Volume 151 — New York Supplement

<p>1. Warehousemen (§ 34*) — Presumption—Negligence.</p> <p>Proof that a trunk delivered to a warehouseman for storage was damaged by water makes out a prima facie case of negligence.</p> <p>LEd. Note. — For other cases, see Warehousemen, Cent. Dig. §§ 71-85; Dec. Dig. § 34.*]</p> <p>2. Warehousemen (§ 34*) — Actions-—Burden of Proof.</p> <p>Plaintiff, who asserted that a warehouseman was guilty of negligence in caring for her trunk, has the burden of proof upon the whole case to establish negligence.</p> <p>[Ed. Note. — For other cases, see Warehousemen, Cent Dig. jj§ 71-85; Dec. Dig. § 34.*]</p> <p>3. Warehousemen (§ 24*) — Negligence—What Constitutes.</p> <p>A warehouseman, who stored trunks below the level of the street, is not bound to anticipate that, the city having torn up the street and placed obstructions therein, waters from an unprecedented rain would be cast into his basement, when the sewers were unable to carry them off.</p> <p>[Ed. Note. — For other cases, see Warehousemen, Cent. Dig. §§ 11, 48, 49, 51-54; Dec. Dig. § 24.*]</p> <p>4. Warehousemen (§ 24*) — Duty of Due Care.</p> <p>Where, as soon as it' became apparent that the waters from an unprecedented rain would be cast into the basement, where the defendant warehouseman had stored trunks, the removal of the trunks was commenced, the warehouseman was not guilty of negligence because he did not have a large force on hand, so as to remove the trunks promptly.</p> <p>[Ed. Note. — For other cases, see Warehousemen, Cent. Dig. §§ 11, 48, 49, 51-54; Dec. Dig. § 24.*]</p>

<p>1. Alteration of Instruments (§ 27*) — Burden of Proof. '</p> <p>In an action on a note, the burden of explaining an alteration on its face was on the plaintiff, and the note should not be received in evidence until such explanation was given.</p> <p>.[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 230-247; Dec. Dig. § 27.*]</p> <p>2. Alteration of Instruments (§ 29*) — Evidence.</p> <p>In an action on a note bearing on its face evidence of an alteration, where plaintiff on his direct case attempted no explanation, and on cross-examination testified that the apparent change in the amount was due to the fact that when he had partly written it he dipped his pen in an inkwell, where different parts appeared to be written with different pen and ink, and in a different handwriting, and where his explanation as to the erasure of certain words and the writing in of other words was inadequate, judgment against defendant will be reversed, and a new trial granted.</p> <p>[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 259-263; Dec. Dig. § 29.*]</p>

Action by Louis H. Porter against Henry A. King. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Action by Harry Salvin, as administrator of Sidney I. Salvin, deceased, against Bertha Salvin and the New York Life Insurance Company. From an order denying a motion for judgment on the pleadings, the defendant Bertha Salvin appeals.

Supplementary proceedings by Ullman B. Soule against Max F. Lookstein. On motion by judgment creditor to vacate an order grant-ting a stay to the judgment debtor pending an appeal by him from an order punishing him for contempt.

Mandamus by the People of the State of New York, on the application of Grace Oster, against John J. Murphy, as Commissioner of the Tenement House Department of the City of New York. On motion of relator for a peremptory writ.

<p>Appeal from City Court of Buffalo.</p> <p>Action by Raymond Silvey against the Lehigh Valley Railroad Company. From a judgment for plaintiff for $254.95, defendant appeals.</p>

Application of the Grade Crossing Commissioners of the City of Buffalo ror appointment of commissioners to ascertain compensation to be paid to the owners of,' etc., lands claimed to be injured by change of grade, etc., and claimed to be owned by the George Urban Milling Company and others.

Action by Joseph J. O’Donohue, Jr., as receiver of the property of the Improved Property Holding Company of New York covered by its mortgage dated May 24, 1909, against the John J. Hearn Construction Company. From a Municipal Court judgment in favor of defendant, dismissing the complaint on the merits after a trial to the court, plaintiff appeals.

