Volume 149 — New York Supplement

In the matter of the judicial settlement of the accounts of the executor, etc., of William Alexander Smith, deceased. Decreed according to opinion.

Application by the state comptroller for an order assessing a tax as of the date of the death of life tenant on an interest passing under the will of William R. Clarkson, deceased.

Motion by state comptroller to have a tax assessed on the remainder of the life estate of Frances Pearsall Field in the residuary estate of Phebe Pearsall, deceased. Decision for comptrollér. .

Application by the State Comptroller to assess a tax on a remainder interest created by the will of Phebe Pearsall, deceased. Assessment ordered conditioned on the petition being amended nunc pro tunc.

<p>Application by the State Comptroller to designate an appraiser to ascertain the value of certain interests passing under the will of Richard S. Ely, deceased.</p>

<p>Habeas corpus for discharge of George H. Gage.</p>

<p>Action by Jessie Boyd against Otto Wissner. Judgment for defendant.</p>

<p>In the matter of the estate of Smith Ely. Application by a trustee to have declared exempt the corpus of a trust fund.</p>

<p>Taxation (§ 879*) — Transfer Taxes — Liability.</p> <p>A grantor created a trust estate by deed providing that the income-should be paid to the cestui for life and at his death that the corpus should be paid to the grantor, but in event of the grantor’s death to the grantor’s next of kin. The deed also reserved the right in the grantor to modify or revoke it. The cestui survived the grantor. Held, that under the tax laws imposing taxes upon transfers in contemplation of death, the corpus of the estate upon the death of the cestui was liable to payment of the transfer taxes, for until the grantor’s death his next of kin had no rights in the property.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. « 1702: Dec. Dig. § 879.*]</p>

<p>Action by one Weingreen against one Michelbacher and others.</p>

Quo warranto by the People, on the relation of Gardner B. Young and others, against Reuben H. Gulvin and others and William S. Moore. Judgment for relators and the last-named respondent.

Suit by Manning Jacob against Henry Schiff to restrain his use of complainant’s portrait for advertising purposes, under the Civil Rights Law, and for damages. On motion to transfer from Equity Term to Common-Law Term, on the ground that the right of complainant to equitable relief and injunction had abated pending the action.

<p>1. Taxation (§ 65*) — Real or Personal Property — Structures on Land of Others — Easements.</p> <p>Where structures are erected by persons not the owners of the land, they become part of the realty, and as such are taxable as the landowners’ property, except where the parties have by agreement created an ownership in the property so attached, separate from the ownership of the fee, or where the fee is subject to easements, and the structures sought to be assessed are appurtenant to the easements and not to the fee.</p> <p>[Ed. Note. — Eor other cases, see Taxation, Cent. Dig. § 150; Dec. Dig. § 65.*]</p> <p>2. Railroads (§ 98*) — Bridges over Streets — Ownership—Construction Expense.</p> <p>The fact that a railroad company had been obliged to meet the larger portion of the expense of constructing bridges to carry streets over its tracks does not give it title to the bridges, which, being erected in the streets, are the property of the city.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 291, 292, 296; Dec. Dig. § 98.*]</p> <p>3. Railroads (§ 94*) — Bridges over Tracks — Payment of Expenses — Authority of- State.</p> <p>The state may compel a railroad company, at its own expense, to eliminate crossings at grade by a depression of its tracks and the erection of bridges to carry streets over its right of way.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 266-273; Dec. Dig. §§ 94.*]</p> <p>4. Taxation (§ 145*) — Railroads—Bridges over Streets — Ownership.</p> <p>Where relator, under different agreements, constructed 58 bridges, carrying as many streets, in the borough of the Bronx over its right of way and tracks, which bridges were located entirely in the street and used by the railroad company only in some cases to support signal apparatus, such bridges belonged to the city and were not taxable to the railroad company as its property, but not so as to a tunnel constructed by the railroad for its exclusive use under a street.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 252, 253; Dec. Dig. § 145.*]</p>

Supplementary proceedings by the Roscoe Lumber Company against Edwin H. Payne. On motion to vacate an order for the examination of the judgment debtor.

<p>In the matter of Bragaw Street, from Skillman Avenue to Borden Avenue, First Ward, Borough of Queens. On motion for taxation of costs.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by John Polacsek against the American Iron & Steel Manufacturing Company. From an order denying a motion to vacate service of summons, defendant appeals.</p>

Action by Carrie A. Eldred against Maria Keenan and another. From an order denying the motion of the named defendant for judgment on the pleadings, she appeals.

