Volume 158 — New York Supplement

' Action by the Dimond-Warren Motor Company, Incorporated, against lierff-Brooks Corporation. From an order denying defendant’s motion to set aside a service of summons, it appeals.

<p>1. Railroads @=>324(1)—Accidents at Crossing—Duty of Driver—Passenger in Vehicle.</p> <p>A passenger in a vehicle driven by another must use the caution of a reasonably prudent person when approaching steam railroad grade crossings.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1020, 1022, 1023; Dec. Dig. @=324(1).]</p> <p>2. Negligence @=93(1)—Contributory Negligence—Imputed Negligence.</p> <p>The negligence of a livery driver cannot be imputed to one riding in the vehicle with him.</p> <p>ÍEd. Note.—For other cases, see Negligence, Cent. Dig. §§ 147, 148; Dec. Dig. @=93(1).]</p> <p>3. Railroads @=324(1)—Accidents at Crossing—Duty of Driver—Passenger in Vehicle.</p> <p>Due care does not require a passenger in a vehicle driven by another to do any specific act for his own safety when apprised of the approach of the train.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1020, 1022, 1023; Dec. Dig. @=324(1).]</p> <p>4. Negligence @=98—Contributory Negligence—Negligence.</p> <p>Under Code Civ. Proc. § 841b, providing that in actions for causing the death of any person the contributory negligence of the person killed shall be an affirmative defense to be pleaded and proved by the defendant, plaintiff is entitled to a verdict where the evidence as to contributory negligence is evenly balanced.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 93, 165; Dec. Dig. @=98.]</p> <p>5. Negligence @=136(26)—Questions for Jury—Inferences—Negligence.</p> <p>When any two inferences can be reasonably drawn from the evidence as to contributory negligence, the question is for the jury.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 333-335, 338, 339, 342-345, 353; Dee. Dig. @=136(26).]</p> <p>6. Railroads @=348(6)—Accidents at Crossing—Sufficiency of Evidence —Contributory Negligence.</p> <p>In an action for the death of a driver in a cutter driven by a. livery man which was struck at a railroad grade crossing, evidence held not to show the lack of due care by the driver so conclusively as to require a verdict for the plaintiff to be set aside as against the weight of the evidence.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1144; Dec. Dig. @=348(6).]</p>

Action by Edward N. Breitung and others against Patrick Calhoun. On motion to sustain plaintiffs’ demurrers to the answer and counterclaim, and for judgment on the pleadings.

<p>1. Marriage @=>58(2)—Annulment—Grounds—Physical Incapacity—“Incurable.”</p> <p>Under Code Civ. Proc. § 1743, authorizing annulment of a marriage for physical incapacity of one of the parties at the time of the marriage, but only where the incapacity continues and is incurable, if a slight operation will remove the incapacity without endangering life and health, the fact that one refuses to submit to such an operation does not justify annulment; but if the incapacity can be cured only by a dangerous operation, it is “incurable” within the law.</p> <p>[Ed. Note.—For other cases, see Marriage, Cent. Dig. § 116; Dec. Dig. @=58(2).</p> <p>For other definitions, see Words and Phrases, First Series, Incurable.]</p> <p>2. Marriage @=60(7)—Annulment—Evidence.</p> <p>In an action to annul a marriage on the ground of physical incapacity of the wife, evidence held insufficient to show that her difficulty has not been cured, or partially cured, and that the husband has not been able to consummate the marriage.</p> <p>[Ed. Note.—For other cases, see Marriage, Cent. Dig. § 131; Dec. Dig. @=60(7).]</p>

Action by James C. H. McLean, as sole surviving trustee, etc., against James C. H. McLean, individually, etc., and others, for an accounting and a construction of certain provisions of the wills of James M. McLean and Cornelius McLean. Judgment for defendant Schofield as executrix, etc.

<p>Appeal from Special Term, Queens County.</p> <p>Action by Harry Rosenwasser and another against Michele Ogoglia. From an order granting a motion, defendant appeals.</p>

<p>Pleading <©=191 (5)-—Dbmubbeb—Answer—Denial in Affirmative Defense.</p> <p>An affirmative defense which contains denials of material allegations of the complaint is not demurrable.</p> <p>[Ed. Note.—Eor other cases, see Pleading, Cent. Dig. § 452; Dec. Dig,. <3=194(5).]</p>

<p>Action by the widow of Albert L. Hopkins against the Connecticut General Life Insurance Company.</p>

<p>1. Libel and Slander <@=>82—Libelous Publication in Work or Fiction.</p> <p>The fact that libelous matter is contained in a novel. which concededly relates to fictitious characters, facts, and incidents does not exempt the libelor from liability, as the party libeled, by appropriate allegations may so plead as to connect himself with the libel in which he is named by a fictitious name, not named atl all, or only indirectly referred to.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 187-197; Dec. Dig. <S=>82.]</p> <p>2. Pleading <@=>214(1)—Demurrer—Admission.</p> <p>A demurrer admits the allegations of the complaint to which it is opposed.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 525, 529; Dec. Dig. <@=>214(1).]</p>

Action by the Atmospheric Screen Company, Incorporated, against the Van Cortlandt Amusement Corporation. From a judgment for plaintiff, after trial before the court without a jury, defendant appeals. Judgment affirmed as modified.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the Williams & Morford Company against William E. D. Stokes. From a judgment for plaintiff, defendant appeals.</p>

Action by George Guggisberg against David Kraus. From a judgment for plaintiff, defendant appeals. Judgment affirmed conditionally, upon plaintiff’s stipulating to reduce the amount.

