Volume 147 — New York Supplement

Action by John J. Keit against the Winter Garden Company. From an order denying defendant’s motion to modify an order for examination of defendant before trial, defendant appeals.

<p>Judgment (§ 160*)—Default—Vacation.</p> <p>• Defendant’s default should not be opened upon an affidavit by his attorney, which absolutely failed to set forth any fact upon which the court could presume that there was a valid defense.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 314-316: Dec. Dig. § 160.*]</p>

<p>Usury (§ 64*)—Subsequent Collateral Agreements.</p> <p>Where there was no agreement to exact or pay usury at the time an original loan was made, the usurious payment being made, if at all, on the following day, without any prearrangement, the original loan was not invalidated, and the surplus in excess of the legal interest should be applied on the original indebtedness.</p> <p>[Ed. Note.—For other cases,' see Usury, Cent. Dig. § 137; Dec. Dig. § 64.*]</p>

<p>Sales (§ 397*)—Action fob Pbice—Sufficiency of Evidence.</p> <p>In an action for liquors claimed to have been sold and delivered to defendant by plaintiff, evidence held not to show that the sale was made by or for plaintiff, but to show that it was made by a third person.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1136; Dec. Dig. § 397.*]</p> <p>Lehman, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second Dis7 trict.</p> <p>Action by Morris Silver against Jerome S. Loucheim. From a judgment for plaintiff, defendant appeals.</p>

Summary proceedings by Joanna M. O’Rourke, landlord, against Ida Haggerty Snell, tenant. From a judgment on a verdict directed for the landlord, the tenant appeals.

Action by Isidor Lerner against George J. Kraus. From an order of the New York City Court denying defendant’s motion for an order limiting his examination before trial, he appeals.

Action by Louis Neuburger against Louis E. Bliss. From a New York City Court judgment on a verdict in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Joseph C. Kuhn against Ebstein Bros. From a judgment for defendant, plaintiff appeals.</p>

<p>Stipulations (§ 13*)—Relief from Stipulations.</p> <p>Plaintiff brought three separate actions for rent, and before action No. 1 was determined on appeal, action No. 3 was ordered for trial, and on December 17,1912, the parties stipulated that the action be adjourned until December 24th, to permit defendant to execute bond for payment of the amount involved in the action, in the event of affirmance of the judgment in action No. 1, and that otherwise the case should be tried on December 24th. The issues made by the pleadings in both actions were whether plaintiff had accepted defendant’s assignee as tenant in place of defendant, so as to establish a surrender of defendant’s term. While searching the records of the bankruptcy court in December, 1913, defendant first learned that plaintiff had received a dividend in bankruptcy proceedings upon a claim against the assignee for the installment of rent covered by action No. 2, and also learned that plaintiff had requested in writing a surrender from the assignee’s trustee in bankruptcy, and had received the keys of the premises before the time the installment sued for in action No. 3 became due, and thereupon moved to be relieved of his stipulation and to amend his pleadings to allege a surrender, of the premises through the acceptance of the keys, and a subsequent leasing to a third person. Defendant had proved in the trial of action No. 1 that a claim for an earlier installment had been made in the bankruptcy proceedings. Held, that defendant should not be relieved of his stipulation if, by due diligence, he could have discovered the existence of the facts upon which the issue of surrender was based before he made the stipulation, and that he did not use sufficient diligence for that purpose, so that he should not be relieved from the stipulation on the ground of inadvertence.</p> <p>[Ed. Note.—For other cases, see Stipulations, Cent. Dig. §§ 67-76; Dec. Dig. § 13.*].</p> <p>Bijur, J., dissenting</p>

<p>Frauds, Statute oe (§ 95*)—Sale oe Goods—Part Payment.</p> <p>In the absence oí a showing that a check given to the seller by the purchaser was given under an agreement that it should constitute part payment of the price, rather than the means of payment, the check payment being stopped was not such a part payment as to take the sale out of the statute of frauds.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 183— 185 ; Dec. Dig. § 95.*]</p>

<p>Infants (§ 100*)—Actions—Liability for Price of Goods.</p> <p>Where the uncontradicted evidence showed that at the time of the sale of the goods defendant was a minor, and that the shop where they were delivered was owned by his mother, evidence that he told the seller’s driver that he was the “boss” will not support a personal judgment against him for the value of the goods.</p> <p>[Ed. Note.—Eor other cases, see Infants, Cent. Dig. § 295; Dec. Dig. § 100.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Isaac Polstein against Perley Morse. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Samuel A. Davis against William Poliak (and others not summoned). Judgment for plaintiff, and defendant Poliak appeals.</p>

