Volume 157 — New York Supplement

<p>Appeal and Ebboh <^=>1046—Review—Habmless Ebbob.</p> <p>Though the trial judge was absent from the courtroom during the entire summation of counsel for both sides, that does not warrant a new trial, where it was admitted that no prejudice had been caused by the judge’s absence.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. <S=^1046.]</p> <p><@=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>- Action by Kathleen Clifford against the Mitchell Motor Company of . New York. There was a judgment for plaintiff, and from an order denying a motion to set aside the verdict and for a new trial, defendant appeals. Order reversed, and new trial granted.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Thomas B. Carroll against Max D: Blum. P'rom a judgment for plaintiff, defendant appeals. Reversed and remanded.</p>

<p>1. Tbial <§=>19—Absence of Cotjbt.</p> <p>Where the trial judge was absent during the summation of plaintiff's counsel, who made several unwarranted and improper references therein, defendant’s counsel interrupting and protesting against the remarks, although, upon his return, the judge endeavored to remedy the injury which had been done in his absence to defendant’s interests, such absence was prejudicial.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 38; Dee. Dig. <§=>19. ]</p> <p>2. Tbial <§=>31—Absence of Coubt—Acquiescence.</p> <p>Where defendant’s counsel did not protest against the trial judge’s absenting himself during summation by plaintiff’s counsel, he did not thereby acquiesce in such absence.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 55, 84; Dec. Dig. <@=>31.]</p> <p>@£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Robert H. McNeill against Jacob Fradus. From a judgment for plaintiff, defendant appeals. Reversed and remanded.</p>

Action by Adolph Meyer against Eugene Galland and another. Erom a judgment, and from an order denying his motion for a new trial, plaintiff appeals. Reversed, and new trial ordered.

<p>Action by Thomas F- Nevins against the Brooklyn Citizen and James Shevlin and another, as directors. On motion by the individual defendants to strike parts of the complaint. Motion granted.</p>

<p>Action by one Lobsitz against E. Lissberger Company. On plaintiff’s motion for judgment on the pleadings. Complaint ordered dismissed on defendant’s demurrer.</p> <p>Order reversed 168 App. Div. 840, 154 N. Y. Supp. 556.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Ely J. Rieser, doing business under the trade name of Ely J. Rieser & Co., against L. Prager, Incorporated. From an interlocutory judgment overruling defendant’s demurrer, it appeals. Judgment reversed, and demurrer sustained.</p>

<p>Brokers <§r^>65—Right to Compensation—Bad Faith.</p> <p>In an action to recover commissions as a real estate broker in procuring a purchaser for defendant’s house, in which plaintiff’s own testimony showed that he was guilty of bad faith toward defendant in negotiating the sale of the house, in that he had made a secret arrangement with the prospective purchaser to obtain compensation from him if the house could be bought for a price lower than that fixed by defendant, without showing defendant’s acquiescence in his acting for both parties, he could not recover.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 4.8--50; Dec. Dig. <S^>65.] <§=jFor other cases see sams topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Notaries <§=>10—Liability for Falsely Certifying Acknowledgments.</p> <p>Where a person defrauded by means of a bill of sale which J., representing himself to be M., executed in M.’s name and acknowledged before defendant, a notary public, was present when J. signed the bill of sale and saw defendant take the acknowledgment, and was present when the fraudulent representation was made by J. to the notary public, the proximate cause of his loss was his own negligent failure to ascertain that J. was not the true owner of the property, and he had no cause of action against the notary for falsely certifying the acknowledgment.</p> <p>[Ed. Note.—For other cases, see Notaries, Cent. Dig. §§ 19-27; Dec. Dig. <§=>10.]</p> <p><§=»For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>Action by Florence Samuel against the Princeton Construction Company. Judgment for plaintiff.</p> <p>Clause 14 of the lease was as follows:</p> <p>“(14) The landlord shall in no event be liable for any loss of or damage to the property of the tenant, family, servants, or guests, howsoever such damage or loss may arise, and whether such property be contained in the demised premises, in the storage room, or in other portion of said building, or any place appurtenant thereto.”</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by the Melrose Plumbing Company against the Barago Construction Company, Incorporated. Brom a judgment for plaintiff, defendant appeals. Reversed and dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Lobell-Aborn Auto Company, Incorporated, against Edward L. O’Connor. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and judgment directed for plaintiff.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by William H. Stevenson against Jack Opoznauer. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Courts <3=3189—Municipal Courts—Pleading—Sufficiency.</p> <p>A set-off need not be pleaded in terms, but it is sufficient if the facts alleged apprise the plaintiff of the issues, under the liberal rules for construction of pleadings in the Municipal Court.</p> <p>[Ed. Note.—For other eases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. <3=3189.]</p>

<p>Action by one Gilroy against the Strauss Building & Realty Company. Judgment for plaintiff.</p>

<p>Action by J. Russell Borzilleri, as soje trustee of School District No. 8 of the Town of Brighton, N. Y., for an injunction against Frank F. Janes, the New York State Railways, and the City of Rochester. Complaint dismissed.</p>

