Volume 153 — New York Supplement

<p>Master and Servant @=>73—Neglect of Servant—Waiver.</p> <p>Defendants, who, when they gave their checks in payment of a salesman’s weekly salary, believed or knew that he had absented himself from their factory and office without permission, in violation of his contract, thereby waived the salesman’s performance of his contract, and could not defend an action by his assignee on that ground.</p> <p>[E'd. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 90-102; Dec. Dig. @=>73.]</p> <p>■g—iftr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 153 N.Y.S.—1</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Edward W. Gardner against the American Educational Alliance. From a' judgment for plaintiff, defendant appeals.</p>

Action by Jacob J. Cohen and others against Abraham Kaback, doing business under the firm name and style of the Artistic Dyeing Company. Judgment for the plaintiffs, and defendant appeals.

On judicial settlement of the estate of Samuel Dalsimer, deceased. From an order of the Surrogate’s Court (148 N. Y. Supp. 914), assessing a transfer tax, Zettie Dalsimer, as executrix, etc., appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Rosa Di Toro against Benjamin Horn. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Landlord and Tenant <@=>231—Constructive Eviction—Nuisance.</p> <p>The defense of constructive eviction by reason of the presence of mice and bedbugs in the tenant’s apartment, interposed to an action for rent, was not established, where it did not appear that the presence of the vermin was due to any act of the landlord, or that it originated in any part of the premises under his control, and where the nuisance was not noted until some three months after the tenant’s occupancy, and where the testimony of the condition in which the tenant kept the apartment cast doubt on the origin of the nuisance.</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—Constructive Eviction—Nuisance—Evidence.</p> <p>Where, in an action for rent, the tenant relied on constructive eviction by reason of the presence of mice and bedbugs in his apartment, and the evidence of the actual conditions existing in the apartment and the presence and extent of the nuisance was sharply conflicting, plaintiff could prove that there were frequent altercations between the tenant and his wife, which reached a point where, according to the tenant’s own statement, he was unable to stand the disgrace and was going to move.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. <@=>231.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Isak Kramer and another against Harry Reed. From an order denying defendant’s motion to vacate and set aside judgment, and an order amending his name in the summons, he appeals.

Action by Harry E. Phillips against the American Union Eire Insurance Company of Philadelphia. Erom an order granting the motion of Charles Johnson, Commissioner of Insurance of the Commonwealth of Pennsylvania, to be permitted to come in as an additional party defendant, plaintiff appeals.

<p>Evidence ©=>35íL-Actions Between Fabtnebs—Book ENteies.</p> <p>In an action between partners, entries by employes of plaintiff, who were not employes of the partnership, in books not shown to be the books of the partnership, were not evidence against defendants, without proof that they correctly recorded partnership transactions.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. ©=>354.]</p>

Action by Tomaso D’Ambrosio and another against Francesco Russo and another. From a judgment for plaintiffs, after a trial by a judge without a jury, defendants appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Richard Blum against William McNulty. From an order vacating a judgment in favor of plaintiff, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Max Straschitz against Jacob Ungar and another. From a judgment rendered after trial without jury, defendants appeal.</p>

<p>Venue @=52—Change—Residence of Material Witnesses—County where Transactions Occurred.</p> <p>Where the main transactions in suit happened, and the greater number of material witnesses resided, in a county other than where suit was brought, the place of trial should have been changed to such county.</p> <p>[Ed. Note.—For other cases, see Venue, Gent. Dig. §§' 76, 77; Dec. Dig. @=52.]</p> <p>•<@£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Jane Quackenbush against the Ford Motor Company. From an order as resettled by an order denying motion for judgment for defendant on the pleadings, and overruling its demurrer to the complaint, it appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Charles E. Bedell against William P. Malloy. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Corporations <@=>522—Actions—Special Order eor Trial op Issues—Statutes—Applicability.</p> <p>Code Civ. Proc. § 1778, providing that in an action against a corporation for nonpayment of a note plaintiff may take judgment unless defendant procures a special order directing trial of issues, cannot be extended to an action on a note, executed by a corporation brought against another corporation alleged to have assumed the liabilities of the former corporation, and plaintiff to recover must prove assumption of liability.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2035, 2099-2113; Dec. Dig. <@=>522.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Edward M. James against Home of the Sons and Daughters of Israel. From a judgment for defendant after a trial by judge without a jury, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Al S. Roth against Joseph M. Baum and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p>1. Bills and Notes @=497—Holder in Due Course—Presumption.</p> <p>The presumption is that a plaintiff, suing as indorsee of a negotiable instrument, is a holder in due course.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. @=497.]</p> <p>2. Bills and Notes @=525—Holder in Due Course—Sufficiency of Evidence.</p> <p>In an action on a check given in part payment for a bakery and lunch room, evidence held sufficient to authorize finding that plaintiff was not a holder in due course, immune from equities.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. @=525.]</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Henry Hauser against the P. J. Ritter Conserve Company. Judgment for plaintiff rendered by the court without a jury, and defendant appeals.

