Volume 146 — New York Supplement

<p>1. Pleading (§ 318*)—Bill of Particulars—Necessity of Furnishing.</p> <p>In a personal injury action by an injured servant, where the defendant set up as defenses the servant’s contributory negligence, the negligence of fellow servants, and assumption of inherent risks, it is not an abuse of discretion to require defendant to furnish plaintiff with a bill of particulars setting forth his contributory negligence, the negligence of his fellow servants, and the inherent risks of the employment which he assumed.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 963-969, 971; Dec. Dig. § 318.*]</p> <p>H. Pleading (§ 323*)—Bill of Particulars.</p> <p>An order for a bill of particulars should not require the defendant to disclose to the plaintiff substantially all of the evidence necessary to support his claim.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 976-979; Dec. Dig. § 323.*]</p> <p>■3. Pleading (§ 318*)—Bill of Particulars.</p> <p>A defendant will not be ordered to furnish a bill of particulars of allegations in his answer which are wholly superfluous.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 963-969, 971; Dec. Dig. § 318.*]</p>

<p>Action by Griffin V. Disbrow against George A. Disbrow and others.</p>

Certiorari by the People, on the relation of the Fulton Street Railroad Company, against the State Board of Tax Commissioners and others, to review special franchise assessments.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Sophia Strnad by her guardian ad litem, Anna Strnad, against the William Messer Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Damages (§ 166*)—Evidence—Injuries to Person.</p> <p>Evidence of a conjectural and purely speculative character as to the possible future results of plaintiff’s injuries may not be admitted, and the issue of his permanent injury thereon submitted.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. § 166.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Morris L. Bodow against Hyman Levin. From an order denying his motion to open a default, defendant appeals.</p>

<p>1. Principal and Agent (§ 146*) — Undisclosed Principal — Liability of Agent.</p> <p>Where the principal is not disclosed by the written contract, which was signed by defendant as agent, plaintiff may proceed personally against the agent as the ostensible principal.</p> <p>[Ed. Note—For other cases, see Principal and Agent, Cent. Dig. §§ 521-527; Dec. Dig. § 146.*]</p> <p>2. Mines and Minerals (§ 53*)—-Contracts—Time.</p> <p>In an option to purchase mining property, time is always considered to be of the essence of the contract on account of the liability of the property to great fluctuation in value.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 147, 148; Dec. Dig. § 53.*]</p> <p>3. Accord and Satisfaction (§ 2*)—What Constitutes.</p> <p>Plaintiff had an option with the secretary of a mining corporation for the purchase of a large number of shares of stock. Upon the mine proving a success, plaintiff, who had rendered services, requested the directors to issue him a large number of shares at a given price. The directors voted to issue him a number of shares at a given price, with the stipulation that the acceptance of such shares should be a waiver of all claims • against the corporation and the secretary. Held, that the issuance and acceptance of such shares constituted an accord and satisfaction barring recovery against the secretary.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 14-21, 33; Dec. Dig. § 2.*]</p> <p>4. Accord and Satisfaction (§ 3*)—What Constitutes.</p> <p>If what is given by a stranger is accepted by the creditor in satisfaction of his claim against the debtor, the creditor cannot proceed against the debtor; and hence, where a corporation made the satisfaction of plaintiff’s" claim against its secretary on account of an option for the purchase of stock, a condition to the issuance of stock, the issuance and acceptance of the stock barred plaintiff’s rights against the secretary, even though the corporation was a stranger to the transaction.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 22-30; Dec. Dig. § 3.*]</p> <p>5. Accord and Satisfaction (§ 5*)—What Constitutes.</p> <p>The value received in case of ah accord and satisfaction does not affect its validity.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 40-45; Dec. Dig. § 5.*]</p> <p>6. Accord and Satisfaction (§ 20*)—Effect.</p> <p>Where plaintiff, who had a contract with defendant for the purchase of corporate shares, accepted other shares, issued to him by the corporation on condition that he should waive his rights against defendant, and treated them as his own, with knowledge of defendant’s power to transfer shares, the fact that at the time the settlement was made defendant misrepresented his power will not avoid the accord and satisfaction.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 140-142; Dec. Dig. § 20.*]</p>

Action by Israel Gold and Morris Block, doing business as Gold & Block, against Francis Gross, Jr., and others doing business as-Gross, Harrison & Co. The complainant was dismissed at the trial and plaintiffs move for a new trial.

