Volume 148 — New York Supplement

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Smith Bros., Incorporated, against Sigfried Stern and another. Judgment for the defendants, and plaintiff appeals.</p>

<p>1. Courts (§ 99*)—Law of the Case—Transfer to Jury Calendar.</p> <p>An order, transferring an action to the jury calendar for trial, not being appealed from, is the law of the case, and cures all alleged defects of the complaint regarding the action as one at law.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 340; Dec. Dig. § 99.*]</p> <p>2. Damages (§ 208*)—Question of Law or Fact.</p> <p>In an action by an architect, where the contract showed that he was entitled to recover 5 per cent, of the cost of the building, and the highest estimate of such cost was $18,500 and the lowest $12,000, it was error to instruct as a matter of law that plaintiff was entitled to five per cent, of $18,000; the cost of the building being a question for the jury.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. § 208.*]</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by Joan Cohn against the Ansonia Realty Company. From a judgment for plaintiff and denial of new trial, defendant appeals.</p>

Action by Henry J. Washburn against John T. Rainier and others. From a Special Term order as resettled, denying the motion of defendants John T. Rainier and Paul N. Lineberger for a readjustment of costs, they appeal. Reversed, appeal from taxation of costs sustained, and motion to strike out the costs as taxed, except those in Court of Appeals before argument, and disbursements for printing the case in the Court of Appeals, and printing the points, granted.

<p>Landlord and Tenant (§ 187*)—Rent—Amount and Installments.</p> <p>Where a tenant, who was entitled to leave the premises because of their uninhabitable condition, agreed to remain two weeks of a particular month, upon the express promise of the landlord’s superintendent, who was not shown to have authority to make such promise, that the objectionable condition would be remedied, the promise was without consideration, and the tenant, not having filed a counterclaim, is liable for the rent for the entire month, although he moved out at the end of the two weeks.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 770-775; Dec. Dig. § 187.*]</p>

<p>1. Sales (§ 359*)—Remedies of Selles—Actions fob Ebice—Weight and Sufficiency of Evidence.</p> <p>Evidence in an action on a check given in payment for 180 watches, payment of which was stopped, held to show that the watches were stolen property, to which plaintiff had no title.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. § 359.*]</p> <p>2. Sales (§ 347*)—Remedies of Selleb—Actions fob Beige—Right of Action.</p> <p>The seller of 180 watches could not recover on a check given therefor, payment of which was stopped, where the consideration failed, because the watches were stolen and the seller had no title.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 962-972; Dec. Dig. § 347.*]</p>

Action by the Universal Discount Company against the Corn Exchange Bank. From a judgment for defendant, and an order denying a new trial, plaintiff appeals.

<p>Sales (§ 29*)—Contracts and Memorandum—Construction.</p> <p>An unsigned memorandum, made by plaintiff’s salesman, in which the goods sold were enumerated, was not a contract, or a confirmation of an order, legally binding on any one.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 56; Dec. Dig. § 29.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Emil Bourquin, an infant, by Paul Bourquin, his guardian ad litem, against Samuel J. Bloomingdale, and others, doing business under the firm name and style of Bloomingdale Bros. From an order setting aside a verdict for plaintiff, he appeals.</p>

<p>1. Bills and Notes (§497*)—Bona Fide Holdeb—Fraudulent Divebsion —Presumptions—Evidence.</p> <p>Where defendant gave evidence that as between himself as maker of the note sued on and the payee there had been a fraudulent diversion of the notes, such evidence overcame the presumption that plaintiff, indorsee, was a bona fide holder for value, as provided by Negotiable Instruments Law (Consol. Laws, c. 38) §§ 91, 94, 98.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.*]</p> <p>2. Bills and Notes (§ 537*)—Action by Indorsee—Bona Fide Holder— Question fob Juby.</p> <p>In an action on certain notes, where the evidence that plaintiff was a bona fide holder for value was unsatisfactory, it was error to direct a verdict for plaintiff.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Summary proceedings by Selma Alexander against Scholm Rapkin, sued as Sam Rapkin. From a final order for plaintiff, defendant appeals.</p>