Action by Aleck Photos against Steve Coufos and “John Doe,” the true name of the defendant being unknown, but being the party conducting a restaurant at 995 Westchester Avenue, Borough of the Bronx, New York City, from a judgment for defendants, and from an order denying his motion to vacate it, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by John F. Donnell against the First Mortgage & Real Estate Company. From a judgment for defendant, plaintiff appeals.</p>

Action by Theodore S. Clark and another against Hannah Salinger. . From a judgment for plaintiffs, rendered after a trial without a jury, defendant appeals.

Action by the Gordon Dry Gin Company, Limited, against John Reilly. From a judgment dismissing the complaint at the opening of the trial on the ground that it failed to set forth facts sufficient to constitute a cause of action, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District. _</p> <p>Action by Thomas E. Duggan against George 'B. Williams. Judgment for plaintiff, and defendant appeals.</p>

Action by the Business Men’s League of Harlem against Morris B. Sragow, Samuel Sragow, and Hyman Schulman, doing business as the World Pants Company. From a judgment entered after a trial before the court without a jury, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Abraham Beaber against Nelle M. Yorke. From a judgment of the Municipal Court of the City of New York, dismissing complaint, plaintiff appeals.</p>

Action by Stanley A. Gethin against W. R. Grace & Co. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Petition by William Farley, as. State Commissioner of Excise, for an order revoking and canceling liquor tax certificate No. 20,889, issued to Wasyl Bednarczuk. Dismissed.

<p>Damages @=189—Breach of Contract—Evidence.</p> <p>Evidence held not to sustain the' amount oí the award of damages on a counterclaim lor breach oí contract in the furnishing of brick and performance of mason work.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 288, 512; Dec. Dig. @=3189.]</p> <p><g=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Sales ©=384—Contract—Notice—“Served.”</p> <p>Where a contract of sale provided that, if the defendant could purchase elsewhere similar goods better suited to meet competition, its contract with the plaintiff “should expire 30 days after notice of such possibility shall be served,” the provision requiring notice could be satisfied either by an oral or written notice; the use of the word “served” not necessarily implying a writing.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 234, 235; Dec. Dig. ©=384.</p> <p>For other definitions, see Words and. Phrases, First and Second Series, Served.]</p> <p><g3^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the Dunmore Worsted Company against Jacob Blumenfeld. Judgment dismissing the complaint, and plaintiff appeals.</p>

Action by Solomon Tenenbaum and others against Carl Feinstein and another. From a judgment for defendants, after a trial by a judge without a jury, plaintiffs appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Trow Directory, Printing & Bookbinding Company against Annie Robinson and another, copartners, doing business under the registered trade-name of Robinson Tailoring Company, with counterclaim by defendants. From a judgment after a trial by the judge without a jury, in so far as it dismissed the counterclaim on the merits, defendants appeal, and from so much of the judgment as dismissed the complaint on' the merits plaintiff takes a cross-appeal.</p>

<p>Action by Arthur J. Freeman against Jacob Menkes. Complaint dismissed.</p>

Action by Mary Casey against the Wynatol Realty & Hotel Company. Judgment for plaintiff after a trial before the court without a jury, and defendant appeals.

Action by Max A. Zipser against Isaac Dunst. From a final order entered on a verdict directed by the court in summary proceedings, the defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Philip Livingston against Monroe Washer. From a judgment for plaintiff, defendant appeals.</p>

Proceeding by Pauline A. Piffard against Louise C. Adenaw, executrix, and others, to have the real estate of M. Emeline McMillan, deceased, sold for the payment of debts. From a decree confirming a report of a referee and adjudging that the amount due to the petitioner is $69,802.69, together with $3,539.65 costs and disbursements, defendants appeal.

<p>1. Brokers @=>64—Compensation—Right to.</p> <p>A broker cannot recover commissions for procuring a purchaser for land subject to a lease, where the purchaser declined to accept the land on that ground, and the broker had made no inquiry as to when possession could be delivered.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. @=>64.]</p> <p>2. Brokers @=>63—Compensation—Right to.</p> <p>A prospective purchaser procured by a broker declined to complete the transaction because the property was subject to a lease. The parties then agreed that, if the broker could procure an acknowledgment from the tenant that he would vacate at the end of his term, the purchaser would buy. The broker procured such acknowledgment, and the purchaser was satisfied. Reid that, though the broker had made no inquiries of the vendor as to when possession could be delivered, the new agreement cured all past irregularities in the contract, and the broker was entitled to his commissions, though the vendor refused to sell.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 79, 81, 94-96; Dec. Dig. @=>63.]</p> <p><@=^>For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

Action by Francis IT. Doane and another against Ethan N. Hescock and others. From an order denying a motion to vacate an order for the examination of defendants before trial, defendants appeal.