<p>1. Divorce (§ 55*) — Separation—Grounds—Dismissal.</p> <p>Where, in a suit by a wife for separation for alleged cruel and inhuman treatment, her charges of infidelity against her husband were not sustained, and his charges of infidelity, though not proved, were not shown to have” been made in bad faith, both having been guilty of misconduct, but there being nothing to show that they could not longer live together in safety, the bill and cross-bill would be dismissed.</p> <p>[Ed. Note. — For other eases, see Divorce, Cent. Dig. § 197; Dec. Dig. ' § 55.*]</p> <p>2. Divorce (§ 231*) — Separation—Support.</p> <p>Code Civ. Proc. * 1766, providing that, in an action for separation, the court may render judgment compelling the husband to make provision for the support of his wife, where under the circumstances such a judgment is proper, without rendering a judgment of separation, only applies where a separation can be decreed on the evidence, and does not authorize the court to render a judgment for support, where judgment for separation is not authorized.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 658-661, 664; Dec. Dig. § 231.*]</p>

<p>1. Appeal and Error (§ 120*) — Orders Appealable.</p> <p>No appeal lies from an order of the Appellate Term granting or denying a motion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 840-S62, 864, 865; Dec. Dig. § 120.*]</p> <p>2. Motions (§ 58*) — Orders—Modification—Power of Court.</p> <p>The Appellate Term is always in session to hear motions, and must at ' a subsequent term correct an error committed at a former term on ruling on a motion.</p> <p>[Ed. Note. — For other cases, see Motions, Cent. Dig. § 72; Dec. Dig. § 58.*]</p> <p>3. Courts (§ 190*) — City Court — Appeal—Dismissal—Grounds.</p> <p>Where the papers on appeal to the Appellate Term from an order of the City Court were served and filed, and the case was on the calendar, but neither side noticed it for argument, the appeal could not be dismissed on motion of respondent, and to compel a dismissal he must serve and file a notice of argument, and thereby place the appeal on the calendar, and bring the same to a hearing.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 190 ;* Appeal and Error, Cent. Dig. § 103.]</p> <p>4. Costs (§ 250*) — Motions—Right to Costs.</p> <p>Where respondent moved to dismiss an appeal, though he was equally in default with appellant, appellant, filing opposing affidavits, was entitled to costs on the denial of the motion.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 253, 956; Dee. Dig. § 250.*]</p> <p>5. Costs (§ 250*) — Motions—Right to Costs.</p> <p>Where a motion by a party for reargument of a prior motion, which had been denied, was filed without asking for or obtaining leave, and without setting forth new facts, the adverse party, required to file opposing affidavits, was entitled to costs on the denial of the motion.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 253, 956; Dec. Dig. § 250.*]</p>

Action by Marcus A. Miller against Sam Mayer. From a Municipal Court order denying a motion to open defendant’s default, except on payment of $10 costs and the deposit in court of the amount sued for, he appeals.

<p>Action by Rifkie Anne Rosenzweig against the United States Fidelity & Guaranty Company and Harry Verschleiser. Judgment for defendants, dismissing the complaint on the merits.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Mandamus by the People, on the relation of Joseph Schutz, against William Williams, as Commissioner of the Department of Water Supply, Gas, and Electricity of the City of New York. From an order granting a peremptory writ, defendant appeals.</p>

Mandamus by the People, on the relation of Clarence E. Noon, against William Williams, as Commissioner of the Department of Water Supply, Gas, and Electricity of the City of New York. From an order granting a peremptory writ, defendant appeals.

Action by Laura Schoenblum against the New York Railways Company. From an order of the City Court of the City of New York, opening plaintiff’s default on payment of taxable costs to date and $10 motion costs, plaintiff appeals.

Action by Isidor Raisin against Louis Schechtman. From an order striking certain denials in defendant’s answer, on the ground that they were frivolous and sham, defendant appeals.

Petition by Mary Fred, as executrix, and Henry C. Fredericks and another, as executors of Mary Fred, deceased, for an order directing Harris Luxemberg, judgment debtor, and Milton J. Gordon, attorney for the debtor, to comply with a stipulation. From an order denying the motion to compel the attorney to comply with the stipulation, the petitioners appeal.

