Volume 156 — New York Supplement

<p>1. Municipal Corporations ©=>211—Board op Education—Rights of.</p> <p>As the board oí education may, under Greater New York Charter (Laws 1901, c. 4(50) §| 1008, 1093, 1100, Investigate through committees, it may abolish a position, based on an investigation through a committee, which it duly ratified.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 567-570; Dec. Dig. ©=>211.J</p> <p>2. Mandamus <$=>159—Proceedings—Alternative Writ.</p> <p>Where, on petition for mandamus for reinstatement, the pleadings raised the issue as to whether the abolition oí plaintiff’s position was in. good faith, an alternative writ should issue.</p> <p>[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 324, 325; Dec. Dig. <3=>159.]</p> <p>cgr^JTor other cases see same topic & KMY-NUMBER in all Key-Numbered Digests & Indexes</p>

Application by the City of Buffalo for mandamus against the County of Erie to compel the certification of taxes to the City. From an order (88 Mise. Rep. 591, 151 N. Y. Supp. 409) that the writ issue, the defendant appeals.

<p>Appeal from Special Term, Kings County.</p> <p>Action by Abraham Doeriler against Sarah E. Pottborg and others. From an order, certain defendants appeal.</p>

<p>Action by Gertrude E. Tiedemann against Rudolph Ernest Tiedemann. On demurrer to separate defenses. Demurrer sustained.</p> <p>Order affirmed, 154 N. Y. Supp. 1147. See, also, 156 N. Y. Supp. 111.</p>

<p>Appeal from Municipal Court, Borough of' Manhattan, Sixth District.</p> <p>Action by Pincus Woltag against Sol Reicligott. Prom a judgment for defendant, plaintiff appeals.</p>

Action by Joseph De Smet against Julian Benedict Niles. On mo.tion'by plaintiff for an order amending his notice of trial nunc pro tune, and by defendant for an order striking the cause from the calendar. Plaintiff’s motion to amend granted, and defendant’s motion to strike denied.

<p>Municipal Corporations <S^>438—Street Closing—Assessment—Presumption of Benefit to Property.</p> <p>Where a street was closed, and property, not within its bed and not abutting on it, was assessed for general and neighborhood benefit, as distinguished from special or individual benefit, resulting from the closing, the assessment will be upheld.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1052; Dec. Dig. <8^438.]</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Kev-Numhored Digests & Indexes</p>

<p>Appeal from Appellate Term, Second Department.</p> <p>Action by the Alfred Marks Realty Company against George Rector, Incorporated. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Brokers —Stocks—Unauthorized Sale—Contract oe Bailment—• Breach.</p> <p>Where one who had an open account with stockbrokers ordered them to sell certain of his stocks, which they failed to do, but later made an unauthorized sale thereof, they thereupon became liable to the owner for the breach of an implied contract of bailment.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 23; Dec. Dig. <@=>30.]</p> <p><S=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Brokers <§=>38—Stock—Failure to Sell—Measure oe Damages.</p> <p>One having an open account with stockbrokers ordered them to sell certain stocks at 19, which they falsely reported to him to have done on July 17th. Thereafter they made unauthorized sale without the owner’s knowledge, and which he did not discover until the 20th of September following. Stock rose continually from July 17th to September 28th, when it reached 47, but during the entire timo the owner rested content with his supposed sale at 19, and made no effort to repurchase the stock on the market. Held, that the owner’s measure of damages was the amount which would have been realized from a sale of the stock at 39, and not at the highest point reached within a reasonable time after the owner’s discovery of the failure to sell as ordered.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 31-30; Dec. Dig. <S=>38.]</p> <p>3. Assignments for Benefit oe Creditors <§=>307—Stockbrokers’ Unauthorized Sale—Open Account—“Mutual Debts and Credits.”</p> <p>Where, In violation of the owners order to sell certain stock at 19, a firm of stockbrokei s retained the stock and made a later unauthorized sale thereof, having informed the owner that the stock had been sold as ordered, and the transaction was one involved in a general purchase and sale of stock account between the parties, the owner was entitled to set off his claim for damages under the amendment to the Debtor and Creditor Act (Laws 3914, c. 300, § 13), providing for the offset of mutual debts and credits between the estate and a creditor, in an action on open account brought against him by the broker’s assignee for creditors.</p> <p>[Ed. Note.—For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 893-899; Dec. Dig. <§=>307.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Mutual Credits; Mutual Debts.]</p> <p>^=»Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by Rebecca Schoenfeld against the Mott Avenue Realty Company and another. Heard on application of the plaintiff for a reargument of defendants’ motion to dismiss the complaint, and for an order setting aside the dismissal as to the company, and for a new trial.</p>

<p>In the matter of the estate of Margaret Dimond. On objection to the trustees’ account. Objection sustained.</p>

Action by George C. Lacey against Charles Steinhardt. From a judgment on directed verdict for defendant, plaintiff appeals. Reversed, and new trial ordered.