Certiorari by the People of the State of New York, on relation of the New York Central & Hudson River Railroad Company, against Egburt E. Woodbury and others, constituting the Board of Tax Commissioners. From an order fixing franchise taxes, both relator and defendants appeal.

Proceeding by the People of the State of New York, on the relation of the New York Central & Hudson River Railroad Company, against Egburt E. Woodbury and others, constituting the State Board of Tax Commissioners. Erom a final order equalizing, with other assessments, relator’s special franchise tax, and confirming it as equalized, relator appeals.

Action by the Publicity Leasing Company against Alfred Ludwig, Superintendent of Buildings, etc., and others. From an order denying a motion for an injunction pendente lite, plaintiff appeals.

Application of Michael J. Garvin to examine void and protested ballots. Prom an order entered upon the decision of the Special Term, an appeal was taken.

<p>Action by, William Paul against the Cosmopolitan Bank. Demurrer to separate defense sustained, with leave to amend on terms.</p>

In the Matter of Fowler Street in the City of New York. On application to confirm the final report of the commissioner of assessments, over the objections of certain owners. Report remitted for revision.

In the matter of Bowler Street in the City of New York. On motions by the City of New York and by certain objectors for a reargument of the motion to confirm the report of the commissioners of estimate.

proceedings under the Workmen’s Compensation Act by Mary Rheinwald to obtain compensation for the death of her husband, Robert Rheinwald, opposed by the Builders’ Brick & Supply Company, employer, and the Fidelity & Deposit Company of Baltimore, Md., insurer. Compensation was denied by the State Workmen’s Compensation Commission, and the claimant appeals, on questions certified.

<p>Action by William D. Fitzgerald against the Arcade Theater Company. Judgment ordered.</p>

Action by Arthur Tallman, an infant, by Carrie E. Davis, his guardian ad litem, against the Mitchell-McDermott Construction Company. On motion to strike out parts of defendant’s answer.

<p>1. Criminal Law @=207—Jurisdiction of Magistrate—Binding. Over fob Trial.</p> <p>Where an information charges accused with a specific crime, the magistrate must conduct an inquiry to ascertain whether there is reasonable ground to believe that the crime has been committed and that accused is guilty, and where he so finds accused must be held for trial.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 414, 418, 440, 472-475; Dec. Dig. @=207.]</p> <p>2. Criminal Law @=252—Inferior Criminal Courts—Jurisdiction—Offenses.</p> <p>An affidavit and complaint, alleging that accused used threatening, abusive, and insulting behavior with intent to provoke a breach of the peace, and whereby a breach of the peace might be occasioned, and that he then and there annoyed deponent, pointing a revolver at her and threatening her with bodily harm, charge disorderly conduct within the jurisdiction of a magistrate, within Greater New York Charter (Laws 1901, c. 466) §§ 1408, 1409.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 526-536; Dec. Dig. @=252.]</p> <p>3. Criminal Law @=260—Summary Conviction—Appeal.</p> <p>Accused, convicted before a magistrate of disorderly conduct under a complaint and affidavit charging him with threatening, abusive, and insulting behavior with intent to provtike, and calculated to occasion, a breach of the peace, and with pointing a revolver at deponent and threatening her with bodily harm, cannot complain that the charge made was of carrying and using a dangerous weapon, under Penal Law (Consol. Laws, c. 40) § 1897, which is a felony, or the misdemeanor of pointing a firearm at another without malice, under section 1906, and that the magistrate could only hold an examination, and hold him for trial, and had no jurisdiction to try him for disorderly conduct.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent Dig. §§ 567-609; Dec. Dig. @=260.]</p> <p>.<§E^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Samuel Horn against Harry Margolis and another. From a judgment for defendants and an order denying new trial, plaintiff appeals.

