Volume 150 — New York Supplement

<p>Application for certiorari by John Burke against the Police Commissioners of the City of Elmira, and for a stay of execution of the decision of the Police Commissioners pending final hearing. Writ of certiorari issued, and stay denied.</p>

<p>Fraud (§ 25*)—Misrepresentation—Right to Rely upon.</p> <p>While a party who makes an independent investigation cannot thereafter recover for misrepresentations made on the sale of an article, a person who through misrepresentation is induced to make an expensive and protracted investigation, but did not purchase, may recover for the injuries sustained by reason of such representations.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 24; Dec. Dig. § 25.*]</p>

<p>Landlord and Tenant (§ 192*)—Eviction—Fire—Liability for Rent— Rent Payable in Advance.</p> <p>Where under a lease rent was payable on the 1st day of each month in advance, and the rent for January, 1914, was due on January 1st, the premises having been destroyed by fire on the following day, and the tenant having moved out, he was nevertheless liable for the January rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 777, 778, 781, 784-786; Dec. Dig. § 192.*]</p>

Action by the Georgia Building Company and others against Cyril H. Burdett and others. On motion by defendant for judgment on the pleadings, and on plaintiffs’ demurrer to the separate defense and counterclaim in the answer, brought on as a contested motion. Defendants’ motion for judgment denied, and plaintiffs’ demurrer overruled.

Action by the Westminster Presbyterian Church of West Twenty-Third Street against the Trustees of the Presbytery of New York. From an order denying plaintiff’s motion for judgment on the pleadings, and from an order granting defendant leave to serve a second supplementary answer, plaintiff appeals. Order denying motion for judgment affirmed, order granting motion to serve supplementary answer reversed, and motion denied.

<p>1. Master and Servant (§ 41*)—Breach of Employment Contract—Computation of Damages.</p> <p>Where, in a salesman’s action for breach of an employment contract, which has been breached by his employer by discharging him, it appears that plaintiff made two trips, and also made sales while in the city, it is error to estimate his damages only on the basis of commissions earned on the first trip, without taking into account the second trip and his city sales.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 12, 50-53; Dec. Dig. § 41.*]</p> <p>2. Master and Servant (§ 43*)—Breach of Employment Contract—Damages Recoverable—Question for Jury.</p> <p>In a salesman’s action for the value to him- of a contract breached by his employer, it was error to instruct that plaintiff, if entitled to recover, was entitled to $280; the question of the damages to be awarded being for the jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 57, 58; Dec. Dig. § 43.*]</p>

<p>Infants (§ 57*)—Guaranty—Ratification.</p> <p>Where an infant executed a written contract of guaranty, and after he became of age wrote asking that an itemized bill be sent to him, there was no such “ratification” as to make him liable upon the guaranty.</p> <p>[Ed. Note.—For other cases, see Infants, Gent. Dig. §§ 136-148, 151; Dec. Dig. §' 57.*]</p>

Action by the Ajax Grieb Rubber Company against Raymond W. Marshall. From a judgment for defendant, and from an order denying plaintiff’s motion to vacate and set aside the judgment as contrary to the evidence and the law, plaintiff appeals. Reversed, and judgment awarded plaintiff.

Action by Harvey W. Hebberd against the American Sheet Metal Lath Company, Incorporated. Verdict for plaintiff. From denial of motion to set aside the verdict and for a new trial, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Eulah McManus against Arthur J. McManus. From a Municipal Court order overruling a demurrer to the complaint, defendant appeals. Dismissed.</p>

Action by Jacob Cohen, an infant, by David Cohen, his guardian ad litem, against Meyer Ganz. From a Municipal Court order denying defendant’s motion to open his default, he appeals. Reversed on condition.

Action by the Donald Steamship Company against Thomas J. Lewis. From a judgment dismissing its first cause of action, and from a judgment upon a directed verdict for defendant, plaintiff appeals. Modified and affirmed.

Action by Joseph Elias against Coleman & Krause, Incorporated. From a judgment dismissing the complaint at the close of plaintiff’s case, plaintiff appeals. Reversed, and new trial granted.

Action by John IColacki, administrator of Michael IColacki, deceased, against the American Sugar Refining Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the International Film Traders against Aaron S. Shapiro. From a judgment dismissing plaintiff’s first cause of action, and granting a reduced judgment on the second, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by the Comptograph Company against Edward B. Schmalholz, doing business under the name of Theodore B. Schmalholz & Son. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Action by Isaac Fishman against William Baumstein. From a judgment for plaintiff, rendered by the City Court of the City of New York, defendant appeals. Reversed, and new trial ordered.

Action by Samuel Alexander, as administrator, against Joseph.Page, as president of Hamilton Dodge, and others. From a judgment for plaintiff, defendants appeal. Reversed, and judgment entered for defendants.

<p>Master and Servant (§ 265*)—Injuries to Servant—Negligence—Proof. Where, in an action for injuries to a servant, defendant’s alleged negligence was not proved, but left entirely to conjecture, a judgment for plaintiff could not be sustained.</p> <p>[Ed. Note.-—For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]</p>

Action by Eugene McElearney against the Clover Farms,. Incorporated. From a judgment dismissing the complaint, plaintiff appeals. Judgment reversed, and new trial ordered.

Action by the M. Cohen Progress Casino, Incorporated, against Max Zwerdling. From a judgment for plaintiff, and from an order denying a new trial on the ground of fraud and newly discovered evidence, defendant appeals. Reversed, and new trial ordered.

<p>1. Master and Servant (§ 116*)—Death of Servant—“Scaffold”—Labor Law.</p> <p>Plaintiff’s intestate, a carpenter, while cutting a hole in the side of a lumber chute used to carry concrete from the street into the subway, stood on a water pipe supported by a trestle. The pipe was part of the city’s water system, and the trestle was a temporary support,-which had been erected for it prior to its removal to its proper place under the sidewalk when the subway was finished. Beams lay alongside the pipe, so that it rested on a 24-inch platform. On the inside of the subway, the platform extended about 6 inches beyond the pipe, and deceased was standing with one foot on this edge of the beam and the other foot on top of tile pipe. After finishing his work, he started to walk along the pipe to another place, when he fell and was killed. Neither the pipe nor the platform broke, and there was no evidence that the pipe was slippery. Held, that the pipe was not a “scaffold” furnished or erected by the defendant contractor, within Labor Law (Consol. Laws, c. 31) § IS (1), providing that a person employing another to perform labor of any kind in the erection of a structure shall not furnish or erect scaffolding which is unsafe, etc.; the word “scaffold,” as so used, meaning a temporary structure of timber, boards, etc., to support workmen and materials.</p> <p>[Ed. Note.—-For other cases, see Master and Servant, Cent. Dig. § 207; Dec. Dig. § 116.*</p> <p>For other definitions, see Words and Phrases, Second Series, Scaffold.]</p> <p>2. Master and Servant (§ 233*)—Death of Servant—Safe Place to Work.</p> <p>Since the conditions under which deceased was working were constantly changing, and he chose his own place to work and the particular place in question, the pipe being in -a mere temporary location, while work was going on about it, and its position was changed as the exigencies of the work required, the doctrine of “safe place” did not apply.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 681, 684-686, 701-742; Dec. Dig. § 233.*]</p> <p>3. Master and Servant (§ 281*)—Death of Servant—Contributory Negligence.</p> <p>Where plaintiff’s intestate, a carpenter, being directed to cut a hole in the side of a lumber chute used to carry concrete into the subway, took a position on a city water pipe temporarily supported by a trestle, and after finishing his work started to leave the place, when he fell from the pipe and was killed, such facts were insufficient to raise an inference that deceased was free from contributory negligence.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.*]</p>

