Volume 159 — New York Supplement

Action by Walter S. Doernberg against the Inter-Ocean Transportation Company of America, Incorporated, and others. From an order denying defendant Bard L. Stafford his motion to limit ex-animation before trial by eliminating matters in relation to an affirmative defense, he appeals. Order reversed.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Walter S. Doernberg against the Inter-Ocean Transportation Company of America, Incorporated, and others. From an order denying the defendant "Winfred L. Smith his motion to limit examination before trial, by eliminating matters in relation to an affirmative defense, he appeals. Order reversed.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Elevator Automatic Signal Company, Incorporated, against Gustav Bok and others. Prom a resettled order granting plaintiff’s motion for judgment on the pleadings, defendants appeal. Order appealed from reversed, and motion denied.</p>

<p>Action by Constantine Mulinos against Harry Walkof, impleaded with others. From an order overruling a demurrer to the defense, plaintiff appeals. Order reversed, and motion denied.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Philip Crown against Jacob Litvalc, trading as the American Dress & Costume Company. From a judgment dismissing his complaint, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Joseph Leifer against Meyer S. Scheinman. From a judgment for plaintiff, entered upon the verdict of a jury, defendant appeals. Judgment reversed, and new trial ordered.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Eugene P. Martin against Dominick Sclafani and others, copartners doing business under the firm name and style of Sclafani Bros. From a judgment entered on verdict directed on plaintiff’s cause of action and on dismissal of defendants’ counterclaim, and from order denying defendants’ motion for new trial, defendants appeal. Judgment and order reversed, and new trial ordered.</p>

Action by Bernard Lieberman and another against the Mulhern Steam Heating Company and another. From a judgment for defendants, after trial without a jury, plaintiffs appeal. Reversed, and judgment directed for plaintiffs.

<p>Appeal from Municipal Court, Borough of The Bronx, Second District.</p> <p>Action by Vincent S. Lippe against the Grassi Contracting Company, Incorporated. From a judgment for plaintiff, defendant appeals. On reargument. Judgment affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Mary Bogorad, an infant, by Jennie Bogorad, her guardian ad litem, against Jacob J. Dix. From an order setting aside the verdict of a jury in favor of plaintiff and granting a new trial, plaintiff appeals. Order reversed, and judgment reinstated.</p>

Appeals from City Court of New York, Trial Term. Separate actions by Hugh McKeown, an infant, by Richard McHale, an infant, and by Rosa Stevens, respectively, against Roger Roster, tried as one. From judgments for plaintiffs upon the verdict of a jury, and from orders denying his motion for new trials, defendant appeals. Judgment in each case reversed, and new trial ordered. See, also, 153 N. Y. Supp. 983.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Ascher Haber against Dora Schonzeit, individually and as executrix of the last will and testament of Meyer H. Schonzeit, deceased. From a judgment entered on verdict for plaintiff, defendant appeals. Judgment reversed, and new trial ordered.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the' Congregation Rodeph Sholom against the Bradley Contracting Company. From an order permitting the plaintiff to amend its 'complaint, defendant appeals. Reversed, with leave to plaintiff to apply for permission to amend its complaint.</p>

Action by Henry B. Morton against the Broadway-Claremont Company, Incorporated. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Order reversed, judgment vacated, and new trial ordered.

Action by W. Garble Wallace against William Albert White. From an order of the City Court, denying his motion to vacate an order for his examination before trial, defendant appeals. Reversed.

Action by Germain Larrere against Edward P. Morse, Jr., and the Morée Dry Dock & Repair Company. From so much of an order as denied its motion for bill of particulars, in a case involving a collision between plaintiff’s and defendant’s motor vehicles, as to the location of the accident and the direction in which plaintiff’s vehicle was proceeding, and as to a statement of the negligent acts which plaintiff claims caused the accident, the defendant corporation appeals.

<p>Appeal from City Court of New York, Trial Term.</p> <p>In the matter of supplementary proceedings by Fred Kern, judgment creditor, against Pasquale Zuppa, judgment debtor. From an .order pretending to adjudge him guilty of contempt for having disposed of property in violation of the injunction order previously made in the proceedings, the judgment debtor appeals. Order reversed.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Lorena Ridgley Jones against Henry Altenbrand and others. From an order granting plaintiff’s assignee leave to issue execution on judgment, and from an order denying defendant’s motion to set aside the judgment, the named defendant appeals. Both orders reversed.</p>

<p>Appeals from Municipal Court, Borough of Manhattan, Second District.</p> <p>Separate actions by Nathan Ruck, by Samuel Marcus, and by Abraham Krischansky against Gimbel Bros. From judgments for plaintiffs, defendants appeal. Judgments affirmed.</p>

<p>1. Animals ©=>27—Action Against Bailee—Evidence—Pbesxtmption.</p> <p>If a horse, In good condition when delivered to a bailee for hire, dies, one hour after being returned, from injuries received between the time of delivery and return, the burden is on the bailee to show the injury was the result of an accident, without negligence on Ms part.</p> <p>[Ed. Note.—For other cases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. ©=>27.]</p> <p>2. Animals ©=>27—Action Against Bailee—Evidence.</p> <p>Where a horse, delivered to a bailee for hire, is severely injured in his possession, and becomes exhausted, but bailee continues his journey, he is liable for the injury occasioned thereby.</p> <p>[Ed. Note.—For other cases, see Animals, Cent. Dig. §§ 7(1-78; Dec. Dig. ©>=27.]</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 Jacob Wohlstedter against Moritz Klein and another. From a judgment in Municipal Court for plaintiff, defendant Max Aaron appeals. Reversed, and new trial ordered.</p>

<p>Action by Ruben Picheniclc against the City of New York. Judgment for plaintiff as prayed.</p>

Application by Andrew Armstrong to remove from the registry list the names of John Donohue and others. From an order of the County Court dismissing the proceedings under section 153 of the Flection Law (Consol. Laws, c. 17), petitioner appeals. Affirmed in part, and reversed in part.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Jacob Rosenberg and others against Rubin M. Segall. Judgment for plaintiffs, and defendant appeals. Reversed, and complaint dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Gilbert R. Van Alen against Harry L. Trubenback. From a judgmenffor defendant on his counterclaim, plaintiff appeals. Reversed and remanded.</p>

<p>Dismissal and Nonsuit <@=360(6)—Want of Prosecution.</p> <p>After successive adjournments at defendant’s instance, followed by the court’s refusal of further adjournments, the case being marked reserved generally, plaintiff requested that the case be restored to calendar for early trial, whereupon defendant moved to dismiss for want of prosecution. Sold, error to grant such motion, and to deny plaintiff’s motion to restore case to calendar.</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 147; Dec. Dig. <@=360(6).]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Jacob Schenkel against Samuel Brettschneider, first name fictitious, etc., party intended conducting a laundry at 206 Powell street, Brooklyn, N. Y., as the Sanitary Hand Laundry. From a judgment and order in favor of plaintiff upon the pleadings, defendant appeals. Reversed and remanded.