Action by Edward F. Costello against the Bradley Contracting Company. From an order vacating a default judgment, and restoring the cause to the calendar, plaintiff appeals.

Action by Nathan Horowitz and another against. Isak Eidelheit. From a judgment for defendant and against plaintiffs, the latter appeal.

In the matter of the estate of Mary Jane Spence, deceased. From a decree of the surrogate directing a payment by the executors to certain legatees, Martha Scott Ferry and others, residuary legatees, appeal.

<p>Action by the Washington Savings Bank against the Kingston Securities Company and others. Judgment for plaintiff.</p>

<p>Appeal from Justice Court.</p> <p>William D. McIlwain was convicted in the Justice Court of crime, and he appealed to the County Court.</p>

<p>Action by Nathan Fienglas against the New Amsterdam Casualty Company. Judgment for plaintiff.</p>

<p>Venue (§ 4*) — Tbansitory Actions — Change of Place of Trial.</p> <p>A transitory action should be tried in the county where the transaction involved occurred, unless a large preponderance o£ the witnesses live in another county; and plaintiff, bringing an action in another county, cannot prevent a change to the proper county, where he fails to show that the majority of the witnesses live in or near the other county.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 3; Dec. Dig. § 4.*]</p>

Action by Clarence F. Birdseye against Henry G. King and others. On motion by the Secured Holdings Corporation for reargument, of motion to cancel and strike from the docket a lis pendens. Motion for reargument, and original motion to cancel and strike lis pendens, granted.

Action by Clarence F. Birdseye against Frederic W. Le Porin. On motion by defendant to cancel and strike from the docket a notice of pendency of the action.

Action by William D. Tyndall, in his own behalf and in behalf of all other certificate holders similarly situated, against the Pinelawn Cemetery, in which Clarence E. Muckier intervened as plaintiff, and James P. Haney and others intervened as defendants. Interlocutory judgment for plaintiff for an accounting directed.

<p>1. Trial (§ 395*) — Findings-of Fact — Evidentiary Facts.</p> <p>Findings are not reguired on evidentiary facts leading to the ultimate facts, but should be confined to the ultimate facts in issue under the pleadings.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 927-934, 939; Dec. Dig. § 395.*]</p> <p>2. Trial (§ 395*) — Conclusions of Law — Contents.</p> <p>Findings of law should be conclusions of law from the facts found, and should not include argument or comment.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 927-934, 939; Dec. Dig. § 395.*]</p>

<p>Action by one Shepard against one Kusch to determine adverse claims to land. Judgment for defendant.</p> <p>Rehearing denied 151 N. Y. Supp. 438.</p>

Action by one Shepard against one Kusch. Plaintiff’s motion for reargument after judgment for the defendant (151 N. Y. Supp. 436) denied, and defendant’s motion for leave to amend his answer granted.

<p>For original opinion, see 149 N. Y. Supp. 836. See, also, 151 N Y Supp. 1104.</p>

Suit for specific performance of a contract for the sale of real property by Sadie G. Hennig against Charles A. Smith and wife.

<p>Appeal from Surrogate’s Court, New York County.</p> <p>Judicial settlement of the account of Robert Lloyd and Chauncey Giles, executors of William Gibson, deceased. From an order of the Surrogate’s Court (87 Misc. Rep. 503, 149 N. Y. Supp. 922), sustaining exceptions to the report of the referee, who sustaining the claim of a legatee to preference in payment of her legacy, she appeals.</p>

<p>Appeal from Justice Court.</p> <p>Action by Edward F. King against Thomas M. Murphy. From a judgment in Justice Court for plaintiff, defendant appeals.</p>

Action by Samuel Erman against the Great Central Palace Company. From a judgment for defendant after a trial by a judge without a jury, and from an order denying a new trial, plaintiff appeals.

<p>Landlord and Tenant (§ 172*) — Eviction—“Constructive Eviction.”</p> <p>Failure of a landlord to make necessary repairs and furnish necessary heat, though promising so to do to render the premises fit for occupancy, is a “constructive eviction,” and the tenant removing from the premises within a reasonable time is not liable for rent.</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, Constructive Eviction.]</p>

Certiorari by the People, on relation of Louis J. Henninger, against Rhinelander Waldo, as Police Commissioner of the City of New York, to review a determination of such Commissioner dismissing the relator from the police force. Determination annulled, and relator reinstated.