Action by Joseph Dohan against Myrtle Bowman, Incorporated. From a judgment entered in favor of the plaintiff for $534.31 damages and costs, after a trial by the court without a jury, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Asbestos Plastering Company against the Norcross Bros. Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Negligence <§=>62—Proximate Cause—Intervening Act.</p> <p>Where plaintiff was injured by a shot fired by a city policeman at a steer, which had been negligently permitted to escape from defendant’s stockyards into the city streets, defendant was not liable, on the theory that the injury proximately resulted from its negligence in permitting a dangerous animal to escape from its control, since the act of the policeman was an independent intervening act, which was the proximate cause of the injury.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 76-79; Dec. Dig. <@=>62.]</p> <p><@z=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Minnie A. Cary against Arthur L. Cary. From an order denying motion for judgment for unpaid alimony, and granting defendant’s motion annulling provision for alimony in decree from time of plaintiff’s remarriage, plaintiff appeals.</p>

<p>Sales @=397—Breach by Buyer—Action for Return of Deposit.</p> <p>In an action for the return of a deposit which plaintiff had paid on a contract to buy defendant’s cigar and stationery store if the receipts of cash sales were not less than $140 per week, evidence held not to show that the receipts included money received by defendant from the raffle of a safety razor and from dice shaking for cigars, so as to entitle to rescind and recover the deposit.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1136; Dec. Dig. @=397.]</p> <p><g^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Margaret O’Neill against the Goodman Contracting Company. From a judgment for plaintiff, and an order denying new trial, defendant appeals.

<p>Just <§=>18—Right to Trial by Jury—Actions fob Penalty.</p> <p>A defendant in an action by the tenement house department of the city of New York to enforce a penalty has a constitutional right to a jury trial.</p> <p>[Ed. Note.—Por other cases, see Jury, Cent. Dig. §§ 99-103; Dec. Dig. <@=>18.]</p> <p><®c»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents @=112—Denial of Letters Patent—Effect.</p> <p>Where the Patent Office has rejected an application for letters patent upon a device, there is a right in the general public to manufacture and sell such device, and no special injury can result to the attempted patentee from manufacture and sale by any individual.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 162-165; Dec. Dig. @=112.]</p> <p>2. Injunction @=22—Objection to Petition fob Granting of Letters Patent—Application Already Denied.</p> <p>Where applications for letters patent were rejected three months before the defendant threatened to file objections thereto, and where there was no evidence that a secret process was involved, there was no occasion for the issuance of an injunction to restrain the defendant from filing objection to the granting of the applications.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 19; Dec. Dig. @=22.]</p>

<p>Action by the First National Bank of Waterloo against the Exchange National Bank of Seneca Falls and others. Judgment for plaintiff.</p>

<p>1. Appeal and Error @=1005—Review—Verdict—Weight of Evidence.</p> <p>Where there was some evidence to sustain a verdict, and the trial court refused to set it aside, it will not be disturbed, even if the appellate court would have reached a different conclusion, unless it is so clearly against the preponderance of the evidence as to indicate it rests on prejudice or mistake.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. @=1005.]</p> <p>2. Evidence @=589—Weight and Sufficiency—Credibility of Witnesses.</p> <p>Where the testimony of the two parties is so contradictory that one must have deliberately perjured himself, the jury is especially bound to consider, not only the appearance of the witnesses,.but also the probabilities of the two stories and the corroborating evidence.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. @=589.)</p> <p><S=s>For other cases see sam* topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Bills and Notes <S=^51S—Actions—Sufficiency of Evidence—Consideration.</p> <p>In an action on notes, where the defense was that they were given for accommodation, while plaintiff .testified that they were given as commission for securing a contract, a verdict for plaintiff held to be so clearly against the weight of the evidence as to show that the jury either disregarded the evidence or failed to understand its force.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1816-1829; Dec. Dig. <S=>518.]</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. False Imprisonment <@=23—■ Malicious Prosecution <@=58 — Acts of Agents—Evidence of Authority.</p> <p>In an action for false imprisonment and malicious prosecution, the defendant was entitled to the admission of evidence showing the extent and nature of the authority conferred upon his employés, who caused plaintiff’s arrest.</p> <p>[Ed. Note.—For other cases, see False Imprisonment, Cent. Dig. § 100; Dec. Dig. <@=23; Malicious Prosecution, Cent. Dig. §§ 117-124; Dec. Dig. <@=58J</p> <p>2. False Imprisonment <@=24 — Malicious Prosecution <@=60 — Acts of Agents—Evidence of Authority.</p> <p>Defendant was also entitled to show what the instructions to his agents were upon the subject of the arrest of persons in general.</p> <p>[Ed. Note.'—For other cases, see False Imprisonment, Cent. Dig. § 101; Dec. Dig. <@=24; Malicious Prosecution, Cent. Dig. §§ 138-145; Dec. Dig. <@=60.]</p> <p><©^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Mandamus by the People, on relation of William J. Fitzgerald, against Arthur Woods, as Police Commissioner of the City of New York. From an order granting a peremptory writ, defendant appeals.</p>

<p>Appeal from. City Court of New York, Trial Term.</p> <p>Action by the Regal Holding Company against Morris Berger. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

Action by Aaron B. Fletcher against the Elliott-Fisher Company. From judgment for plaintiff, and from an order denying its motion for a new trial, defendant appeals.

t Action by Louis Beck against Max Bonwit & Co., Incorporated. From judgment for plaintiff, and from an order denying its motion for new trial, defendant appeals.