<p>Action for divorce by James E. King against Rose A. King. Interlocutory judgment for plaintiff.</p>

Action by Gamillo Curro, an infant, by Angelo Curro, his guardian ad litem, against William M. Barrett, as President of the Adams Express Company. From a judgment upon a verdict directed by the court in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.

<p>1. Bills and Notes @=>382—Incomplete Instrument—Validity—Delivery.</p> <p>Notes signed by defendant in blank, which, wMIe they were incomplete, were stolen and filled in by some one without authority, were incomplete, undelivered instruments, and did not constitute valid contracts in the hands of the holder.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 955; Dec. Dig. @=>382.]</p> <p>2. Bills and Notes <8=>368—Delivery—Statute.</p> <p>Negotiable Instruments Law (Consol. Laws, c. 38) § 35, providing that, where an instrument is in the hands of a holder in due course, a valid delivery thereof by all prior parties, so as to make them liable to him, is presumed, refers only to a completed instrument, and does not apply to an incomplete instrument not delivered, described in section 34.</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eor other cases, see Bills and Notes, Cent. Dig. §§ 949, 950; Dec. Dig. <§s^36&]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris .Ratner against Rubin Sadowsky. From a judgment for defendant, plaintiff appeals. Reversed and remanded.</p>

Action by Sophie R. H. Levy, as executrix of Arthur S. Levy, deceased, against the Commercial Trust Company of New York. From a judgment dismissing the complaint at the close of plaintiff’s case, she appeals. Reversed, and new trial granted.

Action by Joseph Clark and another against the Mt. Gilead Baptist Church and another. From a judgment dismissing the complaint, and an order denying new trial, plaintiffs appeals. Reversed and remanded.

In the matter of a general assignment for the benefit of creditors by Abraham Lewis to Morton S. Coan. On application for an order discharging the assignee and his surety, and authorizing a reconveyance of the assigned estate.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Frachtman against Charles E. Fox. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the W. N. Hallock Company, Incorporated, against James B. Haig, Jr. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.</p>

Summary proceedings by the Sixth Avenue Realty Company against N. Zeiler & Co., Incorporated, and Frank M. Weiss, the name “Frank” being fictitious, undertenant. From a judgment in favor of the undertenant, plaintiff appeals. Reversed and remanded.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by W. J. Dickey & Sons against Jacob Greenberg and another. From a judgment in favor of the plaintiff, and from an order denying a motion for a new trial, the defendants appeal. Reversed, and complaint dismissed.</p>

Action by Edgar N. Sidman against Samuel M. Greene. Judgment for plaintiff, and from it, and an order denying his motion for new trial, defendant appeals. Reversed, and new trial ordered.

Action by Nathan Halpern against Meyer Horwitz and another, co-partners as Horwitz Bros. Judgment for plaintiff for $215, and he appeals. Reversed, and new trial granted.

In the matter of the determination of the construction and effect of a distribution of property contained in the last will and testament of Nellie E. Fraser. From the decree of the Surrogate’s Court, James Easton Fraser appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Hinde Agatstein against Leo Stark and others, copartners trading under the name of Stark, Spitzer & Co., and the Hopkins Holding Company. Judgment for defendants, and plaintiff appeals. Reversed, and new trial ordered.</p>

Action by Louis Karp against Isidore Adelman. From a judgment for plaintiff, and an order denying new trial, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Sigmund Heyman against the Barretts, Palmer & Heal Dyeing Establishment. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

Action by the International Law & Business Institute against Alexander Goulard. From a judgment for defendant, plaintiff appeals. Reversed, and judgment for plaintiff directed.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Antonio Vernaglia against Laura Cirota. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

Action by Louis Cohn against Alfred F. Howe. From a judgment for plaintiff, and from orders denying, a motion for new trial and overruling a demurrer, defendant appeals. Order on demurrer modified, judgment reversed, and new trial ordered.