<p>1. Insurance (§ 668*)—Fibe Policy—Constructive Delivery.</p> <p>Where defendant’s general agent, with authority to issue policies, issued the policy in question July 1,1909, countersigned same, and informed plaintiff’s agent by telephone that he had placed the insurance as directed, and would send on the policy, but, not having done so until after he was informed of a loss, attempted to cancel the policy as not delivered, and returned it to defendant, who thereupon stamped on the policy, “Canceled June 5, 1909,” after the fire, whether there was a constructive delivery, within the rule that a constructive delivery is sufficient to give vitality' to a policy, was for the jury.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.*]</p> <p>2. Insurance (§ 558*)—Fibe Policy—Proof oe Loss—Waiver.</p> <p>Where defendant’s general agent, with authority to issue fire policies, issued a policy covering plaintiff’s property in accordance with a request from plaintiff’s agent, countersigned the same, but did not deliver it, though having notified plaintiff’s agent of the issuance of the policy, and, on being informed before actual delivery that the property was destroyed, attempted to cancel the policy, and declined to inform plaintiff of the name of the company in which the insurance had been placed, such action on his part was binding on the company, and constituted a waiver of plaintiff’s duty to file with such company proofs of loss within the time specified.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1382-1390,1405; Dec. Dig. § 558.*]</p>

Action by Sam Agulnick against Fred Rauch. From- a judgment for defendant, after a trial by the court without a jury, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Edith Domush against Leo Abraham and another. Judgment for defendants, and plaintiff appeals.</p>

Action by Julius G. Kugelman and another against William C. Ritter and another. From a judgment of dismissal at the close of plaintiffs’ case, plaintiffs appeal.

<p>Sales (§ 1*)—Constbttction—Method of Settlement.</p> <p>An oral contract for the purchase of old rails, which stipulated that settlement was to be made in accordance with written reports of mill or other consignee at destination, without further proof or identification of kind, quantity, etc., pursuant to which deductions or rejections should be made, and that the rails should be subject to the buyer’s inspection through mill or consignee, sufficiently described the mills or consignees and the fact that the orders for shipment required the seller merely to deliver the rails f. o. b. cars did not affect or invalidate the provision for settlement according to the reports.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1, 3-5; Dec. Dig. § 1.*]</p>

<p>Trover and Conversion (§ 34*)—Actions—Variance.</p> <p>In an action for the conversion of personal property installed by one of the defendants in the building owned by the others, evidence by the plaintiff that he showed to the owner of the building a conditional contract of sale of the property to the other defendant, and that he had an understanding that the owner should pay for the property as soon as it •was fixed, established a sale, and not a conversion, and the complaint should he dismissed.</p> <p>[Ed. Note.—Eor other cases, see Trover and Conversion, Cent. Dig. §§ 207-214; Dec. Dig. § 34.*]</p>

<p>PBINCIPAL AND AGENT (§ 3*)-THE RELATION—CbEATION AND EXISTENCE.</p> <p>Where a tobacco company authorized a certain advertising concern to place advertisements for it, and such concern entered into an agreement with another advertising company, whereby the latter agreed to have defendant’s advertisements inserted in certain publications, the latter advertising company was not the agent of defendant.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 3-9, IT, 12; Dec. Dig. § 3.*]</p>

<p>Evidence (§ 370*)—Documentabt Evidence—Authentication.</p> <p>The admission in evidence, in an action for rent, of a lease upon the back of which were assignments from the lessor to W. and from W. to plaintiff, without proof of the genuineness of the signatures to such assignments, was error, as defendant might be subjected to double liability.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1538, 1559, 1560, 1562-1578, 1592; Dec. Dig. § 370.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Harrie T. Eindeberg and another against Thomas M. Hodgens. Judgment for plaintiffs, and defendant appeals.</p>

<p>New Trial (§ 81*)—Right to Allow New Trial—Conflicting Evidence-Exceptions.</p> <p>Where the evidence was conflicting, and that of plaintiff did not preponderate over defendant’s the trial court could not set aside a verdict for defendant and grant a new trial, where plaintiff reserved no exceptions to the admission of evidence or the charge, and offered no requests.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 131; Dec. Dig. § 81.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Dora Rubin against Morris Maas. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Georgia A. Grems against G. Le Roy Traver, as trustee in bankruptcy of Harry B. Grems, and others. Judgment for plaintiff.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Personal injury action by Alfonso Spinelli, by Fiore Spinelli, his guardian ad litem, against McMullen, Snare & Treist, Incorporated. From a judgment for plaintiff, defendant appeals.</p>

Action under the Employers’ Liability Act by Pasquale Spinelli, by Fiore Spinelli, his guardian ad litem, against McMullen, Snare & Treist, Incorporated, to recover for personal injuries to plaintiff. From a judgment for plaintiff, defendant appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by William Abrams against Frederick F. Proctor. _ Judgment for plaintiff, and defendant appeals.</p>

Action by the Metropolitan Life Insurance Company against Ruth Noyes Heinze and another. From an order directing defendants to furnish a verified bill of particulars, they appeal.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Louis Fried against Morris Feldman. Judgment for defendant, and plaintiff appeals.</p>

Borough of Manhattan, Ninth District. Action by Thor sen, Gray & Smith against Felix Isman. From a judgment for defendant, after a trial by the judge without a jury, plaintiffs appeal.