<p>Landlord and Tenant <S=^190—Lease—Renewal—Partial Eviction.</p> <p>Where defendant,, under a lease of an apartment, used a basement storeroom not mentioned in the lease, and plaintiff, after buying the property, entered into a new lease with defendant, renewing the previous lease in accordance with all its terms, adding thereto, “Tenant to have same storeroom as during last lease,” defendant was entitled to the use of the storeroom, and its occupancy by plaintiff’s employes as a locker and dressing room was a partial eviction, abrogating defendant’s obligation to pay rent.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 765-769; Dec. Dig. <S=190.] <@z^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Bernard Weissman against Alexander B. Greenberg. From a judgment for plaintiff after a trial by judge without a jury, he appeals. Reversed, and new trial granted.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Eay Epstein against the Childs Company. From a judgment in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulate to reduce the amount of recovery, in which event, judgment modified and affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Patent Hanging Book Cover Company, Incorporated, against William Marcus. From a judgment for defendant after a trial without a jury, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Federal Iron & Metal Company, Incorporated, against William Levine & Co. From an order denying defendant’s motion to retax costs, defendant appeals. Appeal dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the English Lumber Company against Edgar H. Smith. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.</p>

Action by Rosebrock Butter & Egg Company, Incorporated, against Frieda Jorisch and Abe Schneiderman. From a judgment in favor of plaintiff, gs modified by an order reviewing the clerk’s taxation of costs, defendant Schneiderman appeals. Order reversed, and judgment for defendant for costs reinstated.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Jesse Mann against Louis W. Spangehl. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Civil Rights @=»14—Colored Persons—Restaurant—Refusal to Serve —Evidence.</p> <p>Plaintiffs, colored persons, entered defendant’s restaurant and ordered tea and cake, for which the waitress demanded 50 cents, which plaintiffs agreed to pay. After waiting some 20 minutes without being served, plaintiffs left the restaurant. There was no bill of fare used In the restaurant, and the waitress testified that the prices charged were those fixed by defendant, and were the same to all customers alike; that she did not refuse plaintiffs, and that the delay was caused by the fact that it took some time to make the tea and to attend to other matters. Plaintiffs admitted that the waitress did not refuse to serve them, but simply did not bring the food. Held, that such evidence was insufficient to show that any discrimination was practiced against plaintiffs by reason of their color, In violation of Civil Rights Law (Consol. Laws, c. 6) § 40, providing for equal privileges in places of public accommodation.</p> <p>[Ed. Note.—For other cases, see Civil Rights, Cent. Dig. §§ 11, 12; Dec. Dig. <@==>14.]</p> <p>2. Civil Rights <®=14—Evidence.</p> <p>The Civil Rights Law, being penal in its nature, requires clear and convincing evidence of its violation, and its violation cannot be inferred.</p> <p>[Ed. Note.—For other cases, see Civil Rights, Cent. Dig. §§ 11, 12; Dec. Dig. <8^>14.] <§3^>For other cases see same topic & KI5Y-NUMB15It in all Key-Numbered Digests & Indexes</p>

In the matter of the general assignment for the benefit of creditors by Charles I I. Dickinson, as sole surviving partner of Beers & Owens, to William D. Gaillard. From an order of the Special Term (156 N. Y. Supp. 238), denying his motion for an order requiring the assignee of the stock brokerage copartnership firm of Beers & Owens to deliver to him 300 shares of Interborough Metropolitan common stock upon terms proposed by him, petitioner, Edmund F. Harding, appeals.

<p>Compromise and Settlement <S=5—Writing—Attorneys—Rule of Practice.</p> <p>Plaintiff company, through its vice president and attorney herein, entered into an arrangement with defendant through its agent in fact and attorney herein, by which defendant acquired the film rights for two plays, and thereafter plaintiff notified defendant of its cancellation under the arrangement, and brought an action in the Supreme Court for an injunction, and plaintiff and defendant, through their attorneys, reached an agreement by which defendant was to pay plaintiff $1,000 for an extension of time, and the written agreement was signed by defendant’s officers and in behalf of plaintiff, but, before defendant’s attorney delivered the check,, defendant refused to carry out the agreement, and the parties, through their attorneys, agreed that the injunction should be discontinued, which was subsequently done and defendant still refused to deliver the check. General Rules of Practice rule 11, provides that no private agreement or consent between the. parties or their attorneys in respect to proceedings in the cause shall be binding, unless reduced to the form of an order by consent, or unless evidenced by writing subscribed by the party charged or his counsel. Held, in an action to recover the $1,000, that the rule was no bar to the enforcement of an oral contract between the principals or their authorized agents in fact, even though such adjustment might affect a pending court proceeding involving part of the matters in controversy, so that the verdict against defendant would not be set aside because the promise to pay that amount was not in writing.</p> <p>[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig. §§ 10-16; Dec. Dig. <®=»5.) <S=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Libel and Slander @=>7—Actionable Words—“Firebug.”</p> <p>A statement that plaintiff was a firebug, over the objection that it did not impute that plaintiff was guilty of arson or of any other specific crime, was actionable per se, as the term “firebug” is a popular phrase referring to persons guilty of the crime of arson, and implied to the average mind one who had committed the crime of arson, and is commonly understood to mean an incendiary or pyromaniac, so that it would be understood as charging a crime.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. @=>7.]</p> <p>2. Libel and Slander @=>19—Construction of Words.</p> <p>Alleged slanderous words must be construed according to their common and natural meaning, and not in a sense favorable to the defendant.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 98, 99; Dec. Dig. @=>19.]</p> <p>3. Libel and Slander @=>101—Burden of Proof—Construction.</p> <p>Plaintiff, in an action for slander, does not carry the burden of showing that slanderous words are not susceptible of an innocent construction.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 150, 273, 275-280; Dec. Dig. @=>101.] <§=s>For other cases see same topic & ICBY-NUMBER in all Key-Numbered Digests & Indexes*</p>

Taxpayer’s action by the Western New York Water Company against William Laughlin, individually and as Mayor of the City of Niagara Falls, and members of the Common Council and of the Board of Water Commissioners, and certain contractors, to compel the restoration of municipal funds alleged to have been illegally diverted and expended. Complaint dismissed.