<p>1. Frauds, Statute of (§ 17*)—Promise to Pay Debt of Another.</p> <p>A guaranty of payment if the debtor does not pay, not being in writing, is void under the statute of frauds.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 13, 16, 17; Dee. Dig. § 17.*]</p> <p>2. Contracts (§ 187*)—Construction of Agreement.</p> <p>A letter from defendants to plaintiff, stating receipt of letter from M.,. asking them to pay plaintiff out of moneys due M. on final payment for certain work, a certain sum, and that they will see that payment is made to plaintiff, is only a promise to pay, as requested by M., out of the fund due M. when he became entitled to a final payment, so that, he never haying become entitled to a final payment, all the money having been disbursed in payment of mechanics’ liens, there was no cause of action against defendants.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 798-807; Dec. Dig. §187.*]</p>

<p>Bailment (§ 12*)—Gratuitous Bailment—Liability oe Bailee.'</p> <p>G. ordered glass of B., but refused to take it, whereupon B. recovered judgment of G. for the agreed price, on the theory that the glass then belonged to G. No demand was made by G. for the glass till two years later, when he paid the judgment. In the meantime it, with glass of B., was broken, while he was moving his place of business. Held, that B. was under no greater duty than a gratuitous bailee, and so liable only ' for gross neglect, which is not shown by the mere fact of the breaking under such circumstances.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 37-41; Dec. Dig. § 12.*]</p>

<p>Action by the Prest-O-Lite Company against the American Auto Supply Company.</p>

Action for partition by J. Edward Gallager against James A. Gal-lager and others. On motion for the appointment of a referee. Order of reference made, and another action between the same parties stayed until final judgment herein.

<p>1. Tbade-Mabks and Tbade-Names (§ 50*) — Offenses — Sale of Labeled Package.</p> <p>General Business Law (Consol. Laws, c. 20) § 367, imposes a penalty upon any one other than the proprietor who should sell any receptacle belonging to the proprietor which was branded or marked with a registered trade-mark. A manufacturer of acetylene gas stored it, dissolved in acetone, in a steel receptacle, and sold the full receptacle for $25, but upon return of the empty receptacle furnished another full one for $1.50. The manufacturer had registered its trade-mark for the gas dissolved in acetone and stored in the vessels, but both the gas and the receptacle were known by the trade-name. Held that, while the statute protected the trade-mark of the contents of the receptacle and not of the receptacle itself, the fact that the latter was also known by the trade-name and that its cost was greater than the cost of refilling did not bar a recovery against one who had sold one of the receptacles filled with gas manufactured by another company.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 58; Dec. Dig. § 50.*]</p> <p>2. Tbade-Mabks and Tbade-Names (§ 50*) — Actions fob Penalty — Defenses.</p> <p>Even though the second manufacturing company acquired and filled the tank before the trade-mark had been registered, that fact would not protect a dealer who sold the tank so filled after the trade-mark was registered, where there was nothing to show the time the dealer received the tank from the manufacturer.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 58; Dec. Dig. § 50.*]</p> <p>3. Constitutional Law (§ 278*)—Tbade-Mabks and Tbade-Names (§ 42*)— Due Pbocess of Law—Tbade-Marked Receptacle.</p> <p>Even if the dealer had received the filled tank from the second manufacturer before the first had registered his trade-mark, he would not be deprived of his property by the subsequent prohibition of its sale, since a trade-mark was protected by common law and the statute merely provided a similar method of proof and imposed an additional penalty, and since such sale was in violation of Penal Law (Consol. Laws, c. 40) § 2354, making it a misdemeanor to sell an article with a label indicating the quality, character, etc., of the article but not indicating it truly.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 763, 765, 767-770, 772-777, 779-806, 808-810, 816-824, 907-924, 942; Dec. Dig. § 278;* Trade-Marks and Trade-Names, Cent. Dig. § 47; Dec. Dig. § 42.*]</p> <p>4. Tbade-Mabks and Tbade-Names (§ 50*)—Defenses—Intent.</p> <p>The fact that the dealer sold the contents of the tank as the gas of the second manufacturer and not as that of the first is no defense.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 58; Dec. Dig. § 50.*]</p> <p>5. Tbade-Mabks and Tbade-Names (§ 50*)—Defenses—Relabeling.</p> <p>Nor did the pasting of a label indicating that the gas was manufactured by the second manufacturer over the trade-mark etched on the tank constitute a defense to an action for the penalty, since such a label could have been easily removed and was .therefore no protection against fraud so long as the original trade-mark was not defaced.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 58; Dec. Dig. § 50.*]</p>

O. B. Ericson was convicted of soliciting orders for books without a license, in violation of an ordinance of the City of' Schenectady, and he appeals.

In the matter of the estate of Sigmund J. Bach; Appeal from the appraisal for the transfer tax. Appraiser’s report remitted to him for correction.

In the matter of the estate of Henry C. Valentine; on appeal, by the State Comptroller from the order fixing the transfer tax, and appraising the property for taxation.

Action by Victor Urbano against Harry C. Hallenbeck and another. From' an order denying motion for injunction pendente lite, plaintiff' appeals.

Action by Theresa Senior, an infant, etc., against the Sun Printing & Publishing Association. Motion- for judgment on the pleadings denied, and demurrer to complaint sustained, and plaintiff appeals.