<p>Brokers <§=>55(1)—Commissions—Intervention of Other Broker—Effect.</p> <p>Where a broker had a specific written agreement of the owner to pay a $200 commission in the event of sale to a certain party, his right to the commission could not be defeated after he produced the buyer, who bought in a reasonable time, by showing that another broker intervened and made the sale for $50.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 82-84; Dec. Dig. ©^>55(1).]</p> <p><©E»For other oases see same topic & KEY-NUMBE3K in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by John J. Felin & Co., Incorporated, against Louis De Sanctis. From an order of the Municipal Court, denying motion to open a default, defendant appeals. Reversed, and default opened on condition.</p>

<p>Master and Servant <@=31—Employment—Modification of Terms—Effect.</p> <p>Where plaintiff was employed as a ladies’ tailor at a salary of $30 a week, under a contract for a season commencing in February and running to June 30th, and defendant in February changed its system of hiring, and required its employes to continue under a piece work arrangement, plaintiff, even though his earning capacity was not thereby diminished,. was not required to accept the modification, and his refusal to continue under it did not defeat his right of action for a breach of the contract.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 37; Dec. Dig. @=>31.]</p>

Action by John Finch against Mary E. Looram. From a judgment in favor of plaintiff, in a trial before the court without a jury, defendant appeals. Reversed, and new trial ordered.

<p>1. Appeal and Error ©=119—Municipal Court—Appeal prom Order.</p> <p>No appeal will lie from an order granting or denying a motion for relaxation of costs, which can be reviewed only upon an appeal from the judgment.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 823-839; Dec. Dig. <@=119; Costs, Cent Dig. §§ 326, 327, 769.]</p> <p>2. Courts <@=190(2)—Municipal Courts—Appeal from Order.</p> <p>Where no question of the jurisdiction of tfye Municipal Court arises on appeal from its order denying a motion for retaxation of costs, the appeal does not lie, under Municipal Court Code (Laws 1915, c. 279) § 154, subd. 8, providing that an appeal will lie from an order which the court had no power to make.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=190(2).]</p>

<p>1. Insurance <@=>94—Act of Agent—Ratification—Evidence.</p> <p>Evidence held to establish ratification by an insurance company of the act of its broker in employing an attorney to collect a premium.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 124; Dec. Dig. <@=>94.]</p> <p>2. Insurance <@=>186(3)—Premiums—Payment to Agent—Ratification.</p> <p>Payment to such attorney was payment to the company.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 397; Dec. Dig. <@=>186(3).]</p> <p><@=>F«r other oases see same topic & KEY-NUMBER in all ICey-Numhered Digests & Indexes</p>

<p>1. Indictment and Information ©=>140(2)—Motion to Dismiss—Evidence</p> <p>—Presumption.</p> <p>Upon hearing of a motion to dismiss an indictment and inspect grand jury minutes, where the papers show that there was other evidence before the grand jury than that of the husband of the accused, claimed to be confidential, it will be presumed that tills evidence was competent, and that proof was legal and sufficient to warrant an indictment.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 475; Dec. Dig. ©=>140(2).]</p> <p>2. Indictment and Information ©=>137(4)—Motion to Dismiss—Power of</p> <p>Court.</p> <p>The power of the court to set aside an indictment is limited to cases specified in Code Cr. Proc. § 313, providing that an indictment may be set aside when not found, indorsed, and presented as prescribed, and when a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, and to cases where the indictment is found without evidence, or wholly upon illegal or incompetent evidence, and is unauthorized when the indictment is based only in part upon improper evidence not sufficient to invalidate it.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 483; Dec. Dig. ©=>137(4),]</p> <p>3. Indictment and Information ©=>140(2)—Sufficiency of—Accusation—•</p> <p>Evidence—Presumption.</p> <p>There is no presumption that an indictment charging manslaughter was based upon the evidence taken before' the coroner, where other evidence was introduced before the grand jury.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 475; Dec. Dig. ©=>140(2).]</p> <p><S=oB'or other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Tillie Miller against James Britten. From a judgment for plaintiff, defendant appeals. Reversed and remanded, unless plaintiff enter remittitur, and then be affirmed.

<p>1. Evidence <@=179(2)—Documentary Evidence—Secondary Evidence—</p> <p>Foundation.</p> <p>In an action for goods sold and delivered, defendant counterclaiming for breach of plaintiff’s agreement to supply plumbing supplies, where defendant called upon plaintiff to produce the original letter accepting plaintiff’s offer to furnish the supplies, and had served upon plaintiff’s attorney a notice to produce, which the plaintiff failed to do, the disallowance by the court of secondary evidence, tending to show the writing and mailing to plaintiff of the letter of acceptance, was improper.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 596; Dec. Dig. <@=179(2).]</p> <p>2. Appeal and Error <@=1050(1)—Prejudicial Error—Exclusion oe Evi-</p> <p>dence.</p> <p>In an action for goods sold, defendant counterclaiming for breach of plaintiff’s agreement to supply plumbing supplies, error in the disallowance of secondary evidence to show the writing and mailing to plaintiff of defendant’s letter of acceptance of plaintiff’s offer of the supplies was prejudicial, since it was necessary to permit defendant to prove acceptance of plaintiff’s written estimate or offer in order to establish the contract which was the basis of the counterclaim.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4187, 4191, 4207; Dec. Dig. <@=1056(1).]</p> <p>t@55>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Harry Garfinkel against Max Schneider and another. Judgment for defendants, and plaintiff appeals. Reversed, and new trial ordered.</p>

<p>' Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Abraham Poshkoff against Albert H. Bernstein and others. From a judgment for defendants, plaintiff appeals. Judgment reversed, and judgment directed in favor of plaintiff.</p>

<p>1. Criminal Law <§=>88—Courts—-Powers.</p> <p>Laws 1910, c. 560, §. 102, revising the charter of the city of Geneva, declares that the City Court shall have and exercise all powers of Courts of Special Sessions, and shall be subject to all provisions of law relating to such courts, but upon a conviction for any misdemeanor the same sentence may be imposed for such conviction as might be imposed by the County Court. Under Code Cr. Proc. § 717, Courts of Special Sessions can, on conviction for misdemeanors, sentence an accused to imprisonment for a period not over six months. Held, that the City Court of Geneva might assess punishment for a misdemeanor for a greater period than six months, as might the County Court.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 127; Dec. Dig <§=>88.]</p> <p>2. Criminal Law <§=>88—Courts—Powers.</p> <p>While in the County Court prosecution would proceed by indictment, the City Court of Geneva though the prosecution was according to the practice pf Courts of Special Sessions could assess the same punishment that might be assessed in the County Court.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 127; Dec. Dig <£=88.]</p> <p>3. Habeas Corpus <§=>22(1)—Proceedings—Review.</p> <p>Where a conviction was had by a court of competent jurisdiction the case cannot be retried on habeas corpus.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § l&y2; Dec. Dig. <§=>22(1).]</p> <p><§35>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Special Term, New York County.</p> <p>In the matter of the application of Candee, Smith & Howland Company for leave to sue in its own name, etc. From an order denying motion by petitioner for leave to sue the Illinois Surety Company on its undertaking given to discharge a mechanic's lien, petitioner appeals. Order affirmed.</p>