<p>1. Appeal and Error ©=667—Record—Statement in Bribe.</p> <p>Tlie Appellate Term is bound by the record, and the statement of counsel in briefs as to what did and did not occur at the trial, if unsupported by the record, cannot be considered.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2862, 2863; Dec. Dig. ©=667.]</p> <p>2. Judombnt ©=255—Consent—Further Proof.,</p> <p>In an action to recover the purchase price of bronze ornaments manufactured by plaintiff for the defendant, with counterclaim for breach of warranty, where the record showed that a judgment dismissing the complaint and finding for defendant upon its counterclaim was, by the consent of parties, reopened for the taking of further proof, and where it appeared that no further testimony was taken, except that some of the ornaments made by plaintiff, and which defendant claimed did not correspond with the sample, were produced in court, though not offered as evidence, that they were not examined by the court, and that there was no evidence given as to their condition, there was no foundation for the entry of a judgment for plaintiff, based upon the alleged further proof.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig-. § 415; Dec. Dig. ©=255.]</p> <p>3. Appeal and Error ©=1177—Disposition—New Trial,</p> <p>Where the court below, in an action for the purchase price of ornaments made by plaintiff for defendant, rendered judgment against plaintiff and for defendant on its counterclaim, and the Appellate Term could not determine from the record whether proof had on a reopening of a judgment by consent was sufficient to sustain the vacation and entry of judgment for plaintiff, the interests of justice required a new trial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4601, 4606-4610; Dec. Dig. ©=1177.]</p> <p><gES>For other cases see same topic & KEY-NUMBER in all Kev-Numbered Digests & Indexes</p>

Action by Alberto Bimboni against John McCormack. On motion by plaintiff for an order to vacate an ex parte order made by a justice of the City Court staying all proceedings on the part of plaintiff towards the enforcement of a default judgment in his favor against defendant, and also suspending the operation of two other orders. Motion denied. .

<p>Pleading <©=>356—Striking Amended Answer—Delay.</p> <p>An amended answer, that raises new issues based upon information received and communicated by the defendant to her attorney on the day of the preparation and filing of such answer, and which, if proven, will constitute a bar to plaintiff’s claim, does not show that it was filed for delay, so as to justify its striking, under Code Oiv. Proc. § 542, providing that amended pleadings may be stricken, if made for delay, and which, if allowed, would deprive the adverse party of the benefit of the term.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1111-1119; Dec. Dig. <©=356.]</p> <p><g^>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Action by Alberto Bimboni against John McCormack. From orders denying defendant’s motion to restore the action to the trial calendar, and to vacate an ex parte order making the judgment absolute, defendant appeals. Motion to dismiss denied, and orders reversed; the motion to restore the case to the calendar being granted.

<p>CONST! TUTIONAL LAW cg^SOO1—FOBEIGN COBPOBATION-SeBVICE ON PRESIDENT in State—When Invalid.</p> <p>Where defendant, a foreign corporation, had no property or office for the transaction of business in New York, service of a summons and complaint on its president in New York, who was not in the state on any business or in the interest of defendant company, was void, since such service was violative of the due process clause of the Fourteenth Amendment to the federal Constitution.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. <g=»309J ®s»l<'or olher cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by the Feldman-Swarris Company, Incorporated, against Julius Caesar Orefice. From a judgment in favor of defendant, after trial by a court without a jury, plaintiff appeals. Modified and affirmed on condition.

<p>Proceeding to assess transfer taxes upon the estate of Louise Tillingliast, deceased. Prom an order entered on the appraiser’s report, the executors appeal. Affirmed.</p>

<p>Replevin @=>93—Verdict—Sufficiency.</p> <p>In replevin for goods sold under a conditional contract of sale, a verdict: “We, the jury, find the defendant is entitled to the possession of the goods and that they be returned to him; that the value thereof is 8-: and live up to the present lease”—is insufficient to support judgment for defendant, where he admitted that he had not paid for the goods.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 360-368, 371-375 ; Dec. Dig. @=>93.]</p> <p>®^>For other eases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

Action by William Carrington against Holbrook, Cabot & Rollins, a corporation. From a judgment for plaintiff, and order denying new trial, defendant appeals. Reversed and remanded.

Action by Cimbel Bros., New York, against Henry Martinson and another, copartners doing business as Martinson & Nibur. From a judgment for plaintiff for $2,257.86, and from an order denying a new trial, defendants appeal. Affirmed as to defendant Martinson, and reversed and complaint dismissed as to defendant Martin Nibur.

<p>1. Appeal and Ebbob <§=>927—Review—Dismissal.</p> <p>Where, at the close of the case, the action was dismissed on defendant’s motion, plaintiff’s evidence must, for the purpose of reviewing the order, be deemed as true.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. <@=>927.]</p> <p>2. Pbinoipal and Agent <@=>.159—Tobts of Agent—Liability of Pbinoipal.</p> <p>Where defendant engaged a janitor to care for and control a tenement building, authorizing him to rent the flats should they become vacant, defendant, who directed the janitor to show the flat occupied by plaintiff, which she was shortly to vacate, in case she gave permission, but otherwise not, is liable for an assault by the janitor on defendant, made to compel her to admit persons to view the premises; such assault being within the scope of his authority.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 599-612; Dec. Dig. <@=>159; Damages, Cent. Dig. § 208.]</p> <p><@z5>3Tor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by Robert W. Fisher against the City of Mechanicville. Judgment for plaintiff.</p>

Action by Leon Spilo and others, a copartnership, against the Baumann-McWhirter Chemical Company, Incorporated. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.