<p>Costs <8=^9—Special Appearance—“Motion”—Statute.</p> <p>Under Municipal Court Code (Laws 1915, c. 279) § 78, allowing a party to appear specially by filing with the clerk, on or before the last day for answering, a notice of special appearance, stating the particular purpose for which he appears, whereupon the case shall be set down for a hearing, and Code Civ. Proc. § 768, defining a motion as an application for an order, a special notice of appearance, interposed for the purpose of moving to set aside the service of the summons and complaint, was in effect an application for an order dismissing! the answer, and hence a “motion,” so that, on granting it and dismissing the action, the court might grant motion costs, under Municipal Court Code, § 167, subd. 1.</p> <p>[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 7-15; Dec. Dig. <8=9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Motion.]</p>

Action by Moses Shongo against Howard J. Shongo and others. From a judgment for plaintiff, defendants appeal. Motion to dismiss appeal denied, and motion by appellants for further return granted.

<p>Proceeding for accounting by the trustees of the estate of Benigno S. Suarez. Corrected decree to be submitted.</p>

In the matter of the estate of Addison C. Rand. Petition of the Farmers’ Loan & Trust Company, successor trustee, for a construction of a paragraph of testator’s will.

<p>Action by St. Lawrence County against William Goldberg and another. Demurrer to complaint overruled.</p>

<p>Frauds, Statute op <@=»123(2)—Operation—Tenancy Under Void Agreement.</p> <p>Where’ a tenant took possession of the premises under an agreement that he was to have a lease for one year, with the option of renewal for two years more, but the written lease was never executed, it was the intention of the parties that the tenancy should be a yearly one, and the tenant cannot terminate it before the end of the year, though the agreement could not operate as an oral lease, under Real Property Law (Consol. Laws, c. 50) § 242, because it contemplated an extension beyond the term, of one year.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 273; Dec. Dig. <@=>123(2).]</p>

<p>Action by James Holland and another against the Western Union Telegraph Company and another. On motion by defendants for an open commission to take testimony of- witnesses in Pittsburgh, Pa.</p>

Action by David Anderson against A. E. Norton, Incorporated. From an order denying plaintiff’s motion to correct the clerk’s minutes on the trial, and to vacate a judgment that the action be discontinued, plaintiff appeals, and from the judgment he also appeals.

<p>1. Landlord and Tenant <@=>61—Estoppel .to Deny Landlord’s Title—Subsequent Conveyance.</p> <p>A tenant is not estopped to show that the landlord conveyed his interest in the land after the creation of the tenancy and before the commencement of the action against the tenant.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 151, 152, 187-196; Dee. Dig. <@=>61.]</p> <p>2. Appeal and Error <@=>204(1)—Objection to Evidence Not Made in Court Below.</p> <p>An objection to the admission of evidence, not raised in the trial court, will not be considered on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1258; Dec. Dig. <@=>204(1); Trial, Cent. Dig. § 172.]</p>

<p>1. Disco veby <S=o74—Inspection of Books and Papebs—Order.</p> <p>Under Code Civ. Proc. f 872, suM. 7, as amended by Laws 1911, c. 781, providing that, where the party sought b> be examined is a corporation, the affidavit shall state the names ot its officers or managing agent whose testimony is necessary, or the books and papers as to ihe contents oí which an inspection is desired, and that the order shall direct the examination of sucli persons and the production of such books and papers, and that on such examination the books and papers may be put in evidence, in addition to their use by the witness to refresh his memory, such books and papers, on examination of an adverse party before trial, may ordinarily be used only to refresh his recollection; and such rule applies to an examination of a corporation, except in so far as the Legislature has provided a different rule for their examination, but where the order does not direct the production of any books, etc., they cannot be produced for examination and for admission in evidence.</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 89; Dec. Dig. <@=74.]</p> <p>2. Discovery <@=49—Corporation—“Managing Agent.”</p> <p>Under such provision, one only in charge of the sales office of a corporation, and having no discretion or authority to accept orders, and whose office was under the supervision of the corporation’s main or principal office in the state, was not a “managing agent,” who might be examined before trial.</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 63; Dec. Dig. <@=49.</p> <p>For other definitions, see Words and Phrases, First and Second Scries, Managing Agent.]</p>

<p>Sales <§=>441 (3)—Breach oe Warranty—Srit'[Oibncy of Evidence.</p> <p>Evidence in an action for the breach of a warranty that the horse sold by defendant to plaintiff was kind, held not to show the vicious character of tile horse sold.</p> <p>[Ed. Note.-—For other cases, see Sales, Cent. Dig. §§ 1279, 1280; Dec. Dig. ©=>441(3).]</p>

Application by Richard Russell for an alternative or peremptory mandamus directing Ossian E. Carr, City Manager of the City of Niagara Falls, N. Y., and Pascall O. Dietrich, Deputy City Engineer of said city, to grant permission to erect a building on Cherry street in the said city.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Gustav Kaninsky against Purcell & Gilfeather, Incorporated. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Action by Alma Peterson against George D. Eighmie. Judgment for plaintiff, and defendant moves for new trial and for reduction of the verdict.</p>