<p>Appeal from Special Term, New York County.</p> <p>Action by Moses Packárd and another against Richard Lawler. From an order denying motion to change place of trial, defendant appeals.</p>

Action by Hyman Bauman and others against the Mendle-Lunepp Company. From a judgment for plaintiffs, and from an order denying its motion for a new trial, defendant appeals.

<p>Insurance <3=137—Premiums—Part Payment oe Premium.</p> <p>Where insured has paid a small amount of the first premium on the policy, and has been assured by the defendant’s agent that the insurance was in force, which assurance he believed, the company is liable upon the policy, although it has not been delivered.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 231-245; Dec. Dig. <@=3137.]</p> <p><§^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Gabriel Muhlstein was indicted, and moved for leave to inspect the grand jury minutes.</p>

<p>1. Pleading <@=8—Cabeless Driving—Actions—Sufficiency of Complaint.</p> <p>In an infant’s action for damages for personal injuries, a complaint alleging that defendant and his servant or employs were negligent in the management and operation of a carriage and the control of a horse, in consequence of which, and without his fault, plaintiff was knocked down, liberally construed, stated facts sufficient to make out a cause of action.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 12-28%, 68; Dec. Dig. <@=8J</p> <p>2. Pleading <@=346—Frivolous Demurrer.</p> <p>In such action, defendant’s demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was not frivolous.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1060-1064; Dec. Dig. <@=346.]</p> <p><@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>John Mulcahy was convicted of disorderly conduct tending to a breach of the peace, and he appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Emil A. Heyland and another against the Mehler-Fulton Company and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Municipal Corporations <©=>706 — Streets—Personal Injuries — Negligence—Shying of Horse.</p> <p>In a street ear passenger’s action against a city for injuries from being struck by the pole of a cart owned by the city, when the horse attached to the cart shied at a piece of paper blown past its head, mere proof that the horse, which was shown to be ordinarily quiet, shied, or that it was new to the work on the streets, was insufficient to charge the city with actionable negligence, in the absence of proof that the driver was not using such precaution as would a reasonable person under the circumstances.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. <@=>706.]</p> <p>©=s>For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Adam Frank against Rowland & Shafto, Incorporated, and Charles F. H. Johnson. From an interlocutory judgment in favor of plaintiff, defendants appeal.</p>

Action by the Ocean Accident & Guarantee Corporation, Limited, of London, England, against Morris Beck. From a judgment in favor of defendant, dismissing its complaint upon the merits, plaintiff, appeals.

Action by Harry Goldstein against Rodgers & Hagerty, Incorporated. From a judgment for plaintiff, and an order denying defendant’s motion for a new trial, defendant appeals.

Action by Mike- Norkus against the Pittsburgh Coal Company. From an order denying defendant’s motion to set aside service by summons, defendant appeals.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Frederick Deders against Joseph M. Wood. From a judgment for plaintiff, defendant appeals. Return remitted for correction.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Harry Schultz against H. Clarence De Hart. From an order denying defendant’s motion to vacate an order for the issuance of an execution against his wages, defendant appeals, and plaintiff moves to dismiss the appeal.</p>

Action by Michael Marks against David Magid and another. From an order vacating a judgment for plaintiff, and ordering a new- trial for newly discovered evidence, plaintiff appeals.

Applications for writs of mandamus by Henry A. Blumendhal, by Manus J. Blumenthal, and by Ledyard Avery against the Washington Heights Hospital. From orders granting peremptory writs, respctadent appeals.

Action by Aaron Solomon against the Sultan Elore Cigarette Company, Incorporated, and others. From an order granting defendants' motion to open their default upon conditions, defendants appeal.

<p>New Tbial <8=168—Motions fob—Heabing in Appellate Teem.</p> <p>Code Civ. Proc. § 1000, authorizing the hearing o£ exceptions in the appellate court upon a motion for new trial, applies only to a trial by jury, and where the cause was tried by the court they cannot be so heard.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 7, 232, 245, 252, 253, 266, 280, 284, 286, 291, 292, 294, 296, 303, 305, 318; Dec. Dig. <8=168.]</p> <p>.<§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bills and Notes <§=>517—Actions—Liability.</p> <p>In an action on notes, evidence held insufficient to show that defendant had signed the instruments or had in any way become liable thereon.</p> <p>fEd. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1807-1815; Dec. Dig. <@^517.]</p> <p><@^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Edward S. Reiss against Herbert J. Linder. There was. a judgment for plaintiff, which he deemed was insufficient, and he applied for an amendment. The application being denied, plaintiff appeals from the judgment. Return remitted to the lower court.