<p>Action by Antony Cottone against Morris Spivach and another. Judgment for plaintiff.</p>

<p>Judgment ©=>13>8(;3)—Disability of Attobney—Notice to Appoint.</p> <p>The prohibition of Code Civ. Proc. § 65, against further proceeding in an action against a party, whose attorney has become disabled to act, till 30 days after notice to appoint another attorney has been given him, is absolute, and not dependent on knowledge by the other party of the attorney's disability, so that the judgment taken by default, in contravention thereof, against plaintiff, when his attorney had been disbarred, must be vacated on motion.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 284; Dec. Dig. ©==>138(3).]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by Owen McGovern against G. A. Suter & Co. Defendants move to dismiss for failure to prosecute. Motion granted.</p>

<p>Executors and Administrators <8=508(1)—Settlement of Account—Holding Open Decree.</p> <p>The Surrogate’s Court will not hold open indefinitely a decree settling the account of executors, and prevent their discharge, merely because an alleged legatee fails to take the necessary proceedings to establish her right to a legacy, but will insert a provision in the decree that it is made without prejudice to any right of the legatee to compel payment of the legacy.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2192-2196; Dec. Dig. <S=508(1).]</p> <p><gxs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by the Inventions Corporation against Clyde H. Slease and others. The Vanoscope Company, Incorporated, applied for leave to intervene, and, from an order denying its application, it appeals. Reversed in part, and motion granted in part.</p>

<p>Action by Samuel Rubinfeld, an infant, by Charles Rubinfeld, his guardian ad litem, against Julius W. Stolts, as president of J. & J. W. Stolts. Motion for a bill of particulars granted.</p>

<p>Application to probate the last will and testament of Harry J. Rowe. Decree for probate.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Ornstein, an infant, by his guardian ad litem, against Louis IJnterman. Erom a judgment upon verdict in the City Court for plaintiff, defendant appeals. Reversed, and new trial ordered.</p>

<p>Master and Servant <@=>43—Wrongful Discharge—Action for Damages —Question for Jury.</p> <p>In an action for damages for an alleged wrongful discharge of the plaintiff from the defendant’s employment during the term of his contract, evidence held to make the fact of alleged discharge a question for the jury.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Master and Servant, Gent. Dig. §§ 57, 58; Dec. Dig. <@=43.]</p>

Action by John A. Freyhan against Isidor Kahn. From a judgment of the City Court on a verdict for plaintiff, and from an order denying new trial, defendant appeals.' Reversed, and new trial ordered.

On r'eargument. Motion granted, order reversing judgment and granting a new trial vacated, and judgment affirmed. For former opinion, see 159 N. Y. Supp. 180.

<p>1. Discoveby @=>38—Examination Biofobe Tbial—Subject-Matteb.</p> <p>In an action lor damages lor loss of goods at sea, where defendant specifically denied an allegation in the complaint that he had agreed to insure the property against all loss, and that the goods were consigned to the defendant’s agents, it being apparent that the examination before trial is for the purpose of cross-examination, the examination of the defendant on this point will not be allowed.</p> <p>|Ed. Note.—For other cases, see Discovery, Cent. Dig. § 51; Dec. Dig. .@=>38.]</p> <p>2. Discoveby @=>38—Examination Befobe Tbial—Subject-Matteb.</p> <p>Where there was no allegation in a complaint as to the indentity of defendant’s agent, but the third paragraph contains a parenthetical description of “M.” as the “agent of the defendant,” on the theory that by a denial of the paragraph defendant has put the supposed allegation; in issue, he may be examined before trial as to the agency of “M.”</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 51; Dec. Dig. @=>38.]</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 the Bamberger-Stern Company against Marie Paris. From an order of the City Court vacating an order for the examination of the judgment debtor, Marie Paris, in supplementary proceedings, and awarding costs to the judgment debtor, and from a judgment order denying the application of the judgment creditor, Bamberger-Stern Company, to so resettle the vacating order as to provide that costs awarded he applied on the judgment the judgment creditor appeals. Order vacating the order for the examination of the judgment debtor reversed. Order denying motion for resettlement of the vacating order reversed.</p>

Action by Henry Clifton against Theodore John. From an order denying a motion to restore the cause to the calendar, plaintiff appeals. Reversed and motion granted.

Mandamus by Frank A. McGuire against William A. Prendergast, Comptroller of the City of New York, to compel the audit and payment of a claim for services. Petition granted. Order affirmed 157 N. Y. Supp. 1134, which was affirmed by Court of Appeals in 112 N. B.4064.

<p>Discovert <@=»43—Examination Before Trial—Action for Conversion.</p> <p>An order for examination of defendant before trial is proper, in an action for conversion involving moral turpitude of defendant, and should not be set aside, where no claim of privilege is made.</p> <p>[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 66; Dec. Dig. <S=43.] ’</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Municipal Cobpobations <8=817(2)—Defects in Streets—Actions—Pre-</p> <p>sumption—Cellar Doob.</p> <p>The more giving way of a cellar door in a sidewalk does not raise the presumption of negligence of the owner.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1725; Dec. Dig. <8=817(2).]</p> <p>2. Municipal Corporations <8=808(8)—Defects in Streets—Liability of</p> <p>Abutting Owners—Permission of City.</p> <p>Where an opening is placed on a sidewalk with the city’s permission, it does not become a nuisance, unless either constructed or maintained negligently.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1692; Dec. Dig. <8=808(8).]</p> <p><grs>Ear other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Brokers <Sk=>74—Employment—-Right to Compensation.</p> <p>Where defendant employed plaintiff as a real estate broker to purchase certain premises at a price named, it being agreed that plaintiff was to get his commission on the purchase price from the owner, plaintiff having secured the owner’s consent to the sale of the premises to defendant for the price named, defendant’s failure and refusal to purchase was a breach of contract, entitling plaintiff to the reasonable value of his services to defendant.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 62; Dec. Dig. <@=>74.]</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Charles Pergola against Domenico Sabatino. Prom a judgment of the Municipal Court for defendant, dismissing the complaint after a trial by the court without a jury, plaintiff appeals. Reversed, and new trial granted.</p>

Action by Berney Berkowitz against Max Tuchfeld. From a judgment rendered in favor of the plaintiff, defendant appeals. Reversed, and new trial ordered.

Action by Barnet Hoffman against Leopold Manheim and another. From a judgment of the City Court for plaintiff, and from an order denying a motion to set aside the verdict and for a new trial, defendants appeal. Affirmed on condition.