<p>Contracts ©=>24—Otter—Acceptance.</p> <p>Where plaintiff by telegram offered to sell his share in a business for his investment, defendant assuming the debts, and defendant replied that when he should be capable he would pay plaintiff what he thought was due him according to his telegram, no binding contract was created; plaintiff’s offer not having been accepted by defendant, but counter a proposition urged, even though the statement that defendant would make the payment when capable might be construed as meaning in a reasonable time.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 100-103; Dec. Dig. <8=24.]</p> <p>Lehman, J., dissenting in part.</p> <p>©=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Clara E. Gimbernat against Ruth M. Gimbernat. From a judgment for defendant, and an- order modifying the judgment, plaintiff appeals. Modified and affirmed.

Action by Albert S. Koenig against Nathan Vidaver and another. Judgment for defendants, and from it, and an order denying his motion for a new trial, plaintiff appeals.

In the matter of the application of P. Pastene & Co., a creditor of one Locurto, for appointment of one Bruschi, under the Bulk Sales’ Act, as receiver of the debtor’s business.

Action by Victor Stoller against Sol Reichgott and others. From a judgment for defendants and against plaintiff, he appeals. Reversed ¿nnd remanded

Proceeding to dispossess a tenant by Morris Glassheim against Joseph Miller. Prom a final order in favor of the tenant, the landlord appeals. Reversed, and final order directed for the landlord.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Richard Welling against Gerald Morrell. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Trial ©=>180—Questions fob Jury—Direction of Verdi ot.</p> <p>Where the testimony of one of the parties raises a question of fact, the question is for the jury, and it is error to direct a verdict.</p> <p>[Ed. Note.—-For other cases, see Trial, Cent. Dig. §§ 882, 833, 838-341, 365; Dec. Dig. ©=o!3i>.J</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. 'Insurance <0=>O45—Industrial Policy—Loss of Sight—Failure of Pro of.</p> <p>Where assured sought to recover for the loss of sight in one eye, under an industrial accident and health policy which provided for such indemnity only in case of “the irrevocable loss of the entire sight thereof,” and the evidence showed that the sight was not wholly lost, there being no allegation in tile complaint seeking indemnity Cor other injuries received in the same accident, as brought out in evidence, and. no motion to conform the pleadings to the proof, a judgment for plaintiff was erroneous, since it was wholly unsupported by the evidence.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1554, 1632-1644; Dec. Dig. <S=>645; Pleading, Cent. Dig. § 1830.]</p> <p>2. Insurance <S=>388—Industrial Policy—Collecting Premiums—For-</p> <p>feiture.</p> <p>Where the premiums under such policy were payable in monthly installments, and were collected by the defendant’s collector, who receipted therefor in a receipt book issued to assured by defendant, such book containing the recital, “First premium must be paid on or before July .15, and on or before the--day of eaeli month thereafter to the above-named collector,” the policy did not lapse for failure to pay an installment, where the collector did not call for it when due.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1026, 1027, 1030, 1035, 1040, 1057; Dec. Dig. <@=>388.]</p> <p>3. Insurance <@=>296 — Industrial Policy — Application—'Occupation — Misrepresentation.</p> <p>The fact that plaintiff was engaged in shoveling concrete in a covered excavation already dug as part of the New York subway did not necessarily render his statement, in the application for such policy, that his duties were “digging, not handling explosives, no tunneling,” the misrepresentation of a material fact.</p> <p>[Ed. .Note.—For other cases, see Insurance, Cent. Dig. § 674; Dec. Dig. <@=>296.]</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In proceedings for the consolidation of the Yellow Taxicab Company and the Mason-Seaman Transportation Company, William H. Seaich filed objections, and applied for the appraisal of his stock in the first-named corporation. The matter was submitted to appraisers, and from an order' confirming their report, the Mason-Seaman Transportation Company appeals.

Action by the New System Napkin, Towel Supply & Steam Laundry Company against Olive Burnham. Judgment in favor of plaintiff, and defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulates to reduce the amount of the judgment, in which case, judgment modified and affirmed.