<p>Appeal from Special Term, Queens County.</p> <p>Action by Luke Eldert against the Cross Country Railroad Company and others. From an interlocutory judgment for plaintiff, defendant Sarah Maria Streeter appeals. Affirmed.</p>

Action by Carrie G. Smith and another against the New York Central & Hudson River Railroad Company. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals. Affirmed.

In the matter of proceedings by the City of New York to acquire the fee in certain property to improve Ludlow Avenue, Whitlock Avenue, and the public place at the intersection of Whitlock Avenue, Hunt’s Point Road, and the Southern Boulevard, etc. From an order denying a motion to confirm the report of commissioners of estimate as to certain parcels of the land, and returning the report to said commissioners with instructions, Schwartz, a property owner appeals. Reversed.

<p>Banks and Banking (§ 129*)—Deposits—Joint Ownebship—Husband and Wife.</p> <p>Where the proceeds of a sale of real estate by husband and wife were deposited in a bank by both of them in their joint names, they became joint tenants of the deposit, and the husband was not ousted from such tenancy by the wife’s withdrawal of a portion of the money and deposit of it elsewhere in her own name, nor by her loaning a part of it and receiving a note therefor.</p> <p>[Ed. Note.—For other cases, see Banks and 'Banking, Cent. Dig. §§ 312-315, 326, "388; Dec. Dig. § 129.*] .</p>

<p>Action by William H. Shape against Robert L. Shape and others. Judgment on the pleadings for plaintiff.</p>

. Action by Charles Horwitz against the North British & Mercantile Insurance Company of Dondon & Edinburgh. From an order granting a motion for a bill of particulars, plaintiff appeals. Order modified and affirmed.

<p>In the matter of East 227th Street and East 228th Street in the City of New York. On motion to confirm reports of commissioners. Confirmed.</p>

<p>1. Municipal Corporations (§ 469*)—Opening Street—Method of Assessment.</p> <p>Where, before the opening of a street, eight blocks long, from a railroad station to a subway station, part of its width was used for a street, though not legally opened, through the four blocks next to the railroad station, and the two blocks next to the subway station, but not through the remaining two blocks, each parcel should be assessed proportionately to the benefit received, disregarding the block by block rule.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1113-1117; Dec. Dig. § 469.*]</p> <p>2. Eminent Domain (§ 162*) — Opening Street — Award to Unknown Owners.</p> <p>The award by the commissioners for taking, for the opening of a street, land held by a railroad under a grant conditional that it should be used only for railroad purposes, and otherwise should revert to the grantors, is, under Greater New York Charter (Laws 1901, c. 466) §§ 985, 1001, properly made to unknown owners, instead of the railroad.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 162.*]</p> <p>3. Municipal Corporations (§ 425*)—Opening Street—Assessing Railroad Property.</p> <p>For the opening of a street, land of a railroad, at the head of it, used as a station, and so benefited, is properly assessed.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1031-1034; Dec. Dig. § 425.*]</p>

<p>1. Infants (§ 83*)—Settlement of Estate—Special Guabdian—Compensation.</p> <p>Code Civ. Proc. § 2561, relating to trials in Surrogates’ Courts, prior to 1914, provided that the surrogate, on rendering a decree, in his discretion might fix such a sum, to be allowed as costs, in addition to disbursements, as he deemed reasonable, not exceeding, in case of no contest, $25, or, in case of a contest, $70. Section 2748, as amended by Laws 1914, e. 443, without any repealing clause, provides that a special guardian for an • infant or incompetent shall receive a reasonable compensation for his services, to be fixed by the surrogate, payable from the estate or fund, or from the interest of the ward therein, or from both, in such proportion as the surrogate may direct. Held, that the latter section should not be considered as repealing the former, and that where objections filed in a contest were withdrawn, and there was nothing presently due to infants represented by a special guardian, his compensation was governed by section 2561 of the old Code.</p> <p>[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 232-235; Dec. Dig. I 83.*]</p> <p>2. Judgment (§ 528*)—Surrogates’ Degrees—Effect.</p> <p>Decrees of Surrogates’ Courts in the settlement of decedents’ estates operate almost exclusively in personam, and not on the res.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 972; Dec. Dig. I” 528.*]</p>

Special Term. Supplementary proceedings by the National Printing & Engraving Company against Paul Armstrong. From an order denying his motion to vacate and set aside an order for his examination in supplementary proceedings before return of execution, the judgment debtor appeals. Reversed and motion granted.

Appeal' from City Court of New York, Special Term. Action by Jacob Granat against Harry J. Mendetz and another. From an order denying defendants’ motion for a bill of particulars, defendants appeal. Reversed, and motion granted.

Action by Samuel Kaplan against Maurice A. Schannon. From a Municipal Court order, denying defendant’s motion to vacate an attachment, defendant appeals. Reversed, and attachment vacated.

Action by Marie Gillis against Samuel G. Dabney, as president of Golden Fleece Lodge, etc. From a judgment for plaintiff, defendant appeals. ’Reversed, and new trial ordered.

Action by Naylor & Newton against Samuel Cutler and others. From a judgment dismissing the complaint upon the merits, plaintiffs appeal. Reversed, and new trial ordered.

