Volume 149 — New York Appellate Division Reports

Cross-appeals by the plaintiff, Barrett Manufacturing Company, a,p.d the defendant Jessie V. Sergeant, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the ITth day of November, 1911, granting the defendants a bill of particulars and extending their time to answer, and denying the defendants’ motion to require plaintiff to make the complaint more definite and certain and to separately…

<p>Landlord and tenant — rent of apartment — heating plant under control of landlord — implied covenant to furnish heat — constructive eviction — action for rent — question for jury.</p> <p>Where the owners of an apartment house containing thirty separate apartments all heated by a common heating plant in the basement, which was under the exclusive control of the landlords, lease one of the apartments to be used exclusively as a dwelling, and it appears that there was no way of heating the same except by the steam radiators which formed part of the system under the landlords’ control, a covenant by the latter to supply the heat necessary to keep the apartment warm and habitable will be read into the lease.</p> <p>Even though there is no covenant to that effect, the landlords are obligated to supply sufficient heat to keep the apartment warm.</p> <p>The landlords, having made it impossible for heat to be furnished except by the means under their control, were bound to furnish it and for their failure to do so the tenant may vacate and thereafter successfully resist the collection of the rent reserved.</p> <p>The tenant would not be justified in vacating the premises because upon some particular occasion they were not kept warm, but if the landlords’ failure to supply sufficient heat is continued for an unreasonable time, he may do so.</p> <p>A constructive eviction is an obstruction of the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord.</p> <p>The acts of the landlord need not be with intent to compel the tenant to leave or to deprive him of the beneficial enjoyment of the property; all that is necessary is that the acts are calculated to and do make it necessary for the tenant to move.</p> <p>Where it appears that during the greater part of December and for a week in January the temperature in the rented apartment was below sixty degrees Fahrenheit most of the day and that little or no heat was supplied from eleven p. M. till seven A. M., the tenant is justified in vacating the apartment.</p> <p>Such insufficiently heated premises were not what had been leased and the consideration for the rent failed.</p> <p>In an action to recover rent for such apartment it is reversible error for the court to hold as a matter of law that plaintiffs were entitled to recover and to direct a verdict in their favor, for, if defendant’s witnesses were to be believed, he was justified in vacating the apartment.</p>

<p>Appeal by the defendant, Carlton B. Pierce, from an order of the S'upreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of October, 1911, granting the plaintiff’s motion for judgment on the pleadings.</p>

<p>Appeal "by the defendant, The Germania Life Insurance Company, from an order of the Supreme Court, made at the New York Special Term, bearing date the 8th day of November, 1911, and entered in the office of the clerk of the county of New York, resettling an order entered on the 2'Tth day of October, 1911, denying the defendant's motion for judgment on the pleadings.</p>

Appeal by the plaintiff, the People’s National Bank of Hackensack, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of December, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term, and also from an order entered in -said clerk’s office on the 3d day of December, 1910, denying the plaintiff’s motion…

<p>Practice — separate trial of issues — partnership — action to recover part of mutual debt paid by one party — defense of mutual accounting and settlement.</p> <p>It is correct practice in a proper case to order a separate trial of one issue prior to the trial of the other-issues.</p> <p>Where a complaint alleges that the parties were formerly partners in business; that upon a certain date they agreed upon a statement of their assets and accounts and agreed that a certain debt should be paid in part by notes; that thereafter the firm assets were divided, but the outstanding notes were overlooked and were subsequently paid by plaintiff, who seeks to recover one-half the amount thereof, and there is no allegation that there was ever any settled account made between the parties, but the complaint proceeds as if none had ever been made, and the answer as a separate defense sets up that after the mutual statement alleged in the complaint the parties continued in business for three years, at which time the assets were divided and the parties “mutually agreed and intended that said division should operate as a dissolution of said firm, and a final settlement of their respective interests in the said firm and its property and assets, and of all claims and other matters ” between the parties, the issue raised by said separate defense should be tried before the other issues.</p> <p>It is manifest that, if the decision on this issue should be in defendant’s favor, the litigation would be at an end, for, if the accounts had been finally settled by mutual consent it is too late for plaintiff to assert a claim against defendant arising out of the partnership affairs included in the settlement unless the settlement itself be first attacked and set aside.</p>

Appeal by the defendant, Charles L. G-reenhall, as trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of December, 1911, as resettled.

<p>Appeal by the plaintiff, the San Bemo Copper Mining Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of September, 1911, denying the plaintiff’s motion for an order overruling a demurrer to the amended complaint; also from an order entered in said clerk’s office on the same day granting the defendant’s cross-motion for judgment on the pleadings, and also from a judgment entered on the 14th day of September, 1911, pursuant to said order.</p>

Appeal by the defendant, JohnO. E. Eckerson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Eew York on the 7th day of January, 1911, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendant, John P. Leo, from an order of the Supreme Court, made at the New York Special Term, bearing date the 26th day of October, 1911, and entered in the office of the clerk of the county of New York, resettling an order bearing date the 14th day of October, 1911, and entered in said clerk’s office, denying the defendant’s motion for judgment on the pleadings.

Appeal by the plaintiff, Elizabeth M. Beck, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of May, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Pauline Bernstein, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 26th day of May, 1911, upon the dismissal of the complaint at the close of plaintiff’s case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 21st day of June, 1911, denying the plaintiff’s motion for a new trial made upon the…

<p>Sale — manufacture of automobile body to comply with specifications — failure to perform — rule of substantial performance inapplicable.</p> <p>Action to recover the purchase price of an automobile body which the plaintiff was to manufacture according to specifications furnished by the defendant. Evidence examined, and held, that the body as manufactured did not comply with the specifications, so that the plaintiff could not recover.</p> <p>A contract to manufacture an automobile body pursuant to specifications furnished by the vendee is not governed by the rule of substantial performance obtaining in the case of building contracts. It involves the personal taste of the purchaser and strict compliance is required.</p>

Appeal by the defendant, New Yorker Staats-Zeitung, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1911, denying the defendant’s motion to require the plaintiff to amend his complaint so as to separately state and number the various causes of action therein.

Appeal by the plaintiff, Louis Kane, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.

<p>Motion and order—demand^ for alternative relief—section 768 of the Code of Civil Procedure construed—judgment on pleadings — complaint stating cause of action — action against real estate broker — discovery — examination of corporation before trial.</p> <p>A defendant moving for judgment on the pleadings may as alternative relief ask for an order vacating an order for an examination before trial.</p> <p>Such alternative relief is authorized since section 7G8 of the Code of Civil Procedure, as amended by chapter 7G3 of the Laws of 1911, the purpose of which amendment is to allow either party to amotion to demand such relief as he deems himself entitled to upon the facts presented in order to save time to the court and expense to litigants.</p> <p>A motion for judgment on the pleadings should not be granted upon the ground that the complaint fails to state a cause of action where it alleges that the defendant, a real estate broker, having the exclusive right to rent offices leased by the plaintiff, induced him to vacate and promise to pay commissions in reliance upon the defendant’s absolute undertaking to obtain a sub-tenant, and upon his statement that he had obtained one, substantial damages being pleaded.</p> <p>Where the defendant in such action is a corporation and the plaintiff shows that the agreement upon which he bases his action was made with one whom he understood to be the defendant’s authorized agent, he is entitled to examine the defendant before trial in order to show the agent’s authority. Only one, not two, of the defendant’s officers should be examined.</p>

Separate appeals by Jessie Grillender and Francis Higgins, claimants, from parts of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of January, 1910, confirming the report of commissioners of estimate and assóssment herein, as amended by a supplemental report, with notice of an intention by each appellant to bring up for review various intermediate orders in the proceeding.

