Volume 154 — New York Supplement

Action by Tillie Rosofsky against Oscar Lucas. Judgment for defendant. Motion for new trial denied, and plaintiff appeals. Judgment and order reversed, and judgment for plaintiff.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Minnie Katz against the Nassau Electric Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and coriiplaint dismissed.</p>

<p>1. New Trial @=>159—Motion by Both Parties—Grounds.</p> <p>That both parties are dissatisfied with a verdict for plaintiff and move to set same aside does not authorize the court to grant the motion.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 319; Dec. Dig, @=159.]</p> <p>2. Municipal Corporations @=706—Streets—-Automobile Accident—Negligence—Questions for Jury.</p> <p>Where, in a pedestrian’s action for injuries from being struck by an • automobile, plaintiff’s evidence tended to show that the automobile was traveling fast and suddenly swerved from one side of the street to the other, and struck him while he was walking on a side path, and defendant’s evidence tended to show that he lost control of the machine, while it was going slowly, in consequence of a dog’s running against the front wheel, and that plaintiff, when struck, was walking on the macadam and not on the side path, the questions of negligence and contributory negligence were for the jury.</p> <p>[Ed. Note.-—For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. @=706.]</p> <p>3. Municipal Corporations @=705—Streets—Operation of Automobiles</p> <p>—Reasonable Care.</p> <p>That a pedestrian is walking on the macadam instead of on a side path of a street will not relieve an automobile driver from his duty to exercise reasonable care.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. @=705.]</p> <p>4. Appeal and Error @=1195—Effect -of Reversal—Daw of the Case.</p> <p>That a verdict for plaintiff was set aside on appeal as against the evidence did not require that a subsequent verdict found for him by the jury from a consideration, by agreement, of the,printed minutes of the testimony given on the former trial, be set aside.</p> <p>[Ed. Note.—For other cases, see Appeal, and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. @=1195.]</p> <p>5. New Trial @=78—Successive Verdicts—Evidence.,</p> <p>Where four juries have agreed that plaintiff has proved his case by a preponderance of the evidence, "the fourth verdict will not be set aside as against the evidence, unless clearly wrong.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 162-165; Dee. Dig. @=78.]</p> <p><©=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. New Trial ©=>75—Grounds—Inadequacy of Verdict.</p> <p>A verdict for plaintiff, in a personal injury case, will not be set aside as inadequate unless the inadequacy is shocking.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 151, 152; Dec. Dig. ©=>75.]</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Urania U. Glaser against John N. Burns and others. The Bridge Café moves for leave to intervene as party defendant and for the appointment of a receiver. Motion granted.

Action by the City of New York-against Edgar S. Appleby and John S. Appleby, individually and as executors under the last will and testament of Charles E. Appleby. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed, and judgment directed for plaintiff.

Ward, as Commissioner of Public Works of the City of Buffalo, against the Erie Railroad Company, to compel the repair of a viaduct carrying Chicago street over respondent’s right of way. From an order (149 N. Y. Supp. 717) denying the application, complainant appeals. Affirmed. Order affirmed 109 N. E.-.

<p>Appeal from Municipal Court, Borough of Manhattan, Second Dis- • trict.</p> <p>Action to foreclose a chattel mortgage by Louis M. Furman against Harry Melnick. From an order vacating and setting aside a writ of seizure, plaintiff appeals. Reversed.</p>

<p>Courts <S=M89—Municipal Court—Process—Service.</p> <p>A Municipal Court judgment will be reversed, where it is conclusively shown by affidavit that the summons was served upon defendant’s brother, and not on defendant, and that the process server, though informed, of his mistake, made no effort to serve defendant.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. <§^189.]</p>