<p>Master and Servant (§§ 276, 278, 2S1*)—Injuries to Clerk in Store—Condition of Stairs—Contributory Negligence—Proximate Cause oe Injury.</p> <p>In an action by a dry goods clerk for injuries by falling down stairs with which the clerk was familiar, and which had been used by the public on a wet day, evidence merely that plaintiff slipped on the top steps, and that the steps were slippery, and she caught her heel on the top step, and fell down the whole flight of stairs, and that the top step was bro-</p> <p>. ken in one place, and had a large hole in it, is insufficient to show negligence, or absence of contributory negligence, or that the hole in the step was the proximate cause of the injury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 956-959, 960-972, 976, 977, 987-996; Dec. Dig. §§ 276, 278, 2til.*j</p>

<p>Municipal Corporations (§ 442*)—Street Openings—Assessment of Benefits—Agreements by City.</p> <p>Greater New York Charter (Laws 1901, c. 466), § 994, as amended by Laws 1906, c. 658, providing, relative to street openings, etc., that it shall be lawful for the city to agree with the owner of land that will be benefited by, or required for the purpose of, the intended improvement, for the assessment of such lands, and for the compensation to be made, and the allowance to be paid by such owner, over and above the value of the lands- required of him for the improvement, justifies an agreement between the city and a landowner, who concurrently therewith ceded certain land to the city, that the remaining land of such owner, lying on both sides of a proposed street and extending to the center line of the block, should be exempt from assessments for benefits, except the proportionate share of awards for buildings taken or for damages to buildings affected and the proportionate share of expenses incurred to the date thereof.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1062; Dec. Dig. § 442.*]</p>

Action by Bernard E. Seldin against Isaac Block and another, doing business as Block & Kasdan. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

Action by Flora Applebaum against Solomon J. Rosenblum. From an order -granting defendant permission to pay certain moneys into court, and directing that other parties, including nonresidents, be joined as additional defendants, plaintiff appeals. Reversed, and motion denied.

Action by Ella Simpson against Jesse I. Eppinger. From an order denying his motion for judgment on the pleadings, defendant appeals. Reversed, and motion granted.

<p>Landlord and Tenant (§ 167*)—Landlord’s Liability—Control of Premises—Nuisance.</p> <p>An owner and lessor of premises, who surrendered full possession to the lessee and retained no control, and who under the lease was under no obligation to make repairs, was not liable to one injured by a hoist put in by the lessee.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 668-674, 676-679; Dec. Dig. § 167.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Hugo Jarck against George W. Baylis and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed, and new trial granted.</p>

Action by John T. Underwood against the New Nether land Bank of New York. From a judgment for plaintiff, entered on a verdict directed by the court, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.

Action by John Miller against William Lohrmann and another. From an order setting aside a verdict for plaintiff, and granting a new trial, plaintiff appeals. Order reversed, and judgment reinstated.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Morris Weiss against Charles H. Levy. From a judgment for defendant on a trial without a jury, plaintiff appeals. Reversed, and judgment awarded for plaintiff.</p>

<p>Landlord and Tenant (§ 114*)—Tenant from Month to Month.</p> <p>A tenant originally a tenant from month to month, occupied the premises for nearly 15 years, when they were acquired by plaintiff in December, 1912, who agreed to reduce the rent to $33 until the 1st of May. Hold, there was no change of the tenancy to^a fixed term, ending the 1st of May, 1913, so as- to make the defendant holding over after that date liable for the next year’s rent; the doctrine of liability -of a tenant as a hold-over after the expiration of a lease for a fixed term resting upon the principle that, unless the tenant assumes that the previous lease was renewed, he would be considered as a wrongdoer, and that, rather than allow one to plead and take advantage of his own wrong, the law would apply the renewal of the old lease, and failing when the reason for the rule fails.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 373-381; Dec. Dig. § 114.*]</p>

<p>1. Appeal and Eebob (§ 866*)—Questions Presented fob Review.</p> <p>Where a complaint was dismissed on account of the insufficiency of the evidence, the only question for review was whether the court erred in the exclusion of testimony.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3467-3475; Dec. Dig. § 866.*]</p> <p>2. Conteacts (§ 28*)—Actions fob Breach—Evidence—Admissibility.</p> <p>In an action for breach of an oral contract, where the conversation resulting in the agreement was in itself indefinite and incomprehensible, evidence of preceding conversations in the negotiations leading up to the contract was admissible.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 133-140, 1755, 1782-1784, 1785%, 1820, 1821; ‘ Dec. Dig. § 28.*]</p>

Appeal* from City Court of New York, Trial Term. Action by the H. Leonard Simmons Company against Isaac Goldfarb and Bernard Weingold, copartners as Goldfarb 8z) Weingold. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed and remanded.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Caryl A. Barnett against Henry Newbury, who counterclaimed. From a judgment dismissing defendant’s counterclaim, defendant appeals. Reversed and remanded.</p>

. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by John Morgan against Theresa K. Morgan and others. From a final order in summary proceedings for plaintiff, as landlord, defendants appeal. Reversed, and new trial ordered.

<p>Landlord and Tenant (§ 166*)—Defective Premises—Damages—Liability of Landlord.</p> <p>Where a landlord is under no express obligation to make repairs, he is not liable for damages to a tenant’s goods from water from a defective leader pipe located in a portion of the building which he reserved for common use of his tenants, in the absence of proof that the condition of the pipe had been such as to charge him with an unreasonable omission to ascertain its condition and remedy the defect.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 647-655, 657-660; Dec. Dig. § 166.*]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Anna Wachtell against Bernard Grausman. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.</p>