<p>1. Covenants @=>51(2)—Building Restbictions—Constbuotton.</p> <p>Where the owner of a tract platted and improved it for a high-class residence district, and included in ail deeds restrictions as to the kind and position of buildings which might be erected on the lots, the restrictions were for the mutual benefit of the purchasers of the lots, and should not be frustrated by the court by a strained construction of the language.</p> <p>[Ed. Note.—For other cases, see Covenants, Cent. Dig. § 50; Dec. Dig. <@<=>51(2).]</p> <p>2. Covenants @=>103(2)—Building Restbictions—Gabage.</p> <p>A portable metal garage, situated a few feet back of the house and connected with it only by strips of wood, violates a clause in a deed providing that no stable or garage should be built on a lot of that size.</p> <p>[Ed. Note.—For other cases, see Covenants, Cent. Dig. § 169; Dec. Dig. @=>108(2).]</p> <p>3. Injunction @=>62(3)—Subject oe Relief—Building Restbictions—Temporary Violation.</p> <p>The fact that a garage, placed on a lot in violation of a building restriction, was portable, so that the violation might he only temporary, does not prevent an injunction to restrain the violation.</p> <p>[Ed. Note.—For other eases, see Injunction, Cent. Dig. § 127; Dee. Dig. @=>62(3).]</p> <p>4. Injunction <@=>21—Subjects of Relief—Building Restbictions—Right to Sue.</p> <p>Where both plaintiff and defendant owned under deeds providing that no garage should be built unless appurtenant to a house on a plot not less than 100 feet in width by 150 feet in depth, the fact that plaintiff had a garage appurtenant to his house on a corner tract, consisting of nine lots, each "20 feet wide by 100 feet deep, does not show a violation by him of tlio restriction which prevents him from suing to restrain a violation by defendant, since the measuring of the width and depth of a corner is not necessarily the same as on an inner tract, and, taken together, plaintiff’s lots were greater than the required area.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 19; Dec. Dig. @=>21.]</p>

<p>1. Elections <@=>194(1, 7)—Validity of Ballot—Statute.</p> <p>Under Election Law (Consol. Laws, c. 17) § 86, as added by Laws 1911, c. 891, § 47, defining a void ballot as one upon which there “shall be found any mark other than a cross X mark made for the purpose of voting,” and declaring that upon such ballot no vote for any candidate shall be counted, a ballot having a surplus cross mark thereon and a ballot which, in addition to the voting cross marks, bore a small pencil mark following the name of a candidate, were void, and properly rejected by the canvassers.</p> <p>[Ed. Note.—For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. <@=3194(1, 7).]</p> <p>2. Elections <3=3194(1)—Ballots—Validity.</p> <p>Election Law, § 858, subd. 4, providing that, if the voter desires to vote for any person whose name does not appear on the ballot, he may do so by writing the name with a pencil in the proper place in the blank column, does not authorize the making of any mark upon a ballot other than the required cross mark, or the name of a person not appearing on the ballot for whom the voter desires to vote.</p> <p>[Ed. Note.—For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. <@=3194(1).]</p> <p>3. Electfons @=>291—Marks on Ballot—Presumption.</p> <p>Iff the absence of some fact showing the contrary, the presumption is that a slanting lead pencil mark was upon a ballot when it left the voter’s hands, and a mere surmise that it was accidentally made by one of the inspectors cannot rebut such presumption; and the fact that the inspectors rejected it as void because the name of a person was written thereon, and that they did not notice the slanting mark, did not defeat the presumption, or a consideration of the mark in determining the ballot’s validity.</p> <p>[Ed. Note.—For other cases, see Elections, Cent. Dig. § 286; "Dec. Dig. <§=>291.]</p> <p>4. Elections <§=>269—Ballot—Invalidity.</p> <p>A void ballot may be attacked in any proper tribunal for any and all causes vitiating its legality.</p> <p>[Ed. Note.—For other cases, see Elections, Cent. Dig. §§ 245, 246; Dec. Dig. <§=>269.]</p>

<p>Courts <@s=>3.90(4)—Municipal Court—Failure to File Return—Motion to Dismiss.</p> <p>Although rule 16 of the rules of the Municipal Court provides that, in case of the death .or disability or prolonged absence from the city of a justice, the case on appeal may be settled by the justice presiding in Part 1 in the district in which the judgment is entered with the same force and effect as if he had tried the case where the trial justice was taken ill before the appellant could give notice of settlement, and the appellant claims that a proposed amendment is so material and so peculiarly within the province of the trial justice to decide, that no other justice can determine whether the amendment should be allowed, a motion to dismiss for failure of the appellant to file the return will be denied, unless the respondent will stipulate that the proposed amendment be allowed.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=>390(4).]</p>

<p>Action by Samuel Zirinsky and another against Harry Zlotnick. From an order of the Municipal Court, defendant appeals. On motion to dismiss appeal.</p>

<p>In the matter of the estate of Maurice Quinlan. On application for revocation of letters of administration.</p> <p>James F. Swauick, of New York City, for petitioner.</p>

In the matter of the estate of Marie L. Stockwell. From the report -of the appraiser assessing transfer taxes, the executor appeals.

Thomas Mott Osborne was indicted for perjury. At the close of the People’s case, defendant moved for a directed verdict of acquittal and dismissal of the indictment.

<p>Venue <®=52(1)—Change—Geounds—Convenience or Witnesses.</p> <p>An action on three written contracts, one made in the county in which the action was brought and the other two in another county, where all three were to be performed, and where the breach, if any, occurred, and in which the greater number of competent and material witnesses resided, should be transferred for trial to the latter county, on the ground that the convenience of witnesses will be subserved thereby, since a transitory action should generally be tried in the locality where the transaction involved in the controversy took place.</p> <p>[Ed. Note.—For other cases, see Venue, Cent. Dig. §§ 76, 77; Dec. Dig. <8=52(1).]</p>

<p>Sales @=> 161(1)—Contracts—Compliance.</p> <p>Plaintiff, a St. Louis dealer in eggs, offered on February 27th, to sell eggs to defendant, whose place of business was Buffalo, N. Y. On the same day defendant ordered 200 cases to' be shipped f. o. b. on the Lake Shore. As soon as the telegraph order was received, plaintiff ordered a refrigerator car, loaded the car, and delivered it to a transfer railroad company for delivery to the Big Four Railroad at its station across the Mississippi river. By reason of delays the eggs did not reach Buffalo in time tor defendant’s purpose. The refrigerator company and transfer company were owned by the several railroads entering or approaching St. Louis. The Big Four connected with the Lake Shore Railroad. Held that, in view of the fact that previous shipments of eggs had been made in the same manner, the provisions of the order that the eggs should be delivered f. o. b. Lake Shore, merely meant that they should be delivered free on board at plaintiff’s place of business, and so on delivery to the transit company the contract was complied with.</p> <p>. [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 377-380; Dec. Dig. @=>161(1).]</p>