<p>Usury @=>117—Brokers—Commissions—Legal Commission in Excess of Statutory Amount—Evidence—Sufficiency.</p> <p>Evidence held sufficient to' sustain a verdict finding that $2,060 paid defendant in procuring a loan of $6,000 for plaintiff was an illegal commission, in excess of one-half of 1 per cent, allowed by General Business Law (Consol. Laws, c. 20) §■ 380, and not an agreed compensation to defendant for guaranteeing payment of the loan.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 328-340; Dec. Dig. @=>117.]</p> <p>2. Judgment @=>951(2)—Judgment Roll as Evidence.</p> <p>In action to recover alleged illegal commission exacted by loan broker, who asserted that loan was made solely on his guaranty for which plaintiff paid the commission in question, held that, in rebuttal, the judgment roll in action to foreclose mechanic’s lien, whereby lender, as plaintiff’s assignee, recovered judgment, was admissible to show that loan was not made solely on broker’s guaranty.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1808, 1810; Dec. Dig. @=>951(2).]</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, Trial Term.</p> <p>Action by Fannie Fine against Bernhard Mayer and another. From a judgment for plaintiff for $25, she appeals. Reversed, and new trial granted.</p>

Action by Annie Greenberger against Abraham Gordon. From a judgment for plaintiff in Municipal Court, after trial by court without a jury, defendant appeals. Reversed, and new trial ordered.

<p>1. Landlord and Tenant <§=>169(11)—Injuries to Tenant—Liability of</p> <p>Landlord—Negligence—Jury Question.</p> <p>Where tenant was injured by falling plaster, the question of the negligence of landlord’s janitress, who after knowledge of a wet spot In the ceiling failed to discover the leak or notify the landlord, was a jury question.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §8 646, 667, 684; Dec. Dig. <§=>169(11).]</p> <p>2. Landlord and Tenant <§=>164(1)—Liability of Landlord for Injuries</p> <p>to Tenant—Control of Premises.</p> <p>In an action by plaintiff to recover injuries caused by falling plaster, the fact that the ceiling- from which the plaster fell was in the control of the tenant was immaterial, where the leaky water pipe, causing the plaster to fall, was wholly under the landlord’s control.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 630, 634-637; Dec. Dig. <@=>164(1).]</p>

<p>1. Evidence @=444(6)—Pasol Evidence Affecting Writing.</p> <p>Testimony as to oral conversations, contemporaneous with the making and delivery of a note representing a loan, that the money would not be demanded back until a certain event happened, was admissible only if tending to prove that the delivery of the note itself was made upon condition that it should not be complete until the event; i. e., if it was introduced, not to vary or explain defendant’s agreement, but to show that there was no agreement until the event happened.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2049; Dec. Dig. @=>-144(0).]</p> <p>2. Bills and Notes @=>489(7)—Pleading—Variance.</p> <p>In a suit on a note, where the complaint alleged that on the 9th day of April, 1889, defendants made their promissory note, and for a valu able consideration indorsed and delivered it to the plaintiff, evidence by plaintiff tending to prove that no contract was made between the parties at that time, and no effective delivery of the note had, defendants being under no obligation to pay it until a certain event happened, was a variance from the cause of action alleged.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1617-1642; Dec. Dig. ©=>189(7); Pleading, Cent. Dig. § 1325.]</p> <p>3. Evidence @=>444(6)—Note Payable on Certain Event—Parol Evidence.</p> <p>After execution and delivery of a demand note, evidence that by paroi the pz,rties agreed that the note should not be paid until the death of a certain person was inadmissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2049; Dec. Dig. @=>141(6).]</p> <p>Whitaker, J., dissenting.</p> <p><@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Insurance ©=>817(2)—Mutual Benefit Insurance—Breach of Warran-</p> <p>ty—Burden of Proof.</p> <p>In a widow’s action to recover on a certificate of mutual benefit insurance, the burden was on the insurer to prove breach of warranty by insured that he had never applied for insurance in any life insurance company and been rejected.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 2001; Dec. Dig. ©=>817(2).]</p> <p>2. Insurance ©=825(2)-—Mutual Benefit Insurance—Question for Jury.</p> <p>In a widow’s action to recover an amount of insurance payable under the certificate of a mutual benefit association, question whether insured had applied for insurance in a life insurance company and made answers relative thereto, as claimed, in Ms application for membership in defendant society, hold for the jury under the evidence.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. ©=82o(2)J</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, Trial Term.</p> <p>Action by Andrew Weiman and another against the National Ben Franklin Fire. Insurance Company of Pittsburgh, Pa. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Gilbert P. Taylor against Rowland A. Allen. From a judgment for plaintiff, defendant appeals. On motion to dismiss appeal. Denied on condition.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by John Stich against the Fidelity & Deposit Company of Maryland. From a judgment of the Municipal Court, and from an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Egbert S'trahl and others against Robert Herbst. Erom an order overruling a demurrer to the complaint, defendant appeals. Reversed.</p>

Action by Grinnell Willis and others, doing business under the name of Grinnell Willis & Co., against the Imperial Underwear Company. From a judgment for plaintiffs, and an order denying defendant’s motion for a new trial, defendant appeals. Judgment affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Celia Price against the City of New York. From a judgment for defendant, dismissing complaint at the close of the entire case, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>1. Wills <§=511—Construction—Legatees—“Legal Representative.”</p> <p>The ordinary meaning of “legal representative” is executor or administrator, and in the absence of something in the context to indicate a different meaning these words will be so construed.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1107; Dec. Dig. <§=511.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Legal Representative.]</p> <p>2. Wills <§=511—Bequest—Construction—Legatees.</p> <p>A bequest to one, or to his issue in the event that he be dead leaving issue, or in default of issue to his legal representative, requires payment to the legatee’s executor on his death without issue.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1107; Dec. Dig. <§=511.]</p> <p>©=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Anthony Doll and another against the Goellner Furniture Company. From a judgment of the City Court for defendant, plaintiffs appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Hyman Abramowitz against Benjamin Wisch. From a judgment for defendant in Municipal Court, plaintiff appeals. Reversed, and new trial ordered.</p>

<p>Appeal and Error <@=>1151(2)—Review—Modification of Judgment.</p> <p>Where defendant in his counterclaim asked judgment for two months’ rent, amounting to $70, a judgment rendered in his favor for $105 will be reduced, and affirmed as modified.</p> <p>[Ed. Note.—-For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4500, 4503-4505; Dec. Dig. <@=>1151(2).]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by William J. Hammer against the Independent Lamp & Wire Company. From a judgment in favor of the plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed and remanded.</p>

<p>Appeal from Special Term, Queens County.</p> <p>Action by Simon March against the Lehigh & Wilkes-Barre Coal Company. Verdict for plaintiff. From an order denying a motion for new trial, defendant appeals. Order affirmed.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Joseph G. Abramson against George Ryall and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Jose Llopis, doing business under the firm name of the West Indies Grocery Company, against P. Pastene & Co., Inc. Judgment for plaintiff, and defendant appeals. Reversed and remanded.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Joseph Vaccaro against Michael O. Rini. From an order retaxing costs upon a judgment dismissing the complaint, plaintiff appeals. Appeal dismissed.</p>

. Action by Louis M. Taylor against Jacob Stern and another. From a judgment for plaintiff, defendant Stern appeals. Judgment reversed, and complaint dismissed.