<p>Appeal by the defendants, J. Gabriel Britt and others, constituting the board of elections of the city of New York, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of February, 1912, as provides that the ballot by said order directed to be printed shall not make provision for the separate printing and election of members of the judicial district committee, congressional district committee, senatorial district committee, assembly district committee, borough committee, aldermanic district committee or municipal court district committee. The order was made on the return of a writ of mandamus.</p>

<p>Appeal by the defendant, Eobert Goelet, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 5th day of October, 1910, upon the report of a referee decreeing the sale of certain premises on the foreclosure of a mechanic’s lien filed by the plaintiff, and also , from an order entered in said clerk’s office on the 1st day of October, 1910, granting an allowance of $1,500 to the plaintiff and appointing a referee to sell the premises described in the complaint.</p>

Appeal by the defendant, Caroline Glatner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of July, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, J. Gabriel Britt and others, constituting the board of elections of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of January, 1912, granting the petitioners’ motion for a peremptory writ of mandamus.

Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 21st day of June, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 23d day of June, 1910, denying the plaintiff’s motion to set aside the dismissal…

Appeal by the defendants, Edward A. Isaacs and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of January, 1912, denying the defendants’ motion to vacate an order for their examination before trial. Order affirmed, with ten dollars costs and disbursements, on opinion of Lehman, J., at Special Term.

Appeal by La Faculté Théologie Protestante de Montauban and another, contestants, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 25th day of July, 1910.

Appeal by the defendant, Charles H. Hyde, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1912, denying the defendant’s motion for a change of venue.

Appeal by the defendant, the Barney Estate Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 17th day of November, 1911, upon the decision of the court rendered after a trial at the New York Special Term, and also, as stated in the notice of appeal, from the decision upon which said judgment was entered. ■ The judgment granted a permanent injunction restraining the defendant as…

Appeal by the defendant, the Postum Cereal Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1910, upon the verdict of a jury for $50,000, and also from an order entered in said clerk’s office on the same day, as amended nunc pro tuno by an order entered on the 19th day of December, 1910, denying the defendant’s motion for a new trial made upon the…

Appeal by the plaintiff, Leo Oppenheimer, as trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1911, as resettled by an order entered in said clerk’s office on the 23d day of November, 1911, granting the motion of the Chelsea Exchange Bank to intervene in the action as a party defendant.

Appeal by the plaintiff, Leo Oppenheimer, as trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1911, as resettled by an order entered on the 23d day of November, 1911, directing that the Security Bank of New York be made a party defendant.

<p>Bills and notes — purchase of draft on faith of statement that acceptance was secured — general assignment by drawer — failure of drawee to accept — equitable right of payee to security — when draft works assignment of particular fund — submission of controversy — statement of facts.</p> <p>Plaintiffs purchased a draft on a drawee in the Republic of France, being induced thereto by a statement of the drawers that tho drawee had promised to accept the draft upon the security of another draft drawn by the same parties upon a drawee in Italy, who was indebted to them for goods sold. The Italian draft was sent to the drawees in France and the drawee in Italy was notified thereof. Before the French draft was presented the drawers made a general assignment for the benefit of creditors, whereupon the drawees in France refused to accept and returned the Italian draft to the assignee without presenting it for payment in Italy. Both the plaintiffs and the assignee made claims upon the debtor in Italy, who thereupon paid the money to the assignee subject to a determination as to the plaintiffs’ right thereto.</p> <p>Held, that in equity the purchase of the French draft upon the drawee’s promise to accept it, coupled with the drawer’s promise to secure the drawee, entitled the purchaser to the promised security upon the failure of the drawees to accept;</p> <p>That the Italian draft upon a drawee whom the plaintiffs were informed was indebted to the drawers was intended as security and, in effect, created a hen or charge upon the drawee’s debt;</p> <p>That in equity the assignee of the drawers held the funds received from then- debtor in trust for the plaintiffs, who were entitled thereto.</p> <p>While a draft drawn upon the general credit of the drawer with the drawee does not operate as an assignment of a particular fund, even though one to which the draft is to be charged is indicated, yet where it is the intention of parties that the draft shall be paid out of a particular fund and not absolutely and at all events, it operates as an assignment of the fund.</p> <p>On a submission of a controversy upon an agreed statement of facts the court cannot choose between conflicting inferences which are permissible, but must coniine its decision to the facts stated.</p> <p>Dowling and Laughlin, JJ., dissented, with opinion.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of January, 1911, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the '21st day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York Transportation Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered upon the verdict of a jury rendered on the 9th day of June, 1911.

Appeal by the plaintiff, The Peter Barrett Manufacturing Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant Wheeler, rendered on the 2d day of May, 1911.

Appeal by the defendant, Patrick J. Healy, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 20th day of May, 1911, upon the verdict of a jury, for the sum of $200 and $24.40 costs.

<p>Appeal by the defendant, The Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of November, 1910, upon the report of a referee.</p>

<p>Appeal by the plaintiff, 0. Adelbert Becker, and the defendants, Maggie McCrea and another, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 2d day of August, 1910, upon the decision of the court rendered after a trial at the Westchester Trial Term, a question of fact having been submitted to the jury, and also from an order entered in said clerk’s office on the 20th day of July, 1910, denying the appellants’ motions for a new trial made upon the minutes.</p>

Appeal by the defendant, the North American Watch Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 31st day of March, 1911, by default.

Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 15th day of February, 1911, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 14th day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, W. Tyrie Stevens, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint at the close of plaintiff’s case by direction of the court on a trial at the Kings County Trial Term in April, 1910.

Appeal by the plaintiff, Helen Margaret Ferguson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 19th day of April, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 12th day of June, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Thomas W. Butts, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of December, 1911, denying the defendant’s motion for judgment on the pleadings.

Appeal by the plaintiff, Victor Koechl, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 6th day of October, 1911, granting the respondent's motion to be relieved of his purchase on a foreclosure sale.

Appeal by the plaintiff, Vittorio Sartori, as administrator, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 10th day of August, 1911.

Appeal by the defendant, Carmela Savarese, as administratrix, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of September, 1911, denying the said defendant’s motion to vacate and set aside a certain judgment.

Appeal by the judgment debtor, Henry B. Feldberg, from an order of a county judge of Kings county, entered in the office of the clerk of said county on the 28th day of November, 1911.

Appeal by the plaintiff, Rosie Borgrosser, from part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of November, 1911.

Appeal by the defendant, Louis Winckler, individually and as executor, etc., of Louis Winckler, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings oh the 16th day of December, 1911, denying the defendant’s motion to terminate a reference under the provisions of section 1019 of the Code of Civil Procedure.

