York City, for respond-g-Q^</p>

<p>Action by the Harbor & Suburban Building & Savings Association against the Employers’ Liability Insurance Corporation, Limited, of London, England. B. L. Pettigrew, of New York City, for appellant. R H. Grimes, of New York City, for respondent.</p>

<p>Action by John Haley against the Village of White Plains.</p>

<p>In the matter oClifford W. Hart-</p>

<p>Action by Bertie Hauser against William J. Hauser. G. W. Glaze, of New York City, for appellant. S. D. Lasky, of New York City, for respondent.</p>

<p>Action by George A. Hearn and others against George Schuchman.</p>

<p>Action, by Jennie A. Rudebrandt, as executrix, etc., against the Lehigh Valley Railroad Company.</p>

<p>In the matter of ]Pffinghain L. Holywell, as attorney.</p>

<p>Action by Artemas H. Holmes against Helen V. Bell and others. F. B. Mygatt, of New York City, for appellants. L. O~ Lewis, of New York City, for respondent.</p>

<p>Action by Horace B. Hooker and another against the City of Auburn.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by the Hoyt & De Mallie Company, Incorporated, against the New York Railways Company. From a judgment dismissing the complaint at the close of plaintiff's case, it appeals. Reversed, and new trial ordered. Thompson & Ballantine of New York City (John F. O'Neil, of New fork City, of counsel), for appellant. James L. Quackenbush, of New York City (B. F. Record, of New York City, of counsel), for respondent</p>

<p>Action by Beatrice Hyams against Joseph N. Hyams.</p>

<p>Action by the Hudson Navigation Company against Eben E. Olcott. A. B. Siegel, of New York City, for appellant. W. M. K. Olcott, of New York City, for respondent.</p>

<p>Action by the J. P. Duffy Company against August Todebush.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Peter P. Jordan against Charles F. Faeth and another. From a judgment for plaintiff on the pleadings, defendants appeal. Modified. Neier, Hance & Van Derveer, of New York City (Thomas Abbott McKennell and Charles Everett Neier, both of New York City, of counsel), for appellants. Feltenstein & Rosenstein, of New York City (Moses Feltenstein, of New York City, of counsel), for respondent.</p>

<p>Appeal from Municipal Court, Borough of The Bronx, Second District. Action by Ida G. Kerbel against Joseph Wasserman. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Modified and affirmed. Edward D. Loughman, of New York City, for appellant. Louis Gould, for respondent.</p>

<p>Action by the Lake Shore & Michigan Southern Railway Company against Jeremiah Mahie and another.</p>

<p>Action by Samuel Lipschitz against Herman Berkowitz. D. Steckler, of New York City, for appellant. A. Thain, of New York City, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Annie M. Leutke against the Federal Brass & Bronze Company. From a judgment for plaintiff, rendered by a judge without a jury, defendant appeals. Reversed, and new trial ordered. Walter L. Bunnell, of New York City, for appellant. Maurice Hyman, of New York City, for respondent.</p>

<p>Action by Lord & Taylor against Edward Hatch. H. G. Gray, of New York City, for appellant. J. C. Grier, of New York City, for respondent.</p>

<p>Action by Hannah S. Long-worth against William H. Longworth and another.</p>

<p>Action by James M. Lynch against John Kirby, Jr., and others. A. P. Nevin, of New York City, for appellants. A. J. Talley, of New York City, for respondent.</p>

<p>Action by Robert L. McElroy against Albert Goldstein.</p>

Action by the McDermott Dairy Company against Ernest R. Nimmcke. From an order of the City Court adjudging defendant, as a judgment debtor, guilty of contempt, he appeals. Order reversed. Grossfield Bros., of New York City, for appellant. Yankauer & Davidson (Jacob M. Cohen, of New York City, of counsel), for respondent.