<p>1. Sales <S=>418—Breach of Contract—Measure oe Damages.</p> <p>The rule that the measure of damages for the sale of inferior goods, where the purchaser is bound to examine them, is the difference between the value of the goods as ordered and their value as delivered, is not changed by proof of a custom that, where a publisher buys paper for delivery to a printer, the printing is done by the latter, the printed paper is then sent to a publisher, who binds it, and the publisher does not see it until the book is completed, since such custom does not exclude the possibility of examination by the printer in the purchaser’s behalf.</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. @=^418.]</p> <p>2. Customs and Usases <§=3—Custom as Fobminq Pab.t of Contbaot—Essentials of Custom.</p> <p>A custom, to be considered as entering into and forming part of a contract, must be reasonable, uniform, and well-settled, not in opposition to fixed rules of law, and not in contradiction of the terms of the contract.</p> <p>[Ed. Note.—For other cases, see Customs and Usages, Cent. Dig. §§ 2, 6; Dec. Dig. i@=>3.]</p> <p>{gz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bailment <@=>18—Lien for Charges—Transfer.</p> <p>A repairer of an automobile, having a lien for charges may transfer the lien and the possession of the automobile.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 77-79, 81-84; Dec. Dig. @=>18.]</p> <p>2. Replevin @=>106—Money Judgment—Evidence.</p> <p>A money judgment in replevin is unauthorized, where there is no evidence of the value of the chattel.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 416-423; Dee. Dig. @=>106.]</p> <p><§^>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>Fbauds, Statute oe <@=>33—Pbomise, to Answee eob Debt oe Anotheb—Essentials.</p> <p>Where defendant orally promised to pay a sum due plaintiff from a third person for legal services, defendant stipulating that plaintiff should insist upon getting paid by the third person, but that plaintiff might look to defendant for payment, the promise was void under the statute of frauds; the original debt not being extinguished, and the promise not being founded on a new consideration moving to the promisor and beneficial to him.</p> <p>[Ed. Note.—Eor other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. <@=>33.]</p> <p><@zs>For other cases see same topic & ICEY-NUMBBR in all Key-Numbered. Digests & Indexes</p>

Action by Joseph Winder and another against Julius Pollack. There was a judgment for plaintiffs, and defendant was granted a new trial on account of the misconduct of one, of the jurors, from which order plaintiffs appeal. Order reversed, and judgment reinstated.

Action by the Robinson Clay Product Company of New York against John H. Thatcher & Sons. From a judgment for defendants, plaintiff appeals. Reversed, and judgment directed for plaintiff.

<p>Marriage @=>50—Evidence.</p> <p>In an action for separation, admissions by the> plaintiff wife that before marriage to defendant she celebrated a ceremonial marriage with another man from whom she never obtained a divorce, although she did not live with him, is not, where she lived with defendant many years, sufficient to show the nullity of her marriage with defendant, and defeat an action for separation.</p> <p>[Ed. Note.—For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. @=>50.]</p>

Action by Edward H. Van Ingen and others against the Max Marx, a domestic corporation. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Action by William Gombert against David Schañe. From an order setting aside a verdict for plaintiff, and ordering a new trial, plaintiff appeals. Reversed, and judgment reinstated.

Action by Bdwin L. Maevers and others against Mary McDonough. From a judgment rendered in favor of plaintiffs for an insufficient amount, they appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Dave Greenberg against Israel H. Eisenberg. Judgment for plaintiff, and he appeals. Reversed, and new trial granted.</p>

Action by Sadie Wolkenfeld, an infant, by Bertha Wolkenfeld, her guardian ad litem, against the New York Railways Company. Judgment for plaintiff upon a verdict of a jury for $500, motion to set aside the verdict denied, and defendant appeals. Reversed, and new trial ordered.

Action by Isaac Schwartz against Louis A. Sable. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed, as, to one cause of action; and, as to the other, reversed and remanded.

Action for a penalty by the People against Kirkor Blajian, Adey Naturian, and Gaston Manuelian, doing business under the firm name and style of the O. K. Market Company. Judgment for defendants, and plaintiff appeals. Reversed, and judgment directed for the People.