<p>Safes <g=>384—Sale on Commission—Breach, of Contract—Measure of DamLases.</p> <p>Where defendant breached his contract with plaintiff to purchase an oil separator, plaintiff being the agent of a dealer who paid him a commission on sales made, plaintiff’s measure of damages was the difference between the contract price and the market or current price at the time of the breach, as provided for by Personal Property Law, § 145, as added by Laws 1911, c. 571, and was not the amount of his commission.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. <g^>384.]</p> <p>other cases see same topic & KEY-NUMBKR in all Key-Numbered Digests & Indexes</p>

Action by Fannie Dorenfeld against Joseph Lieberman. From a judgment entered on a verdict of a jury, and from an order denying the defendant’s motion to set aside the verdict and for a new trial, defendant appeals. Judgment reversed, and new trial ordered.

Action by Holzman, Cohen & Co., Incorporated, against Motion Picture Apparatus Company. From a judgment, and an order open- . ing defendant’s default, plaintiff appeals. Reversed, and judgment directed for plaintiff.

_Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Frederick Deders against Joseph M. Wood. From a judgment for plaintiff, defendant appeals. On account of defective record, case returned to files of Appellate Term of Supreme Court.

Action by the Einhorn Erosch Company against Joseph Cans and others. From a judgment for plaintiff, and an order denying their, motion for new trial, certain defendants appeal. Reversed, and new £riaJ

<p>1. Bills and Notes <@=»493—Actions—Presumptions—Waiver.</p> <p>The holder oí a check received from a third person in an action against the maker may put the check in evidence and rely upon the presumption of consideration; but, if he alleges a consideration, it must be proved.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. <§=>493.)</p> <p>2. Bills and Notes @=»97—Actions—Consideration—Evidence—Suffi-</p> <p>ciency.</p> <p>Where the check sued on was obtained by a third person and given to plaintiff as a deposit only, and not as payment for the purchase price of a store, and the sale of the store was never consummated according to the agreement, there was a failure of consideration for the check.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-181, 185-192, 196-198, 200, 202-205, 208-212, 1372-1376; Dec. Dig. <§=^>97.)</p> <p>3. Payment <$^>2S—“Payment” by Check—Effect.</p> <p>The giving of a check of a third person as a deposit on the purchase price of a store is not “payment” until the check itself is paid; so that, where there was total failure of consideration by the failure of consummation of the sale, the holder of the check could not recover from the maker.</p> <p>[Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 89, 90; Dec. Dig. <@=»23.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Payment.)</p> <p>Bijur, J., dissenting.</p> <p>^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by H. Leonard La Ban and others against William H. Considine. From a judgment dismissing his complaint, and awarding judgment to defendant on counterclaim, plaintiffs appeal.

Action by Jacob Wolstof against Mary I. Hart. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulate to reduce the judgment, in which case, judgment modified and affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Frederick William Joclcel as trustee, etc., against Herman Haubold. From a judgment in favor of the plaintiff, entered upon a directed verdict, defendant appeals. Reversed, and new trial granted.</p>

<p>Appearance <8=9—Jurisdiction Acquired—“General Appearance.”</p> <p>Where plaintiff procured a free summons against defendant, but no service was had, and the only appearances made by defendant were one by Ms attorney on an adjourned day specially to object to the jurisdiction of the court on the ground of lack of service, and one upon defendant’s motion to open a default against him, the court had no jurisdiction, as in neither case was there a general appearance sufficient to confer it.</p> <p>[Ed. Note.—For other cases, see Appearance, Cent. Dig. §§ 42-52; Dee. Dig. <8=9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, General Appearance.]</p> <p><grx^l<'or other cases see same topic* & KEY-NUMBEll in all Key-Numbered Digests & Indexes?</p>

Action by Samuel Geizler against Sam Hirsch. From a judgment for plaintiff, also dismissing the counterclaim, after trial without a jury, defendant appeals.

Proceeding by the People against Lena Di Stefano. From a judgment that defendant is in danger of becoming morally depraved, and placing her in a reformatory, she appeals.

<p>Courts <3=^189—Municipal Court—Judgments .for Costs—Set-Offs.</p> <p>Where judgment was entered in the Municipal Court May 27, 1915, for defendant for $30 costs, and at the same time a judgment was entered for plaintiff for $10 costs on a motion, defendant’s motion, renewed after September 1, 1915, when the new Municipal Court Act (Laws 1915, c. 279) went into effect, for an order deducting the $10 judgment from the $30 judgment, should have been denied; such act not being retroactive, in view of the express provision -of section 181, giving the court no power to interfere with any judgment previously entered.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. <S=»189J</p> <p><§zs>For 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 William N. Loew against the North British & Mercantile Insurance Company. From a judgment after a trial by judge withouf a jury, defendant appeals. Reversed, and complaint dismissed.</p>

Action by Max A. Witt and Joseph L. Scheider, copartners doing business under the firm name and style of Max A. Witt & Co., against the Carlton Dress Goods Company. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.