<p>1. Disorderly Conduct (§ 2*) — Elements of Offense — Statutory Provisions.</p> <p>Consolidation Act (Laws 1SS2, c. 410) § 1459, providing that, when it shall appear on oath of a credible witness before any police justice that any person has been guilty of any such disorderly conduct as in the opinion of the magistrate tends to a breach of the peace, the magistrate may-cause the person so complained of to be brought before him to answer the charge, enacted prior to section 1458, which particularizes certain acts or phases of conduct as disorderly, is independent of and unrelated to section 1458, and is not modified thereby.</p> <p>[Ed. Note.—For other cases, see Disorderly Conduct, Cent. Dig. § 9; Dec. Dig. § 2.*]</p> <p>2. Criminal Law (§ 249*)—Summary Prosecution—Statutory Provisions— “Such”—“Opinion”—“Judgment.”</p> <p>Consolidation Act, § 1459, providing that, when it shall appear on oath of a credible witness before any police justice that any person has been guilty of any “such” disorderly conduct as in the “opinion” of such magistrate tends to a breach of the peace, the magistrate may cause the person so complained of to be brought before him to answer the charge, empowers magistrates to determine, first, whether conduct complained of is disorderly, and, secondly, whether it tends to a breach of the peace, and a magistrate is vested with summary jurisdiction to hear and determine; the word “such” being used in comparison with some disorderly conduct as tends in the opinion of the magistrate to a breach of the peace, and the word “opinion” being synonymous with the word “judgment.”</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 520; Dec. Dig. § 249*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Judgment; Opinion; Such.]</p> <p>3. Criminal Law (§ 248*)—Summary Prosecution—Legislative Power.</p> <p>The Legislature may by statute confer on magistrates the power to summarily hear and determine what conduct is disorderly, and whether it tends to a breach- of the peace.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 519; Dec. Dig. § 248.*]</p> <p>4. Habeas Corpus (§ 22*)—Questions Re view able—“Final Judgment.”</p> <p>Where a magistrate is vested with jurisdiction to hear and determine whether conduct is disorderly, and whether it tends to a breach of the peace, his determination adjudging one guilty is a final judgment, within Code Civ. Proe. § 2032, requiring the court in habeas corpus to remand the prisoner detained by virtue of a final judgment of a competent tribunal.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. §§ 19%, 20; Dec. Dig. § 22.*]</p> <p>5. Habeas Corpus (§ 105*)—Questions Reviewable—Failure to Give the Right of Appeal—Effect.</p> <p>The court, on habeas corpus for the discharge of one detained under a final judgment, can only determine whether the magistrate pronouncing the final judgment had jurisdiction of the person and of the offense and had power to impose the sentence; and the mere fact that an appeal is not allowed does not enlarge the jurisdiction of the court.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. §§ 93, 94; Dec. Dig. § 105.*]</p> <p>6. Criminal Raw (§ 1094*)—Right of Appeal—Statutes.</p> <p>An appeal in a criminal case is a mere matter of favor, and the Legislature may withhold, qualify, or limit the right.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 1004.*]</p>

Action by Mayor, Lane & Co. against the Commercial Casualty Insurance Company. From a judgment dismissing the complaint at the close of the plaintiff’s case, plaintiff appeals. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Jacob Elishewitz against Sam Lipshitz. From a judgment for defendant, entered upon a verdict directed by the court, plaintiff appeals. Reversed, and new trial ordered.</p>

Action by Morris Griffler against Isaac Rabinowitz and the Progressive Wine & Liquor Company, Incorporated. From a judgment for plaintiff, the Liquor Company appeals. Reversed as to the Liquor Company, and new trial ordered.

<p>Evidence (§ 471*)—Opinion Evidence—Facts ob Conclusions.</p> <p>In an action by a person employed to do the work and furnish the materials necessary to remove a violation alleged to have been placed by the building department upon premises owned by defendant, where neither the notice of the violation nor the requirements thereof were given in evidence, plaintiff’s testimony that the work done and materials furnished were necessary was a conclusion of the witness, as the facts showing the necessity of the work should have been proved, in order that a conclusion could be drawn therefrom by the court.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Margaret Reilly against Adolf Mersky. From a Municipal Court judgment in favor of the plaintiff, defendant appeals. Reversed and dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Julius Silverman against the Charles Jacobs Company. From a Municipal Court judgment in favor of the plaintiff, entered on the jury’s verdict, defendant appeals. Reversed and dismissed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Owen Mullins against the Bradley Contracting Company. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.</p>

<p>1. Sales (§ 152*)—Performance of Contract—Obligation to Deliver.</p> <p>Under Personal Property Law (Consol. Laws, c. 41) § 124, as added by Laws 1911, c. 571, providing that, apart from any contract, express or implied, or usage of trade, to the contrary, the place of delivery is the seller’s place of business, if he have one, where the letters constituting a contract of sale indicated no place of delivery, and the buyer had not called for the goods, there was no breach of contract by the seller, and there could be no recovery for its failure to deliver the goods.</p> <p>' [Ed. Note.—For other cases, see Sales, Cent. Dig. § 357; Dec. Dig. § 152.*]</p> <p>2. Sales (§ 174*)—Performance of Contract—Obligation to Deliver.</p> <p>A seller was not in default, and there could be no recovery for its failure to deliver the goods, where there had been no tender of the purchase , price.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 434; Dec. Dig. § 174.*]</p>

<p>1. Divorce (§ 101*)—Actions—Pleading—Counterclaim.</p> <p>Under Code Civ. Proc. § 1770, providing that, where an action is brought by either husband or wife, a cause of action against plaintiff and in favor of defendant may be interposed as a counterclaim, a defendant in an action for divorce may interpose a counterclaim, or may maintain a separate action for divorce.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 322-327; Dec. Dig. § 101.*]</p> <p>2. Divorce (§ 302*)—Custody of Children—Conclusiveness of Judgment.</p> <p>An interlocutory judgment of divorce, which awards the custody of a child of the parties, is no't a binding adjudication as to the custody, where the judgment has been vacated, and the court in a subsequent action may provide for the custody of the child.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 791, 792; Dec. Dig. § 302.*]</p> <p>3. Divorce (§ 303*)—Custody of Children—Conclusiveness of Judgment.</p> <p>Under Code Civ. Proc.' § 1771, giving the court power to vary or modify directions regarding the custody of children of parties to an action for divorce as justice may require, a provision in an order giving the father the custody of a child and the mother permission to visit the child at stated times is not conclusive on the court, which may change the custody according to its view of the necessities of the case, having in mind the welfare of the child.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 793-795; Dec. Dig. § 303.*]</p> <p>4. Divorce (§ 209*)—Temporary Alimony—Judgment—-Conclusiveness.</p> <p>The action of the court in requiring a husband, suing his wife for divorce, to pay her temporary alimony, is not binding on the court in a subsequent action by her for divorce pending the final disposition of the husband’s action; but the wife must stipulate to waive the alimony awarded to her in the husband’s action before the court in her action will award temporary alimony.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 605-609; Dec. Dig. § 209.*]</p>

Action by Clifford F. McAvoy, as trustee in bankruptcy, against the Tide Water Oil Company. Plaintiff moved to open his default in the service of a reply. From an order granting the motion, defendant appeals. Reversed.

Action by Joseph Galowitz and another against Philip Hendlin. From a judgment for defendant, after a trial by the court without a jury, plaintiff! appeal. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the New York City Car Advertising Company against Rosa Greenberger. From a judgment dismissing the complaint at the close of plaintiff’s case, it appeals. Reversed, and judgment for plaintiff directed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Regina Richt against Henry Richt. Judgment for the defendant, and plaintiff appeals. Reversed, and judgment directed for plaintiff.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Charles Werner against Abraham Reisner. From a judgment of dismissal, plaintiff appeals. Reversed, and new trial granted.</p>

Action by Israel Tanner and another against Antonio Di Blasi. Prom a judgment of dismissal of the complaint, and from an order denying new trial, plaintiffs appeal. Reversed, and new trial ordered.