<p>Appeal and Error ©=>419(2)—-Appeal from Order—Record—Dismissal.</p> <p>Where notice of appeal states it is from an order dated February 2, 1916, referring to it in no other way, but no such order apears in the record, though it contains one dated February 25, 1916, the appeal must be dismissed.</p> <p>[Ed. Note.—-For other cases, see Appeal and Error, Cent. Dig. § 2146;, Dec. Dig. <@=>419(2).]</p>

Action by Nathan Moskowitz against Rose Herskowitz. From a judgment for plaintiff, and dismissing defendant’s counterclaim, defendant appeals. Reversed, and judgment directed for defendant.

<p>Account Stated @=>19(3)—Evidence—Judgment.</p> <p>In an action for the value of goods sold and delivered, amended to set up a cause of action on an account stated, where no proof was offered as to the character and value of the goods alleged to have been sold and delivered, or as to the balancing and rendering of an account, coupled with either an express or implied assent thereto, defendant on motion therefor, was entitled to judgment.</p> <p>(Ed. Note.—For other cases, see Account Stated, Cent. Dig. § 93; Dec. Dig. @=>19(3).]</p>

<p>1. Appeal and Error <8=1611(1)—Review—Findings.</p> <p>Where a conflict in evidence is a mere matter oí veracity, the finding of the trial court will be accepted.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. <8=1011(1).]</p> <p><§zs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Replevin <@=>72—Title of Plaintiff—Evidence—Sufficiency.</p> <p>In an action for replevin of a horse, alleged to have been hired by defendant and retained, where defendant testified that he had received the horse in payment for painting plaintiff’s house, and it appears that, after defendant acquired title as alleged, defendant kept the horse in plaintiff’s stable and paid for feeding, and that when he had hired the horse from plaintiff he had paid $2 per day and plaintiff supplied the feed, evidence held insufficient to support a verdict for plaintiff.</p> <p>[Ed. Note.—Ifor other cases, see Replevin, Cent. Dig. §§ 292-295; Dec. Dig. <@=>72J</p> <p><©3^>I{'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Sales <@=>359(2)—Breach of Warranties—Evidence—Sufficiency.</p> <p>In an action for balance of purchase price due on goods sold and delivered, evidence held sufficient to support defendant’s counterclaim for damages for plaintiffs’ failure to complete the contract.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1058; Dec. Dig. <@=>359(2).]</p> <p>2. Sales <@=>89—Contracts—Alteration—Damage for Breach.</p> <p>Where plaintiff failed to deliver 15,000 paper bags necessary to complete 'his contract with defendant, and upon defendant’s insistence agreed to make the shipment, but refused to “resume any freight charges,” which condition defendant accepted as satisfactory, held, that the contract was not made divisible, nor did defendant waive his claim for damages by reason of the increase in price of the bags suffered as a result of plaintiff's failure to make complete delivery.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 251, 252, 259; Dec. Dig. <@=>89.]</p> <p>^=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Joint Adventures <@=>7—Contract of Employment—Authority to Employ. Where three parties engaged in a joint adventure and agreed that all contracts involving the expenditure of more than $100 should be signed by all throe parties, there was no holding out by defendant of another party as his agent, so that plaintiff employed by such other party in person for a fixed sum, without knowledge of the defendant, was bound by the terms of such party’s authority.</p> <p>€=aFor other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Joint Adventures, Cent. Dig. § 8; Dec. Dig. @=>7.]</p>

Action by Louis Waller and others against Jacob Glass. From an order of the Municipal Court, opening plaintiff’s default and setting the case for trial, defendant appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by William Isenses against Timothy F. Paddell. From an order denying a motion to permit plaintiff to amend his complaint, he appeals. Appeal dismissed.</p>

<p>Action by Valentine against Jno. Williams, Incorporated, and others. Defendant’s motion for judgment on the pleadings granted, and plaintiff’s denied.</p>

<p>Action by Beulah Hickman Tempers against Julius Nicolas Tompers. On motion to compel the defendant and a third party to turn over personal property to the receiver. Motion denied.</p>

<p>1. Husband and Wife <@=>19(13)—Necessaries—Husband’s Liability.</p> <p>Where a dress furnished by plaintiff to defendant, a married woman, was a necessary, in the absence of any contract on her part that she alone would be liable, or of proof that her husband had already supplied her with an article of the same character or the cash to pay for it, or had notified the plaintiff not to give her credit, the presumption was that she contracted as agent for him, and that he was liable therefor.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 133, 142, 146; Dec. Dig. <@=>19(13).]</p> <p>2. Husband and Wife <@=>229(4)—Goods Furnished Wife—Action—Plead-</p> <p>ing.</p> <p>In an action to recover the price of a dress furnished, where it appeared, when plaintiff closed his case, that defendant was a married woman living with her husband, no question of pleading of coverture as a defense was presented.</p> <p>[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 829-834, 840, 979; Dec. Dig. <@=>229(4).]</p> <p><§=>Ear other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <3=189(15)—Opening Default—Power of Court.</p> <p>Under Municipal Court Code (Laws 1915, c. 279) § 6, subd. 7, declaring the powers of the Municipal Court, that court has power to open a default in a summary proceeding.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 458; Dec. Dig. <3=189(15).]</p> <p>2. Courts <©=189(15)—Municipal Courts—Opening Default.</p> <p>Where defendant’s agent appeared to file answer on the call day, and waited without the proceedings being called, and the clerk told him it was not on that day’s calendar, it was not an abuse of discretion to open on terms the default then granted.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 458; Dec. Dig. <©=189(1.5).]</p> <p>^zs>For other caaes see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Accord and Satisfaction <S=>4—Acceptance of Payment Without Objection.</p> <p>Where landlord and tenant disagreed as to who should repair basement after fire, and tenant thereafter for 17 months deducted $30 from his monthly rental, and landlord accepted and cashed tenant’s checks, some of which contained notations explaining the deductions, held, there was an accord and satisfaction, preventing a recovery of the amounts deducted.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 32-39; Dec. Dig. <@=>4.]</p> <p><©cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Landlord and Tenant <§=>184(2)—Deposit of Security for Rent—Right to Return.</p> <p>In an action by former tenant to recover $500 deposited as rent security, plaintiff helé not entitled under the terms of the lease to any refund, where it was necessary, because of his failure to pay rent, for the landlord to dispossess him and rent to other parties for the balance of the term at a rental loss of over $500.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 745-748; Dec. Dig. <®=»184(2).]</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, Fourth District.</p> <p>Action by Fannie Milwitsky against Samuel S'elman. From a judgment rendered in favor of plaintiff, defendant appeals. Modified and affirmed.</p>

