Volume 152 — New York Supplement

Action by Wisner B. Martin against the City of New York. A judgment dismissing the complaint was unanimously affirmed by the Appellate Division (150 N. Y. Supp. 1096), and plaintiff applies to a judge of the Court of Appeals for leave to appeal to such court. Application denied.

Proceeding by the City of New York to acquire land for street purposes. Application by Frederick and Anna Jelinek, as landowners, for confirmation of report of commissioners of estimate and commissioner of assessment, opposed by the city. Report confirmed.

Action by Walter V. Davidson against Prederic G. Dunham and another, to restrain defendant’s violation of covenant to use certain premises for residence purposes only. Complaint dismissed.

<p>1. Charities <§=>30—Duration of Right—“General.”</p> <p>Where a grantee agreed that the grantor might erect upon the premises a building for a kindergarten school, which the grantee would maintain, heat, and clean, and that defendant should have the use thereof until the system of kindergarten teaching should generally be adopted as a part of the public school system of the city of Brooklyn, the installation of kindergarten departments in over 75 per cent, of the elementary schools of the borough of Brooklyn, which succeeded the city of that name, shows a general adoption of the kindergarten teaching; the term “general” being used as equivalent to common, and not universal.</p> <p>[Ed. Note.—For other cases, see Charities, Cent. Dig. § 61; Dec. Dig. <§=>30.</p> <p>For other definitions, see Words and Phrases, First and Second Series, General.]</p> <p>2. Charities <§=>48—Sale of Property—Agreements Regulating Use.</p> <p>Land was conveyed for charitable uses, and the donor and donee agreed that the donor might, at any time before sale of the premises, erect a building to be used as a kindergarten school and cared for by the donee, and that defendant should have the use of the building, subject to sale, until a system of kindergartens was generally adopted and used as a part of the public school system in the locality. The agreement also declared that if the buildings and grounds became unsuitable for the purpose stated, or the donee should deem it for its best interest to sell and dispose of the same, it might do so free and clear from any interest,- provided that the donee should receive and invest the proceeds in other lands to be used for the same purposes, and that nothing should allow the donee to make any change in the use of the property for or during the 25 years next aftei conveyance. Seld, that under the agreement the donee could sell and dispose of the whole premises, free from any claims, but was bound to reinvest the proceeds and use them for a similar charity, and defendant, unless the system of kindergarten teaching was generally adopted, was for at least 25 years entitled to insist on its right to use the building erected for a kindergarten school, but in case of general adoption of that system of teaching before the expiration of 25 years defendant’s right to use the building is lost.</p> <p>[Ed. Note.—Eor other cases, see Charities, Cent. Dig. §§ 78, 81, 104, 106; Dec. Dig. <$=348.]</p> <p>3. Charities <$=350—Damages for Withholding Property.</p> <p>Where defendant withheld property devoted to a charitable use from plaintiff, who was entitled to the property, plaintiff was not, in ejectment, entitled to recover the value of the use and occupation of the premises, but should be given only nominal damages, as it could not have rented them for ordinary purposes and could have used them only for the prescribed charitable purpose.</p> <p>[Ed. Note.—Eor other cases, see Charities, Cent. Dig. §§ 96-99; Dec. Dig. <$=350.]</p>

<p>1. Criminal Law @=1059—Appeal—Grounds op Review—“Exception.”</p> <p>Asking that a refused charge be spread on the record is not an “exception” to it, sufficient to bring it up for review.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. @=1059.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Exception.]</p> <p>2. Criminal Law @=1056—Appeal—Objections in Lower Court—Necessity.</p> <p>In case where there is a serious doubt as to the guilt of defendant, the appellate court has power to review refused instructions without an exception thereto.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. @=1056.]</p>

Action by John C. Harris against A. L. Churchill, as Receiver of Taxes for the Town and Village of Saratoga Springs, and the Village of Saratoga Springs, to restrain the collection of a sewer tax. Findings for defendants ordered.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Abe Siegel against the Reece Buttonhole Machine Company. Judgment for the defendant, and plaintiff appeals. Affirmed.</p>

Action by Corrine Louise Bannister against George G. Murray. From an order vacating an order for the examination of defendant before trial, plaintiff appeals. Reversed, and motion to vacate denied.

Action by Leo Herzfeld and another against Abraham Robinson and another. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered.

Action by John F. Weber against the Interborough Rapid Transit Company. From an order denying defendant’s motion to resettle the case on appeal, he appeals. Reversed, and remitted for resettlement of case.

Action by Clara Robesteien against the Franklin Savings Bank. Judgment for defendant, and plaintiff appeals. Reversed, and judgment entered for plaintiff.'

Action by Angus K. Nicholson and Louis L. Winkelman, copartners doing business under the firm name and style of L. L. Winkelman & Co., against Charles S. Sprague and another. From an order overruling a demurrer to the complaint, defendants appeal. Reversed, and demurrers sustained, with leave to plead over.

/- Appeal from City Court of New York. Action by Saul Oliner and others against Benjamin Goldenberg and another, in which Herman Gronich and Isaac Gronich, doing business as Herman Gronich & Co., were impleaded. Judgment of the City Court for defendants was affirmed, and plaintiffs apply for reargument, or for leave to go to the Appellate Division. Reversed, and new trial granted.