William Willett, Joseph Cassidy, and Louis T. Walter, Jr., were convicted of violating the Election Law, and apply for certificates of reasonable doubt. Granted in the cases against Willett and Cassidy, and denied without prejudice in the case of Walter.

Carrie Goodrich was convicted of keeping a disorderly house, and she applies for a certificate of reasonable doubt pending an appeal.

<p>Appeal from Surrogate’s Court, New York County.</p> <p>Judicial settlement of the accounts of Mary J. Odell, as sole surviving testamentary trustee of Lawrence J. Odell, deceased. From an order denying a motion to reopen the hearing before a referee to take and state the account, the trustee appeals.</p>

Action by Isaac Seiler against Julius Klugman. Erom a judgment denying a motion to stay all proceedings until payment of costs incurred in a prior action.

Actions by Nicholas Grunzfelder, Daniel Reynolds, and Leopold Guttag against the Interborough Rapid Transit Company and another. From several orders, denying motions for temporary injunctions, the several plaintiffs appeal.

<p>Pleading (§ 52*) — Complaint—Separate Causes oe Action.</p> <p>Where part of the paragraphs of a complaint referred to representations made prior to February 1, 1913, whereby plaintiff was induced to part with §1,009, and the rest to representations made in April, 1913, whereby plaintiff-was induced to part with §300, the complaint states two separate and distinct causes of action, which should be separately stated and numbered.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 113; Dec. Dig. § 52.*]</p>

<p>Pleading (§ 320*) — Bill of Particulars — Knowledge of Defendant.</p> <p>A defendant is entitled to the particulars which are claimed by the plaintiff to be covered by the general allegations of the complaint, so that the issues may be defined, even though the defendant knows as much about the matter as does the plaintiff.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 972; Dec. Dig. § 320.*]</p>

Action by Iretta Beattie and others, as administrators of Henry Clay Beattie, deceased, against William Meeker and others. Judgment directed for plaintiffs. On April 2, 1892, Luther Meeker and wife gave a mortgage to Beattie on certain land to secure Beattie from liability by reason of his indorsing a note for the accommodation of Meeker to secure a loan from Mary Johnson.

Two summary proceedings to dispossess a tenant by the superintendent of banks, in the name of Adolph Handel, against Benny ICoerner. Final orders in each proceeding for defendant.

<p>Action by the Tenement House Department of the City of New York against Nathan Hutkoff, to recover a penalty. Judgment for plaintiff.</p>

<p>Costs (§ 264*) — Taxation—Appeal by Corporate Degatees.</p> <p>Where an unsuccessful appeal is taken by each of two corporate legatees from a judgment that a bequest to each under the same will was subject to a transfer tax, the respondent may tax a separate bill of cost against each appellant; there being a trial of two separate issues, and it being immaterial that both are determined the same way.</p> <p>[Ed. Note. — Eor other cases, see Costs, Cent. Dig. §§ 1004-1008; Dec. Dig. § 264.*]</p>

<p>Taxation (§ 895*) — Inheritance Tax — Life Estate with Power of Disposition.</p> <p>Where a testator gave all of his property to his wife for her support, maintenance, and use, and that of the children, and upon her death gave what remained to the children and their heirs, forever, 'in assessing the transfer tax the interest given to the' widow should be regarded as a transfer to her of the whole estate, as under Transfer Tax Law (Consol. Laws, c. 60) § 222, providing that taxes upon the transfer of any estate, property, or interest, conditioned, dependent, or determinable, upon the happening of any contingency or future event, by reason of which the fair market value cannot be ascertained at the time of the transfer, shall accrue and become payable when the beneficiaries entitled thereto shall come into actual possession or enjoyment thereof, the possible interests of the children could not be appraised until the. death of the widow, as they might not receive any property, and to assess against the widow only the value of the life estate might result in the bulk of the estate escaping taxation.</p> <p>[Ed. Note. — For other cases, see Taxation,- Cent. Dig. §§ 1714-1721; Dec. Dig. § 895.*]</p>

<p>Bastards (§ 104*) — Rights of Inheritance — Statutes.</p> <p>Under Consol. Laws, c. 13, § 98, providing that if a bastard die, leaving no widow or issue, its mother shall be entitled to the whole of its estate, and if the mother be dead the relatives on the part of the mother shall take as if the deceased had been legitimate, the maternal relatives of deceased, whose mother was a bastard, cannot, where the mother died before deceased, share in the estate of deceased, who left next of kin on the paternal side, as if deceased’s mother had been legitimate.</p> <p>[Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 251, 257-262; Dec. Dig. § 104.*]</p>

Action by the Gotham Raincoat Company against Murray L. Levey. From an order vacating plaintiff’s default upon payment of the taxable costs to date, plaintiff appeals.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Gitzendanner-Muller Company against the Cherouny Printing & Publishing Company. From a City Court order denying plaintiff’s motion for a bill of particulars of defendant’s counterclaim, it appeals.</p>

Action by Samuel Kupferman against Rosanna Batchelor and another. From a City Court order denying defendants’ application for a further bill of particulars, they appeal.