<p>Executors and Administrators (§ 87*)—Collection of Assets—Compromise of Claim—Confirmation.</p> <p>Where a petition for the confirmation of a compromise by an administrator of a claim belonging to the estate did not disclose sufficient reasons for the compromise at the amount stated, the order of confirmation will be reversed.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 323, 384-392; Dec. Dig. § 87.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Annie Rapaport against Abraham Porter. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Estate of Henry O. Havemeyer against Charles H.. Stoddard. Final order in summary proceedings for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Victor Goldstein against Morris Schwartz. Judgment for plaintiff, and defendant appeals.</p>

Action by Alexander Wroblinski against the Holbrook Cabot & Rollins Corporation. Judgment for plaintiff, after a trial by judge and jury, and defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Michael Brigante against George Ringler & Co. Judgment for defendant, and plaintiff appeals.</p>

<p>Trial (§ 189*)—Question of Law or Fact—Direction of Verdict.</p> <p>Where there was testimony from which the jury might have found in favor of plaintiffs, it was error to direct a verdict for defendant,</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 832, 333, 338-341, 365; Dec. Dig. § 139.*]</p>

Action by Wulf Silverman against Henry Mark. From an order of the City Court, denying defendant’s motion to open his default and vacate a judgment, he appeals.

<p>Trial (§ 143*)—Question for Jury—Conflicting Evidence.</p> <p>Where the evidence upon an issue of fact is conflicting, the question ia for the jury.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by the North Side Hoisting Company, Incorporated, against the Wendover Bronx Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Helen Heller against Jacob Goldberg. From the judgment, plaintiff appeals.</p>

<p>Accord and Satisfaction (§ 11*)—Compromise and Settlement (§ 6*)— What Constitutes.</p> <p>Where defendant disputed plaintiff’s claim for extra work upon a contract, the acceptance by plaintiff of a check, which defendant stated covered its entire indebtedness on the work and which was indorsed “in full settlement,” constitutes an accord and satisfaction.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-S2; Dec. Dig. § 11 ;* Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Reginald Whamond against the North Side Board of Trade. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Eeah Goldstein and another against Marks Levin and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Pleading (§ 214*)—Demurrer—Admissions—Counterclaim.</p> <p>In deciding a demurrer to a counterclaim in the answer, all of the allegations of the complaint are to be taken as true.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]</p> <p>2. Set-Oee and Counterclaim (§ 23*)—Tendency to Diminish ob Defeat Plaintiff’s Claim.</p> <p>Under Code Civ. Proc. § 501, providing that a counterclaim must tend in some way to diminish or defeat plaintiff’s recovery, in replevin to recover a crop grown upon plaintiff’s farm by defendant in which the complaint alleged that by the contract between the parties it was agreed that until the division of the crops and products of the farm they should belong to plaintiff, and be her sole property, and that there had been no division of the crop in question, a counterclaim alleging that plaintiff violated the contract, took possession of all the products of the farm, and failed to turn over to defendant any part of the proceeds thereof excepting a slight amount, and that she interfered with defendant in working and cultivating the farm td his damage, was not a proper counterclaim, since plaintiff’s right to possession of the crop sought to be recovered under the allegation of the complaint taken as true on demurrer to the counterclaim did not depend upon the state of the account between the parties, and she was entitled to such possession, though every allegation of the counterclaim was true.</p> <p>[Ed. Note.—For other cases, see Set-off and Counterclaim, Cent. Dig. § 3S; Dec. Dig. § 23.*]</p>

Proceedings by the widow of Vincenzo Orlando, deceased, for the revocation of letters of administration, and for the issuance of letters to her.

<p>Proceedings for the ascertainment of a tax on the estate of Horace Russell, deceased, and the amount of commissions allowed to the executors. From an order fixing the tax and the amount of commissions, the State Comptroller and the executors appeal.</p>

Action by George M. Rogers against the United Selling Company. From a judgment dismissing plaintiff’s complaint and defendant’s counterclaim, both parties appeal.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Carrie Wilson against' the J. Harry Haff Company and the Ragus Tea Sr Coffee Company. Judgment for plaintiff, and defendant Ragus Tea & Coffee Company appeals.</p>

Action by the Riverside Contracting Company against the City of New York and others to foreclose a mechanic’s lien, with which a number of similar actions were consolidated. Judgment for defendant the First National Bank of Bayonne, New Jersey.

Action by Philip Levitt against Irving H. Griswold and others. On demurrer to the separate defense of' the statute of limitations in the answer.