<p>Venue <@=>7—Breach oe Contract.</p> <p>Where a contract was made in S. county, and was to be performed there, and plaintiff’s assignor described himself therein as a resident of S. county, the venue of the action was properly laid in such county.</p> <p>[Ed. Note.—For other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. <@=>7.]</p>

Action by Peter J. Devine against Henry E. Price. From a judgment for plaintiff in an action on a promissory note, defendant appeals. Reversed, and new trial ordered.

<p>Submission of Controversy <3=16—Necessary Parties—Nonjoinder—Effect.</p> <p>Where all the parties necessary to a determination of a submission of controversy are not before the court, the proceeding must be dismissed.</p> <p>[Ed. Note.—For other cases, see Submission of Controversy, Cent. Dig. §§ 16-18; Dec. Dig. <3=16.]</p> <p>Ingraham, P. J., dissenting.</p>

Action by Jessie Roediger, as administrator of Louisa Roediger, deceased, against Nellie Kraft, as executrix, and Emil Hasenbalg, as executor, of Traugott F. M. Roediger, deceased. Judgment for plaintiff, and defendants move to set aside the judgment and for a new trial. Motion denied.

<p>Landlord and Tenant <@=>164—Injuries to Tenant—Liability oe Landlord.</p> <p>Where a tenant was injured by a fall of plaster from the ceiling, due to a defect in the roof which allowed water to leak in, the landlord, having been seasonably notified of the defect, is liable.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 630-637, 639, 641; Dec. Dig. <$=>164.]</p>

Action by the William S. Merrell Chemical Company against Marshall J. Root and Charles B. Van Nostrand. Judgment for plaintiff, and defendant Van Nostrand moves for new trial. Motion denied.

<p>1. Boundaries <®=8—Description—Evidence.</p> <p>A deed conveying a vacant lot described it as bounded by beginning at a point in the east line of a street at the southwesterly corner of the grantor’s brick building; thence along the building and including one-half of the wall thereof; thence on a line parallel with the street, 25% feet, more or less, to an iron wall; thence westerly on a line parallel with the brick building and 25% feet or thereabouts distant therefrom; thence northerly along the street 25% feet or thereabouts. The grantee, before purchasing, made measurements, and his measurements were 25% feet as designated in the deed when measured from the center of the wall of the brick building. When the grantee excavated for the purpose of building, he found a stone monument in line with the center of the wall of the brick building. He subsequently used the wall as a party wall. Held, that the deed conveyed to the center of the wall.</p> <p>[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 66-76; Dec. Dig. <@=8.]</p> <p>2. Party Walls <3=5—Structures Constituting Party Walls—Bights of Parties.</p> <p>Where a deed conveyed to the grantee to the center of a wall of a building of the grantor, and the parties treated the wall as a party wall. the wall must be deemed a party wall; but the easement of joint use therein did not survive the destruction of the wall occurring without the fault of either party.</p> <p>[Ed. Note.'—For other cases, see Party Walls, Cent. Dig. §§ 11-13, 567; Dec. Dig. <@=>5.]</p> <p>3. Ejectment <§=>114—Jtjdgmeni^-Kight to Possession.</p> <p>Where plaintiff in ejectment was entitled to recover a strip occupied in part by a wall of a building of defendant, the court will render judgment of eviction, unless defendant will deliver to plaintiff an agreement permitting the use of the wall as a party wall.</p> <p>[Ed. Note.—For other cases, see Ejectment, Cent. Dig. §§ 352-370, 372, 374-378; Dec. Dig. <@=>114.]</p>

<p>Taxpayer’s action by Charles F. Rattigan against the Board of Supervisors of the County of. Cayuga and others. Findings directed.</p>

Action by Elias Jacobson against James Strong, Jr., and another. From an order denying motion to change place of trial, defendants appeal. Reversed, and motion granted.

<p>Appeal from Judgment on Report of Referee.</p> <p>Action by the Cream of Wheat Company against the Arthur H. Crist Com- ■ pany. Judgment for defendant, and plaintiff appeals. Affirmed.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by James M. Carples against the John Deere Wagon Cbmpany. Prom an order denying a motion to vacate an order for the examination of defendant, it appeals. Modified and affirmed.</p>

Action by Frank A. Terryberry against the Lehigh Valley Railroad Company. Defendant moves on the pleadings for a separate trial of a single issue. Motion to stand over.

<p>1. Dismissal and Nonsuit @=>36—Voluntary—Conditions—Discretion op Court.</p> <p>A party has the right as a matter of course to discontinue an action at law, but on such terms as the court in its discretion may impose.</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 70, 71, 74; Dec. Dig. @=>36.]</p> <p>2. Dismissal and Nonsuit @=>36—Voluntary—Conditions—Discretion op Court.</p> <p>A receiver of a national bank, who sues the maker and indorser of a note, may not discontinue without terms as to the indorser, pleading as a set-off his deposit in the bank at the time of the receiver’s appointment, though the Comptroller of the Currency has instructed receivers not to allow set-offs to indorsers as the state and federal decisions have established the right of set-off.</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 70, 71, 74; Dec. Dig. @=>36.]</p> <p>3. Banks and Banking @=>235—National Banks—Officers—Comptroller op Currency.</p> <p>The Comptroller of the Currency must take notice of and be governed by the decisions of the courts, particularly of the federal courts.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 879-887; Dea Dig. @=>235.]</p> <p>4. Dismissal and Nonsuit @=>36—Voluntary—Issues.</p> <p>Where the receiver of a national bank, suing the maker and indorser of a note, moved for a discontinuance as to the indorser, pleading as a set-off his deposit in the bank, the court, allowing the discontinuance, could not direct an allowance of the set-off, because that would be equivalent to an adjudication of the issues summarily.</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 70, 71, 74; Dec. Dig. @=>36.]</p>