<p>1. Landloed and Tenant (§ 125*) — Leased Pbemises — Suitableness.</p> <p>As between a landlord and tenant of a farm dwelling, where there was no fraud, false representation, or deceit, or an express warranty or covenant to repair, there was no implied warranty that the demised premises were fit for occupation, or for the particular use to which the tenant intended to put them, or that they were in a safe condition for use; but the tenant took at his peril.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent Dig. §§ 441 — 443; Dec. Dig. § 125.*]</p> <p>2. Landloed and Tenant (§ 172*) — “Eviction.”</p> <p>As between a landlord and tenant, an “eviction,” whether actual or constructive, must be due to some wrongful act on the part of the landlord, whereby the tenant is deprived of the beneficial enjoyment of the leased premises.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 695-703 ; Dec. Dig. § 172.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Eviction.]</p>

<p>Attorney and Client (§ 75*) — Substitution of Attorneys — Payment of Compensation.</p> <p>Where the defendants in an action employed an attorney to secure an extension of time to answer, who did secure such extension, though they had a right to substitute another attorney, the order of substitution should not have been made without providing for the compensation of the attorney first employed.</p> <p>[Ed. Note. — -For other cases, see Attorney and Client, Cent. Dig. §§ 110-119; Dec. Dig. § 75.*]</p>

Two summary proceedings by Fmanuel Newman, as agent for owners, against Michael O’Rourke and others. From final orders awarding the possession of two separate buildings, at Nos. 108 and 110 Montague street, borough of Brooklyn, to plaintiff, defendants appeal.

<p>Parent and Child (§ 3*) — Filling Child’s Teeth — Parent’s Liability.</p> <p>The parent cannot be held, on the theory of an implied contract for necessaries, where, unauthorized by him, his infant child goes to a strange dentist, by whom no member of the family had previously been treated, and has his teeth, filled, on a representation that his father will pay.</p> <p>[Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 33-62; Dec. Dig. § 3.*]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Stanley Hoisting Company against the Capitol Realty & Construction Company. From an order denying defendant’s motion to vacate an order requiring it to pay plaintiff $73 disbursements and expenses incurred as a result of the adjournment of a trial at defendant’s request, defendant company appeals.</p>

Judicial settlement of the estate of Theodore C. Wallace, deceased. Testator’s widow appeals from an order assessing a tax of $700 on her alleged interest in the estate.

Judicial settlement of the estate of John La Farge, deceased. From an order fixing the transfer tax on a part of the estate, consisting of property located in New York, the executrix appeals.

Judicial settlement of the estate of Tirso Mesa y Hernandez. Proceeding for appraisal of the transfer tax on property belonging to the estate located in New York. Tax ordered assessed on the theory that decedent was a nonresident.

<p>Appeal from Special Term, New York County.</p> <p>Action by the Lamson Company against Butler & Hadaren, Incorporated, and others. From an order denying defendants’ motion to vacate an order for examination of defendants before trial and directing the production of books and papers, defendants appeal.</p>

Action by Mae A. Sullivan, an infant, by her guardian ad litem, Philip J. Termini, against Arthur I. Hoe. From an order granting the motion of the guardian ad litem to be relieved from acting as such, defendant appeals.

<p>Mandamus (§ 76*) — Reinstatement of Teacher.</p> <p>Where relator was dismissed by the board of education of the city of New York because of lack of work, and no one was appointed in his place, his name being placed in the proper position on the civil service list, he was not entitled to mandamus to compel his reinstatement.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 158-160; Dec. Dig. § 76.*]</p>

Action by Frank H. Tuthill and others against Margaret E. Forbes and others. From an order granting one plaintiff leave to sue as a poor person, defendants appeal.

