Volume 145 — New York Supplement

Action by Patrick Noon against Julia M. Curtis Lawrence. From a judgment entered on a verdict for plaintiff and from denial of new trial, defendant appeals. Reversed, and new. trial ordered. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

Action by Peter A. Duzets against Benjamin A. Levine and others. From a judgment for plaintiff, defendant named appeals. Reversed, and complaint dismissed. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the New York Motor Car Company against William B. Greenfield. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.</p> <p>Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Edward C. Titus against Lydia A. Spencer, executrix of Armon Spencer, deceased. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p> <p>Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.</p>

Action by the Strauch Company against Adolph H. Landeker. From a judgment dismissing the complaint, after a trial without a jury, plaintiff appeals. Reversed, and new trial ordered. Argued December term, 1913,- before SEABURY, GUY, and BI-JUR, JJ.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Louis B. Samuels against the Twin State Realty Company, in which defendant counterclaimed. From a judgment for defendant on its counterclaim, plaintiff appeals. Reversed and remanded.</p> <p>Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Harry B. Tremaine against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. From a judgment upon a directed verdict for plaintiff, defendants appeal. Reversed, and complaint dismissed.</p> <p>Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.</p>

<p>Monet Received (§ 9*)—Paetnebship—Dissolution. Where plaintiff and. defendant, who had been copartners, dissolved the firm, defendant transferring to plaintiff a number of outstanding accounts with a warranty that no part of their face value had been collected, defendant is liable to plaintiff for money received by him on one of the accounts, a credit for which did not appear on its face, this being true regardless whether the receipt was after the dissolution and transfer or whether a postdated check was received before the agreement.</p> <p>[Ed. Note.—For other cases, see Money Received, Cent. Dig. § 31; Dec Dig. § 9.*]</p>

Action by Conrad Frey against the Shadbolt Manufacturing Company. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed and remanded. Argued December term, 1913, before SFABURY, GUY, and BI-JUR, JJ.

<p>Insurance (§ 668*)—Action on Employe’s Bond—Proof Required. Where, in an action on an employe’s bond, plaintiffs proved that the employé collected and failed to pay over a certain sum, and after demand therefor disappeared and was arrested only after diligent search, and defendant offered no evidence, it was error to dismiss the complaint; plaintiffs’ evidence being sufficient to make out a prima facie case of embezzlement and entitle them to recovery, in the absence of any proof contradictory thereof.-</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.*]</p>

<p>Landlord and Tenant (§ 169*)—Injury from Defective Pipes—Negligence of Landlord. As regards liability of the landlord for damages to a tenant from defects in pipes under the landlord’s control, the fact that the landlord, after notice, made repairs, is not conclusive of his freedom from negligence; the repairs being inadequate.</p> <p>[Ed. Nóte.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 644r-646, 664-667, 681-684; Dec. Dig. § 169.*]</p>

Action by Leo C. Dessar, as executor of Sadie Dessar, deceased, against Charles S. Hirsch and others, as executors of Fredericka Buclci, deceased. From an order denying a new trial after verdict for defendants, plaintiff appeals. Reversed, with directions. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Robert Flinch against Francis B. Wood. From judgment for plaintiff for $144.41 damages and costs, defendant appeals. Reversed, and complaint dismissed.</p> <p>Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.</p>

Action by Stanislaus Savaryn against the City of New York. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

<p>Sales (§ 38*)—Grounds for Rescission—Fraudulent Representations. Where a person is induced to buy furniture by false representations that the seller is not a secondhand furniture dealer but is merely disposing of her own personal furniture which has never been used by any one else, he may rescind, even .though such representations do not affect the actual value of the furniture.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 68-77, 85; Dec. Dig. § 38.*]</p>

<p>1. Evidence (§ 441*)—Parol Agreement to Repair—Merger in Lease. A parol agreement by a landlord to repair within a certain time is merged in a subsequent written lease, which does not bind him to repair.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.*]</p> <p>2. Landlord and Tenant (§ 152*)—Parol Agreement for Repairs—Consideration. A landlord’s parol agreement to repair within a certain time, if made subsequent to a written lease not binding him to repair, is without consideration.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 152, 538-543, 545-549, 551-557; Dec. Dig. § 152.*]</p>

Action by the Westerly Shirt Company against Bertha Kaufman. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

Action by Clarence F. Simon against Isaac Silber; first name, “Isaac,” being fictitious, defendant’s real first name being unknown to plaintiff. From a judgment for defendant, plaintiff appeals. Reversed and remanded. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Otto Sauerman and others against the Fidelity & Deposit Company of Maryland. Judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered,</p> <p>Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.</p>