<p>Suit by Victor Herbert against Lew Fields and others. Motion for temporary injunction denied.</p>

<p>1. Vendor and Purchaser «=>75, 111—Contracts—Performance.</p> <p>Where a contract for the sale of land did not fix any time of performance, the law implies that it should be consummated within a reasonable time; and where the owner delayed four years in offering a marketable title, the purchaser is warranted in rescinding.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 113-118, 126, 198; Dec. Dig. «=>75, 111.]</p> <p>2. Landlord and Tenant «=>9—Purchaser in Possession.</p> <p>A purchaser, who goes into possession under the contract of sale, does not become a tenant, and is not liable to the vendor for the use of the land.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 23-29; Dec. Dig. «=>9.]</p> <p>3. Vendor and Purchaser «=>214—Rescission—Rights of Vendor.</p> <p>Under a contract of sale, the purchaser of real property was admitted into possession. The vendor, after the expiration of four years, was unable to give a marketable title. A mortgagee of the premises, to whom the vendor assigned the contract, sought to foreclose his mortgage, and to recover from the purchaser the value of the use and occupation of the premises, which exceeded the down payment. Held, that as the purchaser abandoned the premises upon institution of the suit, and was not seeking to enforce specific performance, equity would follow the law, and no recovery could be had for use and occupation.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 436, 442-448; Dec. Dig. @=214.]</p>

Action by Leon A. Halstead against Oscar E. Schnitzpahn in which plaintiff moved for an injunction pendente lite. Temporary injunction vacated, and motion denied.

<p>1. Literary Property <@=>8—Infringement—Manuscript Drama—Photo Play.</p> <p>The General Film Company’s motion picture play, “Count of Monte Cristo,” will, absent a convincing explanation, be held an infringement of the Feehter manuscript, “Monte Cristo;” it containing many things original in the latter, and not found in the novel or earlier dramatizations.</p> <p>[Ed. Note.—For other cases, see Literary Property, Cent. Dig. § 7; Dec. Dig. <§=>8.3</p> <p>2. Adverse Possession <§=6—Ownership—Manuscript Drama.</p> <p>Title to a manuscript drama, good against an infringer, as well as the original owner, may be acquired by continuous, open, and notorious possession, with maintenance of exclusive right.</p> <p>[Ed. Note.-—For other cases, see Adverse Possession, Cent. Dig. §§ 7-10, 12-23; Dec. Dig. <@=>6.3</p> <p>3. Literary Property <@=>5—Common-Law Right in Play—Performance Abroad—Publication.</p> <p>' Public performance in England of a manuscript play was not such publication of it as to destroy the common-law rights in it in the United States.</p> <p>[Ed. Note.—For other cases, see Literary Property, Cent. Dig. § 4; Dec. Dig. <§=>5.]</p> <p>4. Literary Property @=5—Publication—Filing for Censorship.</p> <p>Filing a manuscript play with the Lord Chamberlain of England for purpose of censorship, as required by the statute, was not a publication, destroying common-law rights in it.</p> <p>[Ed. Note.—For other cases, see Literary Property, Cent. Dig. § 4; Dec. Dig. <§=>5.3</p> <p>5. Literary Property <@=>5—Publication—Advertising Posters.</p> <p>It is not a publication, whereby one surrenders his common-law rights in a manuscript play, to put out, for advertising purposes, pictorial posters of many of the striking scenes in it; they not telling the story.</p> <p>[Ed. Note.—For other cases, see Literary Property, Cent. Dig. § 4; Dec. Dig. <§=>5J</p> <p>6. Literary Property <§=>5—Publication—Manuscript Drama—Copyrighting Photo Play.</p> <p>It is not a publication of a manuscript drama, whereby common-law rights therein are destroyed, that the owner licenses one to give motion picture presentation of it, and the licensee copyrights its films under Copyright Act March 4, 1909, c. 320, § 11, 35 Stat. 1078, as amended by Act Aug. 24, 1912, c. 356, 37 Stat. 488 (U. S. Comp. St. 1913, § 9532).</p> <p>[Ed. Note.—For other cases, see Literary Property, Cpnt. Dig. § 4; Dec. Dig. <§=>5.3</p>

Action by Mary B. Brandagee against James C. Cleary and others. From an order denying the motion of the named defendant, to open the judgment entered against him and to vacate his default, he appeals. Order reversed, and motion granted.

Action by the Century Holding Company against the Ebling Brewing Company. From so much of an order as modifies an order previously made for examination of defendant before trial, plaintiff appeals. Reversed.

Action by James P. Callender against the Dressler-Beard Manufacturing Company. From an order which opens defendant’s default without the imposition of any terms, plaintiff appeals. Modified and affirmed.

Action by Adolph Maltz and another against the Westchester County Brewing Company. From an order modifying the report of a referee, defendant appeals. Affirmed. Plaintiffs were in occupation of a saloon at No. 139 Mt. Vernon avenue, in Mt. Vernon, N. Y. They alleged that, having an agreement with the landlord for a further period of five years, at the plaintiffs’ request he had made a lease to one Schwartz in trust tor the plaintiffs.