<p>1. Master and Servant @=301—Assault by Servant—Existence of Relation.</p> <p>Though the hours of services of one employed by a saloon proprietor to serve free lunches were over, and he had gone behind the bar to wash, the relation of master and servant existed between him and the proprietor, when he at such time threw a glass, which hit a patron.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. @=301.]</p> <p>2. Master and Servant @=302—Assault by Servant—Liability of Master.</p> <p>Even though the proprietor of a saloon and connected hotel did not sustain the relation of innkeeper to one in the saloon for drinks, he is liable for injury to such a patron from the throwing of a glass by his servant.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. @=302.]</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Taxation @=3895—Transfer Tax—Value ,of-Good Will—Profits.</p> <p>In determining the value pf the good will of a business for transfer tax purposes, it was error to add to the average annual net profits of the business, exclusive of interest on capital, before - multiplying the amount by the number representing the number of years thought by the appraiser to be reasonable, a sum which was the interest on capital invested in the business by the representatives of retired partners.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1714-1721; Dec. Dig. @=3895.]</p> <p>2. Taxation @=>895—Transfer Tax—Value of Good Will—Profits.</p> <p>Where, in proceedings to determine the value of the good will of a business for transfer tax purposes, it appeared that the business had been conducted under one name for more than 30 years transacting a large volume of business, had an established reputation, was located in a prominent part of the city, and enjoyed the advantages derived from extensive advertising, its favorable location, and a long course of successful business dealings, a conservative estimate of the value of the good will would have been a sum which at 10 per cent, per annum would produce the average annual profits, exclusive of interest on capital.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1711=1721; Dec. Dig. @=>895.]</p> <p>3. Taxation @=>895—Transfer Tax—Value of Good Will—Deduction of Commissions.</p> <p>In determining for transfer tax purposes the value of th.e good will of a business conducted by decedent, the appraiser "should have deducted commissions claimed by the executors on the value of decedent’s interest in the business, since it would be necessary for the executors to sell the business before distribution could be made among the legatees.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1714-1721; Dec. Dig. @=>895.]</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of the estate of Aaron T. Demarest. From an order assessing tax on transfer of property, appeal is taken. Reversed, and appraiser’s report remitted for correction.

<p>In the matter of the estate of Richard Ti Colburn. Ordered that decree be settled on notice.</p>

<p>1. Cobpobations <8=672 (7)—Foreign Cobpobations—Actions—Complaint.</p> <p>Though, In an action by an Ohio corporation for the purchase price of goods sold and delivered, a complaint alleging a sale in New York, without alleging the procuring of a license to do business in New York, would have been demurrable, where the complaint alleged that the goods were sold and delivered in Ohio, it was good.</p> <p>PM. Note.—For other cases, see Corporations, Cent. Dig. §§ 2645-2649; Dec. Dig. <8=672 (7).]</p> <p>2. Cobpobations <8^672 (3)—Foreign Corporations—Actions—Answer.</p> <p>In an action by an Ohio corporation for the purchase price of goods alleged in the complaint to have been sold and delivered to defendant in Ohio, an answer denying that the goods were sold in Ohio, and alleging that plaintiff had procured no license authorizing it to do business in New York, did not set up a defense, as a denial that the goods were sol'd in Ohio was not equivalent to an allegation that they were sold in New York.</p> <p>[Eil. Note.—For other cases, see Corporations, Cent. Dig. §§ 2645-2649; Dee. Dig. <8=672 (3).]</p> <p><@==>For other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Edith Stignitz, an infant, by Alfred Stignitz, her guardian ad litem, against John Lamborghini. From a judgment rendered in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Carriers @=>315(1)—Injuries to Passengers—Liability.</p> <p>In an action for injuries from being1 pushed against an iron column while attempting to board an express train, the court’s statement that the gravamen of plaintiff’s claim was the overcrowded condition, and whether they had guards there in any number is entirely immaterial, is error, whore it is not shown that the accident resulted solely from overcrowding to such extent that negligence could be predicated on failure to prevent the access of such a number of passengers, and the case should be submitted on the question whether defendant made provision for moderating undue crowding.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1281; Dec. Dig. @=>315(1).]</p> <p><©s»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 Louis Dick against Isidore Knoperbaum. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>1. Work and Labor @=28(4)—Sufficiency of Evidence—Amount of Recovery.</p> <p>Evidence In an action ior work, labor, and services hold to show plaintiff entitled to recover the sum of $35.30 upon its claim lor $71.33.</p> <p>[Ed. Note.—For other cases, see Work and Labor, Cent. Dig. § 55; Dec. Dig. @=28(4).]</p> <p>2. Evidence @=600—Sufficiency—Counterclaim.</p> <p>A counterclaim must be sustained by strong and convincing proof.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2453-2459; Dec. Dig. @=600.]</p> <p>«gsaFor other eases see same topic & KDY-NUMDEB in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Herbert H. Francis against Emilie Hoffman. From a judgment for the plaintiff for the sum of $88, rendered by the court without a jury, defendant appeals. Reversed, and judgment entered dismissing the complaint.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Grolier Society of London against Ralph H. Forshay. From a judgment entered in favor of plaintiff, after trial before the court without a jury, defendant appeals. Reversed, and complaint dismissed.</p>

Action by Estelle Kaufman, an infant, by Abraham Kaufman, her guardian ad litem, against Louis Young. From a judgment dismissing the complaint on the merits at the close of the case, plaintiff appeals. Affirmed.