<p>Sales (§ 176*)—Breach of Warranty—Defenses. Where time of delivery is of the essence of a contract of sale, the buyer’s acceptance of the goods purchased after the expiration of the time fixed merely precludes a rescission of the contract, and does not constitute a waiver of the right to recover for a breach of the contract on the seller’s part as to the time of delivery.</p> <p>[Éd. Note.—For other cases, see Sales, Cent. Dig. §§' 436-444; Dec. Dig. § 176.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Patrick Burns against' the Fiat Automobile Company. From a judgment for plaintiff, defendant appeals. Judgment set aside, as against the evidence and against the weight of evidence, and a new trial granted.</p> <p>Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.</p>

Certiorari by the People, on relation of Adrian H. Joline and another, as receivers of the Metropolitan Street Railway, to review an assessment of the special franchise of the railway company for taxation for the year 1911. Modified.

Action by the Baptist Home of Monroe County against Anson E. Gardner, as trustee, and others, for the construction of the will of Harriet M. Goodsell, deceased. Judgment directed.

Action by the National Art Company against Joseph E. Ellery and another. From a judgment of the Municipal Court for defendants, plaintiff appeals. Reversed, and judgment granted to plaintiff, with costs. Argued December term, 1913, before 3EABURY, GUY, and BI-JUR, JJ.

Action by Jacob Miller against Morris Weinstein. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued December term, 1913, before SBABURY, GUY, and BI-JUR, JJ.

Action by the Drescher-Rotberg Company against Lawrence L. Strauss. From a judgment, in substance, dismissing the complaint, and granting judgment to defendant on a counterclaim, after a trial without a jury, plaintiff appeals. Modified and affirmed. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

<p>Mechanics!. Liens (§ 310*)—Foreclosure—Fees and Costs. Under Code Civ. Proc. § 3253, providing that in an action to foreclose a mortgage upon real property, if plaintiff recovers a final judgment with costs, he is entitled to recover, in addition to the costs otherwise prescribed, certain percentages upon the amount found to be due upon the mortgage, where the judgment for plaintiffs in an action to foreclose a mechanic’s lien expressly provided that the court in its discretion thereby granted to plaintiffs costs according to the rate allowed by law, in an action to foreclose a mortgage upon real property, plaintiffs were entitled to have taxed as costs the percentages specified.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 651-654; Dec. Dig. § 310.*]</p>

Certiorari by the People, on the relation of the Metropolitan Street Railway, to review the assessments of the State Board of Tax Commissioners in which the City of New York intervened. Assessments modified,

<p>Action by one Davies against the Anglo-American Auto Tire Company and another. Verdict for defendants. On motion to vacate. Denied.</p>

<p>Application for the probate of the will of Sarah Jane Carpenter, contested by Joseph Foyer and Carrie Fish. Will admitted to probate.</p>

Action by Martha A. Sharp against Samuel T. Sharp, impleaded with others. On motions by plaintiff for judgment on the pleadings, and to strike out a paragraph of the answer. Motion for judgment denied. Motion to strike granted conditionally.

<p>Action by Caroline J. Blair against Charles O. Blair. On motion for an order requiring plaintiff to show cause why a body execution against defendant should not be vacated. Motion granted.</p>

<p>Proceeding by tbe People, on the relation of William A. Cowan, against Harley Hamil, as Sheriff for the County of Monroe. Order discharging relator from custody.</p>

Divorce action by Julia D. Bates against Herbert V. Bates. On plaintiff’s motion to set aside the judgment and defendant’s motion to modify an order directing payment of alimony. Plaintiff’s motion granted, and defendant’s motion denied.

In the matter of the petition of New York Municipal Railway Corporation and another against Samuel J. Parkhill and others, to condemn land for railroad purposes. On preliminary objection to the petition. Objections sustained.