<p>In the matter of the contested probate of the will of Blanche Mittnacht. Probate allowed.</p>

In the matter of the final judicial settlement of the account of proceedings of William J. Stoneman and Alexander S. Rowland, as executors of the last will and testament of Matthew G. Stoneman, deceased. Will and partnership contract made by testator construed.

Action by Louis Wertheimer against Edith Rosenbaum. From a judgment for plaintiff after a trial by the court without a jury, defendant appeals.

<p>Bills and Notes (§ 335*)—Actions—Defenses.</p> <p>A note was executed by defendant, payable to the order of plaintiff’s partner upon the latter’s representation that there was a certain amount of masonwork to be done in a wall which he was to erect. The note was indorsed to plaintiff, who knew that it was given on the understanding that if defendant was found to be indebted to plaintiff’s partner in a smaller amount than that named in the note, defendant should be liable only for the reduced amount. Held, that it appearing that the wall contained less masonry than was claimed, plaintiff could not recover the full amount of the note, but must consent to a reduction.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 817; Dec. Dig. § 335.*]</p>

<p>Brokers (§ 24*)—Orders to Sell—Loss from Disobedience.</p> <p>Statement of a customer to brokers carrying stocks for him on margin, that he was going away, and did not want to lose any more than they had to his credit, otherwise he would not be responsible, amounts to an order to sell, so that they, not selling till the loss exceeded his margin with them, cannot recover of him the difference.</p> <p>[Ed. Note.—For other eases, see Brokers, Cent. Dig. § 19; Dec. Dig. § 24.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Funk & Wagnalls Company against Henry Miller. From a judgment for defendant after a trial by the court, plaintiff appeals.</p>

<p>1. Principal and Agent (§ 22*)—Creation and Existence of Relation— Evidence of Agency.</p> <p>The testimony of an alleged agent that he had authority to act for the defendant in employing plaintiff was a mere conclusion and not competent proof of such authorization.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*]</p> <p>2. Trial (§ 29*)—Conduct of Trial—Misconduct of Judge.</p> <p>The issue being the authority of K. to act for defendant, the conduct of the judge in stating, after one of defendant’s witnesses had testified, and while three other witnesses, Who were subsequently called, were waiting to testify, that he would beliqve K. against defendant’s five witnesses denied defendant its day in court, and the judgment, for plaintiff must be reversed.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 80-83, 508; Dec. Dig. § 29.*]</p>

<p>Appeal from Municipal Court, Borough’of Manhattan, Third District.</p> <p>Action by the Read Printing Company against the J. J. Little & Ives Company. From a judgment for plaintiff, defendant appeals.</p>

Action by George L,. Willson against the New York Central & Hudson River Railroad Company for injunction and damages. Ordered that injunction be allowed and that plaintiff recover nominal damages.

Action by William Horgan against the Rapid Transit Subway Construction Company. From a judgment entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial, defendant appeals.

Divorce action by Catherine N. Stetson against Ralph W. Stetson. On application for interlocutory judgment. Application denied, with leave to make new application.

<p>Weapons (§ 4*)—Criminal Offenses—Possession.</p> <p>Penal Law (Consol. Laws, c. 40) § 1897, as' amended by Laws 1911, c. 195, effective September 1, 1911, providing that any person over the age of 16 years, who shall have in his possession in any city, village, or town' any pistol, Revolver, or other firearm of a size which may be concealed upon the person, without a license issued by a police magistrate or justice of the peace, shall be guilty of a misdemeanor, does not apply to the possession of revolvers by a pawnbroker, who received them prior to September 1, 1911, and holds them as unredeemed pledges, and is required by his contract with the pledgor and the laws of the state to hold them for at least one year unless sooner redeemed, in view of section 1914, as amended by the same act, which provides that every person selling a pistol, revolver, or other firearm of a size which may be concealed upon the person, whether a retail dealer, pawnbroker, or otherwise, shall keep a register in which shall be entered the date of the sale, the name, age, occupation, and residence of the purchaser, and the caliber, make, model, manufacturer’s number, or other mark of identification on the pistol or revolver, especially as, if it were construed to so apply, it would violate the constitutional prohibition against laws impairing the obligation of contracts.</p> <p>[Ed. Note.—For other cases, see Weapons, Cent. Dig. § 4; Dec. Dig. § 4.*]</p>