Action by David Kraus against Hermann H. Cammann and others, copartners doing business as Cammann, Voorhees & Floyd. From a judgment entered on a verdict directed for defendants, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by J. Charles Groshut against the Kinetophote Corporation. From a judgment for plaintiff, allowing defendant’s counterclaim, plaintiff appeals. Reversed and remanded.</p>

Action by Hyman Wilson against Benjamin Silverman, first name “Benjamin” being fictitious, etc. From an order denying defendant’s motion to vacate a judgment of dismissal entered in favor of defendant, he appeals. Affirmed.

<p>Master and Servant <®=^89—Injuries to Servant—Liability oe Master.</p> <p>The guard on an elevated train went upon the tracks at the direction of the conductor to assist the motorman to raise the shoe of a disabled car from the third rail. The train was between stations. No precautions were taken to flag on-coming trains, and one struck the guard. Held, that the company was liable under the Employers’ Liability Act (Consol. Laws, c. 31, §§ 200-204); it not appearing that the guard was guilty o£ contributory negligence.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig. <®=89.]</p> <p><@=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Harry A. Gair, as assignee, against Isaac Geffner. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Action by the Congress Tucking Company against the Alton Dress & Waist Company, Incorporated, and another. • Judgment for plaintiff, and defendant Alton Dress & Waist Company appeals. Reversed, and new trial ordered.

<p>1. Frauds, Statute of <@=>103—Memoranda—Sufficiency.</p> <p>The statute of frauds is complied with by informal memoranda evidencing a complete contract, though the parties intend to make a formal contract.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 192- . 198, 200-208; Dec. Dig. <@=>103.]</p> <p>2. Frauds, Statute of <@=>113—Memoranda—Sufficiency.</p> <p>A letter by defendant to plaintiff, offering plaintiff a commission on goods sold during two years, showed that the parties contemplated that any agreement should be subject to a cancellation clause, and that subject was left open. Plaintiff’s reply showed that the cancellation clause was being considered, and that the length of notice of cancellation was open to discussion, but accepted the terms as to commissions on sales for the two years. No further agreement was ever entered into. Held that, so far as the contract evidenced by the letters was executory, it was unenforceable, under the statute of frauds, since the correspondence did not show a meeting of minds as to the cancellation clause.</p> <p>[Ed. Note.—For other cases, gee Frauds, Statute of, Cent. Dig. §§ 239-241; Dec. Dig. <@=>113.]</p> <p>cg^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by William E. McCrea, doing business as the Eabric Eur Cloak Company, against Lester H. Bentley. Judgments for defendant dismissing the complaint, and plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Patrick H. Conwell against the Degnon Contracting Company. From judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Giovanni Mortagna against the Aztec Asphalt Company, impleaded with another. From a judgment for plaintiff, after trial without a jury, the named defendant appeals. Modified and affirmed.

Action by Ephraim Benjamin and another against Daniel J. Brown-stein and others. Judgment for the plaintiffs and defendants appeal. On motion by plaintiffs to dismiss the appeal, and motion by defendants to compel plaintiffs’ attorney to accept the notice of appeal. Motion to dismiss denied, and motion to direct acceptance of the notice of appeal granted.

<p>1. Evidence @==>318—Competency—-Letters and Receipts oe Third Persons.</p> <p>Plaintiff, who claimed defendant was a submanufacturer for Mm, sued for items alleged to be chargeable to defendant, which were inadvertently-admitted from an account stated, and also- for the conversion of other articles. Plaintiff put in evidence a letter sent by a third person referring to the fact that defendant had ordered the goods. Likewise a receipt in favor of such third person, apparently intended to prove that defendant had signed it, and a bill of such third person to plaintiff for such articles, were admitted over objection. Held, that such evidence was incompetent.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. @=>318.]</p> <p>2. Appeal and Error @=>1050—Review—Harmless Error.</p> <p>Where evidence wholly incompetent was received by the court with the remark that it would take same for what it was worth, the admission of such evidence was reversible error.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. @=>1050.)</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Adolph Weiss against Morris Weiss. From judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

■ Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Benjamin Schlesinger against the Schmidt Hotel Company. From an order directing that the service of summons be set aside, the complaint dismissed, and judgment entered for the defendant, the plaintiff appeals. Appeal dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Julius Meyer against the Metropolis Knitting Mills, Incorporated." From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Landlord and Tenant @=>164—Injury to Tenant—Liability to Subtenant.</p> <p>Defendant, leasing premises by a lease requiring the lessee to take good care of them and make all repairs, inside and out, at his own cost, and who did not retain possession or control of any part of the premises, or assume to make repairs, was not liable for injury to a subtenant by the fall of a ceiling, which the lessee had promised to repair.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 030-637, 639, 641; Dec. Dig. @=>164.]</p> <p><§^For othAv cases s$e same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Phillip Steinman and another against the Henry Morgenthau Company, with Isadore Kashare interpleaded. Judgment for plaintiffs, entered upon the verdict of a jury, and defendant Kashare appeals. Reversed, and new trial granted.

Action by Morris Weiss against the New York Railways Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Max Koch against Ephraim Siff and another. Judgment for plaintiff. Defendants appeal. Modified and affirmed.</p>

Action by the Estate of Frederick Buse, Incorporated, against George W. Finch, as receiver of the Second Avenue Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed.

Action by the Rudolph Wurlitzer Company against William M. Barrett, as president of the Adams Express Company. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

Action by Harry Short,' by his guardian ad litem, against the Corning & Painted Post Street Railway. Motion to set aside an execution issued on a judgment for the plaintiff, rendered in County Court on appeal from the City Court of Corning. Motion denied.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Rosie Rosen-Steinsitz against John Wanamaker, New York. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Pauline Krauss against James L. McNamee. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

Action by Henry Kupfer & Co. against the Pure Dye Silk Company. Judgment for plaintiff, entered upon trial by the court, and defendant appeals. Reversed, and complaint dismissed.

<p>1. Trusts <@=289—Duty of Trustee—Accounts.</p> <p>The fiduciary relation of a trustee to a beneficiary requires that the trustee keep proper and accurate accounts.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 408; Dec. Dig. <@=289.]</p> <p>2. Trusts <@=326—Trustee—Confirmation of Accounts—Burden of Proof.</p> <p>Where a trustee seeks judicial confirmation of his account, the burden of proof is upon him to show honest dealing.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 486; Dec. Dig. <@=326.1</p> <p>3. Trusts <@=326—Trustee’s Accounts—Accuracy—-Sufftciency of Evidence.</p> <p>Evidence as to their accuracy held insufficient to sustain referee’s report confirming accounts of defendant trustee.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 486; Dec. Dig. <@=326.]</p> <p>ig—iftr Other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of Corona Avenue, from Hampton Street to Rod-man Street, Borough of Queens. On motion for the taxation of the disbursements of Tillie Viebrock. Matter referred to a referee, and motion held under advisement.

<p>Action by Charles Wharton Evans against the Prince’s Bay Oyster Company, Limited, and another. On motion to continue pendente lite an injunction. Conditionally granted.</p> <p>Order affirmed 154 N. Y. Supp. 1120.</p>

<p>Mandamus by one Petty against one Kracke, as Commissioner of the Department of Bridges. Motion for mandamus denied.</p>

<p>Mandamus by the People of the State of New York, on relation of Girdell V. Brower, against William Williams, as Commissioner of the Department of Water Supply, Gas, and Electricity in the City of New York. Motion for alternative writ denied.</p>

<p>Elections @=275—Contest—Review of Canvass.</p> <p>The court has no inherent power to review the action of the election officers or boards of canvassers, and has no authority to vacate a certificate of election issued by the state board of canvassers.</p> <p>FEd. Note.-—For other eases, see Elections, Cent. Dig. §§ 250-256; Dec. Dig. @=275.]</p> <p><§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Mandamus by one Reynolds against one Williams. Demurrer sustained, with leave to relator to apply to the Special Term for an amended writ within 20 days upon payment of costs.