<p>Action by Etta E. Herrington against Ida Akin Davitt and another, as executors of Albert W. Davitt, deceased. Judgment for plaintiff. • '</p>

<p>1. Witnesses (§ 21*)—Refusal to Answer—“Contempt.” Since the object of testimony is to establish facts judicially, and the refusal of a witness to answer pertinent questions may result in a suppression of the truth, such refusal is a “contempt” of court, both under the direct provisions of Judiciary Law (Consol. Laws, c. 50) § 750, subd. 5, as well as independent of statute; the right,to punish for contempt in such cases being inherent in the superior courts.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §5 37-11; Dec. Dig. § 21.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1489-1492; vol. 8, p. 7614.] ' '</p> <p>2. Witnesses (§ 21*) — Contempt—Refusal to Answer — Materiality of Questions. The refusal of a witness to answer questions is a contempt of court, only when the questions are pertinent to the issues; Code Civ. Proc. § 856, authorizing the commitment of a witness for refusing to answer legal and pertinent questions.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 37-41; Dec. Dig. § 21.*]</p> <p>3. Execution (§ 397*)—Supplementary Proceedings—Examination. The examination in supplementary proceedings is given a wide range both as to the parties and witnesses.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1137, 1149; Dec. Dig. § 397.*]</p> <p>4. Execution (§ 417*)—Supplementary Proceedings—Contempt .by Witness —Materiality of Questions. The questions, for refusal to answer which in supplementary proceedings a witness was found guilty of contempt -of court, related to a check drawn by a trust company upon a bank to the order of a certain woman, and indorsed in blank by her and the accused, and also bearing the payment stamps of the bank and the trust company, and it was claimed that the woman was merely a dummy for the judgment debtor, and that the check represented the proceeds of stock which really belonged to the • debtor, and had been held as security for a loan by the trust company. It appeared that the check was produced by the drawee bank and its condi.tion indicated that it had been paid in cash by the trust company to the payee or to the accused witness as indorsee before it was sent to the drawee, and the questions to the accused witness required him to disclose the facts about the check and as to why he indorsed it. Held, that the questions were pertinent, so that the witness was guilty of contempt of court by his persistent refusal to answer.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1197-1200; Dec. Dig. § 417.*]</p> <p>5. Execution (§ 417*)—Supplementary Proceedings—Contempt by Witness —Refusal to Answer Questions. A witness in supplementary proceedings was guilty of contempt of court for refusal to answer a question, whether he was specifically instructed by the judge to answer every one of the questions or not, since the entire examination is theoretically coram judice, whether each question is passed upon by the justice or not.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1197-1200; Dec. Dig. § 417.*]</p> <p>6. Execution (§ 417*) — Supplementary Proceedings — Contempt by Witness. A witness in supplementary proceedings was sufficiently directed by the judge to answer pertinent questions asked so as to make him guilty of contempt of court by refusing to answer, where the judge said, “I instruct” the witness “to disclose the facts about this check.”</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1197-1200; Dec. Dig. §' 417.*]</p> <p>7. Execution (§ 417*)—Supplementary Proceedings—Contempt by Witness —Refusal to Answer. A witness was guilty of contempt of court where he was repeatedly asked if he would answer certain questions in supplementary proceedings, and stated that he declined to answer because he thought the court was in error in requiring him to answer such questions, and persistently adhered to that attitude.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 1197-1200; Dec. Dig. § 417.*]</p>

<p>Proceeding to probate the will of Minnie Rinaldo Solomon. Probate refused.</p>

Proceeding for the judicial settlement of the account of William M. Kingsley, as trustee under the will of Harriet L. Hampton, deceased. Decreed in accordance with the opinion.

Action by Annie Baum against the Mutual Life Insurance Company of New York. From a judgment for defendant rendered by the City Court of the City of New York, plaintiff appeals. Affirmed. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

<p>1. Pleading (§ 343*)—Judgment on Pleadings—Issue on Demubbeb. Under Code Civ. Proc. § 547, providing that if either party is entitled to judgment on the pleadings, the court may give judgment accordingly upon motion after issue joined, an issue of law raised by demurrer to a complaint, which goes to the whole cause of actio'n, may be decided upon motion by defendant for judgment on the pleadings.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1048-1051; Dec. Dig. § 343.*]</p> <p>2. Pleading (§ 343*)—Testing Sufficiency—Election of Remedy. Defendant’s demurrer to the complaint was not an election of remedy so as to preclude him from moving for judgment on the pleadings under Code Civ. Proe. § 547, which permits such a motion only after issue joined.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent Dig. §§ 1048-1051; Dec. Dig. § 343.*]</p> <p>3. Corporations (§ 314*)—Misconduct of Agent—Action for Damages. Where the contract which plaintiff corporation claimed defendant wrongfully took in his own name, instead of in the name of the corporation, was set aside for fraud in an action against defendant by the person with whom defendant made the contract, in which plaintiff intervened and unsuccessfully sought to uphold the contract, it cannot be claimed .that plaintiff was damaged by defendant’s taking the contract in his ■own name.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1393-1398, 1400; Dec. Dig. § 314.*]</p>