Action by David Kreiger against Larry J. Margulies. From a judgment dismissing the complaint, plaintiff appeals. On motion for reargument. Reversed and remanded.

Action for rent by the Bradkin Realty Company against Henry Lesser, individually and as assignee of Harry L. Dangler. Frorn a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Action by the Lindsay Light Company against Joseph B Lauber, impleaded with Bernard Robinson. From a judgment rendered against him in favor of the plaintiff after a trial by the court without a jury, defendant Joseph E. Lauber appeals. Reversed, and complaint dismissed.

Action for rent by the S. Jonas Company against Jacob H. Fried-lander, as Noble Grand of Lenox Lodge, No. 211, I. O'. O. F. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Action by Rosa Della Mora, by Virginia Della Mora, her guardian ad litem, against the Franklin Feed Stores. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

<p>1. Evidence @=372—Ancient Deeds—Erasures and Alterations.</p> <p>In an action to determine a claim to realty, where the deed through which defendants claimed, being more than 60 years old, and all the parties thereto being dead, carried erasures and alterations made seemingly with the same ink, the same pen, and at the same time when the deed was drawn, while the erasures and. alterations were not essential to defendants’ title, so that, even if made after delivery, defendants were not claiming through them, such alterations and erasures, not being of a material character, required no explanation by extrinsic evidence to render the instrument a valid deed.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. @=372.]</p> <p>2. Tenancy in Common @=15—Adverse Possession.</p> <p>One tenant in common cannot acquire the title of the other by adverse possession, except upon proof that the possession was actually adverse.</p> <p>I Ed. Note.—For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. @=15.]</p> <p>3. Life Estates @=8—Adverse Possession by Life Tenant.</p> <p>The possession of a life tenant under the deed granting the estate cannot be adverse to the remainderman.</p> <p>[Ed. Note.—For other cases, see Life Estates, Cent. Dig. §§ 24-28; Dec. Dig. @=8.]</p> <p>4. Adverse Possession @=40—Prescriptive Title to Land—Requisite</p> <p>Period of Possession.</p> <p>Adverse possession of land must continue for 20 years before it ripens into title.</p> <p>[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 148-183; Dec. Dig. @=40.]</p> <p>(gzzsFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Alice Lasbury against Balldassare Scarpulla. From a judgment in favor of plaintiff and against the defendant, and from an order amending the judgment, defendant appeals. Reversed, and new trial ordered.

•Appeal from Municipal Court, Borough of Manhattan, Third District. Action by John C. Prendergast and John V. Smith against the Cord Meyer Company. Judgment for plaintiffs, and defendant appeals. Reversed, and complaint dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Joseph Cassar against the Ingram-Hatch Motor Corporation. From a judgment for plaintiff, defendant appeals.</p>

Action by James L. McNamee against the National Surety Company. From a judgment in favor of plaintiff after trial by judge without a jury, defendant appeals. Reversed, and new-trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by John Simeola against the Lippard-Stewart Motor Sales Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

Action by Edward Jacobs and another, copartners, doing business as Jacobs Brothers, against the Richard Carvel Company, Incorporated. From a judgment for defendant on directed verdict, plaintiffs appeal. Reversed, and new trial granted.

<p>Husband and Wife <@=>232—Actions—Evidence.</p> <p>In an action for the purchase price of a photographic outfit, evidence held insufficient to warrant a judgment against defendant not showing that she was the purchaser, but disclosing that the purchase was made by her husband.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 844-848, 981; Dec. Dig. <@=>23'2.]</p> <p><5$zz?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by William B. Reid against the Medical Society of the County of Oneida and another. Judgment for relief as prayed as to the defendant the Medical Society of the County of Oneida, and action dismissed as against the Medical Society of the state of New York.

Action by Frederick E. Hodgkiss and others against the DaytonBrower Company, Incorporated. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered.