<p>1. Wills (§ 439*) — Construction—Intent of Testator.</p> <p>Where the language of a will is plain, effect must be given to its import ; but when ambiguous the intention of the testator, as drawn from the whole will and the surrounding circumstances, governs.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*]</p> <p>2. Executors and Administrators (§ 138*) — Power of Executors — Sale of Real Property.</p> <p>Where a will vested in the executrix power to sell any real property and made her trustee thereof, the power of sale should not be exercised, there being sufficient personalty to discharge all debts and the expenses of administration, for the only purpose would be to give the executrix commissions.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 560-566, 568-575; Dec. Dig. § 138.*]</p> <p>3. Wills (§ 634*) — Construction—Interest Devised.</p> <p>Where a testator devised land to his daughters for life, with remainder to their heirs, the heirs of the life tenants in being at the death of the testator take the fee, their interest being vested.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*]</p> <p>4. Wills (§ 634*) — Construction—Interest Devised.</p> <p>Where a testator devised land to his daughter for life, and provided that at her death he gave the land to his heirs, the will reciting that it was the purpose of the testator that his estate should not pass from his heirs, and that his daughter was without issue, the daughter takes a life estate; the fee going to those heirs of the testator in being at the time of the daughter’s death and not vesting until then.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*]</p> <p>5. Wtills (§ 601*) — Construction—Interest Devised.</p> <p>Where a testator devised property absolutely by one clause of his will, he cannot, by a subsequent clause, impose conditions upon alienation of the property.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1340-1350, 1608; Dec. Dig. § 601.*]</p> <p>6. Trusts (§ 25*) — Creation—Statute.</p> <p>To create a valid trust it is not necessary to follow the words of Real Property Law (Consol. Laws, c. 50) § 96, which defines the purposes for which an express trust may be created.</p> <p>[Ed. Note. — For other cases, see Trusts, Ctent. Dig. §§ 34-37; Dec. Dig. § 25.*]</p> <p>7. Wills (§ 671*) — Creation—Essentials—“Express Trust.”</p> <p>A testator gave to the daughter whom he named as executrix one-fourth of his estate absolutely, that gift being followed by devises and bequest of the use, income, and profit for life of similar interests in favor of the testator’s other three daughters. There were also provisions for sale of the real estate for maintenance of the life tenants whenever deemed necessary in the discretion .of the trustee. The will named the executrix as trustee. Held that, the essentials of an express trust being a trustee and an estate devised to him and a beneficiary, the will created a trust in favor of the three daughters given life estates; hence, it being the obvious intent of the testator that the trustee should control the property, she is entitled to possession, and the other three daughters only to the proceeds of the property.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1577, 1578, 1586; Dec. Dig. § 671.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Express Trust.]</p>

<p>Attorney and Client (§ 58*) — Disbarment—Censure.</p> <p>In proceeding against an attorney on charges o£ professional misconduct, evidence held to require a censure.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 76-78; Dec. Dig. § 58.*]</p>

<p>In the matter of the estate of Bettie Pulver. Letters of administration granted to the resident alien brother of deceased.</p>

<p>1. Landlord and Tenant (§ 122*) — Lease oe Store in One-Stoby Building —Advertising on Rooe.</p> <p>In case of a one-story building, containing several stores, with a continuous roof over all, the part of the roof over one. of the stores, designed exclusively for its benefit, is part of the premises demised by a lease of such store with its basement, which in the absence of the covenant tlie lessee must repair, and on which, in the absence of provision to the contrary, the tenant may advertise his business, so that, he being merely limited by the lease to such signs as the landlord may approve, and the right to use the roof for advertising not being reserved to the landlord, the landlord may not so use it, or permit others to do so.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 435; Dec. Dig. § 122.*]</p> <p>2. Injunction (§ 48*) — Continuing Tbespass.</p> <p>The trespass, by erection of advertising signs on the roof of a lessee’s store, being continuous, injunction may be had.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent.' Dig. g 101; Dec. Dig. § 48.*]</p>

Action by William I. Cohn and another against the Standard Mail Order Company, a corporation. From an order directing examination of defendant before trial, it appeals.

<p>Appeal from Special Term, Kings County.</p> <p>Action by Morris Schneider against William W. Farley, as State Commissioner of Excise. Judgment for plaintiff, and defendant appeals.</p>

Mandamus by the People, on relation of John Mulhern, against the Independent Dock 'Builders’ Benevolent Union of Greater New York and Vicinity. From an order denying an application for a peremptory or alternative writ, relator appeals.

Proceeding to assess the transfer tax on the estate of John C. Klatzl, deceased. From an order assessing the tax, the executrices and the state comptroller appeal.

<p>Charities (§ 50*) — Enforcement—Statute. •</p> <p>Where there is no uncertainty as to the beneficiaries or the purposes of a charitable trust, and no showing that the trustee is remiss in his duties or in doubt as to what they are, the trustee cannot be compelled, on motion of the Attorney General, to submit to the court a scheme or plan for the distribution of the funds of the trust, notwithstanding the duty imposed upon the Attorney General under Personal Property Law (Con-sol. Laws, e. 41) § 12, to represent the beneficiaries and enforce such, trusts.</p> <p>[Ed. Note. — For other cases, see Charities, Cent. Dig. §§ 96-99; Dec. Dig. § 50.*]</p>

Action by Richard Clemens, Jr., an infant, by Richard Clemens, his guardian ad litem, against Jacob Bretz. From a judgment dismissing the complaint at the close of the entire case, and from an order denying a new trial, plaintiff appeals.