<p>1. Divorce (§ 277*)—Enforcement of Alimony—Sequestration.</p> <p>Where an order is made pendente lite for the payment of alimony, the remedy for the enforcement of the accrued alimony is under Code Civ. Proc. § 1772, by motion first to sequestrate the property of the husband, and if no property can be found, upon his failure to pay such accrued alimony, then under section 1773 to move to punish him as for a contempt.</p> <p>[Ed. Note.—For other eases, see Divorce, Cent. Dig. §§ 733-734%; Dec. Dig. § 277.*]</p> <p>2. Divorce (§ 277*)—Enforcement of Alimony—Application fob Entry of Judgment—Notice.</p> <p>Where a final decree has been entered in favor of the plaintiff, granting her a separation from the defendant, she may apply to the court where the action is pending, without notice to defendant, for the entry of judgment for installments of alimony in arrears as they accrue; such action not being the rendition of a new judgment, but merely putting the judgment in such form that execution can issue thereon.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 733-734%; Dec. Dig. § 277.*]</p>

<p>Actions by Joe Spaguis and by Zygmant Kalenda against the American Locomotive Company. On demurrers to the answers.</p>

In the matter of the taxation of- the transfer tax on the property of Mary D. Clowes. From an order of the surrogate, modifying a previous order, Martin V. W. Hall, as administrator, appeals.

<p>Action by the Windsor Construction Company against Irving Ru-land and others. On plaintiff’s demurrer to defendants’ separate defense of the statute of frauds.</p>

<p>1. Nuisance (§ 1*)—“Private Nuisance.”</p> <p>A “private nuisance” is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another, or any unwarrantable, unreasonable, or unlawful use by one of his own property, real or personal, to the injury of another, and is not confined to erections or employments prejudicial to health, but embraces everything that offends and renders the enjoyment of life and property uncomfortable.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 1, 3; Dec. Dig. § 1.»</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5574-5576.]</p> <p>2. Trespass (§ i*)—Acts Constituting.</p> <p>In trespass to real estate, the infringement of the owner’s rights is direct and the injury immediate, as distinguished from consequential injury caused by a nuisance resulting from some act committed beyond the limits of the property of the owner, or resulting from an act committed within the limits of the property affected.</p> <p>[Ed. Note.—For other cases, see Trespass, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>3. Injunction (§ 48*)—Recurring Trespasses to Real Estate.</p> <p>Where an owner of cattle permits them to run at large, so that they repeatedly break in and wander over the land of another, and disfigure and destroy the improvements thereon, and the trespass is continuous or constantly recurring, an injunction lies to restrain the wrong, on the ground that the remedy at law is inadequate, and to prevent a multiplicity of actions for trespass.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 101; Dec. Dig. § 48. * ]</p>

<p>Costs (§ 66*)—Amount—Extra Allowance—Actions in Which Authorized —“Appointed under Authority oe the State.”</p> <p>Highway Law (Consol. Laws, c. 2S) § 11, creates a state commission o£ highways, to be appointed by the Governor; section 129 provides that the commission, upon receipt from the supervisors of a resolution requesting the construction or improvement of a highway, shall proceed with such construction or improvement; and section 130 provides that this shall be done by contract. Seld, that an action for damages from interference with and injury to water pipes laid in a highway against a person proceeding under a contract with the state for the improvement of the highway, under the direction of the commission of highways, was based on an act done by the command'of a public officer appointed under the authority of the state, within Code Civ. Proc. § 3258, providing that a successful defendant is entitled to the costs otherwise recoverable, and in addition thereto one-half thereof where the action is brought against the defendant by reason of an act done by the command of a public officer appointed or elected under the authority of the state.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 277-285; Dec. Dig. § 66.*]</p>

<p>Divorce (§ 101*) — Separation — Counterclaim — Annulment — Grounds —Physical Incapacity—Statutes.</p> <p>Code Civ. Proc. § 1770, authorizing counterclaims in matrimonial actions, confines the right of counterclaim to a counterclaim for a divorce or a separation; and hence, in an action by a wife for separation, a defendant may not interpose a counterclaim to annul the marriage on the ground of his own physical incapacity.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent Dig. §§ 322-327; Dec. Dig. § 101.*]</p>