<p>Appeal from Special Term, New York County.</p> <p>Arbitration between S't. John’s Guild and Charles F. Lass and others. From an order denying motion for judgment upon an award of arbitrators, St. John’s Guild appeals. Modified.</p>

<p>1. Master and Servant <@=>302—Injury to Third Persons—Unauthorized Act of Servant—Scope of Employment.</p> <p>The act of a laborer in defendant’s employ on a building in course of construction, who was not shown to have any authority to drive trespassers from the premises, and whose act in throwing a small block of wood at the infant plaintiff, shouting at him to “Get out,” and striking him on the head and injuring him, was the result" of the laborer’s own recklessness, was in no way connected with the performance of his duties and outside the scope of his employment, so that the defendant was not liable.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <@=>302.]</p> <p>2. Master and Servant <@=>302—Injury to Third Persons—Scope of Authority-Unauthorized Acts.</p> <p>A master’s liability for the act of his servant, a laborer, done with a view to further the master’s interest, whether the act did in fact further his interest, applies only where the servant is in fact acting within the scope of his employment.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <@=>302.]</p> <p>3. Master and Servant <@=>302—Injury to Third Person—Unauthorized Act of Servant.</p> <p>To hold a master liable for the unauthorized act of his servant, it must be shown that the servant was acting within the scope of the general authority conferred upon him, although the particular act may be unjustified.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <@=>302.]</p>

Action by Edward S. Miller against Saunders P. Jones and others. From an order vacating a warrant of attachment, upon a motion based on the insufficiency of the papers on which it was obtained, plaintiff appeals. Reversed.

Action by the Trustees of the Mission Church in the City of New York against Edward A. Ridley and another. From an interlocutory judgment, entered on a decision after trial at Special Term for plaintiff, defendants appeal. Reversed, and complaint dismissed, with costs.

<p>1. Trusts <@=>62y2—Parol Trust of Foreign Realty—Law Governing.</p> <p>In an action by a trustee in bankruptcy to impress with a trust in favor of the creditors of the bankrupt lands in Canada standing in the name of another, Canadian laws governed the transactions between the bankrupt and the holder of the legal title.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 89: Dec. Dig. <S=>62%.]</p> <p>2. Evidence <@=>81—Presumptions—Foreign Law.</p> <p>While the presumption is that the common law of Canada is the same as that of the state, no such presumption prevails as to Canadian statutory law.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 102; Dec. Dig. <g=>81.]</p> <p>3. Trusts <@=>17, 18—Parol Trust in Land—Validity.</p> <p>By the common law of the state and its general equity jurisprudence, a parol trust in land is valid and enforceable.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 15-24; Dec. Dig. <@=>17, 18.]</p> <p>4. Bankruptcy <§=>140—Transfer by Bankrupt—Validity.</p> <p>Where, previous to his adjudication as a bankrupt, an insolvent received money from one for- whom his wife held real property in Canada in trust, and mingled such money with his own funds in bank, upon which he drew checks for his own purposes, but eventually applied the money received to the repair, etc., of the realty, the purpose for which it was paid him, and where such insolvent’s wife subsequently conveyed such property to the beneficiary, there was no right in the insolvent’s trustee in bankruptcy, after adjudication, to impress a trust upon the property in Canada in favor of the bankrupt’s creditors, since beneficial title to the funds which had passed through the bankrupt’s hands to go into such property never vested in him.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. <§=>140.]</p> <p>5. Bankruptcy <§=>161—Preferences—Statute.</p> <p>Where, previous to his adjudication as a bankrupt, an insolvent received money from one for whom his wife held real property in Canada in trust, thereby becoming such beneficiary’s debtor, used the funds so secured in the maintenance and care of the trust property, and the insolvent’s wife thereafter conveyed such property to the beneficiary, after the insolvent’s adjudication in bankruptcy his trustee could not impress upon such property a trust for the benefit of creditors; the payments having been made more than four years previously to the adjudication in bankruptcy, while the national Bankruptcy Act avoids only preferences within four months of adjudication.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 261-263; Dec. Dig. >§=>161.]</p>

Action by Ida Cohen, suing, etc., against the Illinois Surety Company. From a judgment for defendant, plaintiff appeals. Reversed, and judgment ordered for plaintiff.

Habeas corpus by the People, on the relation of Abel I. Smith, against Max S. Grifenhagen, Sheriff, etc., and others. From an order dismissing the writ, relator appeals. Affirmed.

<p>Proceeding for the opening of Borden Avenue in the City of New York. On motion for order directing the commissioners of estimate to admit further evidence in reply to the city’s claim on dedication and establishment by user. Motion denied.</p>

Action by Charles F. Tatum against John Farson, Jr., and William Farson and another.

Summary proceedings to dispossess a tenant by Adolf Mandel against Benny Koerner. From a final order for defendant (149 N. Y. Supp. 455), plaintiff appeals. Reversed, and final order directed for the landlord.

Action by Drurie S. Sanford against Frieda Hart and another, impleaded with Max M. Hart and M. M. Hart, Incorporated. From a judgment in favor of defendants, plaintiff appeals. Modified and affirmed.

<p>Copyright <©=355—Copyrighted Story—Use op Titee for Play—Injunction.</p> <p>The author of a copyrighted story, published in magazine and book form, is not entitled to enjoin use of the title for a play not connected with the story, where it appears the same title has been frequently used before for magazine articles, and for plays more than 40 years ago. .</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 52; Dec. Dig. <©=3355.]</p>

Proceeding by Warren S. Burt and another, as executors of the last will of Mary Gallagher, deceased, against Mary Ann Harris and another, for construction of the will. Will construed.