<p>Appeal from Trial Term, New York County.</p> <p>Action by the F. & D. Company against Inglis M. Uppercu and the Fidelity & Deposit Company of Maryland. Motion to place cause upon the special calendar for trial was denied, and plaintiff appeals.</p>

<p>1. Municipal Corporations (§ 1012*)—Allowance of Claims—Ordinances— Effect.</p> <p>The common council of the city of Buffalo, prescribing, as authorized by the charter, as amended by Laws 1909, c. 120, a method for presenting and auditing bills against the city, may waive the requirements, and act independently thereof, and allow a valid claim.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 2184; Dec. Dig. § 1012.*]</p> <p>2. Statutes (§ 66*)—General and Special Statutes.</p> <p>The Legislature, in the absence of constitutional provisions, may pass special acts and confer special privileges by subsequent legislation.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 67, 68; Dec. Dig. § 66.*]</p> <p>3. Municipal Corporations (§ 1012*)—Auditing of Accounts—Conclusiveness.</p> <p>Ordinarily the action of common councils in auditing accounts is conclusive, in the absence of fraud or collusion.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 2184; Dec. Dig. § 1012.*]</p>

Action by Ladislaus Farago against the New York Railways Company. From an order denying a motion to confirm the report of a referee, to discontinue the action, and to cancel the attorney’s lien, defendant appeals.

• Action by Aaron Rose and another against Fannie Adler for specific performance of a contract for the sale of real property, or in the alternative to recover their deposit and expense of searching title. Judgment for the plaintiff for the amount of the deposit and the expenses of searching.

<p>Contracts (§ 322*)—Actions tor Breach—Evidence—Sufficiency.</p> <p>Evidence held insufficient to show breach of a contract requiring defendant, who was engaged in running sight-seeing cars, to have them pass plaintiff’s building three times a day and to have delivered a lecture in front thereof.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1306, 1307, 1339, 1347, 1348, 1465, 1492, 1534-1542, 1754, 1768, 1772, 1801, 1802, 1804-1808, 1815, 1816; Dec. Dig. § 322.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Jacob Landes against Dora Sallin. Judgment for plaintiff vacated, and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Joseph M. Levine against Max Litowitch. From a judgment in the Municipal Court in favor of plaintiff, defendant appeals.</p>

<p>Landlord and Tenant (§ 200*)—Rent—Right to Rent.</p> <p>Where a tenant was constructively evicted during the month because of the landlord’s failure to furnish heat, the landlord, unless the tenant sets up a counterclaim, is entitled to recover the whole installment of rent for that month, where the lease provided for payment of the monthly installments of rent in advance.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 794r-797; Dec. Dig. § 200.*)</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Morris Butter against Robert Natanspn. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Edward C. Titus against Lydia A. Spencer, as executrix of the last will and testament of Armón Spencer, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>Action (§ 60*)—Severance oe Causes oe Action—Separate Submission oe Counterclaim.</p> <p>In an action where defendant’s answer set up a counterclaim, the court was without authority to sever the causes of action by dismissing the complaint and submitting the counterclaim to the jury, although the order of dismissal purported to be without prejudice to the merits of the plaintiff’s cause of action upon another trial.</p> <p>[Ed. Note.—For, other cases, see Action, Cent. Dig. §§ 699-707; Dec. Dig. § 60.*]</p>

<p>Coubts (§ 189*)—Municipal Goubt—Default—Setting Aside.</p> <p>Where a trial in the Municipal Court was, on .defendants’ application, adjourned from March 6th to the morning of March 9th, and again to the afternoon, when defendants asked an adjournment on the ground that one of their attorneys was a witness in a trial in the Supreme Court and one of the defendants was a witness in a case in New Jersey, but the attorney’s engagement had ceased two hours before the trial, and the absent defendant knew nothing that would establish any defense, there was no ground for opening a default.</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, Second District.</p> <p>Action by Louis Greenberg against the Bernikow Family Liquor Store. From a judgment of the Municipal Court in favor of the ■plaintiff, defendant appeals.</p> <p>Reversed, and complaint dismissed.</p>

<p>Payment (§ 63*)—Pleading and Issues—Affirmative Defense.</p> <p>In an action for the balance of the price of an article sold and delivered, defendant answered by general denial, and affirmatively pleaded that the sale was induced by fraudulent representations. Held, that payment was an affirmative defense, which should be set forth and pleaded, and plaintiff was not required to prove nonpayment.</p> <p>[Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 152-161; Dec. Dig. § 63.*] . .</p>

<p>Brokers (§ 52*)—Compensation—Failure to Complete Contract.</p> <p>A broker is not entitled to a commission, where the terms of a proposed lease were never agreed to by the parties because the owner became dissatisfied with the financial responsibility of the proposed lessee before the time set for the meeting at which the terms of the lease were to be settled.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 73; Dec. Dig. § 52.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Jacob F. Weichsler against Sol Insky. From a judgment entered upon dismissal of the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Mamie Fruchtbaum against Abraham Schinasi and others. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Isaac Merin against the Minsker Young Men’s Commercial Aid Association. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

• Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Max Frieder against Frank E. Rosen and another, doing business as Frank E. Rosen & Co. From a judgment of the Municipal Court for plaintiff, defendants appeal.