<p>Thomas M. Osborne was indicted for unlawfully and willfully omitting to perform a duty enjoined upon him by law as a public officer, and he moved to dismiss the sixth count of the indictment.</p>

<p>1. Municipal Corporations <§=>331—Public Improvements—Contracts—■ Advertisement por Bids.</p> <p>A charter provision that bids for paving improvements shall be advertised in newspapers named and for times directed by the council is violated by a paving resolution directing the engineer and city clerk to advertise the bids as seems best, and advertisement pursuant thereto.</p> <p>(Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 856, 857; Dec. Dig. <§=>331.]</p> <p>2. Municipal Corporations <§=>333—Public Improvements—Contracts— Deposit by Bidder.</p> <p>Where the resolution of determination to pave required a bidder’s deposit of $1,500, specifications and published notice requiring $10,000 deposit are in violation of law.</p> <p>[Ed. Note.-—For other cases, see Municipal Corporations, Cent. Dig. § 859; Dec. Dig. <§=>333.]</p> <p>3. Municipal Corporations <§=>339(2)—Public Improvements—Contracts— Alteration.</p> <p>Where the paving resolution and specifications demanded a certain pavement, and bids were received thereon, a resolution awarding the contract for paving, partly with the specified pavement and partly with another pavement, is unauthorized.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § S7Ó; Dec. Dig. <@=>339(2).]</p> <p>4. Municipal Corporations <§=>444—Public Improvements—Assessments—Statutes.</p> <p>Where provisions of law as to advertising for bids, deposits accompanying bids, and lowest bidder as to a paving contract are violated, the assessment for the expense of the pavement is vitiated.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1064, 1069; Dec. Dig. <@=>444.]</p> <p>5. Municipal Corporations <§=4-16—Public Improvements—Assessments.</p> <p>If a contract for pavement is legally awarded, a poor pavement, or a poor job in laying it, in the absence of fraud between the council and contractors, is no ground for opposing an assessment to meet its cost.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §s 1066, 1067; Dec. Dig. <§=446.]</p>

<p>Appeal from Trial Term, Onondaga County.</p> <p>Action by Mary L. Misener against the City of Syracuse. From a judgment for defendant, plaintiff appeals. Judgment reversed, and new trial granted.</p>

Action by John Petsche against Edward MacDonald. Erom an order setting aside a judgment for plaintiff, rendered by the Municipal Court after trial without jury, and granting a new trial, the plaintiff appeals.

Action by Anne E. Strong against the Woodrow Investing Company, Incorporated. From a judgment dismissing the complaint at the end of plaintiff’s case, she appeals.

Action by the Nassau Garage, Incorporated, against William J. Dorn. Judgment for plaintiff before the police justice of the village of Mineóla, and defendant appeals.

<p>Appeal from City Court of Albany.</p> <p>Action by Harry Liebmann against Charles D. Dean. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Albert Strauss against George M. Fishel and others, co-partners under the name and style of the Michigan Furniture Company. From a judgment rendered in favor of defendants and against plaintiff after a trial, plaintiff appeals.</p>

Action by Mathew Jackson against Samuel Jaffe and the Hotel St. George, Incorporated. From a judgment for plaintiff, defendants appeal. Judgment reversed, and new trial ordered.

<p>Evidence <S=445(5)—Pabol Evidence—Chattel Moktgage.</p> <p>In an action to foreclose a chattel mortgage on bakery fixtures, where defendant claimed that plaintiff agreed to install such fixtures, but failed to do so within the time agreed upon, or a reasonable time thereafter, and that an agreement was then made by which the fixtures were to be returned to the plaintiff, who agreed to receive them and cancel the mortgage, and that they were returned to the plaintiff, evidence to prove such agreement was material and admissible, under the rule that agreements subsequent to the making of a written agreement and founded upon a good consideration are admissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2060; Dec. Dig. <@=415(5).]</p>

<p>Bills and Notes <8=518(2), 525—Action—Sufficiency of Evidence—Accommodation Note.</p> <p>Evidence in an action against the indorser of notes held not to sustain the alleged defense that they were accommodation notes taken by plaintiff with notice and without consideration.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1818, 1832-1839; Dec. Dig. <8=518(2), 525.]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by the Superior Lamp Manufacturing Company against Max Zeisler. Judgment for defendant. From an order of the Municipal Court, granting plaintiff new trial, defendant appeals.</p>