<p>1. Landlord and Tenant (§ 231*) — Surrender of Lease — Acceptance— Evidence.</p> <p>Evidence, in an action for rent, held insufficient to establish a surrender and acceptance as a defense.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.*]</p> <p>2. Landlord and Tenant (§ 199*) — Liability for Rent — Promise to Release.</p> <p>An oral promise, unsupported by consideration, to release the defendant from liability for rent, is void.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 741, 742; Dec. Dig. § 199.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Meyer Silbert against Philip Katz. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Biles and Notes (§ 518*) — Actions—Sufficiency of Evidence — Indorsement as Accommodation.</p> <p>In an action on a note, evidence held insufficient to sustain an indorser’s defense that he indorsed the note merely as an accommodation for the benefit of the plaintiff.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816-1820; Dec. Dig. § 518.*]</p> <p>2. Bills and Notes (§ 504*) — Actions—Admissibility of Evidence — Indorsement fob Accommodation.</p> <p>Where an indorser of a note claimed, in an action by Ms indorsee, that he indorsed it as an accommodation, to enable the, plaintiff to discount it for the benefit of a corporation, in which they were both interested, testimony by plaintiff that he had advanced to the corporation more than his share, and that the indorser, when asked to advance his share, stated that he had no cash, but that he would indorse the note to plaintiff, who could have it discounted, and turn the proceeds over to the company, had a direct bearing on the defense, and it was error to strike it.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1719-1727; Dec. Dig. § 504.*]</p>

<p>Appeal from Municipal Court, Borough of Bronx, Second District.</p> <p>Action by Daniel Ostrow against Albert D. Lesser. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Herbert Gulick against the Investors’ Estates Corporation. Judgment for plaintiff, and defendant appeals.</p>

Action by Edward C. Titus against Lydia A. Spencer, as executrix of the last will and testament of Armon Spencer, deceased. Judgment for the plaintiff, and defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Julius Wolford and another against the Soter Company. From a judgment for plaintiffs, defendant appeals.</p>

Summary proceeding by the Nagel Realty Company against Edward Freund and others. From a final order dispossessing a tenant and undertenants for holding over, entered on a verdict for the landlord, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Rubin Atlas against the Red Rock Spring Water Company. From a judgment for plaintiff, defendant appeals.</p>

Action by the Continental Securities Company against the New York Central & Hudson River Railroad Company and others. Motion of plaintiff for injunction pendente lite granted on conditions.

Action by George W. Greitz against George W. Linch, as Receiver of the Second Avenue Railroad Company. From a judgment for plaintiff for $200 and costs entered on the verdict of a jury, defendant appeals.

<p>Bills and Notes (§ 493*) — Consideration—Burden of Proof.</p> <p>Where, in an action on notes stating they were for value received, plaintiff proves the defendants’ signatures and demand for payment and refusal, a prima facie case is established, and the burden of proving lack of consideration as a defense is on defendants; a dismissal of the complaint on the ground that, while the answer alleged lack of consideration, plaintiff had proved none, being error.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. § 493.*]</p>

<p>Brokers (§ 61*) — Commissions—When Earned.</p> <p>A broker employed to procure a purchaser, who procures a purchaser, who contracts in writing with the owner ior the purchase, has earned his commissions, though the purchaser refuses to complete the contract because of an outstanding mortgage which the owner refuses to satisfy; the broker not being guilty of any fraud nor responsible for the failure of the owner to satisfy the mortgage.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92, 93; Dec. Dig. § 61.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Isidor Breidbart, Henry Breidbart, and Samuel Breidbart, copartners, doing business as I. Breidbart & Co., against the Empire City Subway Company. From a judgment for defendant, plaintiffs appeal.</p>

Action by Thomas H. Wesley against the City of New York. From a judgment dismissing the complaint at the close of plaintiff’s evidence, plaintiff appeals.

Action by the Century Bank of the City of New York against Maylich Breitbart and Berta Breitbart on a note. Judgment entered against Maylich Breitbart by default, and directed in favor of the defendant Berta- Breitbart.