<p>Mandamus <@=>160—Facts ob Conclusions—Alternative Writ.</p> <p>In mandamus to contest relator’s removal from office, a proposed amended alternative writ, not alleging facts showing bad faith on the part of the commissioner in the relator’s removal, as required by a former opinion, must be denied.</p> <p>[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 326--3S5; Dec. Dig. <@=>160.1</p>

Action by Jessie Roediger, as administratrix of Louisa Roediger, deceased, against Nellie Kraft and another, as executors of Traugott F. M. Roediger, deceased. From a judgment in favor of plaintiff for the sum of $12,279.18, defendants appeal. Reversed, and complaint dismissed.

<p>Appeal from Appellate Term, First Department.</p> <p>Action by Angus IC. Nicholson and others against Charles S. Sprague and another. An order of the city court overruling a demurrer to the complaint was reversed by the Appellate Term (152 N. Y. Supp. 228), and plaintiffs appeal. Affirmed.</p>

<p>Appeal from Appellate Term, First Department.</p> <p>Action by Thomas H. Wesley against the City of New York. From determination of the Appellate Term (151 N. Y. Supp. 587), affirming a judgment of the Municipal Court, plaintiff appeals. Affirmed.</p>

<p>Insurance i@=791—Mutual Benefit Insurance—Action for Benefits.</p> <p>A membership certificate in a fraternal insurance society, providing a benefit fund from which a member in good standing and upon compliance with the rules might receive loans when totally disabled by sickness, accident, etc., provided, in the application, made a part of the policy, that all applications for loans on account of disability were subject to the approval of the Supreme Medical Examiner and might be rejected or reduced in amount at his option, subject to an appeal to the Supreme Council,. whose action thereon should be final, and that the member would not begin any legal proceedings against the order for any loan which he failed to obtain. Held, that a member who did not appeal from the action of the examiner, but accepted the amount allowed on her application, could not thereafter sue to recover benefits.</p> <p><§=»For other cases see same topic & ItEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1961, 1962’, Dec. Dig. <S=^791.]</p> <p>(gzz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Damages <@=>77—Liquidated Damages—Construction of Contract.</p> <p>Whether a provision shall be construed as providing for liquidated damages, and not for a penalty, depends on the intention of the parties and the nature of the transaction.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. § 156; Dec. Dig.. <S=»77.]</p> <p>2. Damages <@=>81—Liquidated Damages—Breach of Covenants in Lease..</p> <p>Where the parties to a lease expressly stipulated that a sum deposited by the lessee as security for performance of his covenants should be retained by the lessor as liquidated damages in case of a breach by the-lessee, because the parties could not estimate in advance the actual damages caused by such a breach, and where the circumstances surrounding the making of the lease showed that such damages were not ascertainable, the lessor was entitled to retain the sum deposited on breach of the tenant’s covenant to pay rent.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. § 177; Dec. Dig. <@=>81.]</p> <p>3. Damages <@=81—Liquidated Damages—Breach of Covenant in Lease.</p> <p>Where such lease was for a term of 10 years, with an option for a further term of 11 years, and the sum deposited was $72,000, or one-year’s rent, there was no such disproportion between the deposit and the possible damages “apparent on the face of the contract" as would preclude the deposit from being liquidated damages.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. § 177; Dec. Dig. <S=>81.]</p> <p>@=^For other cases see same topic & KEY-NUMBER in all Key-Ñumbered Digests & Indexes</p>

Action by Georgia C. Archer against the Equitable Life Assurance' Society of the United States. From an order granting plaintiff’s motion for judgment on the pleadings, defendant appeals. Affirmed, with leave to defendant to serve an amended answer.