<p>Negligence <gr=>44—Vestibule of Office Building—Injury to Person Moving Furniture—Liability of Owneb.</p> <p>Evidence that in consequence of a snowstorm ice formed in the vestibule of an office building did not render the owner thereof liable for injuries to a person who slipped on the ice while assisting in moving furnitnre from the building, especially where there was no proof of freedom from contributory negligence.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 59; Dec. Dig. <S==>44.]</p> <p>Whitaker, J., dissenting.</p> <p><@=»Eor other cases see same topic & KEY-NUMBER in all ICey-Numbered Digests & Indexes</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Nathan Shaffer against the North British & Mercantile Insurance Company, with Jennie Leventhal substituted. Erom an order interpleading Jennie Leventhal, plaintiff appeals.</p>

Action by the Knit Goods Exchange, Incorporated, against the American Surety Company of New York. From an order denying its motion to strike out an amended complaint, defendant appeals.

<p>Judgment <§=>707—Conclusiveness—Person Not Served with Process.</p> <p>In an action for goods .sold and delivered, a judgment in an action against plaintiff and defendant, based upon a check made by defendant to plaintiff, and indorsed by him to the plaintiff in that action, even if the issues litigated therein were the same as those sought to be litigated in the present action, was not binding on plaintiff herein, unless by service of summons or voluntary appearance he became a party to such former action.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. ©=>707.]</p> <p>Guy, J., dissenting.</p> <p>¡@c^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Street Railroads @=3112—Injuries to Child—Proof of Care.</p> <p>In an action for injuries from being struck by a street car, evidence merely that the plaintiff, an eight year old boy, was struck by the car while crossing the street, did not authorize a recovery, in the absence of evidence of the exercise of any degree of care by him or his parents.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 227, 228; Dec. Dig. @=>112.]</p> <p><§x^For other capes see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Attachment >@=>111 — Gbounds of Attachment—Sufficiency of Allegations.</p> <p>In attachment, where the action is to recover a debt, and not to foreclose upon the security, allegations that defendant is about to remove his property from the state with intent to defraud creditors are insufficient to sustain the writ, when mere conclusions, not supported by allegations of fact.</p> <p>[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 292-302; Dec. Dig. >@=>111.]</p> <p><grx?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

. Action by Hugh McKeown, an infant, by Edward J. McKeown, his guardian ad litem, against Roger Foster. From an order granting defendant’s motion to preclude plaintiff from offering evidence in reference to an allegation of the complaint, plaintiff appeals.

Action by Richard McHale, an infant, by Richard McHale, guardian ad litem, against Roger Foster. From an order granting defendant’s motion to preclude plaintiff from offering evidence in reference to an allegation of the complaint, plaintiff appeals.

<p>1. Contracts <@=>10—Contract or Employment—Mutuality.</p> <p>A contract provided that in consideration of defendant engaging plaintiff in its manufacturing company at stipulated salary, beginning August 29, 1912, and ending February 29, 1916, plaintiff agreed to faithfully perform his duties, etc. The agreement further declared that, if plaintiff remained in defendant’s employ for a period of three years, he should be paid $2 for each week he had been employed. Defendant refused to allow plaintiff td enter into the discharge of his duties. Held that, in view of the fact defendant admitted plaintiff was entitled to one week’s salary, the contract was not void for want of mutuality, and might be enforced by plaintiff.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 21-10; Dec. Dig. <@=>10J</p> <p><g^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Master and Servant <@=8—Contract of Employment—Construction.</p> <p>The contract, though using the term “from week to week” with reference to the hiring, was one for the period of 3% years.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 8-10, 17; Dec. Dig. <@=S.]</p> <p>3. Contracts <@=147—Construction.</p> <p>In construing a contract, the intent of the parties must be determined from the language of the instrument.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. <@=147.]</p> <p>4. Master and Servant <@=8—Rights of Servant.</p> <p>Unless a definite period of service is specified, a contract of hiring is one at will.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 8-10, 17; Dec. Dig. <@=8.]</p> <p>5. Contracts <@=155—Construction.</p> <p>Where a contract was drawn by defendant, it should be given the construction most favorable to plaintiff.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. | 736; Dec. Dig. <@=155.]</p> <p>6. Contracts <@=155—Construction.</p> <p>In construing a contract prepared by defendants, the court should consider what defendant must have known plaintiff would understand by it, although plaintiff’s remark as to the effect of the contract cannot govern.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 736; Dec. Dig. <@=155J</p> <p>.g—.Frvr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Ajppeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Julius Joachimsthal against the U. S'. Metal & Manufacturing Company. Judgment for plaintiff, and defendant appeals.</p>

Action by Isidore Hetson and another against Barnet Brolnitslcy and another, individually and as copartners. From a judgment for plaintiffs, defendants appeal.