Summary proceedings by Albert Stevane, landlord, against Sadie Goldberg, undertenant, impleaded. From a final order for the under-tenant, the landlord appeals. Reversed and remanded.

Action by Isaac O. Farber against the Essie Construction Company. Judgment for plaintiff, and defendant appeals. On motion for reargument. Motion denied.

<p>Appeal and Ebb or <@=>1012(1)—Review—Findings of Trial Court—Witnesses—Cross-Examination by Court.</p> <p>Where, on trial by the court of her personal Injury suit as a passenger against defendant street car compan3<, plaintiff’s judgment was against the apparent weight of the evidence, and it appeared that the trial justice cross-examined defendant’s witnesses from signed statements given to defendant’s investigator by such witnesses, but which were not marked for identification or introduced in evidence, and in the absence of such papers it could not be determined on appeal what weight might have been given them by the justice in his determination, held, that the interests of justice required reversal and remand for a new trial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3990; Dec. Dig. <@=>1012(1).]</p> <p><©^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Eva Schindler against Abraham Misroch. Erom an order granting a motion to open plaintiff’s default, defendant appeals. Order reversed, motion denied, and judgment reinstated.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Isaac Wechsler and another against the Picard Importing Company. From a judgment for plaintiffs, defendant appeals. Reversed, and complaint dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Max Kleinman against Henry Kupfer & Co. Verdict for plaintiff. Defendant appeals. Reversed, and new trial granted.</p>

Application by one Farrell for writ of mandamus against the City of New York and various municipal departments. On motion for peremptory writ. Motion denied.

<p>Application by one Farrell for writ of mandamus against the City of New York and various municipal departments. On motion for peremptory writ. Motion denied.</p>

<p>Joint Adventures <3=4(4)—Grounds oe Recovery—Nonperformance of Contract.</p> <p>Where plaintiff, interested with defendant and another in the development of a tract of land, gave defendant his note for $1,000 on the understanding that, when defendant was reimbursed by a company to be organized by them, he would return the advancement to plaintiff, and defendant discounted the note and advanced the money to their agent for the uses of the syndicate, and when the company was organized the $1,000 was credited to defendant, and later returned to him in the shape of a note of the company, which defendant indorsed and delivered to a third party, plaintiff was entitled to judgment for the portion of the advancement which had not been returned.</p> <p>[Ed. Note.-—For other cases, see Joint Adventures, Cent. Dig. § 6; Dec. Dig. <3=4(4).]</p> <p><gz^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Harry V. Konwiser against the Retail Tobacconist Printing & Publishing Company. From a judgment for the defendant, dismissing the complaint on the merits and assessing costs against plaintiff, the plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Contracts <@=>282—Performance to Satisfaction of Party.</p> <p>Where plaintiff paid for dental work, consisting mainly of bridge and crown work, under a promise by defendants to return the money if he should be dissatisfied, and plaintiff testified that after the work was performed it pained him constantly for six months, and he went to another dentist and had the work removed, which he produced in evidence, a judgment for defendants in action to recover the money paid will be reversed.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1284-1289; Dec. Dig. <@=>282;]</p> <p><§=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by the Fidelity & Casualty Company of New York against James Black. From an order of the Municipal Court, opening a default judgment against plaintiff on terms, plaintiff appeals. Order modified, by striking therefrom the imposition of terms, and, as modified, affirmed.

<p>Compromise and Settlement <g=>23(3)—Performance—Tender—Evidence.</p> <p>Where plaintiff compromised a suit against him by defendant, agreeing to take back certain goods, and lie sued, alleging the goods were never returned, proof of tender of a package two years before the compromise does not show tender under the compromise.</p> <p>[E<1. Note.—For other cases, see Compromise and Settlement, Cent. Dig. § 94; Dec. Dig. <S^23(3).]</p> <p><S=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Sales @=359(1)—Actions—Evidence—Sufficiency.</p> <p>Evidence held to show that defendants had disposed of all interest in a hotel some months before plaintiff sold and delivered goods there, and hence were not liable for the purchase price of the same.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1056, 1057; Dec. Dig. >@=359(1).]</p> <p><S=^>For oth,er cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Evidence @=417(6)—Parol Evidence Affecting Writing—-Ambiguity.</p> <p>In suit on an agreement for the purchase and sale of a bakery providing that tlie landlord agree to something, the nature of which was not explained therein, parol evidence was admissible as to what was intended by the parties.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1878, 1887; Dec. Dig. @=417(6).]</p> <p>2. Sales @=391(1)—Contracts—Action for Breach—Pbematube Character.</p> <p>Where parties contracted to buy a bakery if the seller’s landlord extended the lease for three years, the agreement providing that the hill of sale should be given October 22, 1915, but the seller, before that date, failed to induce the landlord to agree to a three-year extension, informing tlie plaintiffs thereof and refusing to take them to the landlord as agreed, such parties could sue to recover their deposit of $100 on account, since an action for breach of contract lies at once upon a positive refusal to perform, although the time specified for performance has not arrii ed.</p> <p>[Ed. Note.—For other) cases, see Sales, Cent. Dig. §§ 1110, 1115, 1117, 1118, 1121; Dec. Dig. @=391(1).]</p> <p>©^oFor other cases see same topic & KEY-NUMBER m all Key-Numbered Digests & Indexes</p>