<p>Pleading <§=>239—Amendment to Pleading—“Taxable Costs.”</p> <p>An order granting defendant’s motion to amend his answer on payment of “taxable costs” to date and $10 costs of motion does not authorize taxation of disbursements, under the rule that an award of costs on a judgment in an action, or on a final order or decree in a special proceeding, carries with it taxable disbursements; but in any other case disbursements cannot properly be taxed, unless expressly awarded by the order allowing costs.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 626-635; Dec. Dig. <§=>239.</p> <p>For other definitions, see Words and Phrases, Taxable Costs.]</p> <p>tg^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Special Term, Jefferson County.</p> <p>Action by Knowlton Bros, against the New York Air Brake Company. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial granted.</p>

Action by the First National Bank of Winona against the Buffalo Brewing Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Proceeding by John A. Markett against Huida A. Gemke and another for the removal of defendants as- tenant and subtenant. From a judgment of the City Court awarding petitioner the possession, defendants appeal. Reversed, and new trial ordered.

Action by the McNeil Dumber Company, Incorporated, against James W. Chase and others. On motion by plaintiff to strike out a paragraph of the answer of the defendants James W. Chase and Ida L. Chase as sham. Answers directed to be amended.

<p>1. Banks and Banking <@=>136—Deposits—Lien.</p> <p>A bank has a lien upon the moneys of a depositor in its possession to the extent of the amount on all its matured claims against the depositor, and may make application of payment upon the depositor’s matured note and charge the account of the depositor therewith.</p> <p>[Ed. Note.-—For other cases, see Banks and Banking, Cent. Dig. §§ 353-374; Dec. Dig <@=>136.]</p> <p>2. Bills and Notes <@=>129—Demand Note—Maturity.</p> <p>A note payable on demand was due forthwith.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 283-292; Dec. Dig. <@=>129.]</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by the Regina Company against the Gately Furniture Company. On demurrer to portions of the answer. Demurrer sustained.</p>

Action by Harry Furze against the City of New York and others-to enforce a lien on a public improvement. Motion granted to dismiss on the ground that the lien has expired.

Action by the Allen & Arnink Auto Renting Company against the United Traction Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.

In the matter of the estate of William F. C'rerand. Appeal by the executrix from the transfer tax appraiser’s report and the order entered thereon. Order fixing tax reversed, and appraiser’s report remitted to him for correction.

Harry K. Thaw was tried for conspiracy after being extradited from the state of New Hampshire. Upon acquittal, he moves to be returned to that state. Motion denied. Order affirmed 167 App. Div. 104, 152 N. Y. Supp. 771.

<p>Appeal from Justice Court.</p> <p>Action by Thomas J. Collinson against Patrick Wier before a justice of the peace. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

On proceedings to probate the will of Magdalena Herrmann, contested by George Herrmann. On application by proponents to set aside a decree denying probate. Application denied.

<p>In re estate of Mary C. Leary, deceased testate. Application by Daniel J. Leary for construction of paragraph of will. Application denied.</p>

Habeas corpus by the People, on the relation of Harry K. Thaw, against Max S. Grifenhagen, as Sheriff of the County of New York, and John J. Hanley, Warden of the City Prison. Relator’s motion to impanel a jury granted.

<p>Action by the Lasky Feature Play Company, Incorporated, against the Suratt & Fox Film Corporation. On plaintiff’s motion for an injunction. Denied.</p>

Proceeding for the probate of the will of Karl Bitter, deceased, with petition to intervene and file objections thereto, opposed by the widow of the deceased. Matter set for hearing by the court.

Suit by S. Andral Kilmer against Dr. Kilmer & Co., a corporation, for an injunction to restrain defendant from violating the terms of a written contract. Writ granted.