Action by the Robinson Clay Products Company of New York against John H. Thatcher & Sons. From a judgment of dismissal, and for the counterclaim pleaded by defendant, plaintiff appeals. Reversed, and new trial granted.

Action by Jacob Henry Veil against Arthur V. R. Thompson and another, doing business under the firm name and style of Thompson & Singleton. From an order of the Municipal Court, setting aside a verdict for plaintiff, he appeals. Reversed, and verdict reinstated.

<p>Divorce (§ 221*)—Allowances—Counsel Fees.</p> <p>The court cannot grant counsel fees after final judgment dissolving the marriage.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 642, 643; Dec. Dig. § 221.*]</p>

Action by George O’Beirne against James A. Carey. From a Municipal Court order, denying a motion to open a judgment, and from a judgment taken on default, defendant appeals. Reversed, judgment vacated, and new trial ordered.

Action by Charles W. Leavitt, Jr., against Robert M. Williams. From an order denying a motion to open his default, defendant appeals. Affirmed, with leave to renew motion.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Arthur R. Martin against Samuel Melton. ' Judgment for the plaintiff,' and defendant appeals. . Reversed, and complaint dismissed. •</p>

<p>Pleading (§ 36*)—Conclusiveness of Allegations—'Estoppel.</p> <p>Where, in an action against the maker and two indorsers of a note, the answer, verified by all three of them, alleged that the indorsers were accommodation indorsers to secure a loan to the maker, upon which state of facts a compromise was effected between plaintiff bank and the last indorser by order of the Supreme Court, upon which the suit was discontinued as to him, the remaining indorser and the maker are estopped to claim that the note was discounted by the bank for the benefit of the last "indorser, whereby he became the principal debtor, and a compromise with him discharged the other indorser and the maker.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 81-86; Dec. Dig. § 36.*]</p>

<p>Master and Servant (§ 30*)—Discharge of Servant—Grounds—Misconduct of Servant.</p> <p>An employé, maliciously cutting and tearing to pieces theatrical costumes of a coemployé, may be discharged by the employer.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 30-36; Dec. Dig. § 30.*]</p>

• Action by the Nassau Finance Company against Herman Suffrin and another. From an order denying defendants’ motion for the issuance of a commission, and from a judgment for plaintiff taken by default, defendants appeal. Appeals from default judgment and order denying commission dismissed. Order denying motion to open default affirmed.

Action by Luigi Torregiani and another, copartners doing business as Torregiani & Severino, against the Russo Barba Realty Company and others. From a judgment for plaintiffs, after a trial by a judge without a jury, defendants appeal. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Harry Perlitch against Louise Simon.' Judgment for plaintiff,' and defendant appeals. Reversed.</p>

Action by Jerome Sulzbacher against the Duplex Electric Company, sued as the Electric Bank Protecting Company. From a judgment of the City Court of the City of New York for plaintiff, defendant appeals. Reversed,' and complaint dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Koerting &J Mathiesen Company against Max J. Kramer. From a judgment for plaintiff, defendant appeals. Reversed, arid new trial ordered.</p>

Action by the West Electric Hair Curler Company against the Hamilton Corporation. On motion to set aside a judgment for plaintiff taken by default on the commercial calendar of the City Court of the City of New York. Conditionally granted.

Action by the Canadian Agency, Limited, against the Assets Realization Company, impleaded, etc. From an order overruling a demurrer to amended complaint, defendant named- appeals. Affirmed, with leave to withdraw demurrer and to answer.

<p>Courts (§ 200%*)—Surrogate’s Courts—Jurisdiction—Determination of Title to Property.</p> <p>Where property formerly owned by a testator was in the possession of his executor, who claimed title by gift from the testator, at the time of the testator’s death, the Surrogate’s Court, on the settlement of the executor’s accounts, had no jurisdiction to determine the title to such property, as that court is one of limited jurisdiction, and the surrogate has only such legal and equitable powers as are necessary for the discharge of the duties devolved upon him by statute, and he has no power to try the question of title to personal property not in the testator’s possession at the time of his death.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 479; Dec. Dig. § 200%.*1</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Michael A. Mulholland against Luis Reid and others, in which the T. T. Reid Construction Company sought to intervene. From an order denying intervention, and refusing to cancel lis pendens, the T. T. Reid Construction Company appeals. Reversed in part.</p>

Action by Michael A. Mulholland against Luis H. Reid and others, in which the T. T. Reid Construction Company sought to intervene. From an order denying intervention, and refusing to cancel lis pendens, the T. T. Reid Construction Company .appeals. Reversed in part.

Application by the City of New York to open and extend West 184th Street and Overlook Terrace. From an order sustaining the objections by James G. Bennett and Benedict Fisher to the confirmation of the report of the commissioner of assessment, certain property owners appeal. Order reversed, in so far as it sustains said objections, and the report of the commissioner of assessment confirmed.

Action by Philip Feinstein against William C. Ritter and Deo Ritter. Judgment for plaintiff on directed verdict, and defendants appeal. Reversed, and new trial ordered.

<p>Divobce (§ 165*)—Decebe—Impeachment.</p> <p>Where a wife secured a divorce in a foreign state on publication, though her husband was a resident of the state of the forum, the wife cannot, the husband having ratified the decree, herself attack it and recover on a previous separation agreement, although the decree could be both directly and collaterally impeached by the husband.</p> <p>[Ed. Note.—Por other cases, see Divorce, Cent. Dig. §§ 533-542, 546, 548; Dec. Dig. § 165.*]</p>