<p>1. Attorney and Client (§ 192*)—Lien—Enforcement—Proceedings.</p> <p>The court, upon the petition of either client or attorney, may enforce the lien created by Judiciary Law (Consol. Laws, c. 30) § 475, giving to an attorney, who appears for a party in an action a lien upon such cause of action, which attaches to the verdict, judgment, etc.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 425-427; Dec. Dig. § 192.*]</p> <p>2. Attorney and Client (§ 190*)—Lien—Protection Against Settlement Between Parties.</p> <p>Under Judiciary Law (Consol. Laws, c. 30) § 475, giving to an attorney, who appears for a party in an action, a lien upon such cause of action, which attaches to any verdict, judgment, etc., and the proceeds thereof, and declaring that such lien cannot be affected by any settlement between the parties before or after judgment, where the parties to an action honestly settle it out of court without the consent of plaintiff’s attorney, the cause of action is extinguished, and the lien transferred to the sum agreed upon in settlement, which the attorney may enforce in equity against the parties.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 412-' 417; Dec. Dig. § 190.*]</p>

<p>Taxation (§ 879*)—Transfer Tax—Gift in Contemplation of Death.</p> <p>Decedent, a physician living in the household of a donee and having said that the only relations he had were the people in the house and that if anything should happen to him he would see that they were cared for, delivered the subject of the gift to the donee at 10:30 p. m., and at 12 o’clock the same night was seen testing his chest with a stethoscope. He was asked if he was ill, which he denied, and, though he appeared m his ordinary health, he was found dead on the stairs of the dwelling about 2 o’clock the following morning. Held, that the gift was made in contemplation of the donor’s death and was subject to transfer taxation as provided by Tax Law (Consol. Laws, c. 60) § 220, subd. 4.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1702; Dec. Dig. § 879.*]</p>

Action by Oliver E. Baillargeon against Edward C. Dumoulin. On motion to dismiss and to set aside the verdict for plaintiff on the grounds specified in Code Civ. Proc. § 999.

Transfer tax proceedings upon the estate of Harmon Hendricks, deceased. From an order of the Surrogate’s Court affirming an order assessing a transfer tax, Blanche Hendricks individually and as executrix appeals.

<p>Pleading (§ 231*)—Amendments—Right to Amend.</p> <p>Under Code Giv. Proc. § 542, providing that within 20 days after the answer is served it may be once amended as of course, a defendant has an absolute right to amend once, and an amendment by leave of court is not a substitute for and does not preclude a subsequent amendment under the statute.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 594-598; Dee. Dig. § 231.*]</p>

Action by William D. Trimble and others against Edward O. Spill-man and others to enjoin the letting of a pavement contract. Injunction continued.

<p>1. Executors and Administrators (§ 430*)—Actions—Personal Liability.</p> <p>A forbearance by plaintiff to enforce his mortgage was a sufficient consideration for an extension contract by which executors agreed to pay the debt, so as to render them personally liable for a deficiency.</p> <p>[Ed. Note.-—-For other cases, see Executors and Administrators, Cent. Dig. §§ 1683-1688; Dec. Dig. § 430.*]</p> <p>2. Executors and Administrators (§ 221*)—Personal Liability oe Exiecutor.</p> <p>The mere signing of a note by executors is prima facie evidence of assets in their hands sufficient to pay it, and they are personally liable unless they show that such assets are insufficient.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 901-903%, 1858, 1861-1863, 1865, 1866, 1871-1874, 1876; Dec. Dig. § 221.*]</p>

<p>Executors and Administrators (§ 456*)—Claims—Enforcement—Costs— Taxation.</p> <p>Under Code Civ. Proc. § 2681, providing that, where the administrator doubts the validity of any claim, he shall serve notice of rejection, and that he will submit it for trial, and that, unless a written consent be filed by claimant that the the claim be heard on the settlement of the administrator’s account, the claimant must sue therefor, and section 1835 providing that, where a judgment for money only is rendered against an administrator, costs shall not be awarded against him except as provided in section 1836, declaring that, where the payment of a claim was unreasonably neglected, or the administrator did not file the consent, as provided in section 1822, superseded by section 2681, the court may award costs against the administrator to be collected out of his individual property or out of the estate, an administrator who does not act in bad faith in reference to a claim, and who unsuccessfully defends an action thereon, is not liable individually for the costs, but the costs must be paid out of the estate.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1941-1967; Dec. Dig. § 456.*]</p>

Judicial settlement of the estate of Benjamin T. Babbitt. On exceptions to the report of a referee on an accounting of the executrix. Report modified and confirmed.

<p>Action by the County of Franklin against George S. Henry. Judgment for plaintiff.</p>

In the matter of the application of the City of New York relative to acquiring title to Pleasant Avenue from Gun Plill Road to East 219th Street. On motion to confirm the supplemental and amended final reports of the Commissioners of Estimate and the Commissioner of Assessment.

Lillian Fowler, an infant, was committed to the Protestant Episcopal House of Mercy for association with dissolute and vicious persons in danger of becoming morally depraved, and she appeals.