Action by the Vacuna Sales Company against the Regent Theatre. Erom an order denying a motion to open a default judgment .in the Municipal Court, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Hyman Stein and another against Charles Cohen and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by John F. Cleary against Louis Ott. From an order granting defendant’s motion for a bill of particulars, plaintiff appeals.</p>

<p>Corporations (§ 642*) — Foreign Corporations — Doing Business Within State.</p> <p>Evidence that a foreign corporation had only one salesman in the state, who took orders and transmitted them to the corporation, which, if it accepted the orders, filled them and received payment in its home state) and remitted his commission to the salesman, and that the salesman sometimes adjusted disputes between the company and its customers, and had leased a telephone in the joint names of himself and the corporation, does not establish that the corporation is doing business in the state, so as to be required to take out a license, under General Corporation Law (Consol. Laws, c. 23) §§ 15, 16, and General Tax Law (Consol. Laws, c. 60) § 181.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.*]</p>

Action by Pincus Emanuel against Thomas Misicki and others. From an order setting aside the verdict of a jury and granting a new trial, plaintiff appeals.

<p>Appeal from City Court óf New York, Trial Term. •</p> <p>Action by John H. Springer against Harry Stevens. From an order denying a motion to set aside the verdict for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by the People against the Metier mo tt Dairy Company for a penalty for violation of the Agricultural Law (Consol. Laws, c. 1) in exposing for sale adulterated milk. From a judgment for the People,defendant appeals.</p>

<p>Replevin (§ 107*) — Alternative Judgment.</p> <p>In replevin, it was error to award judgment for the plaintiff in conversion for the value of the property; and the judgment should have awarded plaintiff the chattels sued for, or their value.</p> <p>[Ed. Note. — For other cases, see Replevin, Cent. Dig. §§ 424-428; Dec. Dig. § 107.*]</p>

<p>Courts (§ 189*) — Municipal Court — Continuance—Absence oe Counsel— Showing.</p> <p>An affidavit for the continuance of a case in the Municipal Court, which stated that the defendant’s attorney was then actually engaged in the trial of a cause in the City Court, and that plaintiff’s attorney had been told not to get ready for trial on that day, is sufficient to entitle the defendant to have the case marked ready, subject to engagement of counsel, or adjourned without costs, and a judgment rendered by default in such a case will be vacated.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]</p>

<p>Appeal and Error (§ 1048*) — Prejudicial Error — Improper Cross-Examination.</p> <p>It was reversible error to permit plaintiff to be asked on cross-examination, whether he had ever been arrested for smuggling, where the case resolved itself into a question of veracity between plaintiff and defendant, and, though plaintiff’s answers to such questions indicated his innocence, they were likely to have seriously prejudiced him in the eyes of the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.*]</p>

<p>Cabbiebs (§ 94*) — Gabkiage of Goods — Evidence—Deliveby to Cabbies.</p> <p>In an action for the value of goods delivered to a carrier for transportation, where the "only evidence of delivery was a duplicate receipt, which a truckman for plaintiffs testified was given him after the loss of the original receipt, by some unidentified person at the carrier’s dock, and which was stamped, but not written upon, there can be no recovery, since there is no evidence that the person who issued the duplicate receipt was an authorized agent of the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 307-395, 456; Dec. Dig. § 94.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Bernard L. Miller against the Valuable Raincoat Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by S. F. Zaloom & Co. against Horatio Craig. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Louis Claster against Abraham Simon and others. From a judgment for plaintiff, defendants appeal.</p>

Action by Max Nadler and another, doing business as Nadler Sr Rebhun, against the A. Epstein Novelty Company and Albert Epstein. Erom a Municipal Court order in favor of defendants, plaintiffs appeal. Reversed as to Albert Epstein individually, and judgment rendered against him.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Federal Sign System against Joseph Berger. From a judgment for defendant, plaintiff appeals.</p>

Action by Max Markowitz against the Empire City Iron Works. From a judgment in favor of plaintiff, after a trial before a judge without a jury, defendant appeals.