<p>Criminal Law (§ 1073*)—Certificate of Reasonable Doubt.</p> <p>Accused was convicted of a violation of the statute prohibiting any person from having in his possession, in any city, a firearm which may be concealed about the person without a written license therefor, upon proof that, in depositing his valuables in a box for safe-keeping before entering a Turkish bath, he placed a revolver therein. Held, that a certificate of reasonable doubt should be issued; the validity of the statute being subject to question, and the proof not being evident that accused took the revolver from his person where he had it concealed.</p> <p>. [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2730; Dec. Dig. § 1073.*]</p>

Action by Paul Dickey against Christopher A. Goertner, in which a judgment was rendered in favor of defendant foreclosing a mortgage. On motion by plaintiff to vacate and set aside the foreclosure sale.

Application by the City of New York to vacate an order confirming the'final report of the commissioners of estimate as to certain damage parcels and to have the matter sent back to the commissioner's. Application granted, and report referred to the. commissioners, with directions.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Joseph Epstein against Morris Hiller and others. From a judgment for defendants, plaintiff appeals.</p>

Action by the Williams Patent Crusher & Pulveriser Company against the Eythe Tile Company. Motion by plaintiff for permission to withdraw reply and demur to defendant’s answer.

<p>1. Municipal Corporations (§ 768*) — Torts — Defects in Streets — Sidewalks.</p> <p>A city was not liable for injuries sustained from a fall caused by plaintiff's stubbing her toe at a place where there was a drop in the sidewalk, which plaintiffs witnesses estimated at 3 to 4 inches, but which other witnesses, who made actual measurements, testified was only 1% inches, especially where -it was not shown that the city had notice.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent Dig. §§ 1622, 1624, 1625; Dec. Dig. § 768.*]</p> <p>2. Municipal Corporations (§ 763*)—Torts—Defects in Streets—Care Required in General.</p> <p>A city is required to use reasonable care to keep its streets safe, in view of the extent of territory over which such care is to be exercised; but it is not an insurer of the safety of pedestrians, and is not rendered liable because the surface of the street Is such that it is possible for one to stub his toe and fall.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1612-1615; Dec. Dig. § 763.*]</p> <p>Guy, J., dissenting.</p>

Action by Berthold Salinger and another against S. Sidney Stern and another. From a judgment for plaintiffs and an order denying a new trial, defendants appeal.

Action by the Federal Sign System (Electric) against Enrico V. Pescia. A judgment for plaintiff was vacated on defendant’s motion, and plaintiff appeals.