<p>Appeal by the defendants, Henry F. Thompson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 16th day of December, 1910, upon the decision of the court rendered after a trial at the Nassau Special Term.</p>

<p>Husband and wife — dower — death of husband —■ divorce — testimony of wife that she was never served with summons — evidence — section 829 of the Code of Civil Procedure — presumption.</p> <p>A judgment of the Supreme Court is itself presumptive evidence of the court’s jurisdiction.</p> <p>Where in an action for dower it appears that plaintiff left her deceased husband over sixty years before the beginning of the action, and that at that time he obtained a judgment of absolute divorce against her in this State, and it further appears that from that time plaintiff was excluded from any participation in the care and custody of her children, that she supported herself without any demands on her husband, and that although desiring to see her children she did not attempt to force her husband to permit her to do so, the testimony of the plaintiff that she was never served with the summons in the divorce action should not be allowed to outweigh the affidavit of service, to the detriment of persons who had acquired her former husband’s property relying upon the validity of the decree of divorce.</p> <p>Evidence examined, and held, that the verdict for the plaintiff should be reversed as against the weight of evidence.</p> <p>Testimony which the public policy of the State excludes as irrelevant and immaterial and to which objection is seasonably interposed is presumptively prejudicial to the party objecting; it is only where it is obvious that the testimony could not have affected the result that the courts "will overlook the error.</p> <p>It is reversible error to allow plaintiff to testify that the reason she left her husband’s home was because his father habitually assaulted her with a bellows and did other acts of cruelty and because her husband himself had cut her with a knife and otherwise ill used her. Such testimony is improper under section 889 of the Code of Civil Procedure.</p>

<p>Pleading — demurrer — master and servant — contract of employment construed — right of employee to hearing before discharge — pleading— complaint showing breach of contract of employment — conditions precedent to recovery— performance rendered impossible by act of defendant — practice —leave to plead over.</p> <p>In considering the sufficiency of a complaint the court may consider, not only express allegations, but facts implied' therefrom by reasonable and fair intendment.</p> <p>Where a contract of employment is not for a specified term it may be terminated at will by either party.</p> <p>Where a contract of employment provided in substance that the employee should not be discharged without a hearing and full investigation with an opportunity to present witnesses in his behalf, and, if found blameless after suspension, should receive full pay for time lost, it should be construed to mean that the employment should continue until dereliction of duty upon the part of the employee was established after a hearing.</p> <p>Hence, a breach of such contract of employment is shown by an allegation that the plaintiff was discharged without a hearing or full investigation and opportunity to present witnesses in his behalf.</p> <p>The employee in an action for a breach of such contract need not allege that he was found blameless in order to recover for time lost.</p> <p>It seems, that the agreement to pay for time lost contained in such contract must be limited to time lost during suspension, and not to time lost through discharge, for the hearing must precede the discharge.</p> <p>In any event the plaintiff was not required to allege that he had been found blameless as a condition precedent to recovery where the defendant by refusing a hearing made the performance of the condition impossible.</p> <p>The plaintiff in such action sufficiently shows performance of conditions upon his part by alleging that he entered the defendant's employ pursuant to the agreement a-nd continued his employment to a certain date. He is not required to negative any claim of dereliction of duty.</p> <p>Moreover, a failure to perform his duties is excused where the defendant would not permit him to do so.</p> <p>A defendant, having demurred to a complaint upon the ground that it fails to state facts constituting a cause of action, cannot withdraw the demurrer and answer as a matter of right. He will be required to apply to Special Term for leave to answer, and, it seems, must show a defense upon the merits.</p>

<p>Discovery—examination of defendant after issue joined—equitable suit for accounting — scope of examination.</p> <p>To sustain an order for the examination of an adverse party after issue joined it must affirmatively appear that the examination is material and necessary to the applicant in the prosecution or defense of the action.</p> <p>Where in a suit in equity for an accounting the allegations of the complaint upon which .the right to the accounting is predicated are denied this issue must first be determined and an interlocutory judgment entered. If such judgment be for the plaintiff, then, and not until then, may the accounting be had.</p> <p>Hence, where in such a case no interlocutory decree sustaining the plaintiff’s right to an accounting has been entered, an order for the examination of the defendant before trial should limit the examination to those matters upon which the plaintiff’s right to an accounting is predicated.</p>

Appeal by the defendants, Max Rosenberg and another, copartners, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day of November, 1911, granting the plaintiff’s motion for a bill of particulars.

<p>Practice—frivolous demurrer — motion for judgment—contract — breach—liquidated damages — pleading — failure to allege non-payment—burden of proof.</p> <p>While a motion for judgment is authorized where a demurrer is frivolous, it seems that the preferable practice is to move under section 547 of the Code of Civil Procedure authorizing judgment upon the pleadings after issue joined.</p> <p>Where a copy of a contract is annexed to a complaint and referred to therein, the provisions are deemed to be incorporated in the pleading.</p> <p>Where a contract employing the plaintiff as a designer and superintendent of a dressmaking establishment at a certain sum per week, with an additional percentage of the net profits of the employer, further provided that either party making a breach of the agreement should pay to the other the sum of $10,000 as and for liquidated damages and not as a penalty, the liquidated damages may be recovered.</p> <p>On a breach of a contract the general rule is that damages shall be allowed to extend to just compensation for the injury actually sustained. But even though the contract expressly provides in terms for liquidated damages, if it be clear from the sum mentioned and the subject-matter that the principle of compensation has been disregarded, the courts are not controlled by the words used.</p> <p>Where from the nature of the contract the actual damages for breach are uncertain and by their nature difficult to ascertain with certainty, the parties may provide for liquidated damages.</p> <p>In determining whether the sum mentioned in a contract is a penalty or liquidated damages, not only the words of the contract, the subject-matter and the sum mentioned may be considered, but also the surrounding circumstances.</p> <p>As the contract aforesaid provided for liquidated damages, in an action at law the plaintiff’s entire recovery for a breach is limited to the sum mentioned.</p> <p>A complaint to recover liquidated damages on the breach of a contract fails to state a cause of action if it fails to allege non-payment.</p> <p>When a complaint for the breach of a contract alleges non-payment the allegation is not put in issue by a general denial; the defense of nonpayment must be affirmatively pleaded and the defendant is under the burden of proving the same.</p>

<p>Appeal by the plaintiffs, Mary 0. Flynn and others, from part of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 19th day of March, 1910, upon the dismissal of the complaint as to the first and second causes of action by direction of the court at the close of the plaintiffs’ case on a trial at the Kings County Trial Term.</p>

<p>Public health. — constitutional law — statute authorizing State Commissioner to appoint local health officers—mandamus to compel appointment to fill vacancy.</p> <p>Where, after a local board of health passed a resolution, pursuant to section 20 of the Public Health Law, as amended by chapter 388 of the Laws of 1903, declaring that a certain person was nominated for appointment by the State Commissioner as village health officer, said section was declared unconstitutional in so far as it vested power in the State Commissioner to appoint and pass upon the competency of municipal health officers, and a statute was enacted providing that the local board of health shall appoint its health officer, such resolution is rendered invalid and a vacancy created, and a peremptory writ of mandamus may issue to the persons composing the local board of health to compel the appointment of a health officer to fill the vacancy.</p>

Appeal by the defendants, Alice B. Miller and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 12th day of April, 1911, upon the decision of the court rendered after a trial before the court without a jury at the Orange Trial Term.

Appeal by the defendant, Louis Bloom, from a judgment of the Court of Special Sessions of the city of New York, borough of Brooklyn, rendered against the defendant on the 9th day of December, 1910, convicting him of a violation of section 813 of the Penal Law.

<p>Appeal by the plaintiff, Matthew Coleman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of April, 1910, upon the decision of the court, rendered after a trial at the Kings County Trial Term, both sides having moved for the direction of a verdict at the close of the case, dismissing the complaint upon the merits.</p>

Appeal by the assignee and lienor, Lena Greenbaum, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of December, 1911.

Appeal by the plaintiff, Caroline S. Poppenhusen, from a judgment of the Supreme Court in favor of the defendant Long Island Railroad Company, entered in the office of the clerk of the county of Queens on the 23d day of September, 1910, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 11th day of October, 1910, denying the plaintiff’s motion to strike…

Appeal by the defendant, the Casualty Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of April, 1911, upon the verdict of a jury.

Cebttobabi issued out of the Supreme Court and attested on the 22d day of April, 1910, directed to the board of supervisors of Westchester county, commanding said board to certify and return to the office of the clerk of the county of Westchester all and singular its proceedings had in establishing and defining the boundary between the town of Scarsdale and the city of New Rochelle.

Appeal by the plaintiff, Elvira E. Muck, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Livingston on the 24th day of April, 1911, upon the décision of the court rendered after a trial at the Monroe Special Term dismissing the complaint upon the merits.