In the matter of proceedings to acquire title to Cotton street, from Arrietta Street to Griffin Street, in the Borough of Richmond. Motion to confirm report of commissioners of estimate and apportionment, to which the American Dock Company filed objections.

Alfred G. Dorsch was convicted by a judge of the General Sessions of the Peace in and for the County of New York of disorderly conduct. From a judgment of the Court of General Sessions, affirming the conviction, he appeals.

Mandamus proceeding by the People of the State of New York, on the relation of Charles Y. Van Doren and another, against William A. Prendergast, as Comptroller of the City of New York, to compel payment of counsel fees allowed by the court under Code Cr. Proc. § 308, for successfully demurring to an indictment for murder in the first degree. The Special Term denied the motion, and relators appeal. Order reversed, and motion for peremptory writ granted.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Leopold Sutro against H. W. Balk, Incorporated. From a judgment dismissing the complaint, plaintiff appeals.</p>

In the matter of the application of the Public Service. Commission for the appointment of Commissioners of Appraisal for the condemnation of land for the Flatbush Avenue Extension — Fourth Avenue Subway. From an order condemning the fee, and other orders, defendants appeal.

In the matter of the application for letters testamentary of -Marie Hill, deceased. From an order of the surrogate, removing Mrs. Marie J. M. Lawrence, administratrix, she appeals.

<p>Executors and Administrators (§ 281*) — Fee Paid Surrogate — Recovery.</p> <p>Where an administrators’ account had been surcharged with the amount paid by an attorney for the estate, from his contingent fee, to a surrogate who unlawfully acted as counsel for the administrators, on the ground that the surrogate was brought into the case by virtue of an arrangement between himself, the administrator, and the other attorney before the contingent fee contract was made, the administrators can recover from the surrogate the amount so paid to him.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1102-1104, 1106-1115; Dec. Dig. § 281.*]</p> <p>Woodward, J., dissenting.</p>

<p>Action- by Salvatore Martorana and another against the Baltimore & Ohio Railroad Company. Judgment for plaintiffs.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Jacob Rubin against Alois L. Ernst. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Otis F. Wood against Rose O’Neill Wilson. From an order denying the motion of Rose O’Neill Wilson to vacate an order for her examination, she appeals.

<p>Elections (§ 154*) — Party Government — County Committee — Election of Chairman.</p> <p>The rules of the Democratic county committee of Seneca county, in accordance with Election Law (Consol. Laws, e. 17) art. 3, § 37, as added by Laws 1913, c. 820, § 9, prescribe that the voting weight of each committeeman shall be proportionate to the party vote of his district for Governor at the election last preceding the primary at which the committee may be chosen. Under the rules of the committee a call for a meeting to reorganize such committee was issued by three members, and the chairman, by petition under article 4, § 56, of the Election Law (Consol. Laws, c. 17), as added by Laws 1911, c. 391, and amended by Laws 1913, c. 820, § 28, providing for judicial review of any action or neglect of any political committee, sought to restrain his being ousted from office by any election of a new chairman by the committee in the meeting called, he alleging that in the gubernatorial election held after the organization of the county committee the Democratic vote in various districts for Governor varied from what it had been at the election preceding the primary, so that certain hostile members of the committee claimed a greater voting strength than they had at the time of his own election, and proposed to use such voting strength at the proposed meeting to oust him from office. Held, that, while the occurrence of a gubernatorial election during a committeeman’s term of office did not affect his voting strength in committee, which was determined for his whole term by his status in that respect at its inception, nevertheless the petitioning chairman of the board could not have such a projected meeting restrained under article 4, § 56, of the Election Law, since such action would in effect be an unauthorized issuance of a permanent injunction by the court, and since any new election resulting in the chairman’s illegal ouster from office would be open to vacation in proper proceedings.</p> <p>[Ed. Note. — Eor other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p>

Action by Joseph Winder and another against Julius Pollack. From a judgment entered .in favor of defendant upon the verdict of a jury, plaintiffs appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Detroit Steel Products Company against the Bernheimer & Schwartz Pilsener Brewing Company. Judgment for defendant, and plaintiff appeals.</p>

Action by Louis Bossert and John Bossert, copartners doing business as Louis Bossert & Son, against Frederick Dhuy and others. From a judgment for plaintiffs, defendants appeal.