<p>1. Malicious Prosecution (§ 26*)—Elements—Malice.</p> <p>In order to maintain an action for malicious prosecution, plaintiff must show malice by defendant.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 59; Dec. Dig. § 26.*]</p> <p>2. Malicious Prosecution (§ 27*)—“Malice.”</p> <p>“Malice,” as an element of malicious prosecution, may consist of personal hatred or ill will, or any improper or sinister purpose, or reckless disregard of the rights of others which is inconsistent with good faith, but the mere existence of an ulterior purpose or of personal hostility does not necessarily show malice.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 60; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4298-4304; vol. 8, pp. 7712, 7713.]</p> <p>3. Malicious Prosecution (§ 28*)—Malice.</p> <p>The “malice” necessary to maintain an action for malicious prosecution must be malice in fact, as distinguished from presumptive malice, though if the proceeding was instituted from improper or wrongful motive, it is not essential that actual ill will be shown.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 61; Dec. Dig. § 28.*]</p> <p>4. Malicious Prosecution (§ 29*)—Malice—Evidence.</p> <p>Malice may be implied in an action for malicious prosecution, in that it may be inferred by the jury from circumstances, like any other fact, as by showing that defendant’s conduct, considered as a whole, is inconsistent with proper motive.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 62; Dec. Dig. § 29.*]</p> <p>5. Malicious Prosecution (§ 15*)—Want of Probable Cause.</p> <p>Want of probable cause, as well as malice, is essential in order to maintain an action for malicious prosecution.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. i 18; Dec. Dig. § 15.*]</p> <p>6. Malicióus Prosecution (§ 56*)—Burden of Proof—Want of Probable Cause.</p> <p>The burden is on plaintiff, in an action for malicious prosecution, to prove want of probable cause, as well as malice by defendant.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§. 112-116; Dec. Dig. § 56.*]</p> <p>7. Malicious Prosecution (§ 32*)—Want of Probable Cause—Evidence— Malice.</p> <p>Proof of want of probable cause is not, as a matter of law, proof of malice in an action for malicious prosecution, though ordinarily malice may be inferred as a fact from proof of want of probable cause.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§. 67, 68; Dec. Dig. § 32.*]</p> <p>8. Malicious Prosecution (§ 71*)—Jury Question—Malice.</p> <p>The existence of malice is exclusively a question for the jury in an action for malicious prosecution.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 160-167; Dec. Dig. § 71.*]</p> <p>9. Malicious Prosecution (§ 24*)—Favorable Termination oe Action.</p> <p>If a proceeding brought against defendant before a magistrate terminates in his favor, he may maintain an action for malicious prosecution, and the termination of a criminal proceeding in defendant’s favor, though reversed by a higher tribunal, is ground for an action for malicious prosecution.</p> <p>[Ed. Noté.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 49-55; Dec. Dig. § 24.*]</p> <p>10. Malicious Prosecution (§ 67*)—Damages—Elements.</p> <p>Plaintiff, in malicious prosecution, is entitled to adequate compensation for all the elements of the injury suffered, including loss of time, peril to life and liberty, injury to reputation, character, and health, mental suffering, general impairment of social and business standing, actual injury to property or credit, and decrease in earning capacity.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 1515, 156; Dec. Dig. § 67.*]</p> <p>11. Malicious Prosecution (§ 66*)—Damages—Proximate Cause.</p> <p>The damages recovered, in an action for malicious prosecution, must be the direct and proximate result of the former proceeding.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 154; Dec. Dig. § 66.*]-</p> <p>12. Malicious Prosecution (§ 69*)—Damages—Inadequacy.</p> <p>Plaintiff, while riding on a street car, was accused by defendant of trying to pick his pocket, though defendant only had 30 or 40 cents in his pocket at the time, and defendant had plaintiff arrested under a charge of “grand larceny,” and plaintiff was taken five or six blocks through the streets by a policeman, placed in a patrol wagon, and taken to police headquarters some half mile away, where his finger prints were taken, from which place he was taken to the police court and placed in the jail about four hours, and was required to furnish bail and be examined, after which he was discharged. Held, that plaintiff was entitled to compensatory damages, so that a verdict of six cents was inadequate; all of the circumstances being recoverable elements of damage.</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 158; Dec. Dig. § 69.*]</p> <p>13. Malicious Prosecution (§ 31*)—.“Malice.”</p> <p>Where defendant knew when he'made a charge of grand larceny against plaintiff that such a crime had not been committed because defendant’s pocket only contained 30 or 40 cents when plaintiff attempted to pick it according to defendant, the making of the complaint charging grand larceny of itself constituted “malice” by defendant</p> <p>[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. S3 64-66; Dec. Dig. § 31.*]</p> <p>14. New Trial (§ 81*)—Failure to Request Instructions.</p> <p>Where plaintiff in a malicious prosecution did not request a charge that, under the uncontroverted evidence, he was entitled to substantial damages, the court cannot on motion, set aside a verdict for him for nominal damages, though he was entitled, as a matter of law, to substantial damages.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 131; Dec. Dig. § 81.*]</p>

<p>Appeal from City Court of Buffalo.</p> <p>Action by William Schenk against the International Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Mandamus by the People of the State of New York, on the relation of the Van.Beuren & New York Bill Posting Company, against Rudolph Miller, as Superintendent of Buildings in the Borough of Manhattan, City of New York. Peremptory writ of mandamus granted, and defendant appeals. Reversed, and application denied upon the law and not in the exercise of discretion.

Action by Charles B. Benham and others against Mary E. Board-man and others, to partition certain real property, and for the construction of certain deeds. Judgment for plaintiffs.