Appeal by the plaintiff, Euretta Earnest, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 10th day of December, 1910, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Steuben Trial Term.

Appeal hy the defendant, Delos A. Woleben, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 22d day of July, 1911, upon the decision of the court rendered after a trial before the court without a jury.

<p>Appeal by the plaintiff, Bernard J. Goldstein, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of said county on the 18th day of September, 1911, reversing a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiff and granting the defendant a new trial before the same judge.</p>

<p>Will construed — gift of printing business — when assets pass under such devise.</p> <p>A testatrix who died leaving only one descendant, a daughter, and nephews and nieces, devised and bequeathed to the daughter “my printing office and bindery, together with all the presses, bindery machinery, type, paper on hand, office furniture, and equipment of every nature connected with said business.” She gave to the daughter the life use of her dwelling house and $5,000 absolutely, making specific legacies to relatives and friends and leaving the residuary estate to her nephews and nieces.</p> <p>The printing establishment and its assets, which had come to her from her husband, she kept distinct from the rest of her property so that everything pertaining thereto was readily ascertainable. At her death certain printing contracts were nearly completed which later resulted in substantial profits which were paid to the executors.</p> <p>Held, that construing the will in the light of the surrounding circumstances the testatrix intended that the bills receivable from the printing establishment and cash on hand should go to her daughter rather than to the collateral relatives, as otherwise the business would be stripped of nearly all its working capital.</p> <p>Held, further, that under the circumstances the bequest to the daughter of $5,000 was not intended to furnish working capital for the business.</p> <p>McLeiwam', P. J., and Foote, J., dissented, with opinion.</p>

<p>Appeal by the plaintiff, Warren Jacobus, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 28th day of August, 1911, upon the verdict of a jury, rendered by direction of the court, dismissing the complaint, and also from an order entered in said clerk’s office on the 15th day of August, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Master and servant — negligence •— death by explosion of dynamite — evidence — subsequent precautions.</p> <p>Action to recover for the death of one killed by an explosion of dynamite used for rock excavation. Held, that the jury were justified in finding the master negligent in failing to employ means to give warning to employees that a blast was about to be fired.</p> <p>In such action it is reversible error to allow the plaintiff to show that after the accident the defendant used a whistle to notify employees that a blast was about to be fired.</p>

Appeal by the defendants, John Fox, Sr., and another, from a judgment of the County Court of Cattaraugus county in favor of the plaintiff, entered in the office of the clerk of said county on the 25th day of June, 1909, reversing a judgment of the Justice’s Court in favor of the defendants.

Appeal by the defendant, Elizabeth Saperston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 13th day of June, 1911, upon the verdict of a jury for $5,000, and also from an order dated the 16th day of June, 1911, and entered in said clerk’s office, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Harvey S. Bedell and others, constituting the board of water and sewer commissioners of the city of Rome, N. Y., from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 24th day of October, 1911, granting a peremptory writ of mandamus directing the appellants to pay a judgment recovered by the relator against the city of Rome.</p>

Appeal by the plaintiff, Frank Cimmer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 15th day of April, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 15th day of May, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Buffalo and Lake Erie Traction Company, from an order of the County Court of Chautauqua county, entered in the office of the clerk of said county on the 27th day of September, 1911, affirming a judgment of the Municipal Court of the city of Dunkirk in favor of the plaintiff rendered on the 18th day of April, 1911, for $537.65, and also from a judgment of said County Court entered on the 27th day of-September, 1911, upon said order of affirmance.

Appeal by the plaintiff, Clarence L. Rippley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the country of Onondaga on the 15th day of March, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term, certain questions of fact having been submitted to the jury, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new…

Appeal by Ida Myhill and others from a decree of the Surrogate’s Court of the county of Orleans, entered in said Surrogate’ s Court on the 7th day of August, 1911, upon the judicial settlement of the accounts of John G. Myhill.

<p>Appeal by the plaintiff, The Board of Education of Union Free School District No. 2, Town of Trenton, from a judgment of the County Court of Oneida county, entered in the office of the clerk of said county on the 4th day of October, 1911, affirming a judgment of a Justice’s Court in favor of the defendant, with notice of an intention to bring up for review an order entered in said clerk’s office on the 4th day of October, 1911.</p>

Appeal by the defendants, Lizzie L. Carrier and others, from an ordei of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 6th day of June, 1911, confirming the report of commissioners in condemnation proceedings, with notice of an intention to bring up for review a judgment entered in said clerk’s office on the 14th day of March, 1911, appointing commissioners in said proceeding, and also the order…

Appeal by the plaintiff, The Beauty Spring Water Company of Lyons Falls, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Lewis on the 10th day of June, 1911, upon the decision of the court rendered after a trial at the Lewis Special Term. The action was commenced on the 29th day of June, 1910, to restrain the defendant from enforcing certain taxes against the property of the plaintiff.

Appeal by the plaintiff, John J. Casey, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 23d day of May, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Onondaga Trial Term.

Appeal by Carl T. Chester, as executor, etc., from, a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 21st day of September, 1911, affirming an original determination of said surrogate upon the report of the transfer tax appraiser affixing the transfer tax upon the estate of Elizabeth B. White, deceased.

Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of May, 1911, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 20th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Harvey E. Roberts, from an order of the Supreme Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Steuben on the 5th day of December, 1911, setting aside the service of a summons herein.

Appeal by the plaintiff, Michael Oaboni, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orleans on the 26th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Elmer W. Kelley, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 5th day of January, 1912, permitting the defendant to amend his answer.

Appeal by the defendant, James R. Gilmore, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of October, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Augustus T. Post, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of February, 1911, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.

Appeal by the plaintiff, Jean Benton Todd, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the'county of New York on the 18th day of May, 1911, upon the pleadings, and also from an order entered in said clerk’s office on the 17th day of May, 1911, directing the entry of the said judgment.

Appeal by the plaintiff, Emanuel Baruch, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 30th day of December, 1911.

Appeal by the plaintiff, Richard B. Dineen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1911, granting the defendants’ motion for judgment on the pleadings, and also from a judgriient entered in said clerk’s office on the 19th day of October, 1911, pursuant to said order.

<p>Replevin — action to recover jewel—pledge of jewel by agent with consent of officer of corporation —- title of pledgee — corporation — when act of legal entity and act of officer cannot be distinguished — Stock Corporation Law, section 66.</p> <p>Even though an agent given possession of a jewel for the purpose of sale was guilty of larceny in pledging it, yet where, having subsequently redeemed it, he again pledged it with the full knowledge, consent and active participation of the president of the owner, a corporation, the pledgee’s possession is good as against the corporation suing in replevin.</p> <p>As the corporation owning the jewel could only maintain an action of replevin in its own right and as it was bound by the acts of its officer in its line of business, it cannot contend that the act of the officer should be distinguished from that of the corporate entity so as to make the pledgee’s title unlawful.</p> <p>Such pledge is not invalidated by section 66 of the Stock Corporation Law forbidding corporations which have not paid then1 obligations when due to transfer property to officers in payment of any debt, etc., as the pledge was not made to an officer, but to a third person who advanced money thereon.</p>

Appeal by the plaintiff, Rawson L. Wood, as trustee, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York upon the verdict of a jury, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial.