Action by Jacob Bernstein and another, copartners doing business under the firm name and style of Bernstein & Marcus, against Samuel Harris and others. From an order denying a motion to open a default, defendants appeal.

Action by Winifred Maloney against Emma Rockefeller McAlpin, also known as Mrs. David Hunter McAlpin. From a judgment for plaintiff for $200, and from an order denying a new trial, defendant appeals.

<p>1. Banks and Banking (§ 149*)—Guaranteed Indorsement—Liability.</p> <p>Where Y. bank accepted from an indorsee a deposit of a cashier’s check drawn by P. bank on O. bank, and guaranteed the indorsements thereon, and received payment through the clearing house, Y. bank was liable for any loss to O. bank by its being required to repay the money to P. bank, because of an unauthorized indorsement.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 453, 454; Dec. Dig. § 149.*]</p> <p>2. Banks and Banking (§ 142*)—Depositor op Checks—Liability.</p> <p>A depositor of a check purporting to be properly indorsed stands in the position of guarantor to the bank, and must repay the amount of the check to the bank bound to make up a loss occasioned by an unauthorized indorsement of the check.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 410-413; Dec. Dig. § 142.*]</p> <p>3. Banks and Banking (§ 149*)—Checks—Erroneous Indorsement—Failure to Discover—Liability.</p> <p>The failure of a bank drawing a check to pay a depositor to detect at once an erroneous indorsement in Hebrew is not such gross negligence as will estop it from making a claim against the bank on which the check was drawn, and which paid the check; and the former bank is entitled, within Negotiable Instruments Law (Consol. Laws, c. 38) § 326, to a year from the date of the return of the check to make its claim.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 453, 454; Dee. Dig. § 149.*]</p> <p>Bijur, J., dissenting.</p>

<p>Action by Frank C. Hoffman and another, administrators, against the Delaware & Hudson Company. On demurrer to complaint.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn.</p> <p>Action by one McMail against one Michaels. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Courts (§ 189*)—'Municipal Courts—-Denial—Sufficiency.</p> <p>While a denial of information sufficient to form a belief with respect “to-‘the’ allegations contained in the first paragraphs of the complaint’’ was not good pleading, where there were several allegations of fact, it will not be deemed fatally defective, when construed liberally, as required by Municipal Court Act (Laws 1902, c. 580) § 170, where none of the allegations denied were presumptively within defendant’s knowledge.</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 Court—Pleading—Denial—Information and Belief.</p> <p>An allegation “upon information and belief that the defendant denies each and every allegation in the second and third paragraph of the complaint herein,’’ while inartistic, is sufficient to raise an issue; the verification having been made by the attorney.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]</p>

<p>1. Courts (§ 184*)—County Court—Jurisdiction—Effect of Appearance.</p> <p>Notwithstanding Code Civ. Proe. § 421, providing that defendant’s appearance must be made by serving a notice of appearance or a copy of . a demurrer or answer, where a complaint in County Court failed to allege that defendant was a resident of the county, the filing of a demurrer on ' the ground that the complaint failed to show jurisdiction of the defendant and of the subject of the action was not a waiver of the jurisdictional question.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 184.*]</p> <p>2. Courts (§ 184*)—County Courts—Jurisdictional Allegations.</p> <p>Undér Const, art. 6, § 14, providing that the Legislature may enlarge the jurisdiction of county courts, but that it shall not be so extended as to authorize an action for the recovery of money only where any nonresident of the county is a defendant, and Code Civ. Proc. § 340, giving county courts jurisdiction where the defendant or all of them are residents of the county and the complaint demands judgment not exceeding §2,000, if the complaint fails to allege defendant’s residence in the couqty, it is presumed that he is a nonresident, and the complaint is demurrable for want of jurisdiction and .for insufficiency.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 184.*]</p>

<p>Philip Posnansky and another were indicted for grand larceny, and they interposed certain motions.</p>

<p>Insurance (§ 650*)—Life Insurance—Breach of Conditions—Statute.</p> <p>Under Insurance Law (Consol. Laws, c. 28) § 58, providing that every life policy shall contain the entire contract, statements made by insured in the application cannot be considered, where they were not made a part of the policy; the provision that all statements made by insured should be deemed representations, and not warranties, relating only to those which were so incorporated.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1671, 1672; Dec. Dig. § 650.*]</p>

<p>'Tbusts (§ 319*)—Compensation of Tbttstees—Commissions.</p> <p>Successor trustees under a will should have been allowed half commissions for receiving the principal of the estate upon their appointment.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 462; Dec. Dig. § 319.*]</p>