<p>Appeal and Error @=1003—Decision Not Supported by Evidence.</p> <p>Where a judgment is entirely against the weight of evidence, it must be reversed, although it will be affirmed where there is evidence sufficient to sustain it.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. @=1003.]</p> <p>@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <3=189(4)—Municipal Court—Summons—Detects—Number off</p> <p>District.</p> <p>Under Municipal Court Code (Laws 1915, c. 279) § 19, providing that the “summons must be subscribed and issued by the clerk of the court of the district where the application for * * * summons is made, or by the plaintiff’s attorney in his own name,” but containing no provision that it shall give the number of the district, and section 20, requiring that the summons shall be “substantially” in a form which contains a space followed by the word “district,” a summons which omitted to state the number of the district, but gave the true address of the Municipal Court for the First District, was sufficient to give the court jurisdiction.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 458; Dec. Dig. <3=189(4).]</p> <p>2. Parties <®=94(1)—Detects—Misnomer in Summons.</p> <p>Where defendant’s name in the summons was spelled “Pecarsky,” and he claims it should have been “Pekarsky,” the substitution of one letter in the spelling of the word did not constitute a misnomer of the defendant.</p> <p>[Fid. Note.—For other cases, see Parties, Cent. Dig. §§ 155, 159, 177; Dec. Dig. <3=91(1).]</p> <p>3. Appearance <3=10—Special Appearance—Effect.</p> <p>Where defendant appeared specially and raised objections to the jurisdiction of the lower court, the court’s refusal to permit him to plead after his objections were overruled was error.</p> <p>[Ed. Note.—For other cases, see Appearance, Cent. Dig. §§ 53, 54; Dec. Dig. <3=10.]</p> <p>^=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bailment <S=al4(l)—Cabe of Pbopebty.</p> <p>The bailee of a coat, delivered to him to repair, was required to use reasonable care and caution to safely keep it.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 45-48, 52-55; Dec. Dig. <g=»14(l).]</p> <p>2. Bailment <g=»14(l)—Cabe of Pbopebty—Liability fob, Loss.</p> <p>One receiving a coat to repair and expressing an opinion as to the date on which the repair would be completed, which time had been extended with the bailor’s acquiescence to an indefinite time in the future, and who exercised reasonable care for its safe-keeping, would not be liable for its loss by robbery, unless the bailor showed an agreement amounting to a contract insuring delivery on a certain date before the robbery.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 45-48, 52-55; Dec. Dig. <§=?14(1).]</p> <p>3. Bailment <3==>31(1)—-Loss—Presumption—Negligence.</p> <p>A presumption of negligence arose, where the bailee of a coat for repair refused to return it upon demand.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 124, 125; Dec. Dig. <@=>31(1)J</p> <p><3=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Evidence <S=368(1)—Documentary Evidence—Denial oe Motion to Produce.</p> <p>In an action for the price of lockers, rented by golf players and bought from plaintiff by defendant when defendant succeeded plaintiff's husband as lessee of a golf house, where defendant relied on the charge that plaintiff had collected rents in advance for the lockers, an amount which, if it existed, plaintiff conceded should be deducted from the price, a matter which an account book of plaintiff would have shown, denial of defendant’s motion to produce the book, which plaintiff had in court, was improper.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1540; Dec. Dig. <S=>368(1)J</p> <p><S=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Municipal Court, Borough of Manhattan, Second District. Action by Louis Goodman and others against Jack Margolies and others. From a judgment dismissing the complaint, the plaintiffs appeal. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Herman Eichhorn against Jake Negrin. Erom an order opening a default upon terms, defendant appeals. Order modified and affirmed.</p>

Action by Abraham Greenberg against the Firemen’s Insurance Company. From a judgment dismissing plaintiff’s complaint on the merits, plaintiff appeals. Judgment reversed, and new trial granted.

<p>Courts <§=23, 188(3)—Jurisdiction—Municipal Court—Accounting.</p> <p>The Municipal Court has no jurisdiction to .take, state, and determine a partnership accounting, and the consent o£ the defendant could not confer such jurisdiction.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 75, 75%, 81, 458; Dec. Dig. <§=23, 188(3).]</p> <p><@cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Evidence <§=317(1)—Admissibility—Con vbbsations.</p> <p>Conversations between plaintiff and her son in defendant’s absence as to a transaction with defendant in suit are inadmissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent, Dig. § 1174; Dec. Dig. ©=317(1).]</p> <p><@^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Principal and Agent @=>123(1)—Relations—Sufficiency of Evidence.</p> <p>In an action on a written contract providing for payment of a sum for the privilege of copying plaintiff’s dress models, evidence hold not to show the authority of defendant’s son to sign the contract in his name, or to otherwise bind him.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent Dig. S 420: Dec. Dig. @=>123(1).!</p> <p><$=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Solomon Hurowitz against Berry B. Simons. From two orders denying his motion to open his default, defendant appeals. Appeal from first order dismissed. Second order affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by the Reed Realty Company against Alfred M. Rau. From an order denying a motion to open a default, defendant appeals. Order reversed, motion granted, and new trial ordered.</p>

<p>1. Bailment @=>30—Action—Pleading—Complaint—Sufficiency.</p> <p>In an action in bailment, a complaint alleging that plaintiff had delivered a diamond pin to defendant for repair, that plaintiff had made demand to defendant at various times for its return, but that defendant refuses to deliver the pin and has converted it to his own use, without alleging that defendant failed to take due care of the bailment, was insufficient.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. § 123; Dec. Dig. @=>30.]</p> <p>2. Bailment @=>30—Action—Pleading—Complaint—Sufficiency.</p> <p>In an action for conversion, a complaint alleging that plaintiff delivered' a diamond pin to defendant for repair, had made demand to defendant at various times for its return, but that defendant refused to deliver the-pin, and had converted it to his own use, was sufficient.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. § 123; Dec. Dig. @=>30.]</p> <p>3. Bailment @=> 16—Convebsion.</p> <p>In an action for conversion of a diamond pin, delivered to defendant for repair, where defendant did not have possession of the pin when demand was made, he could not be held in conversion.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 64-74; Dec. Dig. @=>16.]</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, Ninth District.</p> <p>Action by Frank Hayden, Incorporated, against Kathryn Pearl Robinson. From an order opening a default judgment upon condition, the defendant appeals. Modified.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Joseph Schneider against John Beaver, as receiver of the Second Avenue Railroad Company. Fro'm a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial ordered.</p>