<p>1. Courts <§=>188(6)—Jurisdiction of Municipal Court—Wrongful Attachment.</p> <p>An action for wrongful attachment, brought on the ground that the attachment, while rightful at its inception, became wrongful when it developed on the trial that plaintiff had no cause of action on which an attachment could be based, was not an action for an injury to property, but one in effect for malicious prosecution, of which, under Municipal Court Code 1915 (Laws 1915, c. 279) § 6, subd. 1, the Municipal Court had no jurisdiction.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 458; Dec. Dig. <§=>188(6).]</p> <p>2. Courts <§=>189(7)—Municipal Court—Amendment—New Cause of Action—Statute.</p> <p>In such case, plaintiff will be allowed to amend his complaint, so that his action might sound as one upon the surety’s undertaking in the attachment proceeding, and be permitted to bring in the surety company as a party defendant, under Municipal Court Code, § 93, subd. 2, providing that at any stage of the cause the court must allow an amendment of any pleading, if substantial justice will be promoted thereby.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 458; Dec. Dig. <§=>189(7).]</p> <p><@=»Eor other cases see same topic. & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Courts @^>189(1)—Municipal Courts—Joining Additional Parties— Statute.</p> <p>In such case the joining of the surety company as a party defendant, while it might be done under New York City Municipal Court Code, § 27, subd. 2, should be done as provided by Code Civ. Proc. § 453, and a supplemental summons must be issued, directed to him, requiring him to answer the original or the amended complaint.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 458; Dec. Dig. <S=»189(1).]</p> <p><©E»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In the matter of the estate of Anna L. Textor, deceased. From an order of the transfer tax appraiser fixing tax, the executors appeal. Order fixing tax reversed, and appraiser’s report remitted for correction.</p>

Action by the Harford National Bank of Bel Air against Squire B. Gardner. On motion for a new trial and to set aside a verdict for defendant. Motion for new trial denied.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Morris R. Silverman against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.</p>

<p>1. Damages <3=113—Personal Property—Measure.</p> <p>Damages for a total destruction of plaintiffs’ wagon from collision with one of defendant’s cars would be the value of the wagon at the time of the accident.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 90, 91, 279, 280; Dec. Dig. <§=113.]</p> <p>2. Damages <3=139—Injury to Personal Property—Evidence—Judgment.</p> <p>. In an action to recover for a total destruction of plaintiffs’ wagon from a collision with defendant’s car, where the court allowed plaintiff to testify that he paid $200 for the wagon three years before, and had expended $165 for repairs, and there was no evidence that the price was its fair market value, or that the expense for repair was fair and reasonable, or as to its value immediately before the accident, judgment for plaintiff for $202 was without basis in the evidence.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 400—103; Dec. Dig. <3=139.]</p> <p><g=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Contracts @=>212(2)—Performance—Reasonable Time.</p> <p>A dressmaker, who made and delivered a dress not in compliance with the order, the customer retaining the skirt and returning the coat, which the dressmaker altered, soiling the lining, had a reasonable time to remedy such soilure.</p> <p>■[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 947-951; Dec. Dig. @=>212(2).]</p> <p>2. Contracts @=>320—Performance—Reasonable Opportunity.</p> <p>In such case, where the soilure was not entirely removed by cleaning, the customer could not reject the dress unconditionally until she gave the dressmaker opportunity to replace the soiled piece of lining.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1459, 1469, 1493-1527; Dec. Dig. @=>320.]</p> <p><gcs>For other cases see same topic & KEY-NTJMBBR in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Dominick Frashella against George C. Taylor, as President of the American Express Company. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Reversed, and complaint dismissed.</p>

Action by Belle Lichterman against William M. Barrett, as President of the Adams Express Company, an unincorporated joint-stock association. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

<p>1. Judgment @=167—Default—Opening—Conditions.</p> <p>Where the default of defendant was taken aften presentation of an - affidavit showing actual engagement of his counsel in federal courts, terms should not be imposed as a condition to opening the default.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 326, 330, 333, 334; Dec. Dig. @=167.]</p> <p>2. Appeal and Error @=1075—Waiver of Errors—Consent.</p> <p>Where terms were improperly imposed as .condition to the opening of defendant’s default, the appellate court will, where defendant in his brief expressed his willingness to accede to some of the terms, allow them to stand.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4253; Dec. Dig. @=1075.]</p> <p><S=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Contracts <§=^355-—Recovery for Services—Judgment.</p> <p>In an action to recover for services in auditing defendant’s books, judgment, including compensation for services rendered to a creditors’ committee, or an old company of the same name as defendant, all of which had been paid for, was improper.</p> <p>[Ed. Note.—For other cases, see Contracts, Dec. Dig. <§=>355.1</p> <p><S=r>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by John Bardar, by his guardian ad litem, George z Bardar, against Gianbatista Perrazzo and another. From a judgment of the Municipal Court for plaintiff, defendants appeal. Reversed, and new trial granted.</p>

<p>1. Appeal and Error <@=>1008—Review—Questions of Fact.</p> <p>In an action, for commissions on a sale by plaintiff, the question as to the terms under which plaintiff was employed being one of fact, the decision of the trial judge thereon is binding on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969 ; Dec. Dig. <@<=1008.]</p> <p>2. Brokers <@=>69—Compensation—Amount.</p> <p>Where a sale was completed by plaintiff only on the understanding that defendants accept a note of the buyer, indorsed by a certain person, and such person refused to indorse the note until a reduction in price was made to the buyer, to which the defendants agreed, plaintiff was entitled to commission only on the reduced price.</p> <p><§z5>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 55; Dee. Dig. <®==>69.]</p> <p>Delehanty, J., dissenting.</p>

Action by Emily Eeder against Franklin Simon & Co. From a judgment in favor of plaintiff, and against the defendant, defendant appeals. Reversed, and complaint'dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Henry C. Bernheim against George Roth, doing .business as the West End Factory. From a judgment for plaintiff, defendant appeals. Reversed and remanded.</p>