<p>Nuisance — suit to abate nuisance — issues raised by defendants as between each other — when judgment for plaintiff should not be postponed.</p> <p>Where in a suit in equity brought by the city of New York against the receivers of two street railroad companies to abate a nuisance the bondholders of one of the companies have intervened and by answer demanded an adjudication with respect to which of the two companies should abate the nuisance and pay the expense thereof, in which issue the plaintiff has no interest, the court need not delay judgment for the plaintiff until the issue between the defendants is decided, but may leave that issue for subsequent determination.</p>

<p>Municipal corporation — negligence — death caused by hole in pavement— evidence as to size of hole and to cause of death — when municipality not liable.</p> <p>In an action against a city to recover damages for death alleged to havti resulted from a fall caused by a hole in the asphalt pavement, there was a conflict of testimony as to the size and depth of the hole in the pavement and as to whether decedent’s death resulted from the fall or from typhoid fever.</p> <p>Held, that the preponderance of the testimony was that the hole at its deepest point was not more than three or four inches in depth, and that this is not such a defect in the highway as rendered the city liable for injury suffered therefrom;</p> <p>That upon the entire proof it is clear that the decedent died as the result of typhoid fever, with which the fall had no connection</p>

Appeal by the defendant, Philip Van Valkenburgh, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of January, 1912.

<p>Appeal by the defendants, Alice B. Pettit and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1th day of March, 1911, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, the Uvalde Asphalt Paving Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1912, granting the defendant’s motion to vacate an order for the examination of the defendant before trial, through the president of the borough of The Bronx, the principal assistant engineer and the chief engineer of said borough and the permit clerk in the office of said president.</p>

<p>Appeal by the defendant, Jeannette P. Coin, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 24th day of May, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Star Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Contract — agreement to drive piles — no mutual mistake as to nature of material filling cribs — mistake of one party only — recovery on contract — estoppel to deny terms of contract.</p> <p>Action by a contractor to recover for extra work necessitated by the fact that he was required to drive certain piles through cribs filled with stone instead of cribs filled with earth. The plan upon which the bid was made showed the existence of cribs and the spaces between the timbers thereof contained the word “earth.” It appeared that the existing cribs in order to resist lateral pressure under the circumstances would have to have been filled with stone. The plans did not purport to be a complete representation of the work to be done, but only to show the number of piles to be driven. The plaintiff had been invited to inspect the premises.</p> <p>Beld, that the plaintiff could not recover for extra work done upon the ground of mutual mistake as to the nature of the crib filling, but under the circumstances was bound to investigate and ascertain the situation for itself.</p> <p>Especially is this so where the memorandum for bidders stated merely that the information given by the blue prints was all that was “ available," and that the typical “ crib ” foundation shown was only that found at a single boring, and in effect that the nature and extent of the cribs was not determinable.</p> <p>The plaintiff contended that said memorandum to bidders had not been delivered to him by the defendant’s engineer. Evidence examined, and held, that a finding that the memorandum had not been delivered was against the weight of evidence.</p> <p>Moreover, the existence of said memorandum for bidders showing defendant’s lack of knowledge of the nature of the crib work of itself refuted the plaintiff’s claim of mutual mistake of fact.</p> <p>To recover because of a mutual mistake of fact it must be shown that both parties to the contract were mistaken.</p> <p>Where the plaintiff pleaded the contract and has recovered thereon it is estopped from asserting that there was no meeting of the minds on all its terms.</p>

Appeal by Anna Thiel, corespondent, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of April, 1911, upon the decision of the court rendered after a trial at the New York Special Term in an action for divorce.

Motion by the plaintiff, Edward F. McCarton, as administrator, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term in October, 1911.

<p>Appeal by the defendant, Henry L. Hanlien, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 20th day of July, 1911, upon the verdict of a jury for §1,500, and also from an order entered in said clerk’s office on the 18th day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the petitioner, the Guaranty Trust Company of Hew York, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 26th day of April, 1911, denying the appellant’s petition for letters testamentary as one of the executors of the last will and testament of Herman Bergdorf, deceased.

Appeal by the defendant, the Athens Hotel Company, from an order of the Supreme Court made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1912.

Appeal by the defendants, Andrew Jergens and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of November, 1911, granting the plaintiff’s motion for judgment on the pleadings, and also from the judgment entered thereon in said clerk’s office on the 9th day of November, 1911.

Appeal by the plaintiff, Luyties Brothers, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 2d day of January, 1912, denying the plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, the Riter-Conley Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1912, denying the defendant’s motion to set aside the verdict of a jury and vacate a judgment in favor of the plaintiff entered in said clerk’s office on the 9th day of October, 1911, upon the verdict of a jury for $15,000.

Appeal by the plaintiff, Warren J. Flick, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 9th day of January, 1912, granting the defendant’s motion for an additional undertaking on attachment.

Appeal by the defendant, Charles Burkelman, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, John T. Sharkey, as executor, etc., and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 10th day of August, 1909, setting aside the verdict of a jury in favor of certain of the defendants and granting a new trial in an action to determine the validity of the probate of a will under section 2653a of the Code of Civil Procedure.</p>

Appeal by the plaintiff, the Hudson Iron Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of May, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Emily H. 0. Jacocks, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of December, 1911, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the complaint.

Cross-appeals by the plaintiff, Mary Levy, and the defendant, Abraham J. Levy, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 12th day of December, 1911, modifying a decree of divorce by reducing the allowance of alimony.

Appeal by the defendant, Catharine Haverty, as administratrix, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 4th day of May, 1911, affirming a final order and judgment of the Municipal Court of the city of Hew York in a summary proceeding for the removal of a tenant.

Appeal by the defendant, the Douglas Copper Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of blew York on the 19th day of Hay, 1911, affirming a judgment of the City Court of the city of blew York, and an order denying a motion for a new trial; and also from said judgment and order of the City Court.

<p>Contract — agreement to secure loan — action for commissions — performance by plaintiff and breach by defendant — evidence.</p> <p>The plaintiff in an action for commissions alleged that he was employed by the defendant to secure a loan of $50,000 “ more or less,” to be seemed by its first mortgage bonds under certain terms and conditions; that he had performed his part of the contract, but that defendant failed to keep and wrongfully repudiated and broke the agreement, and that plaintiff was thereby damaged in the sum of $30,000. The answer was in effect a general denial. A recovery was allowed upon the theory that plaintiff procured one S., who was willing to loan $50,000 to the defendant on the terms upon which the plaintiff was employed to procure it, and that he tendered a certified check to the defendant but that it was refused.</p> <p>Held, that under the evidence plaintiff failed to establish a cause of action; that defendant had withdrawn its proposition before there was an unqualified acceptance thereof by S., who was unwilling to make the loan unconditionally.</p>

Motion by the defendant, Ernest L. Conant, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Trial Term in November, 1911.

Appeal by the defendants, Edward J. De Ooppet and others, doing business under the firm name and style of De Ooppet & Doremus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of June, 1911, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the defendants, Alexander Smith Cochran and another, as surviving trustees, etc., and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1912, denying the said defendants’ motion to vacate an order entered in said clerk’s office on the 17th day of November, 1911, and to reinstate part of the amended answer of certain of the appellants, and also…

Appeal by the defendant, Edward Hatch, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of December, 1911, denying the defendant’s motion, to amend the answer.

Appeal by the plaintiffs, Samuel Kridel and another, as executors, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of November,. 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiffs’ case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 15th day of November, 1911, directing the…

Appeal by the defendant, Independent Order Ahawas Israel, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of December, 1911, denying the defendant’s motion of interpleader.

Appeal by the defendant, the French-American Wine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Equitable Trust Company of New York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of June, 1911, affirming a judgment of the Municipal Court of the city of New York in favor of the defendant, entered upon the decision of the court dismissing the complaint.

Appeal by the Comptroller of the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1912, resettling an order entered in said clerk’s office on the 16th day of November, 1911, granting a peremptory writ of mandamus. '

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of November, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 21st day of November, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8th day of April, 1911, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term as resettled by an order entered in said clerk’s office on the 29th day of April, 1911.