<p>Action by the Albro J. Newton Company against Henry Erickson and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Louis Bossert and John Bossert, copartners, against Frederick Dhuy and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Phillip Steinman and George Steinman against the Henry Morgenthau Company, who interpleaded Isadore Kashare. Judgment for plaintiffs, and defendant Kashare appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Dee Reichman and others, copartners doing business as Reichman Bros., against Albert Pretzfelder. Judgment for defendant, and plaintiffs appeal.</p>

Action by James A. Shankland against the Crane Oxygen Works & Ambulance Company, Incorporated. From judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed. Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ.

<p>1. Courts (§ 189*) — Municipal Court — Summons—Waiver.</p> <p>Where the summons was not signed by the clerk of the Municipal Court, but by another person, defendant’s appearance in court by attorney on the return day, and his arrangement with plaintiff’s attorney to have the cause adjourned for trial, waived any defect in the summons, and conferred jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]</p> <p>2. Courts (§ 189*) — Municipal Court — Default—Power of Court.</p> <p>Where a case was adjourned from the return day until December 18th, upon the oral understanding between the attorneys that defendant should file his answer on, the 14th, the cause remained in statu quo until the 18th, and no valid judgment could be entered against defendant in the interim, even though no answer was filed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>' Two actions by the Realty & Commercial Company against Benjamin Winter and others. From orders directing a retaxation of costs, plaintiff appeals.</p>

<p>Street Railroads (§ 101*) — Collision with Vehicle — Right of Way.</p> <p>Neither an auto truck nor a street car had the right of way, and on evidence showing that the drivers of each depended on the other to stop before a crossing in order to avoid a collision, and that both were negligent, the owner of the truck was not entitled to recover.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 101.*]</p>

<p>Contracts (§ 319*) — Building Contracts — Failure of Contractor to Complete Work — Effect.</p> <p>Where a contractor to install a boiler for a fixed sum did not complete the work satisfactorily, and failed to do so for some time, the owner could complete the work, and the contractor could at most only recover the difference between the reasonable cost to the owner of doing the work and the balance due under the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1458, 1476, ¿477, 1479, 1493-1507; Dec. Dig. § 319.*]</p> <p>Guy, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Jenie Jacobs against Neil Kenyon. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Isaac Lowenthal against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p>. Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Ida Futterman, an infant, against Jacob Borowik and another. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Nathan Volkell, an infant, by Solomon Volkell, his guardian ad litem, against Heinrich Wolf. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by John H. Alvord against Revillon Fréres and Josephine Lowenthal. Judgment for plaintiff, and defendant Lowenthal appeals. Reversed, and complaint dismissed as to defendant Lowenthal, and affirmed as to defendant Revillon Fréres.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Meyer B. Gruzenskie against John F. Schreyer. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Jacob Blumenfeld against Aaron Cohen. From a judgment overruling a demurrer to the complaint, defendant appeals. Judgment reversed, and demurrer sustained, with leave to amend.</p>

Action by Annie Meyerson against the United States Grand Lodge, Independent Order Sons of Benjamin. From a judgment on a verdict directed for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Nathan Freedman against Henry J. Epstein. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Ebbob (§ 163*) — Right of Appeal — Waives—Acceptance oi* Benefits.</p> <p>Plaintiff waived his right of appeal from an order opening default judgment by accepting and retaining the costs fixed by the court as terms ifor the granting of the motion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 991; Dec. Dig. § 163.*]</p> <p>2. Appeal and Ebbob (§ 1151*) — Disposition of Case — Modification of Judgment.</p> <p>Where plaintiff recovered judgment for $288, which, with costs, aggregated $312, whereas defendant was entitled to judgment by having proved payment to plaintiff by certified check of $300, but defendant did not appeal, the amount would be credited on the judgment on appeal by plaintiff, and affirmed for the balance of $12, with costs to the defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4506; Dec. Dig. § 1151.*]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Philip Lehrer and another against the Supreme Lodge Knights and Ladies of Honor. Judgment for plaintiffs, and defendant appeals.</p>