<p>Trade-Marks and Trade-Names <@=360, 70—Magazine Titles.</p> <p>Where plaintiff had published a fashion journal in the nature of a trade paper for more than 60 years under the title “Le Bon Ton,” thus acquiring the right to a trade-mark in the words “Bon Ton,” it was entitled to restrain defendant, despite defendant’s want of fraudulent intent, from publishing a journal of the same character, so far as contents went, although differing entirely in its mechanical make-up, entitled “Gazette du Bon Ton.”</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 80, 81;. Dec. Dig. <@=369, 70.]</p> <p><g=>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>Action by Augusta Doctor and others against Augustus S. Hughes and others. Defendant Augustus S. Hughes moves for judgment on the pleadings. Motion denied.</p>

<p>Literary Property @=»8—Right in Title of Play—Infringement by Motion Picture—-“Property Right.”</p> <p>Where plaintiffs produced a play under a certain title on the legitimate stage, large sums of money being spent for its production, and the presentation was a success, and defendant produced a dissimilar moving picture play under the same title, plaintiffs could restrain the use of such title, since the name by which a composition or theatrical production has become known to the public becomes a “property right,” which may not be infringed by any one for profit by using the name to the owner’s injury.</p> <p>[Ed. Note.—For other cases, see Literary Property, Cent. Dig. § 7; Dec. Dig. <@=>8.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Property Right.]</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by the Yorlce Waist Company against one Rainbow. Upon defendant’s failure to appear, the plaintiff moved for judgment, and the clerk of the court demanded the trial fee of Municipal Court Code, § 173, subd. 2.

Action by the New York Telephone Company against the State of New York. From a determination of the Board of Claims, disallowing and dismissing the claim of claimant, it appeals. Reversed, and judgment directed for claimant.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Brunswick Site Company against the Berlin Neuroder Art Printing Company. From a judgment for $206.91, for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Divorce @=197—Alimony—Attorney’s Fee.</p> <p>A husband is liable for services rendered by an attorney in procuring an increase in the alimony given the wife, who had obtained a decree of separation.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 582, 583; Dec. Dig. @=197.]</p> <p>2. Divorce @=197—Alimony—Right of Wife.</p> <p>A wife, after separation, who has paid, out of the alimony received, attorneys for their services in procuring an increase of alimony, is not entitled to recover the amount paid from her husband; the services having been paid out of money furnished for her support.</p> <p>[Ed. Note.—-For other cases, see Divorce, Cent. Dig. §§ 5S2, 583; Dec. Dig. @=197.]</p> <p>Guy, J., dissenting.</p> <p>©=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Trial <@=>15—Restoration of Cause to General Calendar after Default.</p> <p>Where an action was marked “Ready for trial” on the call calendar at the instance of plaintiff on April 9, 1915, and thereafter the cause appeared in the “reserved” portion of the calendar until June 15th, when it appeared on the day calendar, and, after a default judgment upon plaintiff’s failure to appear for trial, the default was opened on his showing of merits, but without excusing his failure to appear for trial, the case will be restored to the general calendar, to take position as last of the issues, as one whose own fault postpones a trial cannot claim precedence over other litigants.</p> <p>[Ed. Note.—For other cases, see Trial, Gent. Dig. §§ 34, 35; Dec. Dig. <©=>15.]</p> <p><£r^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by George W. Glaze against William J. Hauser. From an adverse judgment, defendant appeals. Affirmed.</p>

Proceeding for an accounting and distribution of a trust fund for the benefit of Cornelia Van Epps, the cestui que trust under the will of Jane Ann Smitley. Decree rendered.

<p>Appeal from Board of Claims.</p> <p>Proceeding by Samuel A. Danes and another against the State of New York. From a judgment or determination of the Board of Claims of the State of New York, in favor of claimants and against the State of New York, for the sum of $9,050, with interest thereon from July 1, 1910, amounting in all to the sum of $11,359.18, for real property of claimants situate on the Mohawk river, in the town of Niskayuna, Schenectady county, appropriated by the state for barge canal purposes, both parties appeal.</p>

Petition of the City of Amsterdam against the W. N. Carpenter Company to widen and straighten a part of Bridge street. From a final order disapproving and disaffirming an award of $500 to defendant, it appeals. Order reversed, and award reinstated.