<p>1. Tbade-BIarks and Trade-Names (§§ 53, 73*)—Infringement and Unfair Competition.</p> <p>Though the Oneida Community, Limited, which had adopted its corporate name as a trade-mark, and whose factory was located near Oneida, had been manufacturing game traps for many years and manufactured a large percentage of the traps used in the United States and throughout the world, defendant had a legal right to adopt the name “Oneida Game Trap Company,” to locate its business at Oneida, to manufacture and sell a trap resembling one of plaintiff’s traps in size, shape, and general appearance, to ship them from any shipping point that suited its convenience, to send and receive its mail matter concerning such traps through the Oneida post office, and to advertise its trap in any publication it chose, with a cut thereof and its name and address, where its trap would not deceive the jobber, retailer, or experienced trapper, and it did not locate at Oneida with any sinister or fraudulent motive, though it may have located there because that was the great trap center of the world.</p> <p>[Ed. Note.—Eor other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 61, 84; Dec. Dig. §§ 53, 73.*]</p> <p>2. Trade-Masks and Trade-Names (§ 55*)—Infringement—Intent.</p> <p>To constitute an infringement of trade-mark rights by adopting a colorable imitation thereof liable to deceive and confuse the unwary buyer, it is not necessary that the infringer should act fraudulently or with evil intent.</p> <p>[Ed. Note.—Eor other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 63; Dec. Dig. § 55.*]</p> <p>3. Trade-Marks and Trade-Names (§ 9*)—Names Subject to Appropriation—Geographical Names.</p> <p>While the word “Oneida” in its geographical sense is not subject to appropriation for a trade-mark, it may acquire, by constant use in connection with other words and phrases, a secondary meaning and significance for the article or commodity to which it is affixed, within the provision of the trade-mark law (Act Feb. 20, 1905, c. 592, § 5, 33 Stat. 725, as amended by Act Feb. 18, 1911, c. 113, 36 Stat. 918 [U. S. Comp. St. 1913, § 9490]) that nothing therein shall prevent the registration of any mark used by the applicant or his predecessors which was in actual and exclusive use by them as a trade-mark for ten years next preceding February 20, 1905.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 13; Dec. Dig. § 9.*]</p> <p>4. Trade-Marks and Trade-Names (§ 65*)—Infringement—Test—“Calcu-late.”</p> <p>Whether a trade-mark is infringed by the use of a colorable imitation thereof or one similar thereto depends upon whether the resemblance is such that it is calculated to deceive and does in fact deceive the ordinary buyer under ordinary conditions, but “calculate” in this connection does not involve a planning, organizing, thinking out, or devising of an inscription, word, or name with intent to deceive, but refers rather to inherent properties of the name which are such as in and of themselves may confuse or deceive (citing Words and Phrases, “Calculate”).</p> <p>[Ed. Note.—For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 64; Dec. Dig. § 65.*]</p> <p>5. Trade-Maeks and Tbade-Names (§ 58*)—Infringement—Colorable Imitation of Trade-Mark.</p> <p>The Oneida Community, Limited, which had adopted its name as its trade-mark, manufactured game traps with the name of the trap stamped upon the pan, the initial thereof in the center of the pan, and “Oneida Community, N. Y.,” stamped along the edge of the pan, which was circular in form. Defendant adopted the name “Oneida Game Trap Company” and manufactured traps resembling one of plaintiff’s traps in size, shape, and general appearance, with a circular pan and with the words “Oneida Game Trap Company, Inc.,” on the edge of the pan, the name of the trap under the corporate name and its address, “Oneida, N. Y.,” on the opposite edge of the pan. Held, that defendant was infringing plaintiff’s trade-mark by using a colorable imitation thereof, and would be enjoined from stamping its corporate name on the pan of the trap, but would be permitted to stamp its name on any other part of the trap and to stamp on the pan the name of the trap, with words indicating that it was manufactured at Oneida.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 66, 67; Dec. Dig. § 58.*]</p> <p>6. Tbade-Mabks and Tbade-Names (§ 98*)—Damages—Right to Recover.</p> <p>In an action for unfair competition and the infringement of a trademark, where, though a colorable imitation of plaintiff’s trade-mark was being used, no intentional fraud appeared, damages could not be awarded.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. § 98.*]</p> <p>7. Tbade-Mabks and Tbade-Names (§§ 65, 75*)—Damages — Right to Recover.</p> <p>That plaintiff’s agents, by exhibiting one of plaintiff’s game traps to dealers and asking for one like it, were sometimes furnished one of defendant’s traps, which was what they wanted to occur, did not justify an award of damages in a suit for unfair competition and trade-mark infringement.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 64, 86; Dec. Dig. §§ 65, 75.*]</p>

Action by Jacob W. Bermant, doing business under the firm name of Skinner .& Bermant, against Mary S. Keveney. From a judgment of the Municipal Court in favor of defendant, plaintiff appeals. Reversed, and judgment directed for plaintiff.

<p>Appeal from Trial Term, New York County.</p> <p>Action by the York Manufacturing Company against Martin Mager and another. From a judgment entered on directed verdict for defendants, plaintiff appeals. Affirmed.</p>

<p>• Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by James R. Kaiser, Incorporated, against the Fuller Express Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Joseph P. Sauer against the Lehigh Valley Railroad Company. From a judgment of the Municipal Court for plaintiff, defendant appeals. Affirmed.</p>

<p>Contracts (§ 94*)—Fraud—Promissory Misrepresentations.</p> <p>Misrepresentations, promissory in their nature, are not a basis for defense of fraud to a written contract.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. § 94.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Edward Todd & Co. against the Southern Pacific Company. From a judgment overruling its demurrer to the complaint, defendant appeals. Reversed, and demurrer sustained, with leave to plaintiffs to serve an amended complaint.</p>

Action by Giovannina Lorefice against Vito Sardella. From a judgment of the Municipal Court, dismissing the complaint, with costs, at the close of plaintiff’s case, she appeals. Affirmed.

Separate actions by Elizabeth Golden and Mary Golden against Samuel Adler and Josef Lax. Judgment for plaintiff in each action, and defendants appeal. Reversed, and new trial .ordered.

Action by Peter Keber against the Central Brewing Company of New York. From a judgment of the Municipal Court for plaintiff,. defendant appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Frieda Weinberg against the Compagine Générale Transatlantique. From a judgment for plaintiff, limiting recovery, plaintiff appeals. Reversed, and new trial grantéd.</p>

Action by the James Livingston Construction Company against William H. Redmond. From an order of the Municipal Court, setting aside a judgment for plaintiff and granting a new trial, plaintiff appeals. Affirmed, and cause remitted.