<p>Street Railroads (§ 114*) — Action for Injuries — Sufficiency of Evidence —Place.</p> <p>In an action for injury from being struck by defendant’s street car, evidence heM to establish by a clear preponderance that the accident occurred at a certain location.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.*]</p>

<p>1. Landlord and Tenant (§ 231*) — Lease—Execution—Burden of Proof.</p> <p>In an action on a lease, the burden of proving its execution is on the plaintiff.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231'.*]</p> <p>2. Landlord and Tenant (§ 231*) — Execution of Lease by Agent — Authority — Sufficiency of Evidence.</p> <p>In an action on a lease, evidence held insufficient to sustain a judgment against defendant corporation as having executed a lease.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. .§§ 926-934; Dec. Dig. § 231.*]</p>

Action by the Locomobile Company of America against Edwin Nichols. Judgment dismissing the complaint in the City Court was reversed by the Appellate Term (84 Misc. Rep. 44, 145 N. Y. Supp. 941), and defendant appeals by permission (150 N. Y. Supp. 1093). On motion to dismiss appeal.

In the matter of the final judicial settlement of the account of Sarah S. Holzworth, executrix of the estate of William N. Slater, deceased. From an order of the Surrogate’s Court of Westchester County, denying a motion to set aside and vacate a decree, said executrix appeals.

Action by Hiram Lay and others against Eleazer Carter and the Town of Seneca Falls to restrain defendant Carter from interfering with the fence or any portion of a family cemetery. Judgment establishing boundaries.

<p>Action by John Adikes and another against the Long Island Railroad Company.</p>

<p>Action by Abner M. Harper, Incorporated, against the City of Newburgh and others.</p>

<p>Action by James D. Armstrong against the Minetto-Meriden Company.</p>

<p>Appeal from Special Term, New York County. Action by the Automobile Tire Company against the Mansfield Tire & Rubber Company. From an order directing plaintiff to serve a bill of particulars, it appeals.</p>

<p>In the matter of the administration of the estate of Louis E. Babcock, deceased.</p>

In the matter of the application of Barnet Berezoff for the consent of the Supreme Court to remove the body of Morris Berezoff, etc.

<p>Action by George E. Blakeslee against the International Motor Company and others.</p>

<p>Appeal from Trial Term, New York County. Action by Martin Boyle against the George A. Fuller Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Herbert C. Breeze against James C. Stewart and another.</p>

<p>In the matter of the judicial settlement of the account of Mary E. Brown, as administratrix, etc., of James L. Brown, deceased.</p>

<p>Action by Brown Bros., Incorporated, against Fred M. Wooster.</p>

<p>Action by Anna Frances Burmester, individually and as executrix, etc., against Charles T. M. O’Brien.</p>

<p>Action by John Cannon against James C. Fargo, as president, etc.</p>

<p>Action by Nathaniel L. Carpenter and others against Frederick A. Heinze, impleaded with others.</p>

<p>Action by the City of Buffalo against Clara Graham and others.</p>

<p>Action by the City of New York against Joseph J. Marrin and others, Commissioners.</p>

<p>Action by John F. Conway against the Farish-Stafford Company.</p>

<p>Action by Benjamin O. Clearmont against Clinton Riley and others.</p>

<p>Action by Lizette Deebach, as administratrix, etc., of Charles Deebach, deceased, against the Robert Gair Company.</p>

<p>Ac tion by Jeannette Demuth against Arthur T. Kemp and others.</p>

Action by Thomas F. Devine against Walter Melton and another. From an order granting temporary injunction and appointing a receiver, defendants appeal.