<p>1. LANDLOBD AND TENANT (§ 157*)—LEASE—CONSTRUCTION AND OPEBATION. The owner o£ a city lot entered into two leases with defendant—a short lease and a long lease—the short lease providing that defendant should remove buildings then on the lot and superintend the erection thereon of buildings suitable for his business, a restaurant, the buildings to cover the whole lot, including vaults under the sidewalks to the extent that permits from the city could be secured. The only control or supervision reserved by the owner was merely that the plans be submitted to him. Defendant erected the buildings and, under permits from the city, constructed vaults under the sidewalks, and ornamental lights on the sidewalks. Later the city, in view of widening the street, revoked the permits and ordered the obstructions removed, entailing a cost of $17,000, which the owner paid and brought this action to recover from defendant. Held that, as defendant was free to erect such buildings as he thought best suited for his business without interference of the owner, the owner was not a joint tort-feasor with defendant in the erection of the obstruetions, and hence was not, for that reason, precluded from recovering from defendant</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 571, 572, 574-582, 584-600, 602-607; Dec. Dig. § 157.*]</p> <p>2. Landlord and Tenant (§ 157*)—Lease—Construction. A short lease gave the lessee power to erect buildings on a city lot suitable for his business and a long lease provided for the rental, the lessee further agreeing to bear and pay all expenses, taxes, assessments, etc., which shall, during the term, be imposed upon or groyr out of the building. Beld that, under the lease, the lessee was liable for the cost of removing vaults under the sidewalks necessitated by the city’s action in revoking permits to use the same.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 571, 572, 574-582, 584-600, 602-607; Dec. Dig. § 157.*]</p>

<p>Action by Julius Gressman against Mary C. Gressman, in which defendant filed a counterclaim. On plaintiff’s motion to discontinue the action. Motion denied.</p>

<p>Mines and Minerals (§ 77*)—Oil Lease — Construction — Writing and Printing. Where an oil lease, ip the printed portions thereof, provided that the company could surrender the lease, and all liabilities would cease, and in a written portion provided that defendant should furnish plaintiff gas from a well “so long as it was marketed from said well,” defendant could not, by surrendering the lease, escape liability from furnishing the gas, since, in conflict between written and printed portions, the writing will prevail.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. § 204; Dec. Dig. § 77.*]</p>

<p>1. Physicians and Surgeons (§ 24*)—Action for Compensation—Evidence. In an action by a physician against the estate of a deceased to recover for medical services rendered deceased after he had suddenly fallen unconscious, evidence of the value of the estate of deceased was properly admitted, since, though, while the financial condition of a patient does not alone affect the abstract question of the value of the services, it is a proper element entering into the question as to what charge shall be made by him by reason of such financial condition.</p> <p>[Ed. Note.—For other cases, see Physicians and Surgeons, Cent. Dig. §§ 53-62; Dec. Dig. § 24.*]</p> <p>2. Physicians and Surgeons (§ 23*)—Action fob Compensation—Evidence. Where, in an action by a physician against the estate of a deceased for medical services rendered deceased in an emergency after he had fallen unconscious, the evidence showed that the physician worked with the deceased in the usual way 15 or 20 minutes, trying to produce artificial respiration, $15, and not $500, was reasonable compensation, taking into consideration the value of the estate, the nature of the services, the experience of the physician, and the testimony of experts as to what was a reasonable compensation for such services.</p> <p>[Ed. Note.—For other cases, see Physicians and Surgeons, Cent. Dig. § 52; Dec. Dig. § 23.*]</p> <p>3. Physicians and Surgeons (§ 13*)—Services Rendered in Emergency— Right to Compensation. The president and secretary of a corporation were, during the pendency of a trial against the corporation, in a courtroom, when the president became suddenly sick and fell unconscious to the floor. The secretary and counsel for the corporation called for a doctor, whereupon plaintiff, who was in the courtroom, responded and rendered medical assistance. Held, that the fact that the secretary and counsel summoned plaintiff did not render them liable for the services, since they, being under no legal obligation to furnish medical services to the deceased, occupied the relation of mere strangers, but deceased, under an Implied contract, was liable for the reasonable value of the services.</p> <p>[Ed. Note.—For other cases, see Physicians and Surgeons, Cent. Dig. §§ 18-20; Dec. Dig. § 13.*]</p>

Action by Anthony F. Barro against Philip S. Saitta. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted. Argued January term, 1914, before LEHMAN,' PAGE, and BI-JUR,JJ.