<p>1. Courts @=>190(2)—Municipal Courts—Matters Appealable—Default</p> <p>Judgment.</p> <p>Under Municipal Court Code (Laws 1915, e. 279) § 154, enumerating judgments of the Municipal Court which may be appealed, a default judgment is not appealable.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. @=>190(2).]</p> <p>2. Courts @=>190(2)—Municipal Courts—Matters Appealable.</p> <p>An order denying motion to set aside service of summons is appealable only by appeal from a judgment enumerated in Municipal Court Code, § 154; and if the service resulted in default judgment, the ruling on the motion is not appealable.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. @=>190(2).]</p> <p>3. Courts @=>189(15)—Municipal Courts—Opening Default—Conditions.</p> <p>It is within the discretionary power of the Municipal Court to impose as conditions for opening default that the amount thereof, or an undertaking as security for any judgment rendered, be deposited or filed.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 458; Dec. Dig. @=>189(15).]</p> <p>For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexer</p> <p>4. Courts <@=>189(15)—Municipal Courts—Opening Default—Conditions.</p> <p>Where defendant’s affidavits and conduct show attempt to evade and delay a default judgment, it is not an abuse of the Municipal Court’s discretion to require him, as condition to opening default, to deposit amount of judgment, or security for any judgment recovered.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 458; Dec. Dig. <@=>189(15).]</p> <p><gzs>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Carriers <@=>12(10)—Street Railroads—Regulation—Passenger Service— Statute.</p> <p>Under Public Service Commission Law (Consol. Laws, c. 48) § 49, subd. 7, requiring a street railway company to carry passengers between any two points on railroads or portions thereof embraced in such contract, and desiring to make one continuous trip between such points, for a single fare, where plaintiff was refused a transfer under a rule of the defendant street railroad company forbidding the issuing of transfers to points in the easterly parts from any point west of a named street, although he could have obtained a car which would have carried him to his destination without transfer by walking two blocks, he was entitled to recover.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 15-20; Dec. Dig. <@=>12(10); Street Railroads, Cent. Dig. § 151.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Municipal Corporations <@=>808(2)—Obstruction on Sidewalk—Liability of Abutting Owner.</p> <p>Plaintiff cannot recover merely because he tripped over wire mats on the sidewalk in front of defendant’s hotel, which were designed to keep pedestrians from slipping, where there is no proof that the fall was due to any overlapping of the mats.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1684, 1688; Dec. Dig. <@=>808(2).]</p> <p>©cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by George W. Erland against Granville Gibbons. From a judgment of the Municipal Court in favor of the defendant on the merits, after a trial by the judge without a jury, plaintiff appeals. Reversed, and new trial granted.</p>

<p>1. Banks and Banking <3=154(1)—Action by Depositor—Costs.</p> <p>In a suit against a bank for failure to pay out the balance of plaintiff’s account, where the issue was whether plaintiff had made a deposit of §100, defendant, in the absence of proof of demand, would not be liable for the costs of the action.</p> <p>[Fid. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 502, 503, 515; Dec. Dig. <3=154(1).]</p> <p>2. Banks and Banking <3=154(3)—Action fob Balance ott Deposit—De-</p> <p>mands—Waives.</p> <p>in an action for a bank’s failure to pay out the balance of his account, where plaintiff’s proof showed the bank’s refusal was taken for granted, and whore defendant’s counsel admitted that there was nothing on the bank’s books to show that plaintiff was given credit for a deposit, and where defendant’s proof showed that plaintiff had repeatedly demanded the amount and that it was refused, the objection that the demand therefor was not proven was waived.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ SOS-511; Dec. Dig. <3=154(3).]</p> <p>3. Banks and Banking <§=>154(3)—Action fob Deposit—Demand—Excuse.</p> <p>A depositor’s demand against a bank for the balance of his account is excused or made unnecessary by the bank’s denial of liability.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 508-511; Dec. Dig. <3=154(3).]</p> <p>^»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Chester A. Pape against the B. & B. Construction Company, Incorporated, and others. From a judgment dismissing the complaint, an order denying his motion for judgment, and one directing him to retry his case, plaintiff appeals. Judgment reversed, and judgment directed for the amount sued for.

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Rosie Hordes against Ida Kessner. Judgment for plaintiff, and defendant appeals. Reversed and remanded.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Joseph Harris, an infant, by Emma Harris, his guardian ad litem, against the Sandow Realty Company. Erom an order of the Municipal Court, plaintiff appeals. Appeal dismissed.</p>

<p>1. Courts <S=>190(2)—Muntcipal Court—Appeals—Appeal from Order—</p> <p>Statute.</p> <p>Under Municipal Codo (Laws 1915, c. 279) § 154, governing appeals from orders, plaintiff’s appeal will not lie from an order granting motion for an order directing the clerk to pay a defendant the money deposited by her as a condition of having her default opened; such an order can be reviewed only upon appeal from a judgment.</p> <p>LEd. Note.—For other cases, see Courts, Dec. Dig. <@=»190(2).]</p> <p>2. Deposits in Court <@=>12—Disposition After Trial.</p> <p>Where a defendant, sued as a partner, suffered default, which was opened upon her depositing the amount of the judgment in court, upon her claim that she was not a partner, and, upon the subsequent term, the court decided she was not a partner, granting of her motion for an order directing the clerk to pay her the money deposited was proper.</p> <p>[Ed. Note.-—For other cases, see Deposits in Court, Cent. Dig. § 13; Dec. Dig. <@=>12.]</p> <p><©3s>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Benjamin Signet against Charles Werner. From a judgment dismissing the complaint at the close of plaintiff’s case, plaintiff appeals. Reversed, and new trial ordered.

<p>Negligence <S=j83—Proximate Cause—Efficient Cause of Injury.</p> <p>Where a driver whipped up his horse when within 15 feet of a 3% year old child and ran over it, the act constituted the proximate cause of the injury, irrespective of the mother’s negligence in allowing the child on the street.</p> <p>• [Ed. Note.—For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig, <S=»83.]</p> <p>©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Evidence <@=354(10)—Book Entry—Foundation.</p> <p>In an action ior goods sold defendant, saleslady and manager of the “Lillian Rogers Company, Incorporated,” defendant’s name, entries in plaintiff’s hooks of goods charged to defendant individually, not shown to have been correctly made at or near the time of the transactions, were inadmissible in evidence, over defendant’s objection, being merely self-serving declarations as offered.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1453, 1455; Dec. Dig. <@=354(10).] .</p> <p>@m>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Appeal and Error <S=>678(5)—Questions Presented by Record.</p> <p>In a New York suit, where the record is barren of any evidence as to the cause of action on which plaintiff recovered in North Carolina, or whether defendant was served or appeared in the case in such state, contentions on appeal relative to the effect of the North Carolina judgment in the New York suit cannot be decided.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2873; Dec. Dig. <g=»673(3).]</p> <p>2. Appeal and Error <g=>1169(2)—Disposition of Case.</p> <p>In plaintiff’s suit for commissions, where the cause of action was dismissed upon the erroneous assumption that in some way the record showed that a prior judgment in North Carolina was a bar, judgment for defendant could not stand for what was assumed to be the very items for which plaintiff had previously recovered in North Carolina, in an action assumed to have been a binding adjudication.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4532; Dec. Dig. ®=»1169(2).]</p> <p>©=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Index©;»</p>