<p>In the matter of Henry P. Dunham, deceased.</p>

<p>Action by Daniel Doonan and another against Thomas Killilea and others.</p>

<p>Action by Irving L. Ernst, as trustee, etc., against the Terminal Clearing House Association.</p>

<p>Action by Josephine M. Fairchild against the Scarsdale Estates and others.</p>

<p>Action by Elsie H. Ettlinger against Albert J. Kramer and others.</p>

<p>Action by Charles A. Frueauff and another against George Moore and another.</p>

<p>Action by George Gabel against the Hastings Homes Company.</p>

<p>Action by Laura Glover against the National Bank of Commerce.</p>

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

<p>Action by Lawrence Hull, as trustee in bankruptcy of Clarence E. Hopkins, against the Fifty-Second Street Storage House, Incorporated, and others.</p>

<p>Action by Clement S. Jacobus against William H. Colgate.</p>

<p>Action by Isadore S. Joseph against Aai Guernsey.</p>

<p>Action by Joseph J. Jermyn against Frederick F. Searing and others.</p>

Action by Elmer M. Kimbark against the Waldemark Company and others. From an order authorizing a receiver to pay a counsel fee, Mortimer Bartlett and another appeal. Reversed, and motion denied. See, also, 161 App. Div. 931, 146 N. Y. Supp. 1096.

<p>Action by Mary F. Kelly, as administratrix, against the Pennsylvania Tunnel & Terminal Railroad Company and another.</p>

In the matter of the judicial settlement of the account of the Kings County Trust Company, as executor and trustee, etc., of Mary Elizabeth Lewis, deceased.

<p>Appeal from Special Term, New York County. Action by Clifford F. MacEvoy, as trustee in bankruptcy of Oswin W. Shelly, against the Tidewater Oil Company. From an order opening plaintiff’s default, defendant appeals.</p>

Action by Leon Marks against John E. Cowdin and another. From an order granting plaintiff’s motion for a bill of particulars, defendants appeal.

Action by Henry Melhado against the Steel & Masonry Contracting Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>In the matter of Agostino H. Montegriffo, Jr.</p>

<p>Appeal from pecial Term, New York County. Action by Fannie Messer against Charles Burstein and others. From an order permitting defendants to interpose an amended answer, plaintiff appeals.</p>

Action by the Mt. Vernon Trust Company, and another, trustees, etc., against James T. Penfield, individually and as trustee, etc., and others.

<p>In the matter of the application of Charles F. Moulton as to the change of grade of street in the village of Cuba, N. Y.</p>

<p>Action by the Nassau Hotel Company against Eudoise Barnett and other, individually and as copartners, etc.</p>

<p>Action by the Neponset National Bank against Harris T. Dunbar and another.</p>

<p>Action by Olga Nethersole against Theodore A. Liebler and others.</p>

<p>Proceeding by the People of the State of New York against Edward Rheinhardt.</p>

<p>Proceeding by the People of the State of New York, on the relation of John S. Buck, against William Williams, as Commissioner of Water Supply, Gas, and Electricity.</p>

<p>Proceeding by the People of the State of New York against the Steeplechase Park Company and others.</p>

<p>Proceeding by the People of the State of New York, on the relation of John J. Mara, against Rhinelander Waldo, as P olice Commissioner, etc.</p>

<p>Proceeding by the People of the State of New York, on the relation of Franklin P. Noble, against John F. Romsen and others, constituting the Board of Water Commissioners of the Roslyn Water District, etc.</p>

<p>Proceeding by the People of the State of New York, on the relation of Stephen A. Rudd, against James C. Cropsey, as District Attorney of the County of Kings.</p>

<p>Action by Margaret E. Phillips, as administratrix, etc., against the Crosstown Street Railway Company of Buffalo and another.</p>

<p>Action by Eva Roesler, an infant, etc., against the Dunkirk Home Telephone Company.</p>

In the matter of the application of Anna Ingersoll Rich for a writ of mandamus directing the Onondaga Chapter, Daughters of the American Revolution, and the officers thereof, to reinstate said Anna Ingersoll Rich to membership, etc. Final order and judgment, and order denying motion for new trial, affirmed, with costs.

<p>Action by Frank B. Robinson, suing, etc., against Charles McKnight and others, impleaded with the Western National Bank.</p>

<p>In the matter of Addison S. Sanborn, an attorney.</p>

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

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

<p>In the matter of the compulsory judicial settlement of the estate of William N. Slater, deceased.</p>

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

<p>Action by Abraham Vanderborg against the City of New York.</p>

<p>Action by the United States Drainage & Irrigation Company against Fred Hawley and others.</p>

<p>Action by the Willson & Adams Company against the Mack Paving & Construction Company and another.</p>

<p>Action by Charles Yung against Anna M. Blake.</p>