<p>Reference (§ 76*)—Fees of Referee—Stipulation. Where the parties entered into a stipulation that the referee’s fees should be §10 for each day of the reference and that each day’s hearing should not be less than V/z hours, such stipulation will not preclude referee from collecting the fee for an entire day on those days where an adjournment was had and nothing was done save to adjourn.</p> <p>[Ed. Note.—For other cases, see Reference, Cent. Dig. §§ Í09-113; Dec. Dig. § 76.*]</p>

Action by William P. Brown and others against William C. Walter. From a judgment of the Buffalo City Court in favor of plaintiffs, defendant appeals. Reversed, and complaint dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Adolph Prince Company against Michael Pyla. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.</p> <p>Argued January term, 1914, before LEHMAN, BIJUR, and PAGE, JJ. '</p>

Action by James J. Connor against Henry J. Munsees. From a judgment for defendant after a trial without a jury, plaintiff appeals. Reversed, and new trial ordered. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

<p>Bills and Notes (§ 92*)—Considebation fob Check—Sufficiency. The president of an improvement company, which was constructing a building, to procure a larger loan from a first mortgagee misrepresented the amount of the improvement company’s debt to defendant as $5,700 instead of $4,700. Afterwards, upon paying the defendant $5,700, defendant in return gave his check for $1,000. Held, that there was a sufficient consideration for the check given by defendant.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-205, 208-212; Dec. Dig. § 92.*] #</p>

Action by Henry Fox against Samuel Lindenman and others. Judgment for plaintiff. On motion to compel plaintiff’s attorneys to accept service of notice of appeal. Motion granted. Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by the Nev-a-hone Razor Strop Company against Benjamin Schwartz and another. From a judgment dismissing the complaint at the close of plaintiff’s case, it appeals. Reversed and new trial granted.</p> <p>Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Charles Ruderman against Samuel Bloch and another. From an order sustaining demurrers to two “separate and distinct defenses” and “by way of set-off” contained in certain paragraphs of the amended answer. Modified and affirmed.</p> <p>Argued January term, 1914, before-LEHMAN, PAGE, and BI-JUR, JJ.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the New York Central & Hudson River Railroad Company against James Butler, Incorporated. ' From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed and dismissed. '</p> <p>Argued November term, 1913, before LEHMAN, PAGE, and WHITAKER, JJ.</p>

Action by William Isaacs against Max Kobre. From a judgment dismissing the complaint on the pleadings, plaintiff appeals. Reversed, and new trial granted. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ-

<p>1. Courts (§ 189*)—Municipal Courts—Judgment—Form. In an action in the Municipal Court against two defendants, a judgment for plaintiff, not specifying which defendant it was against, was erroneous in form.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]</p> <p>2. Courts (§ 189*)—Municipal Courts—Necessity oe Evidence to Support ■Judgment. • In an action in the Municipal Court judgment could not be rendered against a defendant who failed to appear, where there was no evidence to show any cause of action against her.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]</p> <p>3. Courts (§ 189*)—Municipal Courts—Appearance—Effect. A Municipal Court had jurisdiction to render judgment against a defendant who was not served with summons, but who appeared personally at the trial and testified in his own behalf.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Benjamin F. Isaacs against Louis Greenberg. From a judgment awarding plaintiff, as landlord, possession of premises for nonpayment of rent, defendant appeals. Reversed, and proceedings dismissed.</p> <p>Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.</p>

Action by Hyman Levin against Edward L. Greenberg and another, composing the firm of Greenberg Bros. From an order denying a motion to vacate an order extending defendants’ time to serve their answer, plaintiff appeals. Appeal dismissed. Argued February term, 1914, before SEABURY, GUY, and DE-EANY, JJ.

Action by Michael Zacharion against B. J. Spiropolous. From a municipal court judgment in favor of defendant, plaintiff appeals. Reversed and new trial ordered. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by Helen O’Neill, an infant, by Cecelia O’Neill, her guardian ad litem, against George B. Hayes. From a'judgment for plaintiff, defendant appeals. Reversed, and new trial granted. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by George W. Bromley and another, copartners, against the Great Suburban Improvements Company. From a judgment rendered in favor of the plaintiffs, defendant appeals. Reversed, and new trial ordered. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by Adolph Schlesinger against Sarah Lennon, doing business as James Lennon & Son. From a Municipal Court judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial granted. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by the Rochester Construction Company against the Dobbie Foundry & Machine Company. On motion to vacate order for examination of plaintiff through its president and requiring the production of certain books and papers. Motion denied, and order modified.