<p>1. Vendor and Purchaser (§ 228*)—Notice of Equity—Effect.</p> <p>A grantee with notice of the claim of one owning and occupying a gore of land between the boundary marked by a fence and the line described by his deed must be deemed to have taken title subject to the rights and equities of such owner.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent Dig. §§ 495-501; Dec. Dig. § 228.*]</p> <p>2. Reformation of Instruments (§ 13*)—Mistake—Deed.</p> <p>A deed intended to convey premises bounded by a blazed and monumented line, but which by mutual mistake described such line as within and wholly on the grantee’s land, should be reformed so as to express and carry out the true agreement and intention of the parties.</p> <p>[Ed. Note.—For other cases, see Reformation of Instruments, Cent. Dig. §§ 42-60; Dec. Dig. § 13.*]</p> <p>3. Reformation of Instruments (§ 18*)—Mistake—Equitable Relief.</p> <p>Where parties, intending to reduce a paroi agreement to writing, make a contract different from that intended, because of a misunderstanding of the terms used, equity will relieve by reforming the instrument and compelling them to perform the agreement as they made it; and it is immaterial whether such mistake is called a mistake of law or of fact.</p> <p>[Ed. Note.—For other cases, see Reformation of Instruments, Gent. Dig. §§ 72, 73; Dec. Dig. § 18.*]</p> <p>4. Boundaries (§ 49*)—Practical Location—Effect.</p> <p>Practical location of a boundary line with a continued and undisturbed occupation thereto by the grantee for more than 20 years is conclusive on the parties and their successors in title, even though the boundary line so located is erroneous.</p> <p>[Ed. Note.—For other cases, see Boundaries, Gent. Dig. §§ 243-248; Dec. Dig. § 49.*]</p>

<p>1. New Trial (§ 66*)—Findings of Jury.</p> <p>Where notice of injury on a sidewalk was not served on the municipality within the time required by its charter, but plaintiff on the trial gave evidence of mental and physical condition to relieve her of the default, the jury’s finding in her favor will not be disturbed on motion for new trial.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 132-134; Dec. Dig. § 66.*]</p> <p>2. Municipal Corporations (§ 812*)—Notice of Injury—Verification.</p> <p>The Owego Village Charter, § 52, provides that the village shall not be liable for injuries on sidewalks, unless written notice of the injury is given the board of trustees. The Village Law (Consol. Laws, c. 64) § 341, requires a written verified statement of the nature of the claim, and section 380 provides that a village incorporated under a special law shall be subject to the provisions of the general village law, which are not inconsistent with such special law. Held that, the general village law not being inconsistent with the Owego village charter as to the verification of the notice of injuries, a verified notice of 'injury was not required to be given to the village trustees.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec. Dig. § 812.*]</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Paizor Feinstein against Ignatz Jacobson. From a judgment for defendant, plaintiff appeals.</p>

Action by Ernest Peterson against the Ocean Electric Railway Company. From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.

<p>Highways (§ 124*)—Maintenance—Taxation.</p> <p>Highway Law (Consol. Laws, c. 25) § 134, provides that on completion of a highway, and after filing the notice required, the highway shall be deemed to have been accepted by the board of supervisors of the county, and thereafter it would be maintained as provided in such charter. Held, that the maintenance of a highway which is to be “thereafter” exercised under such section has no bearing on the raising of funds with which to pay for such maintenance, and where a statement in October, 1912, specifying the number of miles of state and county highways in each town and the amount required to be paid for maintenance thereof for the year 1913, was transmitted to the clerk of the board of supervisors, as required by section 172, and on December 18, 1912, notice was given pursuant to section 134 that the county highways in question had been accepted, the board of supervisors was not authorized to refuse to include a tax for the maintenance and repair of the roads for 1913 in the tax levy, because the highways had not been accepted on December 15, 1912, when the tax levy for that year was made.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. § 381; Dec. Dig. § 124.*]</p>

Action by Sidney S. Walcott, as president of the Telluride Association, against the County of Tompkins and Rodney G. Robinson, as County Treasurer, etc., to vacate and set aside an assessment on the property of the association in the city of Ithaca for the year 1910; and certiorari by the People of the State of New York, on the relatian of Sidney S. Walcott, as president of the association, against William H. Parker and others as assessors of the City of Ithaca, to review an…