Action by the L. Frooks Engine Company against Joseph Greenstein and another. On motion to set aside verdict for plaintiff and for dismissal of complaint.

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

In the matter of the administration of the goods, chattels, and credits of Louis E. Babcock, deceased. Proceeding by the Gould' Paper Company and others against William L. Babcock and others, as administrators of Louis E. Babcock, deceased.

<p>Action by the Arthur Wolfsohn Company against Max Jaffe and others.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Herman Baruch against Goldine R. Copeland. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Edward Brinley'against Thomas A. Nevins.</p>

<p>Action by the Brooklyn Church Society of the Methodist Episcopal Church against the Brooklyn Free Kindergarten Society.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by George W. Bromley and another against George Dauer. Judgment for plaintiffs, and defendant appeals.</p>

Action by Lillian A. B’.urton against W. Burton & Co. and others. From judgment entered upon the verdict of a jury, and iron an order denying a motion for a new trial, defendants appeal.

<p>Action by Jacob Buchman against Abraham Berman, in which Benjamin Etde appeals from an order.</p>

In the matter of the application of Helen D. Burnett for the payment of an award on damage parcel No. 2 in the Van Alst Avenue school site proceeding.

<p>Action by Sarah A. Buell against Anson L. Gardner and another, as executors, etc., of Harriet M. Goodseil, deceased, and Thomas Carmody as Attorney General, etc.</p>

<p>Action by Alonzo E. De Baun against Fred W. Pardee and others.</p>

<p>Action by Edwin Q. Cooper against Isaac Norove.</p>

<p>Action by Buell G. Davis, individually and as executor, etc., against George W. Seward, as administrator, etc., and others.</p>

Action by Marie Dudley against Edward Dudley. From an or■der granting defendant’s motion to dismiss the action and to vacate all proceedings, plaintiff appeals.

<p>Action by Alexander Dezendorf, an infant, etc., against John F. Poppke.</p>

<p>Action by Teresa M. Donnelly, as ancillary executrix, against the B. 0. 5s A. I. Piercy Contracting Company.</p>

In the matter of the petition of William W. Farley, as State Commissioner of Excise, for an order revoking and canceling liquor tax certificate No. 20973, issued to Joseph H. Miller.

<p>Action by Isaac Fishman against Williain Baumstein.</p>

<p>In the matter of the judicial settlement of the account of Emily S. Fanoni and another, as trustee of Abbie A. Merrill, deceased.</p>

<p>Action by Louisa Fribourg against Emigrant Industrial Savings Bank.</p>

<p>Action by Joseph Fogarty against the New York Dock Company.</p>

<p>Action by Emily M. Ford against John Wanamaker.</p>

<p>Action by Henry Gilsey and another against Frederick J. Lancaster.</p>

<p>Action by Urania U. Glaser against John N. Burns and others.</p>

<p>Appeal from Special Term, New York County. Action by John Gledhill, on behalf of himself, etc., against Jacob H. Scbiff and others. From an order vacating an order for the examination of defendants before trial, plaintiff appeals.</p>

<p>Action by Agnes J. Gorman, an infant, by Margaret J. Gorman, her guardian ad litem, against H. M. Le Roy.</p>

<p>Action by Edward H. Hannan against Thomas Cary.</p>

<p>In the matter of the application of Francis L. Hurlbut for a peremptory writ of mandamus against Maurice B. Connolly, as President of the Borough of Queens, and another.</p>

<p>Action by Max Jaffe and another against Stephen M. Weld and another.</p>

<p>Action by William Junkermann, an infant, etc., against the Tilyou Realty Company, in which Samuel Jankelson and the Jankelson Realty Company appeal.</p>

<p>Action by Ismenia Lambert against Louis N. Lane-hart.</p>

<p>Action by Bernard Latiner against the Wonderland Amusement Company.</p>

<p>In the matter of the final judicial settlement of the accounts of Thomas J. McGowan, as executor, etc., of Michael O’Neil, deceased.</p>

Action by Nellie Bleisle, as administratrix, etc., against the New York Central & Hudson River Railroad Company, impleaded, etc. From a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial, said defendant appeals.