Motion by Gertrude L,- Hoyt in proceedings for the discontinuing of Attorney Street in the City of New York, against the City of New Yo'rk for peremptory mandamus. Motion denied, and petitioner appeals,

<p>Banks and Banking (§ 181*) — Foreclosure of Mobigage — Defenses — Usury.</p> <p>Defendant executed the mortgage sought to be foreclosed to a private banker to secure a loan, under an agreement by which mortgagor was to pay to mortgagee 12 per cent, interest, though the bond and mortgage provided only for 6 per cent., and interest was paid to both the mortgagee and plaintiff, his assignee, at the rate of 12 per cent. The Banking Law provides that every bank and private banker may charge on every loan interest at 6 per cent, per annum, and that knowingly receiving. and charging a greater rate of interest shall be adjudged a forfeiture of the entire interest agreed to be paid, and if a greater rate has been paid the payer may recover back twice the amount of the interest thus paid from the bank or private banker taking it, if such action is brought within two years from the time the excess is taken, and further provides that the true intent is to place and continue private banks on an equality, in the particulars referred to, with national banks organized under the act of Congress providing for a national currency secured by pledges of United States bonds, approved June 3, 1864. Laws 1870, c. 163; Laws 1892, c. 689, § 55, as amended by Laws 1900, c. 310, § 1. Held, in an action to foreclose the mortgage against the original parties, that the defense of usury was not available; the general usury law not applying.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 686-700; Dec. Dig. § 181.*]</p>

Action by Julia Morris Curtiss Lawrence against Charles E. Little-field, administrator with will annexed of Mary G. Pinkney, deceased, and others. Demurrer interposed by defendant Louis H. Morris to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action overruled, with leave to answer on terms.

Two actions by James E. Burke against the Gulf, Colorado & Santa Fé Railway Company, for damages to shipments of 31 and 11 bales of cotton, respectively, delivered to defendant as initial carrier. Plaintiff demurs to second separate defenses interposed by defendant’s answers.

<p>Pleading (§ 229*)—Right to Serve Amended Complaint.</p> <p>Where plaintiff was denied the right to frame issues on the ground that his complaint was too general, he is entitled to serve a more specific complaint, so that he may have issues framed.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig..§ 591; Dec. Dig. § 229.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the People of the State of New York against Meyer Felstein. Motion to open a default denied, and defendant appeals.</p>

<p>Masteb and Sebvant (§ 43*)—Contbact of Employment—Bbeach—Question fob Juey.</p> <p>In an action for damages for breach, of a three-year contract of employment, where the only question was as to the hour when plaintiff was required to begin work, helé error to dismiss the complaint at the close of plaintiff’s evidence.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 57, 58; Dec. Dig. § 43.*]</p>

In the matter of proceedings for the improvement of Lafayette avenue, Edgewater Road to Clason’s Point Road, in the Borough of the Bronx. On objections to award for damages caused by the establishment of street grade above the natural surface of the land.

Action by Leon M. Buehler against Arland W. Johnson. Judgment for plaintiff after a trial by the court without a jury, and defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Ferguson Bros. & Forshay against Horatio J. Ward. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Harry Weisman against William Wolinsky. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Friedland & Devine Bros., Incorporated, against the General Fish Company. From an order setting aside a verdict in its favor and granting a new trial, defendant appeals.</p>

<p>Appeal from Surrogate’s Court, New York County.</p> <p>Application by Charles N. Hammond for an order for the production of the will of James B. Hammond, deceased, by Arthur Lopez. From an order of the surrogate requiring production of such instru-ment, defendant appeals.</p>

<p>Action by the Stancourt Laundry Company against Frederick Lamura. On motion for a new trial.</p>

<p>Action by Joseph J. Schmidt against the Briarcliff Dodge Association. On motion to amend judgment.</p>

Action by Charles Crawford against Bernard Johnson. From an order vacating the judgment for plaintiff and granting a new trial subject to a condition, and from an order denying defendant’s motion to vacate for failure to comply with the condition, he appeals. Anneal from first order dismissed and second order reversed.

<p>Sales (§ 359*)—Action for Price—Evidence—Findings.</p> <p>In a suit on a note given for the price of goods sold and delivered by plaintifC to M. & Co., and signed by M. as a member of the firm, evidence held to require a finding that the goods were sold and delivered by plaintiff for and at the request of defendant firm, and that the note sued on was signed by M. on behalf of defendants, and not for another concern of the same name.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. § 359.*]</p> <p>Bijur, J., dissenting.</p>

<p>Trial (§ 109*)—Argument oe Counsel—Opening Statement—Dismissal.</p> <p>Where the complaint in an action by a tenant against the landlord alleged a breach of covenant of quiet possession by reason of a number of acts by the landlord and the payment of rent substantially in advance, and counsel in his opening statement stated in response to an inquiry from the court that the tenant did not remain in possession, a dismissal of the complaint oh the ground that it appeared from the opening statement that the tenant had remained in possession during the term was not justified.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 91, 270, 367, 388, 395; Dec. Dig.'§ 109.*]</p>