<p>Rocco Antoniello was indicted for murder in the first degree.</p>

<p>1. Threats (§ 1*)—Offenses—Statute.</p> <p>Under Penal Law (Consol. Laws, c. 40) § 551, making any person knowingly sending, or delivering or making, and, for the purpose of delivering or sending, parting with possession of any letter or writing with or without a name subscribed thereto, with intent to annoy any person, guilty of a misdemeanor, it is not necessary to the offense to prove that the author of the writing addressed or caused it to be directly delivered to the person affected thereby if he intended that it should reach such person; and the offense may be also committed by sending a letter containing a threat-of some other person, provided it is sent to annoy; and hence defendant’s anonymous letters to the police department, complaining of the illegal conduct of complainant’s saloon, not communicated to or intended for complainant, who had no knowledge until he obtained them from the department, in the absence of privilege constituted an offense.</p> <p>[Ed. Note.—For other cases, see Threats, Cent. Dig. §§ 1-6; Dec. Dig. § 1.*]</p> <p>2. Threats (§ 1*)—Competency—Privilege.</p> <p>It is against public policy for police officers to disclose their source of information of the commission of crime.</p> <p>[Ed. Note.—For other cases, see Threats, Cent. Dig. §§ 1-6; Dec. Dig. § 1.*]</p> <p>3. Threats (§ 1*)—Offenses—Annoyance.</p> <p>Under Penal Law (Consol. Laws, c. 40) § 551, making it a misdemeanor to knowingly send or deliver any letter or writing, with or without a name subscribed thereto, with intent to annoy, the writing must be calculated to cause real annoyance and disturbance.in the mind of the person affected, and not merely a whimsical or capricious annoyance, although no precise words are required to convey a threat or cause annoyance. But the statute does not prevent bona fide complaint of the commission or suspicion of crime.</p> <p>[Ed. Note.—For other cases, see Threats, Cent. Dig. §§ 1-6; Dec. Dig. § V*]</p> <p>4. Threats (§ 1*)—Strict Construction—Penal Statute.</p> <p>Under such statute, one charged with an offense is entitled to a strict construction.</p> <p>[Ed. Note.—For other cases, see Threats, Cent. Dig. §§ 1-6; Dec. Dig. § 1.*] ' ' „</p> <p>5. Threats (§ 1*)—Offenses—Complaint to Police.</p> <p>Under such statute anonymous communications in writing, addressed to the police department, and complaining of complainant’s illegal conduct of his saloon, without any unlawful intent, or any intent that they should be communicated to complainant, were privileged so as to constitute an offense.</p> <p>[Ed. Note.—For other cases, see Threats, Cent. Dig. §§ 1-6; Dec. Dig. §1.*]</p> <p>6; Threats (§ 8*)—Question for Jury—Probable Cause.</p> <p>Where a person, interested in the maintenance of law and good order, in good faith furnishes the administrative authorities with information as to a crime, or a supposed crime, the question of qualified privilege, is one of law for the court, while malice, good faith, etc., are questions of. fact.</p> <p>[Ed. Note.—For other cases, see Threats, Cent. Dig. § 13; Dec. Dig. § 8.*]</p> <p>7. Threats (§ 7*)—Burden of Proof—Malice.</p> <p>In such case the people, charging that the informer acted with actual malice, have the burden of proving such malice.</p> <p>[Ed. Note.—For other cases, see Threats, Cent. Dig. § 12; Dec. Dig. § 7.*]</p> <p>8. Threats (§ 7*)—Intent—Evidence.</p> <p>Under Penal Law (Consol. Laws, c. 40) § 551, making it a misdemeanor to send or deliver a letter or writing with intent to annoy, such intent may be inferred from all the circumstances of the case, the law only presuming an unlawful intent from the intentional commission of an act in itself unlawful.</p> <p>[Ed. Note.—For other cases, see Threats, Cent Dig. § 12; Dec. Dig. § 7.*]</p>