<p>1. Pleading (§ 129*)—Denial—Effect of.</p> <p>Defendant, by failing to deny paragraphs of the complaint, admits the allegations contained therein.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 270-275; Dec. Dig. § 129.*]</p> <p>2. Municipal Corporations (§ 757*)—Sidewalks—Duty to Repair.</p> <p>Where defendant controlled and had'charge of the sidewalk adjoining its premises, it was bound to keep the walk in repair.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1591-1594; Dec. Dig. § 757.*]</p> <p>3. Evidence (§ 10*)—Judicial Notice.</p> <p>The court will take judicial notice that numbers on East Sixty-Third street in New York City run from west to east, and that property west of 223 would be 221, instead of 225.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 9-14; Dec. Dig. § 10.*]</p> <p>4. Pleading (§ 129*)—Admissions—Construction.</p> <p>Where defendant, the Clara De Hirsch Home for Working Girls, by failing to deny allegations that it was the owner of the premises known as 225 East Sixty-Third street and that it had control and charge of the sidewalk adjoining the premises, admitted its liability to keep the walk in front of the premises in repair, the admission is not broad enough to permit recovery, upon proof that the hole into which plaintiff fell was in front of a house bearing a sign “Clara De Hirsch Home.”</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 270-275; Dec. Dig. § 129.*]</p> <p>5. Municipal Corporations (§ 819*)—Streets—Injuries to Persons Upon —Evidence.</p> <p>Evidence in an action by plaintiff, who fell into a hole in a sidewalk, held not to show that defendant made or maintained the hole, or that-the hole was appurtenant to its property.</p> <p>[Ed. Note.-—For other cases, see Municipal Corporations, Cent. Dig. §§ 1739-1743 ; Dec.' Dig. § 819.*]</p>

Judicial settlement of the accounts of Edward Tracy Scovill and another, as executors of John Hyland, deceased, in which Margaret E. Clark asserted, a claim. Claimant’s demand for a jury trial being denied, claimant requested the signing of a formal order denying the request. Order denied.

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

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

In the matter of the accounting of John Oscar Ball, as trustee -under the last will and testament of Mary Caulfield, deceased, as to the trusts for John A. Caulfield, for Thomas J. and for Annie M. Caulfield.

<p>Action by A. & M. Robbins, Incorporated, against John Hill and others.</p>

Action by the Barber Asphalt Paving Company against the Griffin Roofing Company. From an order denying its motion for a new trial after judgment had been directed against it on a trial before court and jury, defendant appeals. Affirmed. Anthony J. Griffin, of New York City (H. Louis Jacobson, of New York City, of counsel), for appellant. Edward J. Dowling, of New York City (Jacob J. Alexander, of New York City, of counsel), for respondent.

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

Action by James G. Batterson, against Harry Raymond and others. From an order granting an injunction, pendente lité (87 Mise. Rep. 229, 149 N. Y. Supp. 706), defendants appeal. Modified and affirmed.

<p>Action by Enoch Barnett against the Holbrook, Cabot & Rollins Corporation. B. Patterson, of New York City, for appellant.</p>

<p>Action by Paul Bovanzier against Rufus A. Babcock.</p>

<p>Action by Henry Bliefernich against the Liverpool & London & Globe Insurance Company.</p>

<p>Action by Thomas A. Bissell against William. C. Cornwell, impleaded with others.</p>

<p>Action by George Brewster against thé Bastían Bros. Company.</p>

<p>Action by David E. Burke, an infant, etc. against the New York Central & Hudson River Railroad Company.</p>

<p>Action by the Buffalo Forge Company against the Franklin Boiler Works Company.</p>

<p>Action by Pine E. Bush against Marion Bush and another. J. W. Brainsby, of New York City, for appellant. T. B. Chancellor, of New York City, for respondents.</p>

<p>Action by John Cannon against James C. Fargo, as President of the American Express Company.</p>

<p>Action by Frank Candee against the Pennsylvania Railroad Company.</p>

<p>Action by Torrence M. Burtnett against the Brie Railroad Company. W. C. Cannon, of New York City, for appellant. T. J. O’Neill, of New York City, for respondent.</p>

<p>Action by Louis H. Chapman against James C. Fargo, as President of the American Express •Company.</p>

<p>Action by the City of New York against William R. Hearst, as president, etc. W. E. C. Mayer, of New York City, for plaintiff. S. Untermyer, of New York City, for defendant.</p>

<p>Action by Elizabeth B. Colt against Harris D. Colt. A. Gruber, of New York City, for appellant, G. F. Lewis, of New York City, for respondent.</p>

<p>Action by Gaetano D’Amato and others against Annie V. Elkema and another, as substituted trustees, etc., of Mary A. Buskirk, deceased, and others.</p>

<p>Action by John J. Dickinson against David J. Ty-sen, impleaded with others. G. M. Pinney, of New York City, for appellant. L. J. Vorhaus, of New York City, for respondent.</p>

<p>Action by Hellene Dosztal, as administratrix, against H. G. Kotten. G. P. Fall, of New York City, for appellant. Henry Leon Slobodin, of New York for respondent.</p>

<p>Appeal from Special Term, New York County. Action by John A. Drew against William H. W.oodin, impleaded, etc. From an order .granting motion to make complaint more definite and certain, plaintiff appeals. Modified and affirmed.</p>

<p>Appeal from Special Term, New York County. Action by John A. Drew against Charles Philip Coleman, impleaded, etc. From an order granting motion to make complaint more definite and certain, plaintiff appeals. Modified and affirmed.</p>

<p>Action by Elizabeth Dumser against Eva Niekles.</p>

<p>Action by Daniel P. Duryea against Pear] Hendrickson.</p>

<p>In the matter of the petition of William W. Farley, as Commissioner. In the matter of Rosa L. Barrick.</p>

<p>Action by Bertha J. Eysaman, individually and as executrix, etc., against Walter Nelson aud others.</p>

Action by David Epstein against Nellie Goldsmith and another. From an order denying a motion to make the complaint more definite and certain, and to strike out certain allegations defendants Modified and affirmed.

<p>Action by Harry Etshells against James F. Fargo, as Treasurer, etc. J. G. Milburn, of New York City, for appellant. J. A. O’Leary, of New York City, for respondent.</p>

<p>Action by Edith V. Gardiner against the New York Central & Hudson River Railroad Company. J. Larocque, of New York City, for appellant. W. Mann, of New York City, for respondent.</p>

<p>Action by Lippman D. Gibbs against the Title Guaranty & Surety Company. M. M. Goldsmith, of New York City, for appellant. C. M. O’Keeffe, of New York City, for respondent.</p>

<p>In the matter of the compulsory judicial settlement of the account of Lester C. Gilman, as executor of the estate of Theophilus Gilman, deceased.</p>

Action by George C. Glendening against the Western Union Telegraph Company. From an order denying a motion for an order requiring plaintiff to separately state and number causes of action, and to strike from the complaint matters as irrelevant and redundant, defendant appeals. Modified and affirmed. See, also, 163 App. Div. 489, 148 N. Y. Supp. 552.

In the matter of the judicial settlement of the accounts of Bell B. Gurnee and another, as sole acting-executrices, etc., of Azuba F. Barney, deceased.

<p>In the matter of Michael H. Harris.</p>

<p>Action by the Hamilton Pipe Works, Incorporated, against Roger A. Zeltmacher.</p>

In the matter of the application for ancillary letters testamentary on the last will and testament of George W. Horton, late of the state of Ohio, deceased.