<p>1. Evidence <©=>450(11)-—Pabot. Evidence—Construction of Guahanty—• Continuing Obmgations—“Account.”</p> <p>Where defendants signed a guaranty reciting that they would guarantee the account of a partnership for the amount of $50, and if the partnership did not pay defendants would, there was nothing in the guaranty clearly showing that it was to relate to past or to future transactions, the word “account” being a word of flexible meaning, and which might be used to refer either to items of past dealings or to transactions which might subsequently occur; hence it was improper for the court to treat the guaranty as a continuing guaranty, and exclude parol evidence showing that it was intended to be confined to the account as it then existed.</p> <p>(g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2080, 2081, 2084; Dec. Dig. @=>450(11).]</p> <p>2. Guaranty @=>38(1)—Construction—Future Guaranty.</p> <p>A contract of guaranty will not be interpreted as referring to future transactions, unless the words of the guaranty, in light of the surrounding circumstances, show such an intent.</p> <p>[Ed. Note.—For other cases, see Guaranty, Cent. Dig. § 47; Dec. Dig. @=>38(1).]</p> <p>■g—.fffir other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal and Error <@=31010—Review—Weight op Evidence.</p> <p>Where the determination of the trial justice was not contrary to the weight of evidence, it will not be disturbed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. <@=31010.]</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Venue <§=»11—Grounds—Actions Against Public Officers—False Imprisonment.</p> <p>Under Code Civ. Proe. § 983, subd. 2, requiring actions against public officers lor acts done in virtue of their offices to be brought in the county where the causes arose, an action for false imprisonment must be brought in the county of which the defendants are officers.</p> <p>[Ed. Note.—For other cases, see Venue, Cent. Dig. § 20; Dec. Dig. <§=>11.]</p> <p>2. Venue <§x=61—Change of Venue—Time fob Motion—Amended Pleadings.</p> <p>Where plaintiffs ignored defendants’ demands for change of venue made in the answers, but later filed amended answers, demanding a change, and moved therefor in due time after such amendment, the change must be granted, since the amended answer fixes the issues, and demand therewith is seasonable.</p> <p>[Ed. Note.—For other cases, see Venue, Cent. Dig. §§ 9T-99; Dec. Dig. <§=561.]</p> <p><g^>For other cases see same topic & KEY-NXJMBBR in all Key-Numbered Digests & Indexes</p>

Action by Nathan Moore against Orrin L. Taylor. On motions for a dismissal, and that the verdict be set aside and a new trial granted. Denied.

<p>Action by Morris Yanlcowitz against William Arlcin. Judgment for plaintiff.</p>

Edna Meyer was convicted of a violation of Laws 1903, c. 436, in that she was found in a reputed house of prostitution, and she appeals. Reversed and remanded.

Action by the Homeopathic Hospital of Albany, N. Y., against Robert N. Chalmers and others, copartners doing business under the style of John G. Myers Company. Judgment entered for defendants, and complaint dismissed.

<p>Criminal Law <§=>121.1—Indeterminate Sentence—Prior “Conviotton.”</p> <p>A person who has been found guilty by a jury, or has pleaded, and whose sentence has been suspended, has been “convicted,” within Penal Law (Consol. Laws, c. 40) § 2189, providing that a person never before “convicted” of a state prison offense, on being convicted and sentenced to state prison, shall be given an indeterminate sentence, and is subject to section 1941, providing for a definite sentence on a second conviction— Code Cr. Proc. § 470a, providing that, if judgment be suspended after plea or verdict of guilty, judgment may not be pronounced after expiration of the longest period for which defendant might have been sentenced, unless ho shall have been convicted of another crime during such period, indicating that he was considered as convicted of the offense as to which judgment was suspended; section 470b providing that, for purpose of indictment and conviction of a second offense, the plea or verdict and suspension of judgment shall be regarded as a conviction; Penal Law, § 21, providing that the rule that a penal statute is to be strictly construed shall not apply to such law, but all Its provisions must be construed according to their fair import, to promote justice, and effect the objects of the law; and the Penal Law being required to be construed in connection with the provisions of the Code of Criminal Procedure bearing on the same subject.</p> <p>[Ed. Note.—-For other cases, see Criminal Law, Cent. Dig. § 3302; Dee.. Dig. <§=31211.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Conviction.)</p> <p><2=Eor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by the O. De Comeau Company, Incorporated, against Mayer Frankel. From a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial ordered.

In the matter of the application of the City of New York relative to acquiring title, etc., for the opening and extending of a public park at Coney Island, etc. From two orders of the Special Term, the city of New York appeals.