Action by Thomas B. Carroll against Max D. Blum. Brom a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed and remanded.

Action by Harry Levine and others, a copartnership as Levine, Kalikow & Co., against Harry Orentlich and Morris Danzig, a copartnership as H. Orentlich & Co. From a judgment for plaintiffs, and an order denying motion for new trial, defendant Danzig appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Solomon D. Pakas against Francis Perit Rawle. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Teresa M. Bump against Marie Hanigan. From a judgment rendered in favor of plaintiff after a trial before the court with a jury, defendant appeals. Modified and affirmed.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Isabelle R. Merrell against James E. Merrell. From an order allowing alimony and counsel fees, defendant appeals. Reversed, and motion denied.</p>

<p>Pleading <@=>238—Amendment—Complaint—Showing.</p> <p>An order granting leave to serve an amended complaint will be reversed, where plaintiff filed no affidavit showing why he failed to .allege the matter in his original complaint, and his grounds for believing the new allegations, and did not show any excuse for failure to file such afdavit.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 602, 620-625; Dec. Dig. €=>238.]</p>

<p>Infants <S=»110—Actions Against—Guardian Ad Litem—Necessity.</p> <p>Where a default judgment was taken against a firm of infants, over their objection that no guardian ad litem had been appointed, an order opening the default, after the appointment of a guardian on condition that they pay the amount of the judgment into court, was erroneous, and must be reversed, as the judgment should have been vacated and the default opened without terms.</p> <p>[Ed. Note.—For other cases, see Infants, Cent Dig. § 314; Dec. Dig. <8=»110.] °</p>

Action by Fannie Baff, as administratrix of Bernard Baff, deceased, against Herman J. Weiden. From a judgment for defendant on his counterclaim to plaintiff’s action, plaintiff appeals. Reversed, and judgment ordered for plaintiff.

Action by Exporters’ Alliance, Incorporated, against Morris Winnegrade. From a judgment rendered in favor of plaintiff after trial without a jury, defendant appeals. Reversed, and new trial ordered, with leave to plaintiff to amend.

<p>1. Replevin <§=>59—Proceedings for Taking Property—Description of Property.</p> <p>That goods were defectively described in replevin proceedings is immaterial, where the officer has in fact found the right property and taken it into possession.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 215-218; Dec. Dig. <§=>59.]</p> <p>2. Beplevin <S=>8—Mortgagee’s Bight to Possession—Bailment.</p> <p>Since a bailee cannot be deprived of his possessory title without the payment of his charges, the assignee of an unrecorded chattel mortgage covering goods in storage does not obtain an interest in the goods en-* titling him to maintain replevin therefor without payment of storage charges as against the holder of a bill of sale to whom possession has been transferred upon the payment of such charges.</p> <p>[Ed. Note.—For other cases, see Beplevin, Cent Dig. §§ 45-68; Dec. Dig. <§=>8.]</p>

Action by George W. Boutross against Joseph Beilouney. From an order denying plaintiff’s motion to open its default, he appeals. Reversed, default opened, judgment vacated, and new trial ordered.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Perly M. Codington against Interborough Rapid Transit Company. Judgment for the plaintiff, and defendant appeals. Reversed, and new trial ordered.</p>

Action by Samuel Rosen against John Werle, doing business under the firm name and style of the Century Storage Warehouse. From an order directing the clerk of the Municipal Court to pay to plaintiffs attorney the costs deposited by defendant on an appeal from a judgment subsequently vacated, defendant appeals. Appeal dismissed.

Action by Thomas W. Churchill against Thomas J. Coyne, individually and as executor of and trustee under the last will and testament of Mary Coyne, deceased, and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Action by the Majestic Metal Bed Company, Incorporated, against the Mutual Furniture Company, Incorporated. From a judgment of the Municipal Court, bringing up for review an order overruling a traverse of the return after trial of issue of fact raised thereby, defendant appeals. Reversed, and complaint dismissed.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Jacob Bernstein against the Fulson Realty Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court of New York.</p> <p>Action by Karl Deutsch against Fannie Cirker. From a judgment for plaintiff, defendant appeals. Reversed and remanded.</p>

<p>1. Brokers <©=»64—Contracts—What Constitute.</p> <p>Defendant, who desired to sell a saloon business, engaged plaintiff to find a buyer. A prospective purchaser offered by plaintiff tendered a check of $25 as a deposit on the purchase price. On advice defendant refused to sign a contract for a sale of the property, which was valued at-nearly $10,000, but did consent to sign a receipt for the deposit. Held, that the receipt did not constitute a contract obligating defendant to pay commissions, though the purchaser did not offer to consummate the transaction.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. <@=>64.]</p> <p>2. Brokers <@=>86—Compensation—Action.</p> <p>In an action by a broker to recover commissions, evidence held insufficient to show that defendant, the seller, was guilty of any act which prevented consummation of the transaction.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. <§=»S6.]</p>

<p>Costs <S=»238—Improper Brief.</p> <p>Where a judgment is affirmed, but respondent’s brief does not conform to the requirements of General Rules of Practice, rule 43, made applicable by calendar rule 4 of the Appellate Term, First Department, and it contains a gratuitous, improper, and immaterial reflection on appellant’s attorney, no costs will be allowed to respondent.</p> <p>[Ed. Note.—For other cases, see , Costs, Cent. Dig. §§ 908-919; Dec. Dig. <§=»238.j</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Esther Kelmenson against the Metropolitan Opera Company. From a judgment for plaintiff, defendant appeals. Conditionally reversed and remanded.</p>