Appeal by the petitioner, William W. Farley, as State Commissioner of Excise, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1912, denying the petitioner’s motion for an injunction, and also from an order entered in said clerk’s office on the 9th day of February, 1912, denying said motion after a reargument.

Appeal by the plaintiff, Charles F. H. Johnson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of Hovember, 1911, granting the motion of the defendant Stanley M. Isaacs for judgment on the pleadings.

Appeal by the defendants, Howard Carroll and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of February, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrer to the amended complaint.

Appeal by the plaintiff, Israel Unterberg, from a determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of June, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of January, 1911.

<p>Certiorari issued out of the Supreme Court and attested on the 2d day of June, 1905, directed to Robert Muh and others, composing the board of assessors of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the claim of the Sandrock Realty Company for damages caused by the change of grade in a city street.</p>

Certiorari issued out of the Supreme Court and attested on the 2d day of June, 1905, directed to Robert Muh and others, composing the board of assessors of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the claim of Julia E. Goossen for damages caused by the change of grade in a city street.

Certiorari issued out of the Supreme Court and attested on the 2d day of June, 1905, directed to Robert Huh and others, composing the hoard of assessors of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the claim of the Bronx Bath Company for damages caused by the change of grade in a city street.

Certiorari issued out of the Supreme Court and attested on the 2d day of June, 1905, directed to Robert Huh and others, composing the board of assessors of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the claim of Ole Olssen for damages caused by the change of grade in a street.

<p>Motion by the plaintiff, Solomon Rosenfeld, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the defendant rendered by direction of the court after a trial at the New York Trial. Term in January, 1909.</p>

Appeal by the defendant, James D. Hardin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Robert S. Smith, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of February, 1912, denying the plaintiff’s motion for a discovery and inspection of certain books.

Motion to dismiss a writ of certiorari or that the printed record filed by the relator be corrected by adding to it the duly certified copy of the return to said writ made by the Long Acre Electric Light and Power Company and filed with the clerk of the county of New York on January 12, 1912.

Appeal by the plaintiff, The S. H. Pomeroy Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of November, 1911. ■ Appeal by the plaintiff, The S. H. Pomeroy Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of December, 1911.

Certiorari issued out of the Supreme Court and attested on the 13th day of June, 1911, directed to William D. Dickey, chairman, and others, commissioners, etc., commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the trial of a certain claim for damages filed by the United States Trust Company of New York, as executor, etc.

<p>Appeal by the defendant, Joseph Leiter, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of February, 1912, denying the said defendant’s motion for a separate trial of the issues as to his partnership with the other defendants.</p>

<p>Appeal by the defendants, George Hildebrand and another, from a judgment of the Supreme Court in favor of the plaintiff and the defendant The Babcock & Wilcox Company, entered in the office of the clerk of the county of New York on the 26th day of April, 1911, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Cross-appeals by the plaintiff, Knickerbocker Trust Company, and the defendant, Andrew Miller, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1911, granting the plaintiff’s motion for a bill of particulars.</p>

Appeal by the defendant, Henry L. Goodwin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the petitioner, Charles H. Duell, from an order of the Supreme Court, made at, the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1912, denying the petitioner’s application herein.

Appeal by the plaintiff, James Talcott, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of March, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Paul J. Rainey Pier Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Hew York on the 19th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The National Reserve Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff; entered in the office of the clerk of the county of New York on the 19th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes in an action brought to recover on a quantum meruit.

<p>Trust — enforcement of trust—action by assignee of beneficiary — complaint —demurrer.</p> <p>A suit to enforce a trust can only be brought by a beneficiary, and it must be in equity, unless there has been an accounting and promise to pay, or the equivalent thereof, when an action at law may be brought for the ascertained sum. In the latter case the action may be brought by an assignee of the claim.</p> <p>A complaint, in an action by an assignee of a beneficiary against his executors and trustees to enforce payment of the income from a trust fund, which alleges that on a certain date the defendants “made a further division of the income ” in their hands and distributed the same to the Various cestuis que trust entitled thereto, except that they unlawfully Withheld from Hoagland the sum of $208, is demurrable, because it fails to state that there had been an accounting and promise to pay, or the equivalent thereof, or that the trustees had ascertained and established that on that date the sum of $208 was due to Hoagland.</p>

<p>Appeal by the defendants, James Creelman and others, constituting the mimicipal civil service commission of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of February, 1912, granting the relator’s motion for a peremptory writ of mandamus commanding the defendants to forthwith place the relator’s name on the eligible list for the position of uatrolman of the police department.</p>

<p>Mechanic’s lien—municipal improvement — judgment against principal contractor — sureties not made defendants not bound by judgment.</p> <p>Although a sub-contractor, having filed a lien for moneys due the principal contractor on a municipal improvement, obtained a decree establishing a lien upon the fund, the judgment is not binding upon the sureties of the principal contractor on a bond filed by him pursuant to the statute to discharge the hen if the sureties were not parties to that suit.</p> <p>Where the suit was dismissed as against the city, a eodef endant, the result of the judgment was merely to determine that the principal contractor owed the sum in controversy to the plaintiff, the sub-contractor. It is in the nature of a personal judgment against him, and is not res adjudicata against the sureties, not made parties, where they never undertook to pay a judgment which the plaintiff might secure against the principal contractor, but merely such judgment as might be recovered in a suit to enforce the lien.</p>

<p>Municipal corporation — certiorari to review dismissal of policeman in city of New York—evidence—uncorroborated testimony of girl of immoral character.</p> <p>Certiorari to review the action of the police commissioner of the city of New York in dismissing a patrolman on the charges that he left his post and entered certain premises for reasons other than the performance of police duty; that he violated a rule of the police department in failing to report such action; that he failed to take proper action upon finding a young girl in the premises which he entered. Evidence upon the trial before the deputy police commissioner examined, and held, that the determination should be reversed and a new trial directed.</p> <p>In order to sustain such charges there must be positive evidence of each material element of the offense.</p> <p>The uncorroborated testimony of a girl of immoral character and habits is entitled to very little weight.</p>

Appeal by the defendant, McNulty Brothers, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of January, 1911, upon the verdict of a jury for $12,800, and also from an order entered in said clerk’s office on the 13th day of January, 1911, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Emily S. Concklin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 17th day of January, 1911, upon the decision of the court rendered after a trial at the Dutchess County Special Term.

Appeal by the defendant, the Peekskill Lighting and Eailroad Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of October, 1911, vacating an order requiring the plaintiff to give security for costs.

Appeal by the defendant, Hemy 0. Fischer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of April, 1911, and also from an order entered in said clerk’s office on the 7th day of April, 1911, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Peter Cooper’s Glue Factory, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of June, 1911, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 23d day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 16th day of February, 1911, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the 10th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes..

Appeal by the defendants, Patrick Bartnett and another, copartners, etc., from so much of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 13th day of March, 1911, upon the decision of the court, rendered after a trial at the Westchester Special Term, as adjudges that the plaintiff New Rochelle Coal and Lumber Company is entitled to be paid no sum of money out of the recovery against the…

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 7th day of January, 1911, upon the verdict of a jury rendered by direction of the court, as amended by an order entered in said clerk’s office on the 11th day of January, 1911, and also from an order entered on the 3d day of January, 1911, denying the defendant’s motion for a new trial…

Motion by the plaintiff, Helen Connolly, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court on the opening upon a trial at the Kings County Trial Term in April, 1909.

Appeal by the defendant, Anthony Hasse, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of October, 1911.

Appeal by the petitioner, Hugh A. Daniel, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Orange on the 11th day of March, 1912.