<p>1. Landlord and Tenant <@=>90(1)—Termination—Agreement to Hold Over —Consideration.</p> <p>A tenant’s agreement with the landlord’s authorized agent, made before the expiration of his monthly tenancy, that he might remain on the premises a few days longer, paying only for the time of actual occupation, under which he remained on the premises, rested upon a valid consideration.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 284, 288; Dec. Dig. <@=>90(1).]</p> <p>2. Principal and Agent <@=>100(2)—Authority op Landlord’s Agent—^Evidence.</p> <p>A janitress, who was the only person with whom the tenants came in contact, and who apparently had full authority to bind the landlord in the making of leases, had both express and apparent authority to agree with a tenant as to the terms on which he might occupy the premises after • the expiration of his monthly tenancy.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 264, 345, 372; Dec. Dig. <@=>100(2).]</p> <p><©^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Principal and Surety <@=>159—Actions—Evidence—Sufficiency.</p> <p>Where defendant executed a written agreement conditioned that a salesman already in plaintiff’s employ should account for all moneys, goods, and collections that might come into his possession, plaintiff, in order to-recover on the agreement, must show that any moneys coming into the salesman’s possession and for which he failed to account were received after the execution of the agreement.</p> <p>[Ed. Note.—For other cases, see Principal and Surety, Cent. Dig. §§ 428-435; Dec. Dig. <@=>159.]</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Newspapers @=>1(1)—Designation of Official Papers—Effect.</p> <p>The designation of a newspaper as the official newspaper of a city and the agreement of the publisher to make publications at the fees prescribed by the common council constituted a contract, which was broken on discontinuance of the paper and failure to make publications without consent of the common council, following destruction of the publisher’s plant by fire.</p> <p>[Ed. Note.—For other cases, see Newspapers, Cent. Dig. §§ 1, 2; Dec. Dig. @=>1(1).]</p> <p>2. Newspapers @=>1(6)—Designation of Official Papers—Revocation.</p> <p>Where the original designation of a newspaper as an official newspaper for one year was duly made, it could not be revoked.</p> <p>[Ed. Note.—For other cases, see Newspapers, Cent. Dig. § 13; Dec. Dig. @=>1(6).]</p> <p>3. Newspapers @=>1(1)—Designation of Official Papers—Power of City Council.</p> <p>Where a city charter provided for designation of two official newspapers, respectively, by members of the two leading political parties in the common council, but made no provision in case of the discontinuance of one of the papers chosen, the power to select another in its place belonged alone to the common council under its general powers.</p> <p>[Ed. Note.—For other cases, see Newspapers, Cent. Dig. §§ 1, 2; Dec. Dig. @=>1(1).]</p> <p>4. Newspapers @=>1(3)—Designation of Official Papers—Party Represented.</p> <p>The common council of a city, whose charter required two official newspapers representing the two leading political parties, in designating a paper by virtue of the council’s general powers to take the place of one whose publication had been discontinued, must comply with the charter requirement as to the political party represented by the newspaper select ed, if possible.</p> <p>@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Newspapers, Cent. Dig. § 10; Dec. Dig. @=>1(3)J</p> <p>5. Newspapers @^1(3)—Designation of Official Papers—Requirements— Weekly or Daily Publication—“Published * * * Weeks.”</p> <p>Neither Johnstown City Charter, § 74, requiring notice of sale of bonds to be published in the official newspapers for at least three weeks prior to the sale, section 104, requiring notice of hearing of objections to assessments by publishing them at least one week in the official newspapers, section 133, requiring public notice in the official papers for one week of an assessment roll for improvements, nor any other section of the charter requires daily publications in the official newspapers; the sections enumerated requiring only that the time specified shall intervene between the publication and the date referred to.</p> <p>[Ed. Note.—For other cases, see Newspapers, Cent. Dig. § 10; Dec. Dig. @=>1(3).]</p> <p>6. Newspapers @=>1(3)—Designation of Official Papers—Breach of Former Contract.</p> <p>That the publisher of the only newspaper eligible to designation as official newspaper of a city to take the place of another discontinued newspaper was the owner of such discontinued paper, and had broken his contract with the city with regard to such paper, does not affect Ms right to designation of the paper he publishes, in the absence of a showing of damages from, breach of the former contract, or that he is able to pay if the damages are shown.</p> <p>[Ed. Note.—IPor other cases, see Newspapers, Cent. Dig. § 10; Dec. Dig. @=>1(3).]</p> <p>7. Newspapers @>=1(4)—Designation of Official Paper—Mandamus—> Pleading—Prayer for Relief.</p> <p>On a petition for mandamus, a prayer that the common council of the city be required to make publications in the newspaper of the relator, and “for such otlxer and further relief as may be just and proper,” authorizes tiie court to render a judgment that the wrongful designation of the newspaper be rescinded, and to mold the relief according to the rights of the parties.</p> <p>[Ed. Note.—For other cases, see Newspapers, Cent. Dig. §§ 4-8, 11; Dec. Dig. @=>1(4).]</p> <p><@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Replevin <@=>107—Judgments—Form of.</p> <p>In an action for the possession of chattels delivered to defendant, judgment should be either for recovery of the property, or for its value, in case delivery could not be had, with damages for detention.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 424-428; Dec. Dig. <§=>107.]</p> <p>2. Appeal and Error <@=>1149—Termination—Judgment.</p> <p>Where a judgment in an action for the recovery of property was defective, in not providing for its return, that error may be corrected by the appellate court.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. <@=>1149.]</p> <p><fc>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Replevin @=106—Actions—Evidence.</p> <p>In an action for the recovery of personalty, the measure of damages is the value of the chattels at the time of trial.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 416-423; Dec. Dig. @=106.]</p> <p>4. Replevin @=72—Actions—Evidence.</p> <p>In an action to recover possession of five pictures, which were part of a lot of eight delivered to defendant, testimony that the eight were worth §800 will not support a judgment of §500 for the five not delivered.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 292-285; Dec. Dig. @=72.]</p> <p><©3»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Ben Bernard against Joseph H. Rosenfield. From an order denying a motion to vacate a judgment and open default, and from two judgments in favor of plaintiff, defendant appeals. Orders affirmed, the second judgment reversed and vacated, and appeal from the first judgment dismissed.

<p>Appeal from order of Special Term, New York County, denying motion for stay of proceedings.</p>

<p>Appeal from Trial Term, New York County.</p>

<p>Appeal from Trial Term, New York County.</p>

<p>Appeal by defendants from a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Third District, in favor of plaintiff, after a trial by a judge without a jury.</p>