<p>1. Appeal and Errob <§=>1050—Review;—Verdict—Conflicting- Evidence-Incompetent Testimony.</p> <p>Where a verdict is based on the irreconcilably conflicting testimony of an equal number of witnesses on each side, their veracity having been questioned by neither party, it must clearly appear on appeal that no inadmissible evidence was admitted that might in any way have prejudiced the defeated party.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <§=1050.]</p> <p>2. Evidence . <§=129—Misrepresentations—Stock Subscription—Similar Transactions.</p> <p>In suit to rescind a contract to purchase stock, the admission of testimony by plaintiff as to a conversation had by him, three years after the sale, with the agent who had sold him the stock, used to get before the ■jury statements by plaintiff as to other purchasers having been victimized by defendant, was error.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 388-393, 395-398; Dec. Dig. <@=>129.]</p> <p>3. Evidence <@=>129 — Stock Subscription — Misrepresentations — Similar Transactions.</p> <p>In suit to rescind a contract to purchase stock, the admission of testimony for plaintiff, by a stranger to the action, as to representations made to' him by the agent who sold plaintiff the stock, two months after such stranger had become a stockholder by purchasing through others, and three months before the interview between the plaintiff and the agent which resulted in plaintiff’s purchase, was error; there being no proof that the representations made to the witness were fraudulent, although proof of similar fraudulent acts by defendant is generally admissible to show intent in such cases.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 388-393, 395-398; Dec. Dig. <@=>129.]</p> <p>4. Witnesses <@=>388—Impeachment—Contradiction—Latins Foundation —Necessity.</p> <p>The admission of testimony as to previous statements contradicting defendant’s agent, a witness on its behalf, was improper, where no foundation had been laid therefor by calling his attention to the time and place of such statements.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. <©=>388.]</p> <p>5. Witnesses <@=>383—Contradiction of Testimony as to Collateral IsSUES.</p> <p>The admission of testimony as to statements contradicting defendant’s agent, a witness on its behalf, was improper, where such statements concerned collateral issues only.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1224; Dec. Dig. <@=>383.]</p>

<p>1. Landlord and Tenant <^=»22—Agreement to Take Lease—Enforceability.</p> <p>An agreement merely to take a lease of an apartment at an annual rent is not enforceable, where the terms and conditions entering into the lease were not determined, so that nothing remained to be discussed or to he done except to reduce the completed agreement to writing.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 55-59; Dec. Dig. <@=¿22.]</p> <p>2. Trial @=251—Instructions—Conformity to Issues.</p> <p>Where, in an action for rent under an oral lease, the evidence of plaintiff showed that in May defendant expressly wished to take an apartment for a year, and directed the making of a lease, that plaintiff prepared a lease, signed it, and sent it to defendant, who did not sign it, or express any dissent therefrom; that in September defendant stated that he could not sign the lease, but would take the apartment, while defendant denied the testimony, so that the sole issue was whether defendant in September made an oral lease, instructions submitting the case on the issue of a lease made in May, and repudiated in September, were erroneous, and the court should have submitted the issue of an oral agreement for a lease made in September.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. <@=251.]</p>

Action by Henry F. Ecks against Adonis Montanara and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed, and new trial ordered.

<p>1. Master and Servant <®=»80—Actions for Compensation—Pleading— Variance—“Net Profits.”</p> <p>In a traveling salesman’s action for compensation" under a contract of employment, in which he alleged that he was to receive a specified salary and necessary traveling expenses, and in addition thereto one-half of the, net profits on sales by him, after deducting such salary and expenses, but his evidence tended to show that he was to have one-half of the gross profits, subject to the deductions named, while defendants pleaded that plaintiff was to receive one-half of the gross profits after certain deductions, but their evidence was that he was to have one-half of the net profits after making certain deductions, the jury having apparently found that the contract was actually made in the form testified to by plaintiff, the apparent inconsistencies between the pleading and the proof might well be overlooked; the term “net profits,” as used in the complaint, being susceptible of the construction that it referred only to the deductions specified.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 107-127; Dec. Dig. <§=>80.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Net Profits.]</p> <p>2. Master and Servant <§=>80—Actions for Compensation—Insufficiency of Proof. °</p> <p>In such action, plaintiff’s testimony that when the contract was made he said that he was to have one-half of the profits, and that Ms profits '■would run 14 per cent., was not a sufficient basis for a computation of profits, it not appearing therefrom that there was any agreement fixing the profits at 14 per cent., but only that plaintiff made that calculation, basing it upon his past experience; and hence, where defendants’ evidence showed that the profits were only 9.8 per cent., a recovery of an amount in excess of the amount due on this basis was unsustained by the evidence.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 107-127; Dec. Dig. <§=>80.]</p>

Action by the American Luxfer Prism Company against the Bartolicius Star Iron Works, Incorporated. Judgment for defendant, and plaintiff appeals. Reversed, and judgment directed for plaintiff for the amount demanded in the complaint.