<p>L Taxation @=>421(7)—Assessment—Statute—Assessment by Number.</p> <p>1 Rev. St. pt 1, c. 13, tit 2, §§ 11 and 12, requiring the property of nonresidents to be assessed in the same roll with that of residents, but in a separate part thereof, and providing that it may be designated by lot numbers, was substantially complied with by an assessment roll, giving first the names of the residents and their assessments, then the names of nonresidents and their assessments, and then an assessment according to lot numbers, where the name evidently was unknown, among which was the lot in controversy.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 729, 730; Dee. Dig. @=3421(7).]</p> <p>2. Taxation @=>44'2—Tax Lease—Presumptions—Warrant for Collection.</p> <p>Under the statutes mailing a tax lease presumptive evidence that the tax was legally imposed and that the proceedings and sale were required, the fact that an assessment made more than 40 years before, and which had in the meantime been transferred to the custody of a different office, does not contain a warrant for collection, as required by Laws 1873, c. 135, § 4, does not show that no warrant was originally attached thereto.</p> <p>[Ed. Note.—For other cases, see Taxation, .Cent. Dig. §§ 774-780; Dec. Dig. @=>442.]</p> <p>3. Taxation @=3734(2)—Sale—Proceedings—Return of Receiver—Name.</p> <p>Where lots were assessed by lot number, not by name, pursuant to 1 Rev. St. pt. 1, c. 13, tit. 2, §§ 11, 12, the fact that the receiver’s return did not give the name of the person failing to pay the tax, as required by Laws 1873, c. 135, § 13, does not invalidate the sale for taxes.</p> <p>[Ed. Note.-—For other cases, see Taxation, Cent. Dig. §g 1470, 1471; Dec. Dig. @=3734(2).]</p> <p>4. Taxation' @=734(10)—Sale—Proceedings—Amendment of Statute.</p> <p>A lease made in 1878 for taxes assessed in 1873 is not invalidated by the failure of the county treasurer to file a duplicate of the sale with the county clerk, as required by Laws 1873, c. 135, g 17, which was amended by Laws 1876, c. 261, so as not to require the filing of the duplicate.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. g§ 1470, 1471; Dec. Dig'. @=3734(10).]</p> <p>5. Taxation @=>693—Tax Lease—Presumptions—Notice.</p> <p>The statutory presumption from leases for unpaid taxes that the tax was legally imposed, and the proceedings and sale were required, applies to the giving of notices of sale and redemption.</p> <p>[Ifid. Note.—For other cases, see Taxation, Cent. Dig. § 1388; Dec. Dig. @=>693.]</p>

<p>Appeal from City Court of New' York, Trial Term.</p> <p>Action by the Security Bank of New York against Jacob Gotthoffer.. From a judgment for plaintiff, and an order denying a new 'trial, defendant appeals.</p>

<p>Action by the City of New York against the Brooklyn Union Elevated Railroad Company. Defendant’s motion for directed verdict granted.</p>

<p>Thomas Mott Osborne was indicted for perjury, and moves to set aside the indictment.</p>

<p>Action by Newell Dwight Hillis against Frank L. Ferguson. Defendant moves to vacate an order for his examination before complaint served.</p>

Action by John R. Weber against the Interborough Rapid Transit Company. Plaintiff moved to dismiss defendant’s appeal from an order of the City Court, dated November 15, 1915, resettling the case, also defendant’s appeal from order of that court, dated January 11th, denying defendant’s motion to resettle the order of November 15th.

Action by William M. Brison against the Pacific Commercial Company. From a judgment for the sum of $2,022.99, entered on a verdict in favor of plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals. Reversed, and a new trial ordered, unless plaintiff stipulates to reduce the recovery, in which event judgment, as reduced, to be affirmed.

Action by Jacob Klein against Louis Barnett Sons, Incorporated. From a judgment for plaintiff, and an order denying motion for new trial, defendant appeals.

Action by Albert C. Parsons against the Harry Dowie Company. Defendant moves for a stay pending an appeal from an order of the Municipal Court granting plaintiff’s motion for an open commission, and plaintiff moves to dismiss the appeal from such order.

<p>1. Landlord and Tenant @=152(1)—Repairs.</p> <p>At common law neither the landlord nor the tenant, as between themselves, was under any contractual duty to make repairs to the demised premises.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 538, 516, 554; Dec. Dig. @=>152(1).]</p> <p>2. Landlord and Tenant @=125(2)—Tenantable Condition.</p> <p>At common law there was no implied warranty, in the absence of fraud, that the premises were reasonably fit for the purpose for which they were hired, or that they were even tenantable.</p> <p>[Ed. Noto.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 442, 443; Dee. Dig. @=125(2).]</p> <p>3. Landlord and Tenant @=187(1)—Rent—Eviction by Law.</p> <p>In an action for rent, it is not a defense, under Real Property Law (Consol. Laws, c. 50) § 227, providing for release from rent liability by untenantable condition from destruction or injury of premises, that the premises were vacated pursuant to direction of a municipal department because of noncompliance with its orders, where the lease does not obligate the landlord to comply with such orders.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 770, 771, 774, 775; Dec. Dig. @=187(1).]</p>

<p>1. Trade Unions <®=7—Property—Branch Unions—Title to Funds.</p> <p>Where the constitution oí a labor union provided that a branch union should control its own finances, that death benefits to members’ families should be voted by a branch from its funds, not making the branches accountable to the parent union for sums received and disbursed, nor requiring them to make any payment to it, except in the case of a fine imposed upon a branch, or assessment levied for the union’s expenses, a branch union had title to the funds collected by it from its members.</p> <p>[Ed. Note.—For other cases, see Trade Unions, Dec. Dig. <S=»7.]</p> <p>2. Trade Unions <S==>7—Application of Funds—-Power of Members.</p> <p>Where a branch labor union was organized and funds collected from its members under an express agreement between them whereby the organization was to have a definite name and purpose inseparably connected with the longshoremen’s union, to which it was subservient, a mere majority of members, in course of a subsequent disruption of the branch union, could not make a transfer of the funds of the branch to another organization, though all members of the branch could, by their own act or agreement, apply the funds to any purpose deemed desirable.</p> <p>[Ed. Note.—For other cases, see Trade Unions, Dec. Dig.</p>

Action by Essie Elam against Bessie Greenberg. From a judgment of nonsuit at the close of plaintiff’s case, she appeals. Judgment reversed, and new trial ordered.

Action by Jacob Breger and Louis Ungar, copartners doing business under the firm name of Jacob Breger & Co., against Rugenio Catalano. From an order denying his motion to vacate a judgment rendered in favor of the plaintiffs upon the ground of nonservice of process, defendant appeals.