<p>Action by Elizabeth H. Jackson against Embury McLean.</p>

<p>Action by Delia Kelly, as administratrix, etc., against Baker, Smith & Co. E. P. Mowton, of New York City, for appellants. E. S. Merrill, of New York City, for respondent.</p>

Action by James Keyes against the Manhattan Navigation Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Kelley & Connelly, of New York City (C. S. Lorentzen, of New York City, of counsel), for appellant. Benjamin Berinstein, of New York City, for respondent.

Action by Pincus Lowenfeld and another against the United States Fidelity^ & Guaranty Company. From an order granting a motion for a bill of particulars before service of an plaintiffs appeal. Modified and affirmed.

<p>Action by Mary Ludlam against Clara Bloodgood and others.</p>

<p>Action by Alphonse V. Malliett against L. H. Pratt.</p>

<p>Action by Samuel D. McNeilly against the Lackawanna Bridge Company.</p>

<p>Action by the Mecca Realty Company against the Kellogg Toasted Corn Flake Company.</p>

<p>Action by Elizabeth A. O. Mecum against d. Adelbert Becker.</p>

<p>Action by Leonora Maslanka, as administratrix, etc., of Joseph Maslanka, deceased, against the American 'Manufacturing Company.</p>

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

<p>Action by Charles E. Miller against George Harvey. W. F. Goldbeck, of New York City, for appellant. A. S. Andrews, of New York City, for respondent.</p>

<p>Action by Richmond D. Moot against Margaret A. Moot.</p>

<p>Action by "Wilhelmina Muller against' Adolph E. Muller and another, as executors, etc., of August W. Muller, deceased.</p>

<p>Action by Charles L. Munnich and another against Max Jaffe and others.</p>

<p>Action by Eugenie H. Nicholson, administratrix, etc., of Charles Nicholson, deceased, against the City of New York.</p>

<p>Proceeding by the People of the State of New York against Philip Bu'rnstein.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by William Park against Jacob Eisenberg others. From an order setting aside a verdict in favor of defendants, defendants appeal. Reversed, and verdict reinstated. Myers Goldsmith, of New York City (Emanuel J. ers and Josiah Canter, both of New York City, of counsel), for appellant. Abraham Landau and Jacob I. Berman, both of New York City, for respondents.</p>

<p>Proceeding by the People of the State of New York against J. Albert & Son.</p>

<p>Proceeding by the People of the State of New York, on the relation of Adolph F. Pape, against the Board of Education of the City of New York.</p>

<p>Action by William F. Powers against Hortense Powers.</p>

<p>Action by the Public Bank of New York City against Louis London and others. M. London, of New York City, for appellants. H. L. Moses, of New York City, for respondent.</p>

<p>Action by Peter M. Prime and others, as administrators, etc., of Henry "M. Prime, deceased, against Mary A. Hughes and others.</p>

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

<p>In the matter of Albert E. Rahm.</p>

<p>Action by Sarah C. L. Read, as executrix, etc., against the New York Central & Hudson River Railroad Company. G. W. Weiffenbach, of New York City, for appellant. R. A. Kutschback, of New York City, for respondent.</p>

<p>Action by Maddalena Restivo, as administratrix, etc., of Salvatore Restivo, deceased, against the Bradley Contracting Company and Francis L. Corrao.</p>

<p>Action by William F. Reilly against William M. Barrett, as president of the Adams Express Company.</p>

<p>Action by Emory B. Remington against the Shultz Bread Company.</p>

<p>Action by Fannie Ronca, an infant, etc., against the Wendell & Evan pany.</p>

<p>Action by William J. Roome, Jr., against the Coney Island & Brooklyn Railroad Company.</p>

<p>Action by Aaron Rose and another against Fannie Adler.</p>

<p>Action by Meyer Rosenstein against James MeCuteheon.</p>

<p>Action by Morris Schneider against William W. Farley, as State Excise Commissioner.</p>

<p>Action by Rosa Salzano against the Marine Insurance Company, Limited.</p>

<p>Action by William Sawey, an infant, by Mareo'-ci Sawey, his guardian ad litem, against William Wisser.</p>

<p>Action by Thomas F. Sheedy against William G. Foster and others.</p>

<p>Action by John Sullivan against the City of Syracuse.</p>

<p>Action by Hyman Suss against William W. Farley, as State Excise Commissioner.</p>

<p>Appeal from Trial Term, New York County. Action by Henry B. Tangemann against the City of New York. From a judgment dismissing the complaint after a trial, plaintiff appeals. Reversed, and new trial ordered. William P. Chapman, Jr., of New York City, for appellant. E. Crosby Kindleberger, of New York City, for respondent.</p>

<p>Action by Anna C. Tolman against Daniel Gillespie and others.</p>

<p>Action by the Trustees of the Presbytery of New York against the Westminster Presbyterian Church of West Twenty-Third Street and others. R. J. Reese, of New York City, for appellants. H. W. Jessup, of New York City, for respondent.</p>

<p>Action by the Universal Discount Company against the Corn Exchange Bank. I. Gainsburg, of New York City, for appellant. M. Meyers, of New York City, for .respondent.</p>

<p>Action by Carl Walther against the Barber Asphalt Company.</p>

<p>Action by William A. Walker against Louis Rosokoff, impleaded with others.</p>

<p>In the matter of Washington Avenue, from the East River to Jackson Avenue, Borough of Queens, City of New York.</p>

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

<p>In the matter of Robert H. Wilson.</p>

<p>Action by Samuel T. Williams and another against the Peter Keeler Building Company and others. In the matter of Joseph A. Seidman, attorney.</p>

<p>Appeal from Special Term, New York County. Action by Eugene C. Williams, as President of the St. Christopher Club, against the St. Christopher Club of New York, Incorporated. From an order granting an injunction during the pendency of the action, defendant appeals. Modified and affirmed. See, also, 150 N. Y. Supp. 1118. Frank C. Avery, • of New York City, for appellant. John H. Bogardus, of New York City, for respondent.</p>

Action by Yetta Zeitlin against Isidor D. Morrison and another. From a judgment for plaintiff, entered upon the verdict of a jury, defendants appeal. Affirmed. Morrison & Sehiff, of New York City (Joseph M. Broskauer, of New York City, of counsel), for appellants. Samuel S. Marcus, of New York City, for respondent.

<p>Action by Viola F. Woodruff and another, as executors, etc., of David L. Van Nostrand, deceased, against Elverton R. Chapman, and Joseph Cassidy.</p>

<p>Action by Michael Zwarich, an infant, by Parama Zwarich, his guardian ad litem, against the Brooklyn Cooperage Company.</p>