Action by John Corcoran against Thomas Miller. From an order granting defendant’s motion to dismiss the complaint for unreasonable neglect in prosecuting the action, plaintiff appeals. Affirmed. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

First District. Action by August Emanuel against the Fruit Auction Company. From a judgment for plaintiff on a trial by the court without a jury, defendant appeals. Reversed, and new trial ordered. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Annie Healy against Rawdon W. Kellogg. From a judgment dismissing the complaint, with costs, plaintiff appeals. Reversed, and judgment granted for the plaintiff.</p> <p>Argued January term, 1914, before LEHMAN, BIJUR, and PAGE, JJ.</p>

Action by Germaine Renard against Michael Grenthal. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by Sigmund Fox against Henry E. Fox. From a City Court judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals. Affirmed. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by Patrick H. McNulty against Fred Kuser. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. Reversed, and new trial ordered. Argued January term, 1914, before LEHMAN, PAGE, and BIJUR, JJ.

Action by the Class Journal Company against the Valveless Inner Tube Company. From an order denying defendant’s motion to dismiss the action for want of prosecution, defendant appeals. Order reversed, and motion granted. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by Thomas J. Slattery against Mary Slattery and others. On two motions by Mary Slattety and another for discovery and inspection of a paper, one made before joinder of issue for the purpose of enabling them tp prepare their answer and prepare their case for trial, and the other made after issue joined. Denied.

Action by William B. Dillon against Jose Mundet and others. From a judgment for plaintiff, after a trial without a jury, defendant Mundet appeals. Modified and affirmed. Argued January term, 1914, before LEHMAN, BIJUR, and PAGE, JJ.

<p>Bills and Notes (§ 375*)—Evidence—^Admissibility. . In an action on notes given to a partnership and indorsed to a member thereof, who claimed to be a bona fide holder for value, where defendants claimed that they were made while the maker was in bankruptcy as an illegal preference, in addition to the amount which the partnership had agreed to accept, equal to that awarded to other creditors, in a composition agreement previously entered into, the exclusion of the composition agreement and conversations between the holder and the maker at the time the notes were given was error.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. § 375.*]</p>

Action by the Pease Piano Company against Miriam Fiske. From a judgment rendered in favor of the defendant, plaintiff appeals. Reversed, and judgment ordered for plaintiff. Argued January term 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by George W. Striker as executor against Mitchell Bernstein. From a judgment for plaintiff, defendant appeals. Affirmed.</p> <p>Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.</p>

Action by Max M. Horowitz against B. Edmund David. From a judgment on a directed verdict for plaintiff and an order denying a new trial, defendant appeals. Affirmed. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by J. W. Cushman & Co. against Frank O’Hara. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

<p>1. Carriers (§ 20*)—Passengers—Transfers. Public Service Commission Law (Consol. Laws, c. 48) § 49, subd. 7, provides that every street service railroad corporation entering into a contract with another such corporation, as provided in section 78 of the Railroad Law (Laws 1890, c. 565, as amended by Laws 1905, c. 695), shall carry between any two points on the railroads any passenger desiring to make a continuous trip fpr a single fare, and such corporation shall, Without extra charge, give to each passenger paying a single fare a transfer entitling the passenger to one continuous trip to any point of any railroad embraced in such contract, and for every refusal to comply with the subdivision the corporation shall forfeit 850 to the aggrieved party. Railroad Law, § 78, provides that any railroad corporation may contract with another for the use of their respective routes, and that such contracts shall be executed by the contracting corporations under their seals, and, if it be a lease of any such road and for a longer period than one year, it shall not be binding unless approved by the votes of stockholders owning at least two-thirds of the stock of the corporation. Held, that where two street railroad corporations, though separate corporate entities, had the same office, officers, and directors, and used and equipped ears interchangeably, paid operating expenses from the gross receipts of both, and were for all practical purposes one line, a passenger on one road could require a transfer to the other without extra charge, and could recover the statutory penalties for refusal to issue such transfer, not- ' withstanding there was no written contract between the corporations for the lease of one of the lines and though the arrangement between the companies was purely informal./</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 33-49, 133, 927; Dec. Dig. § 20.*]</p> <p>2. Carriers (§ 20*)—Action for Penalty—Variance. The fact that a street car passenger, suing for the penalty imposed by Public Service Commission Law (Consol. Laws, c. 48) § 49, subd. 7, for refusal of a street service railroad to issue a transfer, erroneously alleged in the complaint that defendant had subjected itself to a penalty under Railroad Law, § 104, was immaterial; that section having been incorporated into Public Service Commission Law, § 49, subd. 7.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 33-49, 133, 927; Dec. Dig. § 20.*]</p> <p>3. Courts (§§ 189, 190*)—City Courts. Since the City Court of Buffalo has only limited jurisdiction, great liberality of pleading is permitted, and the City Court Act gives an appellate court a wide discretion to disregard technical errors not affecting the merits on an appeal from a judgment of the City Court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. §§ 189, 190.*]</p>