<p>Brokers <S=»S8(1)—Realty Brokers—Action for Commission—Dismissal of Complaint.</p> <p>In an action by realty brokers to recover commissions under defendant’s special contract to pay 1 per cent, of all deals in renting defendant’s lofts, and to pay half of regular commission if other brokers rented any part of premises, where the uncontradicted evidence showed that the brokers, by mailing circulars, etc., acquainted the business community with the fact that the lofts were for rent, that, though the brokers did not succeed in closing any direct deals for the leasing of the lofts, at least one had been leased, and defendant admitted that the annual rental value of all the lofts amounted to $44,716, the evidence not clearly showing whether they were rented through other brokers, dismissal of'the complaint on defendant’s motion was improper.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 128, 129; Dec. Dig. <S=»8S(1).]</p>

Action by John H. Lucas against Gerda Lundin with counterclaim by defendant. From a judgment of the Municipal Court, rendered in favor of the plaintiff, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Rose Jurkins against W. Augustus Pratt. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Hyman Bauman and another against the Aero Waist Company. From a judgment for plaintiffs, defendant appeals. Judgment reversed, and complaint dismissed.

In the matter of the accounting of Harry C. E. Mellick, as coadministrator, etc. Erom a decree of the Surrogate’s Court settling the account of the administrator, Eliza F. Brush appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Fanny Freedman against Frederick H. Putnam. From a judgment dismissing the complaint on the merits, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Abraham Feldman against the New York Railways Company. Judgment dismissing the complaint, and plaintiff appeals.</p>

<p>1. Pleading <§=>166—Answeb—Denial oe New Mattes—Pbesg-mptions.</p> <p>Where the answer in suit on a contract alleged a special agreement of the plaintiff to take back certain goods sold, the allegation was deemed denied without reply, under Code Civ. Proc. § 522, providing that an allegation of new matter in the answer, to which a reply is not required, is to be deemed controverted by the adverse party, and it is incumbent on the defendants to prove the agreement.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 321%-,328; Dec. Dig. @=>166.]</p> <p>2. Salks @=>126(2)—Inspection oe Goods—Retention—Eitect.</p> <p>Retention of goods sold after opportunity for inspection waives any attempt to rescind the original contract.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 314; Dec. Dig. @=>126(2).]</p> <p>3. Sales @=>306—Actions—Tendeb—Ei-vect.</p> <p>In an action for the price of goods sold and retained, where defendants tendered a certain sum and disputed the balance, oven if the plaintiff had failed to make out a prima facie case, the court should have rendered judgment for the amount tendered.</p> <p>[Ed. Note.—For other cases, sec Sales, Cent. Dig. § 1078; Dec. Dig. @=>366.]</p>

Action by David J. Handlor against Harry Perlberg and Abraham Halpin, copartners doing business under the firm name and style of Perlberg & Halpin. Judgment for plaintiff in part, and he appeals.

<p>1. Landlord and Tenant <©=>164(4)—Personal Injuries to Tenant—Negligence—Evidence—Statute.</p> <p>Tlie failure of the owner of tenement premises to comply with Tenement House Law (Consol. Laws, c. 61) § 76, requiring the keeping of lights burning in hallways from sunset to sunrise, is evidence of such owner’s negligence in an action against him by a tenant for personal injuries received in falling downstairs.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 633; Dec. Dig. <g=>164(4).]</p> <p>2. Trial <©=>165—Nonsuit.</p> <p>On motion for a nonsuit, plaintiff is entitled to the most favorable inferences to be drawn from the evidence.</p> <p>[Ed. Note.—Eor other cases, see Trial, Cent. Dig. §§ 373, 374; Dec. Dig. <©=>165.]</p> <p>3. Landlord and Tenant <©=>169(11)—Injuries to Tenant—Contributory Negligence—Question for Jury.</p> <p>In an action against the owner of tenement premises for injuries to a tenant, who fell downstairs, where the evidence showed that plaintiff was proceeding carefully down, while the hallway was unliglited, in violation of Tenement House Law, § 76, the issue of contributory negligence was for the jury.</p> <p>[Ed. Note.'—For other cases, see Landlord and Tenant, Cent. Dig. §§ 646, 667, 684; Dec. Dig. <©=>169(11).]</p>

Action by Henry Mustavoi against the St. John the Baptist Foundation. From a judgment dismissing the complaint at the end of plaintiff's case, plaintiff appeals. Judgment reversed, and new trial ordered.

District. Action by the Independent Linen Supply & Steam Laundry Company, Incorporated, against Israel Zakrowsky and another, doing business as Zakrowsky & Zakin. Judgment for the plaintiff, and defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Hyman Spigel and Nathan Spigel, copartners doing business under the name of Spigel Bros., against the War tell Outfitting Company. From judgment after trial before the court without a jury, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by the Joseph H. Davis Building Company against Herman Schoenfeld. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Pabtnebship <@=121—Actions—Accounting.</p> <p>In an action by plaintiff for his share of the net profits of a business he and defendant conducted, evidence held insufficient to show that the profits amounted to the sum found by the court.</p> <p>[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 183%-184% ; Dec. Dig. <@=121.]</p> <p>2. Pabtnebship <@=19—Considebation—New Agreements.</p> <p>Where plaintiff agreed to devote his entire time to the business, receiving half of the net profits, defendant’s further agreement, in considoration of his devoting his entire time to the business, to reimburse him for any expenses incurred, is unenforceable for want of consideration.</p> <p>| Ed. Note.—Dor other cases, see Partnership, Cent. Dig. § 5; Dec. Dig. «£¿>19.1</p>

<p>1. Pleading- <©=»385—Bill of Particulars—Effect.</p> <p>In an action for breach of an oral contract of employment, plaintiff was bound by his sworn admissions as to the contract, and limited by the specific contract set forth in his bill of particulars.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1299; Dec. Dig. <®3x>385.]</p> <p>2. Frauds, Statute of <®^>53—Contracts Not to be Performed Within One Year.</p> <p>An oral contract, made in February, .1915, for personal services for a period of six months beginning the 1st of the following October, and ending the 1st day of. April, 1916, cannot be fully performed within one year from the day of Its execution, and is void, as within the statute of frauds (Personal Property Law [Consol. Laws, c. 41J § 31).</p> <p>|I*id. Note.—-For other eases, see Frauds, Statute of, Cent. Dig. §§ 69, 80, 92; Dec. Dig. @=53.J</p>