<p>1. Landlord and Tenant <@=>233—Rent—Deposit as Security—Dispossession.</p> <p>In an action for rent, the answer denied nonpayment and alleged that the tenant had deposited security, that dispossess proceedings had been brought and final order entered, and that before issuance of the warrant it was agreed that defendant should surrender possession, and that plaintiff might apply on the rent part of the deposit, which had been done. Held, that directing a verdict for plaintiffs on the pleadings, on the theory that, as the lease provided that the tenant’s liability should survive dispossess proceedings, there was no consideration for the agreement to extinguish the rent, was error, since the lease was not before the court.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§. 49, 940-944; Dec. Dig. @=>233.]</p> <p>2. Landlord and Tenant @=>199—Liability for Rent—Agreement to Release. Rent—Consideration.</p> <p>Where a tenant, who had deposited an amount to secure the payment of rent, agreed to forego the right to redeem after final order in summary proceedings to give up possession before issuance of a dispossess warrant, and to allow the deposit to be applied to pay rent accruing subsequently to the date of final order of dispossession, and surrendered possession, it was a consideration for the release of rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§, 741, 742; Dec. Dig. @=>199.]</p> <p>3. Trial @=>178—Motion for Verdict on Pleadings—Admission.</p> <p>On plaintiff’s motion for a directed verdict on the pleadings, the allegations of the answer must be taken as true.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 401-403; Dec. Dig. @=>178.]</p>

<p>1. Courts <@=>190—New York Municipal Court—Default Judgment—Appeal.</p> <p>A defendant against whom a default judgment was rendered in the Municipal Court cannot appeal from an order refusing to vacate the judgment because of want of service on defendant, where defendant did not submit to the jurisdiction and ask to have the default set aside, nor have the issue as to service on it set down for trial.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=>190; Appeal and Error, Cent. Dig. § 103.]</p> <p>2. Courts <@=>190—New York Municipal Court—Default Judgment—Appeal.</p> <p>On an appeal by a defendant from a default judgment of the Municipal Court under the provisions of Municipal Court Act (Laws 1902, c. 580) § 311, the Appellate Term can determine the jurisdiction of the Municipal Court upon affidavits.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=>190; Appeal and Error, Cent. Dig. § 103.]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>. Action by Barnett Weinberg and Samuel Smith against Robert S. Smith. Judgment for. plaintiffs, and defendant appeals. Reversed, and complaint dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Hersh Hochman against Jennie Bollt. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Gabriel Debany and others, copartners trading as Debany Bros., against Jacob Rosenthal and Samuel Abramowitz, copartners trading under and by the firm name of the American Sewing Machine & Electrical Contracting Company. From a judgment directed in favor of the defendants, plaintiffs appeal. Reversed, and new trial ordered.

Action by Meyer Nitzke against Morris White. From judgment dismissing plaintiff’s complaint, and awarding judgment in favor of the defendant upon his counterclaim in the sum of $75, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Realty Mercantile Credit Association against John Menger and others. From a judgment for plaintiff, rendered upon an inquest after defendants’ demurrer to plaintiff’s written complaint, defendants appeal. Reversed, and demurrer sustained, with leave to serve an amended complaint.</p>

<p>1. Trial @=>333—Verdict—Conformity to Evidence—Amount.</p> <p>In an action for breach of contract, where under the evidence plaintiff was entitled to a certain sum or nothing, a verdict for about half that sum must be set aside.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 784, 786; Dec. Dig. @=>333.]</p> <p>2. Factors @=>22—Sale—Instructions—Price.</p> <p>Where plaintiff instructed defendant by telegram that it understood the price of eggs was 22% cents, and if so to sell both plaintiff’s cars that day, defendant was authorized, if that was the market price that day, to sell all the eggs, even if it could not obtain 22% cents for all of them.</p> <p>[Ed. Note.—For other cases, see Factors, Cent. Dig. § 22; Dec. Dig. @=>22.]</p> <p>3. Factors <$=>25—Liability—Unauthorized Sale—Damages.</p> <p>One who instructed its factor to sell eggs for it at a certain price could not recover damages for a sale at a less price, where the price ever since the sale had been even less than that obtained.</p> <p>[Ed. Note.—For other cases, see Factors, Cent. Dig. § 26; Dec. Dig. @=>25.]</p>

Action by William H. Deacon against the I. W. & C. Horn Company. Judgment for the defendant for the full amount of his counterclaim, and plaintiff appeals. Judgment modified by reducing it to the excess of defendant’s counterclaim over plaintiff’s claim, and, as modified, affirmed.

Action by Nathan Galland, individually and as surviving partner of the firm of Eugene Galland & Son, against Max W. Kass. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

<p>Action by Johnson against Wissner. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.</p>

Action by The Ansonia against Edna Valentine Ilein, now known as Mrs. Norman Selby. From a judgment entered upon the verdict of a jury, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered. See, also, 152 N. Y. Supp. 1097. Harold M. Phillips, of New York City, for appellant. George M. Pinney, of New York City, for respondent.

Action by Herman G. Boedicker against the Sackett & Wilhelms Company. From an order granting leave to serve a supplementary answer, plaintiff appeals. Modified and affirmed. W. E. Weaver, of Whitestone_, for appellant. Joseph J. 'Corn, of New York City, for respondent.

<p>Action by Max Chasen against the Astoria Light, 1-Ieat & Power Company.</p>

<p>Action by the Carpenter Motor Vehicle Company against Raymond W. Marshall.</p>

Action by the Columbia-ICnickerbocker Trust Company as substituted trustee, against Cornelia R. Wainwright and another. From an order directing plaintiff to retain a certain sum of money until entry of judgment in an action aghinst it, defendant Wainwright appeals. Modified and affirmed. S. H. Olin, of New York City, for appellant. W. F. Earp, of New York City, for respondent.