Action by the Manhattan Scenic Studios, Inc., against Lew Fields. From an order granting a long adjournment of the action under Municipal Court Act (Laws 1902, c. 580) § 194, plaintiff appeals. Dismissed. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by Joseph Danches and another, partners as Danches & Gold, against Joseph Pariser. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered. Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.

Action by Bessie Finnegan against William Sunkenberg and another. From an order setting aside a verdict for defendants and granting a new trial, they appeal. Reversed, and verdict reinstated. Argued January term, 1914, before FEHMAN, BIJUR, and PAGE,

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action "by Bernard Ladhman against William R. Young, Jr. From a judgment rendered in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered.</p> <p>Argued January term, 1914, before LEHMAN, PAGE, and BI-JUR, JJ.</p>

Judicial settlement of the estate of Sarah Akin. Petition by Oscar Clark Miller for an order directing Albro Akin and Aymar Sands, trustees under the will, to pay over to petitioner the entire income of the trust fund. Denied.

<p>Executobs and Administratobs (§ 495*)—Accounting—Commissions. Where a judgment on an accounting of executors directed the fund to be turned over to trustees and allowed them commissions for receiving and paying over the same, it was a determination that such turning over was a paying out of the fund, though the same persons were trustees and executors, and a decree entered on the accounting of the trustees on the death of the beneficiary, directing the fund under the will to be turned back to the executors to be distributed in accordance with the residuary clause of the will, imposed on the executors new duties for which they were entitled to additional compensation.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2089-2106, 2108; Dec. Dig. § 495.*]</p>

<p>Actions by Joseph Bass against the Phenix Insurance Company of Hartford, against the Williamsburg City Fire Insurance Company, and against the Royal Exchange Association Company of London. A. B. Nathan, of New York City, for appellant. M. D. Steuer, of New York City, for respondents.</p>

<p>Action by the August Belmont Hotel Company and by Hawk & Wetherbee against the City of New York ,and others.</p>

<p>Action by Rachel Blackburn, as administratrix, etc., against the International Acheson Graphite Company.</p>

<p>Action by Nelson Bodette against the Foster-Armstrong Company.</p>

<p>Action by Edward N. Chapman against Julia E. Fowler.</p>

<p>Action by the City of Buffalo against the Buffalo Gas Company.</p>

<p>Appeal from Special Term, New York County. Action by John R. Davidson and another against Grace H. Howell. From an order denying motion for judgment on the pleadings, defendant appeals. Affirmed. Henry D. Patton, of New York City, for appellant. Bertram L. Kraus, of New York City, for respondents.</p>

Judicial' settlement of the estate of William Vincent Dee, deceased. Application for appraisal of taxable transfers of property belonging to the estate. From a surrogate’s order fixing the assessment, - Mary A. - Abbot, as administratrix, appeals. Affirmed, without opinion. William F. Bleakley, of Yonkers, for appellant. William J. Mahon, of New York City, for respondent State Comptroller.

<p>Action by Michael De Lillo against the W. A. Underhill Brick Company.</p>

<p>Action by Adeline P. Ehrman as executrix, etc., against Al Basset</p>

<p>Action by John Faigle against Henry Bookroth and another.</p>

<p>Action by the Empire State Pickling Company against Joseph F. Pfister.</p>

<p>Action by Ruth R. Ettla against Horace M. Engle and another. Harold W. Buck, appellant. H. A. Stickney, of New York City, for appellant. H. G. Gray, of New York City, for respondent.</p>

<p>Action by the First National Bank of Detroit, Mich., against Harry B. Hollins and others.</p>

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

<p>Action by Charles P. Gray against the New York Central & Hudson River Railroad Company. W. Mann, of New York City, for appellant. A. W. Clement, of New York City, for réspondent.</p>

<p>Action by James H. Herendeen, .as administrator, etc., of Charles W. Edgerton, deceased, against Benton H. Wilson and others.</p>

<p>Action by George T. Hancock against the Hartford Fire Insurance, Company.</p>

<p>In the matter of the application of Harry A. Hanbury for a writ of certiorari to Russell Benedict, a Justice of the' Supreme Court.</p>