<p>Insurance (§ 791*)—Mutual Benefit Insurance—By-Laws—Construction.</p> <p>A by-law of a society provided: “When a good standing brother’s wife dies, then the brother gets $100 endowment, * * * -and the brother can receive no further endowment for the wife. When a good standing brother dies, the heirs get $300 endowment. When a deceased member leaves a second wife, or no wife at all, then the heirs get $200 endowment.” Held, that the terms “first wife” and “second wife” related to the matrimonial condition of the member after assuming membership; and hence, though plaintiff was a member’s second wife, yet, as she became so before her husband became a member, no payment having been made on account of the death of the first wife, the heirs were entitled to $300.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1961, 1962; Dec. Dig. § 791.*]</p>

<p>Contracts (§ 306*)—Contract to Remove Building—Claims Rising out of Transaction—Counterclaim.</p> <p>Plaintiff contracted to remove four buildings from defendant’s premises within 16 days from June 27th, the contract providing that he should have the material, and that if he was denied access to any of the buildings within the time stipulated he would remove them as soon as possible. After July 8th or 9 th plaintiff demolished parts of them, but at no time before July 23d was he given access to all the buildings so as to enable him to properly perform the work, on which date he was notified to abandon it and that defendant would finish it himself. Held, in an action for the value of material removed by plaintiff and thereafter appropriated by defendant, and for an agreed price for work done at defendant’s request after abandonment, that, as plaintiff was guilty of no breach of contract* defendant could not recover on counterclaims for the removal of rubbish which the original contract required plaintiff to remove, or for the expense of completing the work.</p> <p>[Ed. Note.—Eor other cases, see Contracts, Cent. Dig. §§ 1528-1533* Dec. Dig. § 306.*]</p>

Action by Percy A. Adams and another, copartners doing business as Adams _ & Posner, against Harry Weissner and another, copartners doing business as H. Weissner & Son. From a judgment for plaintiffs^ after a trial by the court without a jury, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the H. H. Realty Company against Elias Friedlieb. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Gussie Forschner, an infant, by Marcus Linzer, her guardian ad litem, against Joseph Kulkin. From a judgment for plaintiff, defendant appeals.</p>

<p>Courts (§ 190*)—Municipal Courts—Review oe Proceebings.</p> <p>Where plaintiff recovered judgment in Municipal Court in an action brought under the Bulk Sales Law, Personal Property Law (Consol. Laws, c. 41) § 44, against a corporation and certain individuals, although the proof was not sufficient to sustain the judgment, the plaintiff cannot, on appeal, sustain the judgment against the individual defendant under Stock Corporation Law (Consol. Laws, c. 59) § 66, prohibiting an insolvent corporation from transferring property to its officers or stockholders, even though the proof establishes that cause of action.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Morris Marcus and Paul Sebrow, copartners as the Manhattan Hair Goods Company, against Milton Mayer. From a judgment for plaintiffs, defendant appeals.</p>

Action by Fanny Rose and another against the New York Telephone Company to recover the amount of a statutory penalty. Judgment for plaintiffs, and defendant appeals.

<p>Mandamus by one Hurlbut against one Cromwell.</p>

<p>Proceedings for the probate of the will of Margaretha Kunkler, deceased, contested by Jacob Kunkler.</p>

<p>Action by Frank Allenza, as administrator, etc., against the Erie Railroad Company.</p>

<p>Action by William J. Allgaier against Cohen, Frank & Co. and others.</p>

<p>Action by the All-wyn Realty Company against Mary G. Barth.</p>

<p>Appeal from Special Term, New York County. Action by the American Protective Tariff League against Ohio C. Barber. From an order directing it to serve reply, plaintiff appeals.</p>

<p>Action by Horace L. Bennett against John Adams Dix and others.</p>

<p>Action by Esther Bernstein against Isaac Friend.</p>

<p>Action by Mike Bigus against the Lehigh & Wilkesbarre Coal Company.</p>

<p>Action by Andrew W. Boitel, an infant, by Ida Boitel, his guardian ad litem, against George B. Shilling.</p>

<p>Action by Lillian B. Bragg, as administratrin, etc., against the Central New England Railway Company.</p>

<p>Action by Johauna Brennan as adniinistratrix, etc., against the Trustees o~ the Village of Bath.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Olive 0. Buckley against Herman L. Collyer. From a judgment of the City Court of the City of New York for plainti~, and from an order denying a new trial, defendant appeals.</p>

In the matter of the probate .of a paper writing purporting to be the last will and testament of Julia Lorillard Butter-field, deceased.