<p>Action to enforce mechanic’s lien by Anton Anderson against Charles F. Falkenmayer and others. Judgment for plaintiff.</p>

Action to foreclose a mortgage by Henry Tonges and another, co-partners, composing the firm of Tonges & Lembeck, against the Vanderveer Canarsie Improvement Syndicate, Incorporated, and others. Judgment for defendants.

In the matter of the judicial settlement of the estate of William H. Harter, deceased. Contested accounting upon the claim of Alvira H. Ellis. Claim allowed.

Action by the Auditorium Company against the Sam S. Shubert Booking Agency. Motion by plaintiff to vacate an order granted ex parte and without security, staying all proceedings on the part of the plaintiff of the execution of the judgment until 30 days after service of the said judgment with notice of entry thereof. Modified.

<p>1. Libel and Slander (§ 6*)—Words Slanderous Per Se.</p> <p>Calling a woman a “dirty bitch” is not slanderous per se; the words not importing unchastity.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 3-16; Dec. Dig. § 6.*]</p> <p>2. Libel and Slander (§ 6*)—Words Libelous Per Se.</p> <p>The words “black leg” and “swindler” are not slanderous per se, and so a charge that plaintiff was a “damn black leg” and “swindler” is not libelous per se, not charging a crime.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent Dig. §§ 3-16; Dec. Dig. § 6.*]</p> <p>3. Libel and Slander (§ 6*)—Words Slanderous Per Se.</p> <p>A statement that a woman was only fit for negroes to associate with and only worked for negroes in the South is not slanderous per se, not charging unchastity or a crime.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 3-16; Dec. Dig. § 6.*]</p>

<p>Appeal from Trial Term, Steuben County.</p> <p>Action by the Trustees of the Village of Bath against Daniel J. McBride and another. Judgment for plaintiff, and defendants appeal.</p>

Proceeding to assess the transfer tax on the estate of Natalie Bay-lies. From an order of the appraiser assessing the tax, the executor appeals. Reversed, and report remitted to the appraiser for correction.

Judicial settlement of the estate of Mamie Hinrichs, deceased. Application to declare the estate located in New York exempt from transfer tax.

Judicial settlement of the estate of Samuel Dalsimer, deceased. From an order assessing a transfer tax on the interest of the sole legatee, she appeals as executrix and legatee.

<p>In the matter of the probate of a paper purporting tó be the will of Mary S. M. Bryant.</p>

Application to strike out the answer filed by James H. Montgomery to the petition for probate of the will of Amelia G. Cutter deceased.

William D. Pindar was coñvicted of grand larceny in the first' degree, and, the conviction having been affirmed, he applies for a new trial.

<p>Action by Harry Miller against Solomon Herzog and others. On motion to cancel an amended notice of pendency of action.</p>

<p>Action for divorce by Helga Olsen Shurman against Clifford New-house Shurman. Interlocutory decree for plaintiff.</p>

Action by the Society for the Relief of Destitute Children of Seamen against Mary J. McDaniel and others. On motion to settle and pass receivers accounts and for extra allowance to the receiver and for an allowance to bis attorney. Account settled, and allowance to attorneys granted, but extra allowance to receiver denied.

Proceedings for the assessment of a transfer tax on the interest of Mary Freischlader, a legatee under the will of Mathias J. Palm, deceased. Transfer tax imposed.

In the matter of the application of the Sea Beach Railway Company for an order requiring the comptroller of the city of New York to pay to petitioner an award made to the company by the Street Opening Commissioners for two strips of land, one on each side of Third avenue.

<p>In the matter of the estate of Sarah Akin, deceased.</p>

<p>Action by Schuyler Ackerman, as administrator, etc., against Irving E. Stacey.</p>

Action by the Auditorium Company against the Sam S. Shubert Booking Agency. From an order setting aside a verdict and ordering a new trial, on the ground that the verdict was contrary to the evidence and to the weight of the evidence, plaintiff appeals. Reversed, and verdict reinstated.

<p>Action by Carol Aronovici against Aaron B. Salant.</p>

<p>Action by the Asphalt Paving & Contracting Company against the City of New York.</p>

<p>Action by James E. Andrews against George Cohen.</p>

<p>Appeal from Appellate Term, First Department. Action by .Sam Bacharach against the American Union Realty. Company. From a determination of the Appellate Term, affirming an order of the City Court denying plaintiff’s motion for judgment on the pleadings, plaintiff appeals. Modified and affirmed.</p>

<p>Action by Richard Barry against Martin M. Mulhall.</p>

<p>Action by William A. Beaudry against John N. McKinnon and others.</p>

<p>Appeal from Special Term, New York County. Action by Benz & Cie against Jesse Froelich. From an order granting a motion for commission on written interrogatories, defendant appeals. Modified and affirmed.</p>

Action by William. J. Bryan against Richard Deeves & Son. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial ordered. See, also, 147 N. Y. Supp. 1101.