<p>Landlord and Tenant- (§ 164*) — Default—Proof of Cause of Action.</p> <p>In an action by a tenant against a landlord, where the landlord defaulted, and plaintiff proved upon the inquest that he had notified the landlord’s agent that the ceiling in a toilet used hy the tenant and other tenants was in bad condition, but that it was not repaired, and that thereafter the ceiling fell, inflicting the injuries complained of, a judgment dismissing the action upon the merits was clearly erroneous.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ . 630-637, 639, 641; Dec. Dig. § 164.*]</p>

Proceeding by the City of New York for discontinuing and closing West 151st Street between Riverside Drive and the Hudson River. On motion by property owners against whom assessments for the expense of discontinuance were laid to vacate the proceedings.

Action by the Houck Manufacturing Company against the Standard Screw Products Company and another. On motion by defendants to vacate a warrant of attachment, obtained on the ground that defendant Wellington H. Evans was a nonresident.

<p>1. Vendor and Purchaser (§ 129*) — Title oe Vendor — Defects in Prior Conveyance — Description.</p> <p>■ Where a deed in a vendor’s chain of title described one course .as beginning at the southeast corner of the premises, running thence northerly parallel with a named street to another street, whereas such course would run westerly, the word “northerly" is a palpable error, and does not render the title defective.</p> <p>[Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§</p> <p>238-244, 249; Dec. Dig. § 129.*]</p> <p>2. Vendor and Purchaser (§ 129*) — Title of Vendor — Defects in Prior Conveyance — Description.</p> <p>Where a deed in a vendor’s chain of title described a course as beginning on the north line of a main street and running “thence westerly</p> <p>-with the northerly line" of the street, the description is complete,</p> <p>without any word being supplied to fill the blank, and does not constitute a defect in the vendor’s title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§</p> <p>238-244, 249; Dec. Dig. § 129.*]</p>

Action by Albert Davis and others, doing business as D. Davis & Sons, against Wells Fargo & Co. From a judgment for plaintiffs after a trial by the court without a jury, defendant appeals.

Action by Henry A. McConkey against the Tehuantepec Rubber Culture Company. From a judgment dismissing the complaint after a trial by the judge without a jury, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by William H. Cagney and another against William C. Daly. From a judgment for plaintiffs, defendant appeals.</p>

Appeals from Municipal Court, Borough of Manhattan, Ninth District. Separate actions by the Chase-Hackley Piano Company against John H. Griifen and against Leroy Wilkins. From judgments for defendants, dismissing the complaints, plaintiff appeals.

<p>Action by Local Union No. 1006 against the Brotherhood of Painters, Decorators, and Paperhangers of America. On motion of the plaintiff for temporary injunction.</p>

Action for divorce by Benjamin T. Hock against Kate E. Hock. On motion by the defendant for an order requiring the plaintiff to pay for a transcript of the minutes of the trial, to be used in determining a defendant’s motion for a new trial and the setting aside of a special verdict against her.

<p>1. Municipal Corporations (§ 191*) — Officers and Employes — Compensation — “Public Officer.”</p> <p>An inspector of foods in the department of health of the. city of New York, appointed by such board pursuant to Greater New York Charter (Laws 1901, c. 466) § 1181, and who worked under a person who acted under the chief of the division of food inspection, was not a “public officer,” though he took an oath of office before the assistant chief clerk, which was filed with the board of health, especially as such oath did not satisfy the requirements of section 1548, requiring persons elected or appointed to a city office to take an oath before the mayor or any judge of a court of record, which oath must be filed with the city clerk; and even though he was a public officer, where he left the city for several months on private business without obtaining leave of absence, and upon his return applied for leave of absence, which was granted without pay, he could not recover compensation for the time of his absence, in view of section 1543, authorizing any head of a department to make ratable deductions from the salaries and wages of employés and subordinates on account of absences from duty without leave.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. «§ 525-529; Dec. Dig. § 191.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Officer.]</p> <p>2. Municipal Corporations (§ 162*) — Officers and Employes — Compensation.</p> <p>Under Greater New York Charter (Laws 1901, c. 466) § 1569b, as added by Laws 1912, c. 251, providing that the head of a city department, or other officer, board, or body vested with the power of appointment ana employment, may, upon application of any officer or employe of such department, office, or board, grant to such officer or employe a leave of absence from duty without pay, where a city employé left the city for several months without leave of absence, and upon his return applied for leave of absence, which was granted him without pay, he could not recover his salary for the time he was absent, on the theory that, not having applied for leave of absence without pay, the leave of absence granted was not in conformity with the law, since, if the leave granted was not lawful, no leave of absence had been granted, and he might be dismissed for willful abandonment of his duties without permission.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dec. Dig. § 162.*]</p>

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

In the matter of the judicial settlement of the account of proceedings of Lizzie D. Affleck and another, as trustees, etc., of James Affleck, deceased.