<p>1. Trial (§ 252*)—Instruction's—Confusing Instructions.</p> <p>In an action for injuries claimed to be due to the -negligence of the driver of a wagon, an instruction that defendant was not responsible for his driver’s error of judgment or miscalculation tended merely to confuse the jury, where there was no evidence or claim that any error of judgment or miscalculation was made, nor any fact from which either could be inferred.</p> <p>[Ed. Note.—For other cases, see Trial, Cent Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>2. Trial (§ 234*)—Instructions—Failure to Produce—Presumptions.</p> <p>In an action for injuries alleged to have been due to the negligence of the driver of a wagón, an instruction that the jury might consider plaintiff’s failure to call as a witness a butcher whose shop he claimed to have been visiting just before the accident, and his failure to produce his books, was erroneous; there being no intimation that the butcher witnessed the accident, and the books being incompetent from any point of view.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 53A-538, 566; Dec. Dig. § 234.*]</p> <p>Seabury, J., dissenting.</p>

Action by Philip Weinberg against Samuel W. Steel. From a judgment for plaintiff, and an order denying a motion to set aside the verdict,- and for a new trial, defendant appeals.

<p>1. Sales (§ 21*)—Agreements Between Seller and Buyer—Consideration.</p> <p>If a contract of sale was valid, an agreement by the buyer’s agent to . pay a higher price than that agreed upon was without consideration.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 33-38: Dec. Dig. § 21.*]</p> <p>2. Appeal and Error (§ 1177*)—Reversal—Necessity oe New Trial.</p> <p>Where the record on appeal contains no comprehensible calculation from which the exact error in the amount of the judgment could be computed, a new trial will be granted.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. § 1177.*]</p>

Application by Smith Pearsall for peremptory writ of mandamus against the Clerk of the Board of Supervisors of Nassau County and George M. Goodale, in which proceeding the South Side News Company intervened. From an order of the Special Term granting the writ, the defendant Goodale and the intervener appeal.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Julius Nahoum, doing business as the Western Trading Company, against N. E. Marcoglou & Co., Incorporated. Judgment for plaintiff, and defendant appeals.</p>

Action by Isidor Breidbart and others, as copartners doing business as I. Breidbart & Co., against the Empire City Subway Company. From a judgment for plaintiffs and from an order denying defendant’s motion for a new trial, it appeals.

Action by Lena Linder against Isidore Feier. From an order vacating an execution against defendant’s person in an action for breach of promise of marriage, plaintiff appeals.

Action by Julius Silverman against the Charles Jacobs Company. From a Municipal Court order denying defendant’s motion to open its default, and from a judgment in favor of plaintiff on an inquest taken by the court without a jury, defendant appeals.

<p>Courts (§ 190*)—Municipal Courts—Appeal—Action on Undertaking— Sufficiency of Complaint.</p> <p>Judgment on the pleadings should be rendered for defendant in an action against a surety on an undertaking on appeal from the Municipal Court to the Appellate Term, where the complaint does not allege compliance with Code Civ. Proc. § 1309, prohibiting such an action until 10 days have expired since the service upon appellant’s attorney and the surety of a written notice of entry of judgment or order affirming the judgment appealed from or dismissing the appeal and providing the manner of such service, etc.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Ernest Bonagur against Salvatore Purificato and another. From a judgment for plaintiff, defendants appeal.</p>

Action by Paterno Bros., Incorporated, against Harry H. Frazee. From an order directing plaintiff to serve a reply to the new matter, contained in a paragraph of one of the affirmative defenses, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Abraham Popiel against the Manhasset Mortgage Company. Prom a judgment of the Municipal Court for defendant, plaintiff appeals.</p>

<p>Money Received (§ 18*)—Actions —Evidence—Sufficiency.</p> <p>In an action to recover the proceeds of a note which plaintiff claimed to have transferred to defendant for safe-keeping, and which she also claimed she lent defendant to collect and keep the proceeds as a loan, evidence held insufficient to support a judgment for plaintiff.</p> <p>[Ed. Note.—For other cases, see Money Received, Cent. Dig. §§ 70-72; Dec. Dig. § 18.*]</p> <p>Seabury, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by David M. Heyman and- others as trustees under the will of Simon Heyman, deceased, against Donald Robertson. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Max Fernbach against Rebecca Stein. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Tessie Gasparowicz against Isidor M. Oshinslcy. From a judgment dismissing the complaint without prejudice, plaintiff appeals.</p>