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

<p>In the matter of the application of Helen D. Burnett for the payment of award to parcel No. 2, in the matter of Van Alst avenue, etc., for a school site.</p>

<p>In the matter of the application of Joseph Cassidy, for a writ of mandamus against Charles S. Devoy, Clerk of the County of Kings.</p>

<p>Action by Mary L. Clark against James M. Clark and the Hudson Iron Company.</p>

<p>Action by Adelaide W. Charles, as sole executrix, etc., against George B. Leonard.</p>

<p>Action by Louis Cohen against Rebecca Cohen.</p>

<p>In the matter of the Commissioner of Public Works. In the matter of the Bridge over Harlem River.</p>

Action by Guisippe Craprizzio against the Central New England Railway Company. Judgment for plaintiff. Motion for new trial denied, and defendant appeals. Judgment and order reversed, and new trial ordered.

Action by Antonio D’Angelo against Carmine Cipolla and one Bernhardt. Judgment for plaintiff, and defendants appeal. Judgment as to defendant Bernhardt affirmed, and judgment as to defendant Cipolla reversed, and complaint dismissed.

<p>In the matter of the estate of Catherine E. Daly, deceased.</p>

<p>Action by Lillian Dashby against Herbert Dashby.</p>

<p>Action by John Deegan, an infant, etc., against Homer C. Newton.</p>

<p>Action by Fidalma Del Genovese, as administratrix, etc., of Virgillio Del Genovese, deceased, against Alfredo Del Genovese.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Isaac Dolinsky against the Brisker Unterstuetzungs Verein. From a default judgment, defendant appeals. Judgment vacated, and cause remanded.</p>

<p>In the matter of the Equitable Trust Company of New York, as executor, etc., of Josephine B. Chambers, deceased.</p>

<p>In the matter of William W. Farly, as State Commissioner of Excise, etc.</p>

<p>Action by Arthur Gabie against Homer C. Newton.</p>

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

<p>Action by Millie L. Hayman against the City of New York.</p>

<p>Appeal from Appellate Term, First Department. Action by Frank Heiferman against the Greenhut Cloak Company. From a determination of the Appellate Term (83 Misc. Rep. 435, 145 N. Y. Supp. 142), reversing an, order of the City Court setting aside a verdict and granting a new trial (143 N. Y. Supp. 411), and from an order of the City Court entered upon such determination, defendant appeals. Determination of Appellate Term and order of City Court thereon entered reversed, and the original order affirmed. See, also, 146 N. Y. Supp. 1094.</p>

<p>Action by F. Augustus Heinze against the Assets Realization Company.</p>

<p>Action by James S. Herrman against Francis L. Leland.</p>

Action by Charles Hetherston against the Central Park, North & East River Railroad Company. Judgment for plaintiff, and motion for new trial denied, and defendant appeals. Judgment and order reversed, and new trial ordered.

<p>Action by David Hillenberg against Louis G. Bendick and Harris Horowitz.</p>

Separate actions by Charles Horwitz against the United Firemen’s Insurance Company of Philadelphia, against the North British & Mercantile Insurance Company of London & Edinburgh, and against the Equitable Fire & Marine Insurance Company. Plaintiff’s motion for bills of particulars granted, and defendants appeal. Modified and affirmed.

<p>In the matter of proving the last will and testament of George W. Horton, deceased.</p>

<p>Action by Charles S. Hirsch and others against Joseph Jacoby.</p>

<p>In the matter of the application for ancillary letters testamentary on the last will and testament of George W. Horton, deceased.</p>

<p>Action by Cora Ingalls against the Erie Railroad Company.</p>

<p>Action by the John Reis Company against Mary Elizabeth Post, executrix, etc.</p>

<p>Action by John Kidd, as executor, etc., of George W. Wait, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Henry Kiechlin against the Nassau Electric Railroad Company.</p>

<p>Action by Edward B. Kinsila against Lee Shubert and others.</p>

<p>Action by Mary H. Kipp against F. W. Woolworth & Co.</p>

<p>Action by Louise Koellhoffer and another, as executors, etc., of Silverius A. Koellhoffer, deceased, against Andrew N. Petersen, impleaded with others.</p>

<p>Action by Edward Kromer against Louisa Klett, individually and as executrix, etc., of Martin Klett, deceased.</p>

<p>Action by the Lehigh Valley Railroad Company against Amasa J. Parker.</p>

<p>Action by Esther Lehrman against Harry Lehrman.</p>

<p>Action by Edwin Layden against the Knickerbocker Ice Company.</p>

Action by William McGurkian against the Thomas J. Buckley Construction Company. From a judgment for plaintiff, and from an order denying defendant’s motion for.a new trial, it appeals. Reversed, and complaint dismissed.