<p>Action by Cornelia M. Mabie against Edmund Seymour and others.</p>

<p>Action by the McLeer Electric & Manufacturing Company against the Palmer & Singer Manufacturing Company.</p>

<p>Action by George Meigel against the E. V. Crandall Oil & Putty Company.</p>

<p>Action by Metta F. Merchant, as administratrix, etc., against George M; Ryall and others.</p>

<p>Action by Samuel Melton and others against the Fullerton Weaver Realty Company.</p>

<p>Action by Ignatz Martin against Leverett F. Crumb.</p>

<p>Action by John Nowailowski against tile JNew Xorli: ffi ~ortr Shore Traction Company.</p>

<p>Action by James W. Os borne against Agnes K. It. Mulligan.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Patrick O'Brien against the New York Mail Company. From a judgment dismissing the complaint plaintiff appeals. Reversed and remanded. ~Ralph Gillette, of New York City, for appellant. Amos H. Stephens, of New York City (Earle W. Webb, of New York City, of counsel), for respondent</p>

<p>Action by the Pease Oil Company against the Monroe County Oil Company.</p>

<p>Action by Anna Peczynska, an infant, etc., against the Statler’s Restaurant.</p>

<p>Proceeding by the People of the State of New York against May Hawkins.</p>

<p>Proceeding b~ the People of the State of New York agnins Edward Smith.</p>

<p>Proceeding by the People of the State of New York against the Metropolitan Surety Company. Claim of the H. B. Smith Company against John F. Yawger, as receiver of the Metropolitan Surety Company.</p>

Proceeding by the People of the State of New York, on the relation of the City of New York, against Charles H. Jansen and others, as members of and constituting the Board of Assessors of the Town of Shawangunk, Ulster County, State of New York.

<p>Proceeding by the People of the State of New York, on the relation of Webster Cusick, against Dennis W. Daly, Sheri~ of Niagara County.</p>

<p>Proceeding by the People of the State of New York, on the relation of George D. Squires and others, against Alphonso P. Hand and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District. Action by Abraham Plotkin against Leopold Heffner and another, doing business under the firm name of the Empire City Iron Works. From a judgment for plaintiff, defendants appeal. Reversed, and complaint dismissed. Walter G. Evans, of Rome, for appellants. Charles M. Kiefer, of New York City, for respondent.</p>

<p>Action by Richard Powers Phelan against the New York, New Haven & Hartford Railroad Company.</p>

<p>Action by Arthur A. Rath against Roy H. McNaught and another.</p>

<p>Action by Rachel May Radley, as executrix, etc., against the Leray Paper Company.</p>

<p>Action by Mildred Rowe against the Charles H. Ditson Company.</p>

<p>Action by Matthew Reilly against Alice Josephin& Early.</p>

<p>In the matter of Addison S. Sanborn, an attorney.</p>

<p>Action by Michel I. Schwartz against Herbert B. Williams and others. Appeal Nos. 1 and 2.</p>

<p>Action by Henry Schoenherr against W. K. Van Meter, as trustee in bankruptcy of the Brooklyn Consolidated Drug Company, and others.</p>

<p>Action by Frederick Siefter against the American Bonding Company of Baltimore.</p>

<p>Action by Charles 3). W. Smith against the Western Pacific Railvay Company.</p>

<p>Acfion by Thomas P. Smith against Anthony J. L'aranto.</p>

<p>Action by William Stilwell against Caroline V. Bateman and others.</p>

<p>Action by Mamie Stevens, as administratrix, against the Stanton Construction Company. A. M. Leslie, of New York City, for appellant. E. F. Lindsay, of New York City, for respondent.</p>

<p>Action by Edward D. Taussig against the Carnegie Trust Company and others.</p>

<p>Action by George W. Thurling against the Orinoco Steamship Company.</p>

<p>Action by the United Dressed Beef Company against E. Le Long Dietrich, Incorporated, and others. H. L. Loomis, of New York City, for appellants. L. Dashew, of- New York City, for respondent.</p>

<p>Action by Richard M. Van Gaasbeek against the Tisdale Lumber Company and others.</p>

<p>Action by Jessie Wallace and others against Howard Gurdon Wallace, individually, etc., and others.</p>

<p>Action by Florence R. Weeks against the Rodisi Holding Company and others.</p>

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