<p>Taxatiox <8=^900(8)—Transfer Tax—Appeal j-bom Subrogate—Statute.</p> <p>Under Tax Law (Consol. Laws, c. 60) §§ 230, 231, providing for pro forma approval by surrogate of report of appraiser of transfer tax, and section 232, providing for appeal to the surrogate from such approval, an appeal from Lie surrogates’ final decision runs to the appellate division.</p> <p>[Ed. Note.—For other cases, see Taxation, Dec. Dig. <®=>!)00(3).]</p>

Action by Rose Levin against Harry Abrahams. From a judgment dismissing the complaint, with costs, after a trial before a jury, plaintiff appeals.

<p>Appeal from: Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Milton I. Levy against the Fidelity & Casualty Company of New York. From a judgment dismissing the complaint upon a trial before a jury, plaintiff appeals.</p>

<p>Courts <3=^>189(15)—Municipal Court—Opening Default—Necessity of Notice.</p> <p>Under Municipal Court Code (Laws 1915, c. 279) § 129, providing for-opening default on motion, notice must be given the other party, so that au ex parte order, made after time to answer had expired, that answer should be filed nunc pro tune, is beyond the court’s power.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 458; Dee. Dig. @=>189(16).]</p>

<p>Sheriffs and Constables @=»113(3)—Illegal Levy—Conversion.</p> <p>An officer who levies on goods of a party other than the judgment debtor, and exercises 'dominion over them after notice that the apparent owner is not the real owner, becomes a trespasser, liable to an action for conversion.</p> <p>[Ed. Note.—For other cases, see Sheriffs and Constables, Cent. Dig. § 190; Dec. Dig. <®=»113(3).]</p>

Action by Josefa Foryciarz against the Prudential Insurance Company of America. On defendant’s motion to set aside verdict for plaintiff, rendered upon direction, and for dismissal of the complaint on the merits. Motion denied, and plaintiff permitted to enter judgment.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by John W. McAvoy against William J. Maxwell. From a judgment after a trial before the court without a jury, defendant appeals. oReversed, and new trial ordered.</p>

<p>Action by George Noble against William Higgins and another. Verdict for plaintiff, and defendants move to set same aside and dismiss plaintiff’s complaint. Judgment ordered as prayed by defendants.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by John Mails against Louis Lewis. From a judgment for the plaintiff, and an order denying a motion for a new trial, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Louis Seligman and another, composing the firm of Seligman Bros., against the Underwriters’ Salvage Company. From a judgment for plaintiffs, defendant appeals. Judgment reversed, and judgment directed, dismissing complaint.</p>

Action by the Dressler-Beard Manufacturing Company against the Winter Garden Company, Incorporated. From a judgment for defendant and against plaintiff on defendant’s counterclaim, plaintiff appeals. Judgment reversed, defendant’s counterclaim dismissed, and judgment ordered for plaintiff for the amount demanded in its complaint.

<p>Master and Servant <^=>35—Action fob Wages—Amount of Recovery.</p> <p>Where defendant hired plaintiff as a buyer for one year, and later discharged him before the term was completed, plaintiff could not recover any sum due after the discharge, in an action for wages based upon the contract; his remedy being an action for damages for breach of the contract.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 12, 41; Dec. Dig. <S=>35.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Hochberg Contracting Company, Incorporated, against the F. & P. Auto Transportation Company, Incorporated. From a judgment for plaintiff for alleged breach of contract, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term._</p> <p>Action by Morris H. Mann against Barnett Pusrin, impleaded with Abner H. Pike, assignee for the benefit of creditors of Barnett Pusrin. Judgment for plaintiff, and defendant Pike appeals.</p>

<p>Walter A. Tuttle and- Frank K. McFall were prosecuted for violating Public Health Law, § 337, denouncing the keeping of food in cold storage for more than 10 months. Finding of not guilty; each defendant being discharged.</p>

<p>Appeal from Special Term, Westchester County.</p> <p>Action by Marion Paskewicz, etc., against the Susquehanna Coal Company, impleaded with the Pennsylvania Kailroad Company. From an order vacating an attempted service of a summons upon defendant Coal Companj<-’s alleged managing agent, plaintiff appeals.</p>

<p>Appeal from Special Term, Westchester County.</p> <p>Action by Alexander Rutkowski and another against the Susquehanna Qoal Company, impleaded with the Pennsylvania Railroad Company. From an order vacating an attempted service of a summons upon defendant Coal Company’s alleged managing agent, plaintiffs appeal.</p>