<p>Action by Francelia Hobart, as administratrix, etc., against the Town of Tully.</p>

<p>Action by John B. Jones against the Beaver National Bank. S. J. Beron, for appellant. M. M. Wyvell, of New York City; for respondent.</p>

<p>Action by George Kimmerle-.' against the Carey Printing Company,</p>

<p>Action by Max ICeve against the Columbia Kid Hair Curlers Manufacturing Company.</p>

<p>Action by. Regina Kupferstein, as administratrix, etc., against Richard E. Meningham, impleaded with others. W. L. O’Brion, of New York City, for appellant. W. Mc-Conihe, of New York City, for respondent.</p>

Action by Tessie Koropjeck against Henry C. Bohack. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed. Marshall McLean, of New York City, for appellant. Louis Salant, of New York City, for respondent.

<p>In the matter of Richard Krause, an attorney.</p>

<p>Action by Herman Lazarus, an infant, by Max Lazarus, his guardian ad litem, against Antonio -Eisler and another, copartners, etc.</p>

<p>Action by Lottie Loew against Charles A. Mc-Inerney and others.</p>

<p>Action by the Louis Levien Cut Glass Company against Louis Hinsberger.</p>

<p>Action by Malka Marder against the New System Napkin Towel Supply & Steam Laundry Company.</p>

<p>Appeal. from City Court of New York, Trial Term. Action by Philip Mechlowitz against Frost, Palmer & Co. From a judgment dismissing the complaint at the close of plaintiff’s case, he appeals. Be-versed, and new trial ordered. Bogart & Bogart, of New York City (John Bogart and Isidore Weckstein, both of New York City, of counsel), for appellant. Benjamin M. Kaye, of New York City, for respondent.</p>

In the matter of the application of Anna O’Connor for revocation of letters of administration granted to John Connor on the estate of John O’Connor, deceased.

<p>Appeal from Trial Term, New Xork County. Action by Daniel Munn against the Cornell Steamboat Company. From a judgment on a verdict for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and complaint dismissed. Amos Van Etten, of Kingston, for appellant Warren Bigelow, of New Xork City, for respondent.</p>

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

<p>Proceeding by the People of the State of New York against George N. Ostrander.</p>

<p>Proceeding by the People of the State of New York against August Tonolo.</p>

<p>Proceeding by the People of the State of New York against the Santa Clara Lumber Company and others.</p>

<p>Action by Szczepan Przytula, as executor, etc., against the Empire State Degree of Honor.</p>

<p>In the matter of the application of the Public Service Commission for the First District; Utica Avenue Route.</p>

Action by Elizabeth Rastetter and others, infants, etc., against John G. Hoenninger, as executor, and another. A. C. Troy, of New York City, for appellants. A. P. Wagoner, of New York City, for respondents.

<p>Action by Lucy C. Roberts against Theodore Roberts.</p>

<p>In the matter of the appraisal of the estate of Mary S. Robinson, deceased, under the acts in relation to the taxable transfers of property.</p>

<p>Action by Cecelia. Schaeffer against Raymond S. Schaeffer.</p>

<p>Action by William Scharff against John H. Jackson.</p>

<p>Action by Elizabeth T. Scanlon, as administratrix, etc., against the New York Central & Hudson River Railroad Company. "</p>

<p>Action by Clara Shiffner against George H. Beck.</p>

<p>Action by John Smidt against the Buffalo Cold Storage Company.</p>

<p>Action by Ozwald C. Stackhouse against Joseph Fromson and another.</p>

Summary proceedings by Sam W. Steel, landlord, against Blax Holtzer, tenant, for possession of leased premises for failure of the tenant to pay rent. From a judgment for the landlord, the tenant appeals. Dismissed. See 144 N. Y. Supp. 643. Samuel D. Lasky, of New York City, for appellant. House, Grossman & Vorhaus, of New York City, for respondent.

<p>Action by Edward Stafford against Mary R. Washburn and others. H. A. Content, of New York City, for appellant. E. E. Wheeler, of New York City, for respondents.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Felix Tausend against Harris Obstfeld. From a judgment for plaintiff, after a trial without a jury, defendant appeals. Affirmed. Max Schleimer, of New York City, for appellant. Isaac M. Aron, of New York City, for respondent.</p>

<p>Action by the Tracy Development Company against the Columbia Distilling Company and others.</p>

<p>Action by Moses Wolf against James F. Mack.</p>