<p>Action by the American Slicing Machine Company against Maxwell Corkedale.</p>

<p>In the matter of the application of the Board of Water Supply of the City of New York under section 42, c. 724, Laws "1905, as amended by section 9, c. 314, Laws 1906. Business Damage Commission No. 3; John D. W. Du Mond, claimant.</p>

<p>Action by Leopold Brand against Frank Hasbrouck, as Superintendent of Insurance of the State of New York.</p>

Action by Olive C. Buckley against Herman L. Collyer. With this case has been consolidated in this court cases bearing titles as follows: Bertha Makman v. Independent Order Free Sons of Judah; Sophia Schraemli v. Prudential Ins. Co.; New York Realty Credit Ass'n v. Leroy Coventry; Same v. Zealie Van Raalte: Barclay Ball v. Sarah E. Elliott; National Surety Co. v. Edmund K. Stallo; Edmund Coffin v. United Mfg. Trimming Co.

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

Action by B. Charles Canet against Higbie Smith and others, From an order (149 N. Y. Supp. 101), vacating an order for examination of defendants before trial, plaintiff appeals. Order of vacation reversed, and order for examination modified. J. J. Alexander, of New York City, for appellant. G. E. Blackwell, of New York City, for respondents.

<p>Supplementary proceedings by Charles S. Gladden against Robert H. Archbold, impleaded with Alice H. Archbold, judgment debtor.</p>

<p>Action by C. Ludwig Baumann & Co., Brooklyn, against Amelia Baumann and other's.</p>

<p>Action by Caroline V. Cramer and another against the Grand Rapids Showcase Company.</p>

<p>Action by Luigi Cuoco and another against the Classon Building Company and another.</p>

<p>Action by the Curtis Bros. Lumber Company against the Thrall Construction Company and others.</p>

<p>Action by Edwin L. Davis against the Gas Engine & Power Company and another consolidated.</p>

<p>Action by Luigi Cuoco, and another against the Classon Building Company and another.</p>

<p>Action by Francisco Dioguardi against the Nassau Electric Railroad Company~</p>

<p>Action by Annie Duddy, as administratrix, etc., of Michael Duddy, deceased, against the Standard Oil Company of New York and the Petroleum Iron Works Company.</p>

<p>Action by Carrie A. Eldred against Maria Keenan and James Keenan.</p>

<p>Action by David Eilau against Henrietta Eilau and another.</p>

<p>Action by Elizabeth Fatum against the Brooklyn, Queens County & Suburban Railroad Company.</p>

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

<p>Action by the First Commercial Bank of Pontiac against Moses M. Valentine and another.</p>

<p>Action by William B. Franklin and another against Joseph H. Hoadley and others, impleaded with Joseph Leiter. E. L. Mooney, of New York City, for appellants. C. T. Terry, of New York City, for respondents.</p>

<p>Action by Herbert H. Gibbs against the Knickerbocker Savings & Loan Company.</p>

<p>Supplementary proceedings by Charles S. Gladden against Robert H. Archbold and another.</p>

Action by Joseph Hall and others against Morris Garfinkel. From an order denying the motion of David Rosing to intervene, he appeals. Reversed. A. II. Townley, of New York City, for appellant. Clinton H. Blake, Jr., of New York City, for respondent.

<p>Action by Eliza Heinrich, as executrix, etc., of Jacob Heinrich, deceased, against the First National Bank of Middletown, N. Y.</p>

<p>~?Action by Willis S. Housel, as administrator, etc., against the Lehigh Valley Railroad Company. -</p>

Action by the Jesse French & Sons Piano Company ngainst Pierina Ingrassia. From a judgment awarding defendant $142 interest and costs, consisting of $20 for costs awarded defendant in a previous action and $122 money alleged to háve been paid plaintiff's a~signor on account of tbe puichase of a piano, which contract defendant had rescinded because of infancy, plaintiff appeals. Modified and affirmed. Henry A. Heiser, of New York City, for appellant.

Action by Charles Kaye against Emil Stern. From a determination of the Appellate Term, affirming a )udg- ment for plaintiff, defendant appeals. Affirmed. See, also, 144 N. Y. Supp. 160. A. B. Nathan, of New York City, for appellant. B. M. Kaye, of New York City, for respondent.

Action by William J. Kindgen, as receiver, etc., against Letitia M. Craig and others. From an order denying defendants' motion to open their default in service of an answer, they appeal. Reversed, and motion granted on terms. See, also, 162 App. Div. 503, 14'~' N. Y. Supp. 571; 149 N. Y. Supp. 1090. Arthur S. Levy, of New York City, for appellants. John C. Gulick, of New York City, for respondent.