<p>Action by George M. Blarlo against the Morning Telegraph Company.</p>

<p>Action by Marx & Rawolle against the American Druggists’ Syndicate.</p>

<p>Action by Blary Marshall, as administratrix of Willis C. Blarshall, deceased, against the Sackett & Wilhelms Company.</p>

<p>Action by the Mason-Seaman Transportation Company against John Furroy Mitchel, as Blayor, etc., and others.</p>

<p>Action by Walter Michalski against American Machine & Foundry Company.</p>

<p>Action by Mulcahy & Gibson against the National Surety Company.</p>

<p>Action by the New York Central & Hudson River Railroad Company, against the People of the State of New York and others.</p>

<p>Action by Edward Moss against James W. Morrow and another.</p>

<p>In the matter of Josephine Penfold, deceased.</p>

<p>In the matter of the petition of and by Peter J. Norton, for a visitation of and by a Justice of the Supreme Court, of the Springfield, L. I., Cemetery Society.</p>

<p>Action by the New York Electric Lines Company against William J. Gaynor and others.</p>

<p>Proceeding by the People of the State of New York against Joseph Anzelotti.</p>

<p>Action by Paul Orth and another against Max B. Kaesche and another.</p>

<p>Proceeding by the People of the State of New York against Henry W. Richter.</p>

<p>Proceeding by the People of the State of New York against John Perez.</p>

<p>Appeal from Trial Term, New York County. David Kalhofer, impleaded with another, was convicted of horse poisoning. From the judgment, and order denying his motion for new trial, he appeals.</p>

<p>Appeal from Trial Term, New York County. Max Swei'sky impleaded with another, was convicted of horse poisoning, and from the judgment, and an order denying his motion for new trial and in arrest of judgment, he appeals.</p>

<p>Proceeding by the People of the State of New York against Hector A. Zayas and others.</p>

<p>Proceeding by the People of the State of New York, on the relation of the Sanborn Map Company, against Peter Ceder, as president, etc., and others.</p>

<p>Action by Fred Ev Pierce against the Sun Insurance Office.</p>

<p>Action by Dora Pines against Sadie Novick and others. (Appeal No. 1.)</p>

Action by John .D. Rishell against Frank Meany and another. From an order denying a motion to make the amended complaint more definite and certain, defendants appeal.

<p>Action by Joseph C. Rintelen against Rose D. Schaefer and others.</p>

<p>Appeal from Special Term, New York County. Action b.v the Riviera Realty Company against the Illinois Surety Company. From an order directing defendant to file and serve a bill of particulars, it appeals.</p>

<p>Action by Jacob Rummell and another against Archibald Blanchard and another.</p>

<p>Action by William J. Schieffelin against V. Komfort and another, constituting the Board of Elections.</p>

<p>Action by Richard Schnibbe against the Hauck Manufacturing Company, in which Oscar A. Lewis, as trustee in bankruptcy, etc., appeals.</p>

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

<p>Action by William H. Schofield, as trustee in bankruptcy of Dayve De Boris De Waltoff, against Dayve De Boris De Waltoff and another, in which Dora A. De Waltoff appeals.</p>

<p>Action by William H. Schofield, as trustee in bankruptcy, etc., against the Mechanics’ Bank of Brooklyn and another, in which Dora A. De Waltoff appeals.</p>

<p>Appeal from Trial Term, New York County. Action by John W. Simpson and others against the Metropolitan Trust Company of the City of New York, as administrator, etc. From a judgment entered upon a directed verdict, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Action by the Southern Leasing Company against Alfred Ludwig.</p>

<p>Action by Solomon Stern against the Metropolitan Life Insurance Company.</p>

<p>Action by John S. Smith against Augusta Hovey Mould.</p>

<p>Action by Vitacrescenza Summo, as administratrix, etc., against the Snare & Triest Company and another.</p>

<p>Action by Gaetano Tedeschi against Antonio Bacigalupo and Joseph Bacigalupo, copartners.</p>

<p>Action by Henry Tonges and another against the Vanderveer Canarsie Improvement Syndicate and another.</p>

<p>Action by United States Trust Company of New York against Marshall O. Terry and another, as executors, etc., and others.</p>

Action by the U. T. Hungerfoi'd -Brass & Copper Company against John T. Brady & Co. From a judgment for $4,102.99 entered upon a verdict, and from an order denying a motion for a new trial, defendants appeal.

<p>In the matter of Voron & Chait, Incorporated.</p>

<p>In the matter of opening and extending Washington Avenue from East River to Jackson Avenue, etc.</p>

<p>Action by Barnet Weinberg and another against Robert S. Smith.</p>

<p>Action by the Vulcan Detinning Company against Frank A. Assman and others.</p>

<p>Action by Nathaniel Walkof, as trustee, against Hugh C. Fox and another.</p>

<p>Action by Samuel T. Williams and another against the Peter Keeler Building Company and another.</p>

<p>Action by Josephine O. Winne, as ancillary administratrix of Claude J. Winne, deceased, against the Erie Railroad Company.</p>

<p>Action by Arthur M. Werner against Ciulia M. Werner.</p>

<p>Appeal from Special Term, New York County. Action by Jesse Wild against the Erie Railroad Company. From so much of an interlocutory judgment as overruled demurrer to two defenses contained in the amended answer, plaintiff appeals; and from so much thereof as denied a motion to dismiss the complaint, defendant appeals.</p>