<p>1. Judicial Sales <@=27(1)—Liability of Bidders—Title Which Purchas-</p> <p>er may be Required to Take.</p> <p>The purchaser at a judicial sale is entitled-to a marketable title, and a motion to compel him to accept title and to complete the purchase will not be granted, unless it is very clear that the marketable title is not impaired by the defects urged.</p> <p>[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 54, 97-99; Dec. Dig. <@=27 (1).]</p> <p>2. Judicial Sales <@=27(1)—Liability of Bidders—Title Which Purchas-</p> <p>er may be Required to Take.</p> <p>Under Real Property Law (Consol. Laws, c. 50) § 67, as amended by Laws 1913, c. 55, authorizing judicial sale or lease of real property held by tenant for life, with contingent remainder over to persons whose identity is unknown, if the interests of the life tenant and remaindermen so require, where a will devised real estate to petitioner for life, and on her death to her issue, and provided that on her death without issue the property be sold, and the proceeds divided among religious and charitable organizations, to be determined as directed, thus creating no vested legal title to the remainder in the executors, held that, the life tenant having no issue, there was no person in being having an estate vested or contingent in reversion or remainder in said property on whom the notice of application of sale required by statute could be served, and the purchaser at such sale could not be compelled to accept title.</p> <p>[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 54, 97-99; Dec. Dig. <@=27(1).]</p> <p><g=Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p>

<p>Licenses ®=»14(2)—Police Regulations.</p> <p>Under an amendment of a license tax ordinance, repealing a portion of file ordinance which specifically excepted motor vehicles operated from private garages, and providing that any vehicle having a taximeter affixed, which uses the streets for carrying passengers for hire, shall be deemed a public hack, and licensed under the ordinance, a motor vehicle which has no taximeter affixed, and for which patronage is not solicited on the streets, is not subject to the license provisions of the ordinance.</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 Licenses, Gent. Dig. § 26; Dec. Dig. <S=>14(2).]</p>

<p>Edward Loughrey was indicted for violation of the Motor Vehicle Law, and demurs to the information as not stating facts sufficient to constitute a crime. Demurrer sustained, and. defendant discharged.</p>

Proceeding in the estate of Catharine Kane, in which the executor ■ filed his account and prayed for construction of a will. Decree construing the will.

<p>Action by Eva Mclntire against John L. Sprague and others. On motion by defendant Sprague for judgment on the pleadings. Motion granted.</p>

<p>Master and Servant ®=»361—Injuries to Servant—Workmen’s Compensation Act—“Employe’’—“Hazardous Employment.”</p> <p>Under Workmen’s Compensation Act (Consol. Daws, c. 67) § 3, restricting its benefits to one engaged in hazardous work; subdivision 1, defining “hazardous employment” as occupation described in section 2; subdivision 3, defining an “employer” as a person employing workmen in hazardous employment; subdivision 4, defining an “employe” as one engaged in hazardous employment in the service of an employer on the premises or in the course of his employment and away from the plant; and section 2, group 1, providing compensation for those injured In the operation, including construction and repair of railways—where deceased, employed by the defendant railroad as a process server, claim adjuster, and investigator in the claim department of the company, had been engaged in serving a subpoena, and on returning to the office was injured while riding upon one of the defendant’s cars, he was not entitled to compensation under the act, since the fact that an employe is in the service of a railroad docs not bring him within the act, if he is not engaged in the hazardous work, or in some way subject to the hazards arising from the nature of the work.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. 361.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Employe,]</p> <p><£=5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Death <@=>101—Death by Wrongful Act—Damages—Persons Entitled</p> <p>to.</p> <p>Under Code Civ. Proe. §§ 1903, 1904, an action by the widow for damages for death of her husband by wrongful act does not include compensation to dependent parent of deceased.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 132-140; Dec. Dig. <@=>101.]</p> <p>2. Master and Servant <@=>354—Workmen’s Compensation—Compensation</p> <p>to Dependent Mother—Election of Widow to Sue for Damages.</p> <p>Under Workmen’s Compensation Law (Consol. Laws, c. 67) § 16, subd. 4, providing for compensation for employe’s death to dependent mother, where the amount payable to surviving spouse and children does not exceed 66% per cent, of average wages of deceased, such dependent mother does not lose her right to compensation, where surviving spouse, under section 29, elects to bring action for damages under Code Civ. Proe. §§ 1902-1904, against third person not in the same employ.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. <@=> 354.)</p> <p><@=>For other cases see same topic & KEY-NUMBER in ail Key-Numhered Digests & Indexes</p>

Action by Otto- Strom against the New York Railways Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial ordered.

<p>Order reversed, with. §10 costs md disbursements, and motion granted,</p>

<p>Appeal from Municipal Court,, Borough of Manhattan, Ninth District. Action by Albert B. Ashforth, Incorporated, against Benjamin Stern and others. From a judgment in favor of the plaintiff, after a trial by pudge without a jury, defendants appeal. Modified and affirmed.</p>

<p>Order affirmed, with $10 costs and disbursements, with leave to defendant to answer within twenty days on payment of the costs and disbursements of this appeal, as well as the costs fixed in the order appealed from.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District. Reversed, and new trial ordered.</p>

<p>Appeal from City Court )f New York, Special Term. From an order permitting plain till to amend Ms complaint in material respects upon payment of $10 to defendant, defendant appeals. Order modified, and amendment permitted upon conditions; otherwise, motion to amend denied. See, also, 152 N. ± Supp. 961; 157 N. Y. Supp. 7, 9.</p>

<p>Appeal from Special Term, New York County. Application by the City of New York relative to acquiring title to certain land. From an order directing cancellation of notice of lien against awards in condemnation proceedings, there is an appeal concerning Morris Kushner. Order reversed, and motion denied.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Benni Cohen against Gedalie Wittlin. From a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial ordered.</p>

<p>Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.</p>

Judgnent dismissing the complaint, and plaintiff appeals. Reversed, and new trial granted, as to lefendant Luddington,, and affirmed as to defendant Beers.

<p>Order (159 N. Y. Supp. 554) affirmed with $10 costs and disbursements.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.</p>

<p>Judgment affirmed, with costs.</p>

<p>Order affirmed, with $10 costs and disbursements.</p>

<p>Order affirmed, with $10 costs and disbursements.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Judgment for plaintiff in the Municipal Court, and defendant appeals. Reversed, and new trial ordered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Judgment for plaintiff, and defendant appeals. Reversed and rendered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Judgment for plaintiff, entered after the close of plaintiff’s case, defendant having withdrawn because of remarks made by the court during trial, and defendant appeals. Affirmed.</p>

<p>. Appeal from Municipal Court, Borough of Manhattan, B'irst District. Judgment dismissing the complaint, and plaintiff appeals. Modified and affirmed.</p>