<p>Suit by Lillian T. Dempsey for specific performance against Michael E. O’Rourke, as administrator of Sarah Ridgway O’Rourke, deceased, and others, heirs at law of decedent.</p>

<p>Bills and Notes @^415—Notice to Indorser.—Statute.</p> <p>Negotiable Instruments Act (Consol. Laws, c. 38) § 179, subd. 1, providing that where the indorser has not added his address to his signature, the notice of presentment and nonpayment must be sent to the post office nearest to his place of residence or to the post office where he is accustomed to receive his letters, is mandatory, and a notice to an indorser who had not added his address, mailed to him addressed “New York City,” that being the post office nearest his residence, was sufficient, as the holder was not required to go further and attempt to add a particular address and take the risk of its being wrong and without the protection of the statute; and, under section 176, such notice was sufficient, though not received by the indorser.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1156-1163; Dec. Dig. <S=^415.]</p> <p><@£r>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by the National Surety Company against E. K. S'tallo-. Judgment for plaintiff.</p>

<p>Judgment <@=197—On Mebits—Peoof.</p> <p>Where a complaint alleged that defendant unlawfully and forcibly entered plaintiff’s store, and took and carried away from plaintiff’s possession property of plaintiff, with a refusal of plaintiff’s demand for possession and return of the property, and the conversion of same to defendant’s use, with demand for damages, and plaintiff had introduced evidence, of a conversion, but failed to prove the forcible entry and detainer, entry of judgment for defendant before he had controverted the evidence as to the conversion, on the ground that the action was for forcible entry and detainer, was error.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 357, 359; Dec. Dig. <@=197.1</p> <p>^zsal'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Constantino Mulinos against Harry Walkof, impleaded with others. From an order directing the plaintiff to serve an amended complaint, separately stating and numbering the causes of action, or to elect on which cause of action he will proceed, he appeals. Order reversed, and motion to make the complaint more definite denied.

Action by Richards & Company, Incorporated, against Leo Wreschner and others, doing business under the name and style of Beer, Sondheimer & Company, and Beer, Sondheirner & Company, American Branch. Judgment for plaintiff.

<p>Action by Joseph Solomon against David Rothbaum and another. There was a default judgment for plaintiff, and defendants appeal, and by second notice appeal from a memorandum denying their motion to open the default. On motion to dismiss the appeals.</p>

Special Term, Kings County. Application for peremptory writ of mandamus by the People, on the relation of Bdward T. O’Loughlin, as Register of the County of Kings, against William A. Prendergast, as Comptroller of the City of New York, and others. Prom an order granting the writ, and from an order denying their motion for reargument, defendants appeal.

Action by David Haas and Sarah Haas, as executors of the last will and testament of Leopold Haas, deceased, against the Fidelity & Deposit Company of Maryland. From a judgment for plaintiffs, and an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Adolph Kaempfer against Hyman Polskin, Jacob Polskin, and Hyman Polskin, Jr., copartners trading as H. Polskin & Sons. From a judgment for plaintiff, and an order denying new trial, defendants appeal. Modified and affirmed, on condition that plaintiff consent to remittitur, and, in case of failure, reversed and remanded.</p>

Action by James Bronis, as assignee of the Traction Materials Company, against the Grafton Tight & Power Company and John T. Mc-Graw. From an order of the City Court overruling a demurrer to defendant’s second complete defense, plaintiff appeals.

Action, by Winter D. Garrett against Locke Regulator Company. From an order of the City Court of the City of New York, granting plaintiff’s motion for a bill of particulars of defendant’s separate defense, defendant appeals. Modified and affirmed.

<p>Appeal from Municipal Court; Borough of Manhattan, Ninth District. Action by Fannie Pauline Hays against David Israel and others. Prom a judgment for defendants, plaintiff appeals. Affirmed.</p>

<p>Appeal from Trial Term, New York County. Action by Joseph Shapiro against Benjamin Rosenthal. From a judgment dismissing the complaint at the close of plaintiff’s case on a trial, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Biunicipal Court, Borough of Manhattan, Third District. Action by the Thedford-Eltz Coal Company against Isaac B. Hyman and another. From a judgment for defendants, plaintiff appeals. Affirmed.</p>

<p>Appeal from Special Term, Kings County. Mandamus by the People, on relation of Luke Kilgallon, against John H. Nuhn, Clerk of the Municipal Court of the City of New York, Third District, Borough of Queens. From an order denying a motion for a peremptory writ of mandamus (156 N. Y. Supp. 559), the relator appeals. Affirmed. William Rasquin, Jr., of New York City, for appellant. James S. Darcy, of New York City, for respondent.</p>