<p>Action by the C. S. Posner Company, Incorporated, against Emanuel A. Jackson and another. J. H. Cohen, of New York City, for appellants. E. B. Wise, of New York City, for respondent.</p>

<p>Action by Beatrice H. De Hunt against Meyer Swirson.</p>

<p>Action by the De Kalb Holding Company and another against the Madison Theatre Company and others.</p>

Action by John J. Doerr against the City of New York. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed. E. Crosby Kindleberger, of New York City, for appellant. J. Arthur Hilton, of New York City, for respondent.

<p>Action by Vitorio Del Mondo against the Delaware, Lackawanna & Western Railroad Company.</p>

<p>Action by Owen Duffy against James E. Place. N. Blank, of New York City, for appellant. H. C. Allen, of New York City, for respondent.</p>

<p>Action by George C. Dye against the Town of Cherry Creek.</p>

<p>Action by Orange T. Fanning and another against the Belle Terre, etc., and others.</p>

<p>Action by William Foster against the City of New York.</p>

<p>Action by the German-Ameriean Coffee Company against John O’Neil. E. S. Paine, for appellant. G. W. Harper, Jr., of New York City, for respondent.</p>

<p>Action by the German-American Coffee Company against Clarence A. Diehl. W. Ferguson, of New York City, for appellant. E. S. Paine, for respondent.</p>

Action by Richard Graf against R. Gordon Mackay. From an order denying a motion to make complaint more definite and certain, defendant appeals. Modified and affirmed. H. H. Gibbs, of New York City, for appellant. Frank Sowers, of New York City, for respondent.

<p>Action by Aimee L. Hanson against Henrietta Reutti Hanson and others, as committee of the person and property of said Walter Lathrop Hanson, an incompetent person.</p>

<p>Action by Cora May Hatch, as administratrix, etc., against the Lake Shore & Michigan Southern Railway Company.</p>

Action by Edward A. X. Hartmann against Paul Armstrong. From an order denying a motion to vacate an order for the examination of a witness before trial, defendant appeals. Modified and affirmed. Phelan Beale, of New York City, for appellant. Geo. W. Files, of New York City, for respondent.

Action by Charles C. Hosmer, Sheriff, and another, against the Agricultural Insurance Company. From an order denying motion to vacate an order for examination before trial of a witness not a party to the action, defendant appeals. Reversed. Leo Levy, of New York City, for appellant. Edward B. Boise, of New York City, for respondents.

<p>Action by the Huguenot Trust Company against Robert D. Ireland.</p>

Action by the International Handkerchief Manufacturing Company against Benjamin Morse and Meyer Morse. From an order denying a motion to continue a temporary injunction pendente lite, plaintiff appeals. Affirmed. N. A. Elsberg, of New York City, for appellant. Julius Levy, of New York City, for respondents.

<p>Action by Alison M. Lederer against the Field [& Fancy Publishing Company.</p>

<p>Action by Henry Leerburger against Henry R. C. Watson, executor, etc.</p>

<p>Action by Leopold Levy against the Louvre Realty Company.</p>

Action by Mike Lukanik against Mike Batovic. From an order granting a motion to open default and to answer, the plaintiff appeals. Order modified, so as to require an undertaking for the payment of any judgment rendered against defendant. Abram SL Jaffer, of New York City, for appellant.

Action by William McLean against the Studebaker Bros. Company of New York. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. Clayton J. Heermance, of New York City, for appellant. William F. Purdy; of New York City, for respondent.

Action by Daniel P. O’Connor against Arthur J. Levine. B’rom an order denying motion to vacate order for examination of defendant before trial, defendant appeals. Reversed. See, also, 151 N. Y. Supp. 1134. Herbert C. Smyth, of New York City, for appellant. Wm. L. Tierney, of New York City, for respondent.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Henry Havelock Pierce against Robert J. MacB'arland. Judgment for defendant, and plaintiff appeals. Reversed. Russell Lord Tarbox, of New York City, for appellant. Herbert McKennis, of New York City, for respondent.</p>

<p>Action by Thomas D. Rambaut against William S. Tevis.</p>

<p>Action by Edward W. Simpson against James S. Whitman.</p>

Action by the Strand Hotel Company against Louis Markel and another. From an order granting temporary injunction, defendants appeal. Modified and affirmed. A. S. Weltfisch, of New York City, for appellants. H. A. Rosenberg, of New York City, for respondent

<p>Action by Augusta M. Warren against William C. Albro and another, as administrators, etc.</p>

<p>Action by Bernard Wessels against George W. Linch, as receiver. C. H. Tuttle, of New York City, for appellant. M. J. Horan, of New York City, for respondent.</p>

<p>Action by Robert Whitehill against the Hartman Construction Company.</p>

<p>Action by Whit-more, Rauber &¡ Vieinus against Hiram II. Edgerton, individually and as Mayor of the City of Rochester, and others.</p>

<p>Action by the Westchester Mortgage Company against Thomas B. Mclntire, Incorporated, and others, wherein William H. Foster appeals.</p>

<p>Action by Wittemann Bros, against the Wittemann Company.</p>

<p>Action by the Williamsburg Iron & Wire Works, Incorporated, against John F. Kuhn and the 2Etna Accident & Liability Company, impleaded. L. L. Kellogg, of New York City, for appellants. G. A. Rogers, of New York City, for respondent.</p>