<p>Insurance — principal and agent — extension of time to pay-premiums.</p> <p>Where a policy of life insurance in express terms provided that only the president, vice-president, secretary or treasurer of the insured had any power to modify the terms of the contract or to extend the time for paying premiums and that the company should not be bound by any promise theretofore or thereafter made unless made in writing by one of said officers, a clerk in the medical department of the insurer, whose sole duty was to arrange appointments for the medical examination of applicants, had no power whatever to modify the policy by extending the time set for payment of premiums.</p>

<p>Blaster and servant—negligence — injury to eyesight by particle of steel — proof not justifying recovery.</p> <p>Action by a servant against his master to recover damages for personal inj uries. The plaintiff was struck in the eye by a flying'particle of steel. The injury was alleged to have been caused by the negligence of an incompetent fellow-servant who was engaged in chipping bolts with a chisel.' Evidence examined, and held, insufficient .to establish either the negligence or incompetency of the plaintiff’s fellow-servant, or the negligence of the foreman in appointing him to do the work.</p> <p>Woodward, J., dissented.</p>

<p>Pleading—amendment of complaint on contract to allege conversion— Statute of Limitations—amendment denied.</p> <p>The plaintiff in an action against a common carrier for breach of contract seeking to recover the value of jewelry which was removed from his trunk while in the possession of the defendant, and who has failed to recover on the ground that he misled the defendant as to the contents of the trunk, and paid only the rate for the carriage of ordinary baggage, should not, after the Statute of Limitations has run, be allowed to amend his complaint so as to seek a recovery for conversion.</p> <p>Jenks, P. J., and Woodward, J., dissented.</p>

Reargument of an appeal by the relator, Lillian Ryan, from an order of the Supreme Court, made at' the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of October, 1911, dismissing a writ of habeas corpus. ■ A reargument was ordered “ on the validity of the proceedings held on Sunday.” (148 App. Div. 928.)

Appeal by the plaintiff, Mary E. Shafer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of June, 1911, upon a dismissal of the complaint by direction of the court after the jury had failed to agree upon a verdict, and also from an order entered in said clerk’s office on the 3d day of July, 1911, dismissing the complaint herein.

Appeal by the defendants, John T. Rainier and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 19th day of June, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, The New York and Queens County Railway Company, from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 15th day of June, 1911, denying the defendant’s motion to set aside a verdict of $15,000 in favor of the plaintiff and for a new trial.

<p>Highways — negligence — action for personal injuries — notice to town — failure to state time and place of accident — proof not justifying recovery.</p> <p>While the statute requiring the plaintiff intending to sue a town for injuries received by reason of a defective highway to serve a verified statement of the causes of action as a condition precedent thereto does not in express terms require the notice to state the time and place of injury, a notice which fails to do so is defective.</p> <p>Action against a town to recover for the alleged negligence of the highway-commissioner in failing to remove bushes or limbs of trees extending into the highway, by reason of which the plaintiff, driving upon the highway was struck in the eye and blinded. Evidence examined, and held, insufficient to justify a recovery.</p> <p>Hirschbbrg and Thomas, JJ., dissented.</p>

Appeal by the plaintiff, J. L. Emil Sohueler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 8th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of September, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeals by the plaintiff, Jennie Brady, as administratrix, etc., and Guiseppe DiOrescenti, as. administrator, etc., in the above-entitled actions, from separate judgments of the Supreme Oourt in favor of the defendants, one entered in the office of the clerk of the county of Kings on the 5th day of May, 1911, upon the dismissal of the complaint as to the defendants the City of .New York and Brooklyn Union Gas Company by direction of the court at the close of…

Appeal by the Union Ferry Company of Hew York and Brooklyn from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of December, 1911, granting a peremptory writ of mandamus.

Appeal by the plaintiff, Frederick M. Voorhees, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of December, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term.

<p>Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1911, upon the verdict of a jury for $5,200, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Mortgage —foreclosure — rents and profits in hands of receiver — marshaling assets—respective rights of purchaser and second mortgagee in rents and profits—lien of second mortgagee on surplus — interest earned by receiver—interest payable by purchaser on foreclosure.</p> <p>Rents and profits of mortgaged lands in the hands of a receiver are applicable to the payment of the mortgage debt and costs of foreclosure if the proceeds of the sale are insufficient.</p> <p>A surplus in the hands of a receiver after the satisfaction of a first mortgage represents the mortgaged estate, and that part of the surplus consisting of rents due after the purchaser on foreclosure makes demand for possession under his deed belongs absolutely to him.</p> <p>So, too, rents payable in advance and collected by the receiver, but extending beyond the date of the purchaser’s demand for possession, should be apportioned to him.</p> <p>A surplus existing after the foreclosure of a first mortgage should be applied to the satisfaction of a second mortgage, for as that lien is cut off by the foreclosure it is transferred equitably to the surplus.</p> <p>The purchaser on the foreclosure of a first mortgage and the holder of a second mortgage are not creditors of the same debtor. Hence, although the second mortgagee has other security for his debt, the purchaser on the foreclosure of the first mortgage cannot contend that the hen of the second mortgage does not attach to the surplus, for the equitable rule of marshaling securities applies only where two or more persons are creditors of the same debtor.</p> <p>Surplus rents and profits in the hands of a receiver after the foreclosure and satisfaction of a first mortgage represent the mortgaged premises and are subject to the lien of a second mortgage; they should not go to the first mortgagee, who bid in the lands on foreclosure. Especially is this so where the order appointing the receiver directed him to hold the surplus subject to the further order of the court,</p> <p>Where an order directed the receiver on foreclosure to deposit rents and profits with a certain depositary, he should pay to the purchaser only such interest as he actually received, not the legal rate.</p> <p>A purchaser on foreclosure must pay interest at the legal rate upon any part of the purchase money unpaid after it became due under the terms of sale, whether or no he takes possession.</p>

<p>Bailment — action to recover moneys from depositary — evidence not showing accord and satisfaction — account stated.</p> <p>Action to recover abalance of moneys deposited with the defendants to be accounted for by them. ■ Evidence examined, and held, insufficient to establish an accord and satisfaction, and that the jury would have been justified in finding that the plaintiff was not indebted to the defendants. The rendition of an account does not make an account stated, and the failure to object only raises a presumption which may be rebutted by proof of any circumstances tending to a contrary conclusion.</p>

<p>Appeal by the defendant, John E. Schultz, from a judgment of the Court of Special Sessions of the city of New York, rendered against the defendant on the 12th day of May, .1911, convicting him of the crime of usury in violating section 314 of the Banking Law.</p>

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, the Hedden Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of June, 1911, upon the verdict of a jury for $T50, and also from an order entered in said clerk’s office on the 1st day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, the Staten Island Shipbuilding Company, from an order of the Supreme Court, made at the Richmond Trial Term and entered in the office of the clerk of the county of Richmond on the 28th day of March, 1911, granting the defendant’s motion to set aside a verdict in favor of the plaintiff and for a new trial on the ground that the verdict was contrary to law.</p>

Appeal by the defendants, the F. W. Carlin Construction Company and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 7th day of June, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, John Leap, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of December, 1911, dismissing the complaint for failure to prosecute.