<p>Action by Uriah H. Lewis against the New York, Ontario & Western Railway Company.</p>

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

<p>Action by Uriah H. Lewis against the New York, Ontario & Western Railway Company.</p>

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

<p>Action by Fred M. Miller against the Solvay Process Company.</p>

<p>Action by the Midtown Contracting Company against Louis Goldsticker and another.</p>

<p>Action by Mamie Mills against Maurice Beck.</p>

<p>Action by Charles H. Mills against the New York, New Haven & Hartford Railroad Company.</p>

<p>Action by Johaniia Miller Moosman, as administratrix, etc., of Jacob Henry Moosman, deceased, against the New York, New Haven & Hartford Railroad Company.</p>

<p>Action by Edward Mirr, an infant, by Mary Mirr, his guardian ad litem, against Robert S. McCreery.</p>

<p>In the matter of Agnes K. Mulligan.</p>

<p>Action by Patrick J. Neagle against Adelbert Hudson.</p>

<p>Action by the Oceanic Investing dompany against the Twenty-Eighth Street & Seventh Avenue Realty Company and pthers. F. Bien, of New York City, for appellants. H. M. Bellinger, Jr., of New York City, for respondent.</p>

<p>Action by Vito Pante and another against the Christian Jacobs Fireproofing & Concrete Company, Incorporated. V. H. Smith, of New York City, for appellants. J. W. . Bryant, of New York City, for respondent.</p>

<p>t'roceeding by the People of the State of New York, on the relation of George B. Hawthorne, against Rhinelander Waldo, as Police Commissioner of the City of New York.</p>

<p>Proceeding by the People of the State of New York, on the relation of 0. B. Young and others, against Reuben H. Gulvin and others.</p>

<p>Proceeding by the People, of the State of New York, on the relation of Isidor Weiss, against the Philip Bernstein Sick & Benefit Society.</p>

Action by Adele Plinus against Charles S. Fieldsteel. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted. Otto A. Ginsberg, of New York City, for appellant. Nathaniel Oholoney, of New York City, for respondent.

<p>Action by Henry Pollak against the Dodge Manufacturing Company. L. C. Ferguson, of New York City, for appellnnt. hi. B. Clarke, of New York City, for respondent.</p>

<p>Action by Michael Pratt against Henry D. McKee and another, etc.</p>

<p>Action by Mary B. Raymond against the Supreme Lodge Knights of Pythias of the World.</p>

<p>Action by David Rothschild against the Inter-borough Rapid Transit Company.</p>

<p>Action by Perle W. Root against John M. Brainard.</p>

<p>Action by John Schaefer against the Union Railway Company of New York City.</p>

<p>Action by William Rupp against Henry Steiner and others. F. Moss, of New York City, for appellants. J. F. McIntyre, of New York City, for respondent.</p>

<p>Action by the Skeele Coal Company against Charles T. Baker. N. W. Hacker, of New York City, for appellant. W. J. Dawley, o~ New York City, for respondent.</p>

<p>Action by Edmund K. Stab against Arthur H. Jones. Chas. Haidane, of New York City, for appellant.</p>

<p>Action by Clement H. Smith and another against Susan G. Steers, impleaded. 3. Burt, Jr., of New York City, for appellant. 0. Hahn, of New York City, for respondent.</p>

<p>Action by John C. Stinner against the Union Railway Company of New York City. B. H. Ames, of New York City, for appellant. W. B. Dobbs, of New York City, for respondent.</p>

<p>Action by Julius Strauss against Robert Y. Slater and others.</p>

<p>Action by the Tisdale Lumber Company against the Read Realty Company and another.</p>

Action by the United States Asphalt Refining Company against the Texas Company. From an order requiring a bill of particulars, defendant appeals. Modified and affirmed. See, also, 149 N. Y. Supp. 1115. (uy Stevens, of New York City, and James L. Nesbitt, of Brooklyn, for, appellant. Jacob Newman, of New York City (Nathan Ballin, of New York City, of counsel), for respondent.

<p>Action by Edward Van Fradenburgh and another against the Home Mutual Fire Insurance Company of Broome County, N. V.</p>

<p>Action by the Vulcan Detinning Company against Franz A. Assmann and others. C. H. Ayres, of New York City, for appellants. ]P. S. Seidman, of New York City, for respondent.</p>

<p>Acticea by James H. Warner against Edwin D. Morgan and another. R. Krause, of New York City, for appellant. C. F. Brown, of New York City, for respondents.</p>

In the matter of the judicial settlement of the accounts of Henry R. 0. Watson, as sole surviving executor, etc., of William Watson, deceased.