<p>Appeal from Special Term, New York County. Action by Frank M. Case, Jr., against Eugene Walter and another. From an order denying a motion for an open commission to examine .a witness in London, England, and to stay the trial of the action until the return of the commission, defendants appeal. Reversed. See, also, 146 N. Y. Supp. 1086. Nathan Burkan, of New York City, for appellants. David Gerber, of New York City, for respondent.</p>

<p>Action by Alfred H. Caspary against Edward Hatch, Jr.</p>

<p>In the matter of the application of Arthur B. Christey for a writ of mandamus to John F. Cochrane, as Comptroller of the City of Buffalo, and Joseph M. Gleason.</p>

<p>Action by Ashley T. Cole against William M. Harris.</p>

<p>Action by Isaac J. nt. against the Tanner Motor Car Company.</p>

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

<p>Action by Robert I. Curran against August Oppenheimer.</p>

<p>Action by Ida Deitch against Philip Deitch.</p>

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

<p>Appeal from Appellate Term, First Department. Action by Leo C. Dessar, as executor, against Charles S. Hirsch and others, as executors. An order of the City Court denying plaintiff's motion to set aside a verdict for defendant and for a new trial was reversed by the Appellate Term (145 N. Y. Supp. 51), and judgment ordered in favor of plaintiff, and defendants appeal.</p>

<p>In the matter of the petition of William W. Farley, as State Commissioner of Excise, for an order revoking and canceling liquor tax certificate No. 16,893, issued to William A. Thater, and transferred to Catherine Cronin.</p>

<p>Action by Wm. W. Farley, as State Commissioner of Excise, against Frank D. Archibald, impleaded with others.</p>

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

<p>Action by the Fidelity Trust Company of Rochester, as executor, etc., of Harriet F. Newcomb, deceased, against Benjamin Hill Smith aud others.</p>

<p>Action by Michael W. Flynn against the New York, Westchester & Boston Railway Company and another.</p>

<p>Action by Isaac Fragner .against Harry Fischel.</p>

<p>Appeal from Special Term, New York County. Action by Franklin Union No. 23, Incorporated, against George L. Berry, individually and as president of the International Printing 'Pressmen and Assistants’ Union of North America, and others. From so much of an order as denies a motion for an injunction, plaintiff appeals; and from the parts of the order which grant plaintiff an injunction, defendants appeal. Affirmed. Theodore H. Lord, of New York City, for plaintiff. Alfred Steckler, of New York City, for defendants.</p>

<p>Action by Irving Galusha against Elizabeth K. Hughes and others.</p>

<p>Action by Louis Goldstein against the Pullman ' Company.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Antonio Granovitch against the Pitts-burg Contracting Company. From a judgment of dismissal, and from an order denying a new trial, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Action by Louis Guenther against the Ridgway Company.</p>

Action by Jacob Harris, as administrator, against Ella S. Reed. From a judgment dismissing the complaint at the close of plaintiff’s case, and from an order denying a new trial, plaintiff appeals. Reversed, and new trial ordered. Henry W. Unger, of New York City, for appellant. Carlisle J. Gleason, of New York City, for respondent.

<p>Action- by George W. Hebard, as executor, etc., against the City of New York - and others.</p>

<p>Action by Robert Holmes, individually, etc., and others, against the St. Joseph Lead Company, impleaded with others.</p>

<p>Action by the Iroquois Brewing Company against the Thomas Cusack Company.</p>

<p>Action by Herbert A. Jones, as administrator, etc., against Allen J. Millard and another.</p>

<p>In the matter of Holmes Jones, an attorney.</p>

Action bj; J. W. Cushman & Co. against Frank C. Wittenauer and another, executors of Charles Wittenauer, deceased. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

<p>Action by Lizzie Katz against Louis Katz.</p>

<p>Action by Clotilde R. Keller and others, as executors and trustees, etc., against Hugo P. Keller.</p>

<p>Action by Kline-Bros. & Co. against the Hanover Fire Insurance Company of New York.</p>

<p>Action by Elizabeth A. Kelly against Rachel J. Kremm and others.</p>

<p>Appeal from Trial Term, New York County. Action by Freda Kleinman, an infant, etc., against the city of New York. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Judgment and order reversed, and complaint dismissed. Clarence L. Barber, of New York City, for appellant. Nathan H. Stone, of New York City, for respondent.</p>

Action by Boris Kuloschik against the Holbrook, Cabot & Rollins Corporation. From an order granting a motion for preference, defendant appeals. Reversed. and motion denied. Benjamin Patterson, of New York City, for appellant. Sydney A. Syme, of Mt. Yernon, for respondent.

<p>Action by Emilie Kuntz and another, as executors, etc., against Nils Peter Emil Peterson and Sarah BI. Peterson.</p>

<p>Action by Wilbur S. Lemmon against Wallace Reid.</p>

<p>Action by the Latin-American Contracting & Improvement Company against David F. Broderick, impleaded with others.</p>

<p>Action by Helena Lindner against Clarence E. Hopkins and another.</p>

Action by the Lexington Sheet Metal Works against the Libman Contracting Company. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed. House, Grossman & Yorhaus, of New York City, for appellant. Julius D. Tobias, of New York City, for respondent.