<p>Principal and agent—broker’s action for commissions — corporation— powers—authority of agents—notice.</p> <p>The plaintiffs in an action against defendant, a corporation, alleged that they had entered into an agreement whereby the defendant agreed to pay them a commission of ten per cent on the transaction, provided they produced a purchaser for defendant’s mill and quarry and the personal property connected therewith; that the plaintiffs had performed all of the conditions on their part, and that the defendant had refused to pay the commission. It was not alleged that the defendant was the owner of the property. It appeared upon the trial that the property in question belonged to the president of the corporation personally at the time of the making of the alleged contract, that this was known to the plaintiffs, and that the corporation was not organized to deal in real ' estate.</p> <p>Held, that the plaintiffs failed to establish the cause of action alleged, and that, if they made any contract for commissions, they made it with the president of the corporation personally.</p> <p>It is not within the apparent authority of a manufacturing corporation to sell its plant and machinery.</p> <p>Thus, the president of such a corporation cannot bind it by an agreement made in behalf of a corporation with brokers to sell his individual property.</p> <p>It can never be presumed that the agent of a corporation has authority to transact business not authorized by the charter of the corporation.</p> <p>Persons dealing with corporations are bound to take notice of the limitations upon the powers of the agents of such corporations.</p>

<p>Appeal by the defendant, The Saratoga and Washington Fire Insurance Company of Saratoga and Washington Counties, from a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 13th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Samuel M. Barley, from a judgment of the County Court of Nassau county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of June, 1911, pursuant to an order of said County Court entered in said clerk’s office on the same day, reversing a judgment of a Justice’s Court in favor of the defendant, and also (as stated in said notice of appeal) from the said order directing the entry of the judgment appealed from.</p>

Appeal by the defendant, Louis Friedman, from a judgment of the County Court of Queens county, rendered against the defendant on the 6th day of July, 1910, convicting him of the crimes of burglary in the third degree and grand larceny in the first degree, and also from an order entered in said clerk’s office on the 25th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Mortgage — conveyance of part of mortgaged lands — release of remaining, lands from lien of mortgage — equity — when rule as to marshaling assets inequitable.</p> <p>Where a mortgagor conyeys part of the mortgaged premises covenanting . that it is free from .incumbrances there is an implied agreement that the remaining portion shall be devoted to the payment of the mortgage. If the mortgagee, knowing the facts, releases the remaining land there is a discharge of the mortgage to the extent of the value of the land released. But this equitable rule of marshaling assets is not applied if it-will injure the mortgagee. 0</p> <p>R., owning two lots covered by a single mortgage, exchanged one of them for lands owned by K., both parties covenanting that the lands were to be free from incumbrances. R. refused to release a mortgage on the lot conveyed owing to the fact that the lands conveyed by K. were covered by a mortgage which was not released. Subsequently K. became insolvent and its real estate subject to the hen of judgments. R. conveyed the remaining lot owned by it to C. and the mortgagee assigned the mortgage thereon to the plaintiff while the grantee procured a release of the mortgage on the lands conveyed by K. to R., whereupon the plaintiff released the mortgage on the lot conveyed to C. In a suit by the plaintiff to foreclose the mortgage on the lot conveyed, on which the creditors of K. had acquired liens by the entry of judgments,</p> <p>Held, that under the circumstances it would be inequitable to apply the doctrine aforesaid and that the plaintiff was entitled to a foreclosure sale as against the judgment creditors of K.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 11th day of September, 1911, directed to James H. Cocks and" others, constituting the board of supervisors of the county of Nassau, State of New York, commanding them to certify and return to the office of the clerk of the county of Nassau all and singular their proceedings had in removing the relator from office:</p>

Appeal by the defendant, Peter H. Von Kampen, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 10th day of December, 1910, after trial before the court without a jury.

Appeal by the defendant, The Village of Port Chester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of .the clerk of the county of Westchester on the 2d day of March, 1911, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Practice — when reply ordered — contract — when lex contract! controls — foreign law — presumption that common law is in force — judicial notice of treaty.</p> <p>As a general rule when new matter set forth in a plea in bar is of such a character that, if true, it will constitute a complete defense to the action unless in some manner it is avoided, it will simplify the issue and prevent surprise at the trial if a reply is ordered pursuant to section 516 of the Code of Civil Procedure showing the grounds of avoidance, if such exist; but no absolute rule can be formulated applicable to all cases in accordance with which such motion should be granted or denied.</p> <p>Where, in an action by an employee of the defendant, a German steamship company, to recover for personal injuries, alleged to have been caused by reason of a defective windlass, the defendant admits the employment of the plaintiff and his injury under circumstances which would render the defendant hable except for certain provisions of the German law which are pleaded, the statement of the provisions of the foreign law must be deemed a statement of issuable facts and a motion by the defendant to compel a reply should be granted.</p> <p>In the absence of proof of what the foreign law is, our own law will be followed.</p> <p>A presumption that the common law is in force where the transaction occurred is indulged in by our courts only in reference to England and those of our sister States which have taken the common law from England.</p> <p>It seems, that where the performance of a contract made in Germany for services on a vessel is to commence at Hamburg but is not to be completed until the return of the vessel to that port, the lex loci contractus will control.</p> <p>The court may take judicial notice of a treaty between the United States and Germany.</p>

<p>Appeal from an order, entered on the 12th day of December, 1911, denying the plaintiff’s motion for an injunction pendente lite.</p>

<p> Appeal—time cannot be extended. </p>

<p>Appeal from an order, entered on the 22d day of November, 1911, directing the plaintiff to serve a bill of particulars.</p>

<p>Appeal from an order entered on the 14th day of October, 1911, granting the defendants’ motion to dismiss for failure to prosecute.</p>

Reargument of an appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial. (See 146 App. Div. 746.)

<p>Appeal from a judgment entered on the 11th day of May, 1911, directing a conveyance of real estate and an accounting of the rents.</p> <p>Judgment affirmed, with costs, on opinion of McCall, J.</p>

<p> Mortgage —foreclosure. </p>

Appeal by the plaintiff from an interlocutory judgment of the Special Term, entered in the office of the clerk of the county of Kings on the 21st day of November, 1910.

<p>Railroad—master and servant — negligence — injury to motorman — contributory negligence.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 12th day of April, 1911, and from an order denying a motion for a new trial. Judgment and order affirmed, with costs. Ho opinion. Jenks, P. J., Carr, Woodward and Rich, JJ., concurred; Thomas, J., read for reversal.

Action to recover alleged loss on barrels of “sheep guts” shipped from Constantinople, Turkey, to Buffalo, New York, alleging that the same were damaged in transit.

Appeal by the defendants, Alice B. Pettit and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk-of the county of New York, denying the defendant’s motion for a new trial on the ground of fraud and newly-discovered evidence.

<p> Attorney and client—substitution. </p>

<p>Appeal from part of a judgment entered in the New York county clerk’s office on the 31st day of December, 1911, upon a decision after a trial at Special Term.</p>

<p> Habeas corpus—sufficiency of complaint. </p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 8th day of March, 1911, upon a verdict, and from an order entered on the 7th day of April, 1911, denying a motion for a new trial.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 15th day of May, 1911, after a trial at Special Term, dismissing the complaint upon the merits.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 26th day of January, 1911, after trial at Special Term.</p>

<p> Attachment—moving affidavits. </p>

<p>Motion to certify a question to the Court of Appeals for determination.</p>

<p>Application to resettle an order or for reargument.</p>

Appeal by the defendant from part of a judgment of the Special Term, entered in the office of the clerk of the county of Kings on the 16th day of May, 1911.

Appeals by the petitioners, Charles E. Akin and another, and by Samuel B. Crane, respectively, from orders of the Special Term, entered in the office of the clerk of Putnam county on the 12th day of March, 1912.

Appeal by the plaintiff! from an order entered in the office of the clerk of the county of Kings on the 16th day of November, 1911, denying a motion to vacate an order staying proceedings on the part of the plaintiff herein directed towards the obtaining of a personal judgment against the defendant Abraham Epstein.

Appeal by the defendant from two orders of the Special Term, entered in the office of the clerk of the county of Kings on the 17th day of October and the 14th day of Movember, 1911, respectively.

<p>Appeal by the defendant from two orders of the Special Term, entered in the office of the clerk of the county of Kings on the 17th day of October and the 14th day of Movember, 1911, respectively.</p>