<p>Principal and Agent (§ 143*)—Undisclosed Principal.</p> <p>As a rule an undisclosed principal may enforce a contract made by an undisclosed agent, unless it be inequitable to do so, so that, where claimant’s father, who was formerly in the undertaking business, made over his business to him, but afterwards sometimes acted as his son’s agent in receiving orders for funerals, etc., and so acted in contracting for decedent’s funeral, claimant could enforce his claim under such contract against the estate for such funeral expenses.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 392; Dec. Dig. § 143.*]</p>

<p>Action by the American Stone Renovating & Stucco Company against John A. Garver and others.</p>

<p>Action by Annie Baum, as administratrix, against the Mutual Life Insurance Company.</p>

<p>Action by Henry Cardos against Wm. H. Edwards, as commissioner.</p>

<p>Action by Domenico Castelli against Alexander S. Burns, impleaded.</p>

<p>Action by H. Stanley Clutsam against Charles McO. Chapman.</p>

<p>Action by Mary Eddery, as administratrix, etc., of Andrew Eddery, deceased, against the Interborough Rapid Transit Company.</p>

<p>Action by Claudine Eckert against Clara M. Truman and George D. Now-land.</p>

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

<p>Action by George .F. Elliott against William W. Niles and another, copartners, etc.</p>

<p>Action by Henry E. Gropp against the Great Atlantic & Pacific Tea Company.</p>

<p>Action by Charles S. Hirsch against Solomon K. Lichtenstein.</p>

<p>Action by Emil Hoefle, as trustee, etc., against the American Laundry Machinery Manufacturing Company.</p>

<p>In the matter of Norman F. Lancashire, committee, etc. Action by Charles F. Wilcox, special guardian, against the American Surety Company.</p>

<p>Action by Michele Mendola against the Illinois Surety Company.</p>

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

<p>Actions by Anson B. Moran and others against Herbert S. Vreeland and others.</p>

<p>Action by Emily B. Nichols against Alexander A. Nichols.</p>

<p>Action by Frank Nappa against the Erie Railroad Company.</p>

<p>Action by Emily R. Nichols against Alexander A. Nichols.</p>

<p>Action by Margare tho Nickel, as administratrix against Frederick Ayer.</p>

<p>Proceeding by the People of the State of New York against Antonio Cincotta.</p>

<p>Proceeding by the People of the State of New York against Giovanni Manghavita.</p>

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

<p>Proceeding by the People of the State of New York, on the relation of the Coney Island Jockey Club, against Lawson Purdy and others, as Commissioners of Taxes and Assessments.</p>

<p>Proceeding by the People of the State of New York, on the relation of the Metropolitan Street Railroad Company, against the State Board of Tax Commissioners.</p>

<p>Proceeding by the People of the State of New York, on the relation of J. Benedict Roache, against Harry A. I-Ianbury.</p>

<p>Proceeding by the People of the State of New York, on the relation of Stephen H. Olin and others, as executors, etc., against Joseph F. Hennessy and others.</p>

<p>Action by Guillaume Reusens against Julian M. Girard and others.</p>

<p>Action by William A. Rees against the United States Oxygen Company.</p>

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

<p>Action by the Southern Dutchess Gas & Electric Company against Harry E. Murphey and others.</p>

<p>Action by the Terpezone Company against the Knox Terpezone Company of America and others.</p>

<p>Action by the Thos. J. Buckley Engineering Company against Edward E. McCall and others.</p>

<p>Action by Mary A. Tyndall, as administratrix, etc., of James J. Tyndall, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Andrew Troiana and others against Charles E. Egan and others,</p>

<p>Action by Maria J. Ventimiglia against Minna Eichner, as administratrix, and the City of New York.</p>

<p>Action by Robert T. Varnum, as executor, against William M. Barrett, as president, etc.</p>

<p>Action by the Village of Fredonia against the Fredonia Natural Gas Light Company and others.</p>

<p>Action by Blary Wessel against Albert J. Schwarzler.</p>

<p>Action by Joseph A. Wasserman against the Bronx Home News Publishing Company.</p>

<p>Action by Benjamin A. Whisler and another against Henry G. Cole.</p>

<p>Action by Elsa Wittgren, as administratrix, etc., of Nies Bernhard Wittgren, deceased, against the Wells Bros. Company of New York.</p>