<p>1. Officers cSxxoll—Appointment—Civil Service.</p> <p>Under Const, art. 5, § 9, providing for appointment, after competitive-examination and according to merit and fitness, of officers of the state and its civil divisions, including cities and villages, it was intended that all appointive positions in civil service should be taken over by the state, to the exclusion of the elective officers.</p> <p>[Ed. Note.—For other cases, see Officers, Cent. Dig. § 13; Dec. Dig, <S=>11.]</p> <p>2. Clerks of Courts <3^>6—Appointment—Deputies—Civil Service.</p> <p>Under Const, art. 5, § 9, providing for appointment, after competitive examination and according to merit and fitness, of officers of the state and its civil divisions, including cities and villages, special deputy clerks for the various parts of the Supreme Court are included, and cannot be appointed merely at the pleasure of the clerks.</p> <p>[Ed. Note.—For other cases, see Clerks of Courts, Cent. Dig. §§ 12-20; Dec. Dig. <®x=>6.]</p> <p>3. Clerks of Courts —Civil Service—State Officers—County Clerks.</p> <p>The county clerk, when acting as clerk of the court, and his deputies and special deputies in like service, are part of the state judicial system, and are state officers, under Const, art. 6, § 19-, providing that clerks of the several counties shall be clerks of the Supreme Court, with powers and duties as prescribed by law.</p> <p>[Ed. Note.—For other cases, see Clerks of Courts, Cent. Dig. § 1; Dec. Dig. <3x^1.]</p> <p>4. Clerks of Courts i@^6—Special Deputy Clerks—Appointment.</p> <p>The appointing power, regarding special deputy county clerks, is not in the clerk of the Supreme Court, although the county clerks are officers of the Supreme Court, but is in the county clerk as a county officer.</p> <p>[Ed. Note.—For other cases, see Clerks of Courts, Cent. Dig. §§ 12-20; Dec. Dig. <@xx>6j</p> <p>5. States <3x=>168%—Actions by Taxpayers.</p> <p>The right of a taxpayer to sue to prevent waste or any illegal act of an officer, conferred by Code Civ. Proc. § 1925, or Laws 1892, c. 301, or Civil Service Law (Laws 1899, c. 370) § 27, is limited to acts of county, city, town, or village officers, and does not authorize an action against a state officer.</p> <p>[Ed. Note.—For other cases, see States, Dec. Dig. <@=^168%.]</p> <p>6. Counties <@=196(4)—Rights of Taxpayers—Actions.</p> <p>Where a county clerk-elect announced his intention to appoint deputy clerks without an examination under civil service, it was the taxpayer’s right immediately to bring action to prevent the illegal act, and he need not wait until its commission.</p> <p>[Ed. Note.—For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. <@=>196(4).]</p> <p>7. Clerics of Courts <§=6—Civil Service—Appointment—Exceptions.</p> <p>Civil Service Law (Consol. Laws, c. 7) § 13, subsec. 3, excepting from the civil service certain officers, does not apply to special deputy clerks of the Supreme Court, especially in view of subsection 4, providing that no office shall be in the exempt class unless specifically named, so that such officers must he chosen from a list of eligibles who have passed an examination according to merits.</p> <p>[Ed. Note.—For other cases, see Clerks of Courts, Cent. Dig. §§ 12-20; Dec. Dig. <S=>6.]</p>

<p>1. Sales <§=415—Remedy of Buyes—Action for Breach of Contract— Damages.</p> <p>In an action for partial failure to deliver California claret, purchased for resale, in order to recover special damages equal to the profits lost by the plaintiff because of his inability to fill orders, plaintiff must show as a part of his affirmative case that he could not procure other wine to fill the orders.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1170; Dec. Dig. <§=415.]</p> <p>2. Witnesses <§=406—Competency of Contradictory Evidence.</p> <p>In an action for damages for partial failure to deliver California claret, purchased to conform to a sample and for resale, plaintiff having Introduced testimony that there was a shortage of California claret and that he could not purchase it in the market, the exclusion of defendants’ testimony that California claret was regularly offered for sale and at a definite market price at the time was erroneous.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1276-1279 ; Dec. Dig. <§=406.]</p> <p>3. Sales <§=415—Remedy of Buyer—Actions for Breach of Contract—Evidence—Burden of Proof.</p> <p>In an action for damages for partial failure to deliver California claret, purchased for resale, the burden of proof was at all times on the plaintiff to show that he could not procure the claret in the market, and defendants were called upon merely to rebut the testimony offered by plaintiff to sustain the burden.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1170; Dec. Dig. <§=415.]</p> <p>Whitaker, J., dissenting.</p>

In the matter of the application of Andrew Armstrong for the removal from the registry list of the First election district of the Fifth ward of the city of Watervliet of the names of Earl Lewis and Joseph Poland. From an order dismissing the application, the petitioner appeals.

<p>1. Salks ©=58—Construction of Contract—Printed Provisions.</p> <p>lTpon a sale of goods under a statement or order containing the buyer’s name and address, the terms of credit, and the salesman’s name, all in typewriting, received and confirmed by the seller, conditions, printed in small letters at the top of the order and above the description of the merchandise, that all sales and deliveries were set forth in the copy of the order, that if not in exact accordance with the conditions agreed upon it must he returned for correction, and that the order was given and accepted subject to a limit of credit determinable at any time by the seller, in the absence of a showing that the buyer’s attention had been called to such conditions or that he had accepted them by his correspondence, were not binding on him.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 158, 161; Dec. Dig. <§=58.]</p> <p>2. Contracts <§=152—Construction.</p> <p>It is not the province of the court to change the terms of a contract, even though it may be a harsh and unreasonable one; nor will the terms of a contract be ignored, in order that the dictates of equity may he followed, but its terms must be enforced, if such is the clear meaning of the language used.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Di,g. §§ 732, 733, 738; Dec. Dig. ©=152.]</p>

Proceeding to assess transfer taxes in the estate of Henry A. Cleveland, deceased. Prom an order fixing the tax, the State Comptroller appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Laurence J. Bershad and Morris E. Gossett against Bernard Ka.mber. From a judgment for defendant dismissing the complaint upon the opening to the jury of plaintiffs’ counsel, plaintiffs appeal. Judgment reversed, and new trial ordered.</p>

Action by Daniel E. Pomeroy and others against the Hocking Valley Railway Company. From an order denying motion to vacate service of summons and complaint, defendant appeals.

Action by Rose Silverstein against Diederich Tonjes and another. From a judgment of the Municipal Court, dismissing the complaint on motion, plaintiff appeals. Reversed1, and new trial ordered.

Action by Alfred H. Townley, as receiver, etc., against the Import Chemical Company and Edward C. Riebe, impleaded, etc. From an order denying a motion to separately state and number the causes of action in amended complaint, defendants appeal.