<p>Action by Leonora McLaughlin against the McLaughlin Redi Estate Company and others.</p>

<p>Action by William P. McCormick against Frank J. Tyler, as sole executor, etc.</p>

<p>Action by Adolf Mandel against David Hopkins and another, as executors, etc.</p>

<p>, Action" by Nathan Marcus and others against the Fidelity & Deposit Company of Maryland.</p>

<p>Action by Peter Markevich against the Royal Insurance Company, Limited.</p>

<p>Action by the Manilla Anchor Brewing Company against the Raw Silk Trading Company, impleaded with another.</p>

<p>Action by the Merchants’ National Bank against the Santa Maria Sugar Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by the Mineralized Rubber Company against A. Bell Malcomson. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Action by Robert C. Morris, as trustee in bankruptcy, etc., against the Windsor Trust Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, 'Third District. Action by Robert Monroe and another against Frederick Von Lumm and another. From a judgment for defendants, plaintiffs appeal. Reversed, and judgment directed for plaintiffs.</p>

<p>Action by Patrick W. O’Connor against Richard Webber, Jr., and William Webber,'copartners, etc.</p>

<p>Action by John Nowakowski against the New York & North Shore Traction Company.</p>

<p>In the matter of proving the last will and testament of Mary Oates, deceased. Proceeding by John Macklin, as executor, etc., against John T. Oates and others.</p>

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

<p>Proceeding by the People of the State of New York against Harry B. Silver.</p>

<p>Proceeding by the People of the State of New York against David Seharfstein.</p>

<p>Proceeding by the People of the State of New York, on the relation of Elbert T. Davison, against William Williams, as Commissioner of Water Supply, Gas, and Electricity, etc.</p>

<p>Proceeding by the People of the State of New York, on the relation of William J. Daly, against James A. Henderson as Superintendent of Buildings, etc.</p>

<p>Proceeding by the People of the State of New York, on the relation of George C. Simmons and another, against Walter J. Dowling and others, as members of the Town Board of Redfield, etc.</p>

<p>Actioh by Francesco Rammauro against the Illinois Surety Company.</p>

<p>Action by Henry M. Randall against Charles P. Randall.</p>

<p>Action by Meyer Rosenstein against James Mc-Cutcheon.</p>

<p>Action by Reginald H. Sayre against the Progressive Construction & Leasing Company.</p>

<p>Action by Morris Slepin against Maurice Beck.</p>

In the matter of the application and petitioa of J. Edward Simmons and others, constituting the Board of Water Supply, etc., to acquire real estate, etc.; Kensico Reservoir, Sectiou No. 4.

<p>Action by the Stewart Iron-Works Company against the Ocean View Cemetery and others.</p>

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

Action by Sydney M. Teeter against Anna K. Daniel. From an order denying a motion to dismiss the judgment and all proceedings thereon, and to order the case off the calendar, or to order it set down and tried at a date known to defendant, defendant appeals. Affirmed. See, also, 148 N. Y. Supp. 670; 148 N. Y. Supp. 1146.

Action by Louis Wagner against Blorris Mishel and another. Judgment for plaintiff, and defendants appeal. Reversed, and complaint dismissed. See, also, 148 N. Y. Supp. 1148.

<p>Action by the Universal Discount Company against the Corn Exchange Bank.</p>

<p>Action by the Union Trust Company of New York, as substituted administrator, etc., of Edward Warren Day, deceased, against Elbert H. Day and others.</p>

<p>In the matter of George Weaver.</p>

<p>Action by James H. Warner against Edwin D. Morgan and another.</p>

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

<p>Action by Armond E. Wheaton against George Griffin.</p>

<p>Action by John F. Weinheimer against Alexander J. Ross and others.</p>

<p>In the matter of the application of William It. Willcox and others, constituting the Public Service Commission, etc., as to Ashland Place Section, Fourth Avenue Subway.</p>

<p>Action by Leon C. Weinstock against Emanuel Hallenbeck and another.</p>

<p>In the matter of the judicial settlement of the account of Daniel S. Woolley.</p>

<p>In the matter of the application of William R Will-cox and others, constituting the Public Service Commission, etc., as to Ashland Place Section, Fourth Avenue Subway.</p>

<p>Action by Sarah Zorn against Edwin S. Pendleton and another.</p>

<p>In the matter of Margaret Laura Zborowski, deceased.</p>

<p>Action by William Ziener against George W. Linch, as receiver, etc.</p>