<p>Action by Giovani B. Lobrovico against the City of New York. W. E. C. Mayer, of New York City, for appellant W. C. Low, of New York City, for respondent.</p>

<p>Action by Thomas B. Lockwood and another against the Title Insurance Company of New York.</p>

<p>Action by Robert J. McKibbin against the Philadelphia & Reading Railway Company.</p>

<p>Action by Alice W. McClelland against the Mutual Life Insurance Company of New York.</p>

<p>Action by Malcolm Ross Matheson, as substituted trustee, etc.~ of Richard J. Stainton, deceased, against Ottilie B. Mente and others.</p>

<p>Action by Malcolm Ross Matheson, as substituted trustee, etc., against Ottilie Mente and others.</p>

<p>Action by Jonathan EL Marlatt against the Erie Railroad Company.</p>

<p>Action by Charles Mitschow against John R. ICeim Mills, Incorporated.</p>

<p>Action by the Messiah Home for Children against Henry H. Rogers, Jr., individually, and others.</p>

<p>Action by John S. Pedersin agaihst the Leonhard Michel Brewing Company.</p>

<p>Proceeding by the People of the State of New York against Charles S. Horowitz.</p>

<p>Proceeding by the People of the State of New York against Joseph Fegelli.</p>

<p>Proceedings by the People of the State of New York, on the relation, of the City of New York, against William D. Dickey, Chairman, and others.</p>

<p>Proceeding by the People of the State of New York, on the relation of B. De Votte Lyon, against Thomas Nelson and others, as the Board of Trustees of the Village of Peekskill, and Albert E. Cruger, as Clerk of said Village.</p>

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

<p>Proceeding by the People of the State of New York, on the relation of Josiah J. White, against Norman S. Dike, as Judge of the County Court of the County of Kings.</p>

<p>Action by Laura A. Porter, as administratrix, etc., against the City of New York.</p>

<p>Action by Louis Rosenthal against Max Bimstein.</p>

Action by Arthur S. Ross and another against Herman Wacke and another. Judgment for plaintiffs, and defendants appeal. Reversed, and complaint dismissed. Stephen O’Brien, of New York City, for appellants. Edward S. Napolis, of New York City, for respondents.

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Julius Robinson, doing business as J. Robinson & Co., against the Ansorge Export Company. From a judgment for defendant, plaintiff appeals. Reversed and rendered. Louis J. Schwartz, of New York City, for appellant. Martin Charles Ansorge, of New York City, for respondent.</p>

<p>Action by the Rozwadow Young Men’s Association, a domestic corporation against Samuel Langweil, as President, etc.</p>

<p>Action by Julius Schwartz against the Hooker Electric Chemical Company.</p>

<p>Appeal from Special Term, New York County. Action by Theresa Senior, an infant, etc., against the Star Company. From an order 'denying motion for judgments on the pleadings, plaintiff appeals. Order reversed, and motion granted, with leave to defendant to withdraw its demurrer and answer upon payment of costs. Sumner B. Stiles, of New York City, for appellant. Clarence J. Shearn, of New York City, for respondent.</p>

<p>Action by Frank Sharrow, as administrator, etc., against the Inland Lines, Limited, and another.</p>

<p>Action by Henry J. Simmelink against the Supreme Court of the Independent Order of Foresters.</p>

<p>Action by Thomas Smith against James T. Haverty’s Stables.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Sofranski Bros, against H. O. F. Koch & Co. Judgment for plaintiff, and defendants appeal.</p>

<p>Action by Albert M. Stadler against James Everard’s Breweries.</p>

<p>Action by Emma F. Sully against Tiffany & Co.</p>

<p>Action by Frank B. Torrey, as executor of and trustee under the last will and testament of Edward Warren Day, deceased, against Elbert H. Day and others.</p>

<p>Action by Dorothea R. Turpin, as administratrix, etc., against the William A. Turpin Company and others. George Thoms, of New York City, for appellant. O. A. Campbell, of New York City, for respondent.</p>

<p>Appeal from Surrogate’s Court, New York County. In the matter of proceedings for the assessment of the transfer tax on the estate of Henry G. Valentine, deceased. From a surrogate’s order (147 N. Y. Supp. 231) sustaining objections to an appraiser’s report and fixing the transfer tax, the State Comptroller appeals. Reversed, and report of first appraiser confirmed. Albert Stickney, of New York City, for appellant. Ellwood M. Rabenold, of New York City, for respondent.</p>

<p>Action by Ralph Waldt against the Goodwin Manufacturing Company.</p>

<p>Action by Cbarles J. Weibert against Herbert W. Hanan.</p>

<p>Action by Albert H. Washburn and otbei,s against William Salmon.</p>

<p>Action by Jessie C. Whitney, as administratrix, etc., against Emma F. Brenack and others.</p>

<p>Action by Millard F. Windsor and another against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Edgar Zeilian, as receiver, etc., against James Beggs & Co.</p>

<p>Action by John A. Young against Archibald S. White.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Action by the W. O. Construction Company against Samuel Heitler. Judgment for plaintiff, and defendant appeals.</p>