Supplementary proceedings of George C. Clark, as judgment creditor, against Richard W. Shaw, as judgment debtor. On motion for an order requiring the judgment debtor to turn over to his receiver a certain insurance policy.

<p>Appeal from Municipal Court, Borough of Manhattan, First District Action by Alfred Marks Realty Ctimpany against Smith-Serrell Company. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed. Louis Bevier, Jr., of New York City, for appellant. John C. Judge, of Brooklyn, for respondent.</p>

<p>Action by Jacob W. Bermant against Mary S. Keveney. W. S. Jackson, of New York City, for appellant. A. Furber, of New York City, for respondent.</p>

<p>Action by Charles C. Brace against John C. Bradley.</p>

<p>Appeal from Special Term, New York County. Action by Alice Chatfield against Joseph Buehler, Jr., and others. From an order denying a motion for a bill of particulars, defendants appeal. Modified and affirmed. Lament McLoughlin, of New York City, for appellants. Jay E. Whiting, of New York City, for respondent.</p>

Action by Euplio Conoscenti, as administratrix, against Holbrook, Cabot & Rollins Corporation. Judgment for the plaintiff, and defendant appeals. Affirmed. Benjamin Patterson, of New York City, for appellant. Joseph V. Gallagher, of New York City, for respondent.

<p>Appeal from Special Term, New York County. Two actions by Jeanette Demuth against the New York Life. Insurance & Trust Company, as trustee, and others; and Arthur T. Kemp and others. From orders granting motions to satisfy of record judgments in favor of the defendants, they , appeal. Reversed, and motions denied. See, also, 165 App. Div. 77, 150 N. Y. Supp. 981. Alexander S. Andrews, of New York City, for appellants. James S. McDonogh, of New York City, for respondent.</p>

<p>Action by William N. Emery against William B. Langevin and another.</p>

<p>In the matter of the application of Timothy Foohey, as surviving member, etc., for a peremptory writ of mandamus directed to Julius N. Shaw and others, as commissioners, etc.</p>

<p>Action by Augusta Landes against Leonard Landes. C. Goldzier, of New York City, for appellant. II. M. Phillips, of New York City, for respondent.</p>

In the matter of the probate of paper writing purporting to be the last will and testament of Theodore A. Lord, deceased. Anna Di Hunsdon, as administratrix, etc., and others, appellants; Uegenie M. Ferrer, etc., respondent.

<p>Action by Gilbert Mautz against the Rendering Company and others.</p>

<p>Action by M. M. Fenner Company against Carrie E. McKay, as administratrix, etc., and others.</p>

Action by Mme. Irene against Vulcan Metals Co., Incorporated. From an order denying a motion for temporary injunction, plaintiff appeals. Affirmed. Louis B. Williams, of New York City, for appellant. Wilson B. Brice, of New York City, for respondent.

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

<p>Action by Johanna Miller Moosman, as administratrix, etc., against the New York, New Haven & Hartford Railroad Company.</p>

<p>Action by Anthony Patrick, as administrator, etc., of Joseph Vilkus, deceased, against the Atlas Knitting Company and another.</p>

<p>Appeal from Cattaraugus County Court. Richard A. Hall, of Cherry Creek, for appellant House. Lynn R. Van Vlack, of South Dayton, for respondent.</p>

Action by Louis Schulman against the Rector Paper Box Company. From a judgment for plaintiff, defendant appeals. Appeal dismissed.’ Myron S. Yochelson, of New York City, for appellant. Nathan M. I-Iutner, of New York City, for respondent.

<p>Action by Phcebe A. Van Blariconv as administratrix, etc., against Frank L. Dodgson, impleaded with others.</p>

<p>Action by Francis L. Warner against George A. Otis Company.</p>

<p>Action by Joseph M. Wright against Arthur B. Clark and others.</p>