Volume 160 — New York Supplement

<p>1. Divorce <@=328—Foreign Decebe Against Nonresident.</p> <p>While the courts of New York have uniformly protected its citizens against divorce decrees obtained by constructive process in foreign jurisdictions, they have not gone so far as to protect a nonresident, and declare void a decree granted in a foreign jurisdiction against a nonresident of the state; to- avoid a foreign decree of divorce, it must be shown that defendant in the action was at the time of the rendition of the decree a resident of New York.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 831-834; Dec. Dig. @=328.]</p> <p>2. Marbiage @=60(7)—Annulment—Burden of Proof.</p> <p>In an action by a husband to have Ms marriage declared void on the ground that his wife had a former husband living at the time of the marriage, where the wife had secured a divorce in Nevada against her former husband on constructive service, the burden is on the plaintiff husband to establish by clear and satisfactory evidence that the former husband was a resident of New York when the Nevada decree was rendered, so that the divorce was inoperative.</p> <p>¡Ed. Note.—For other cases, see Marriage, Cent. Dig. § 131; Dec. Dig. <@=60(7).]</p> <p>3. Domicile <S=10—Determination by Court.</p> <p>In a husband’s suit to annul his marriage, where the wife’s former husband’s domicile is material, the court is not compelled to accept Ms conclusion as to the fact, but may reach, from all the circumstances of the case, a different conclusion.</p> <p>[Ed. Note.—For other cases, see Domicile, Cent. Dig. § 39; Dec. Dig. ■ @=10.]</p> <p>1. Divoboe <@=63—Domicile.</p> <p>When a husband deserted, and abandoned his wife in New York, their matrimonial domicile in the state was broken, and the wife was free to select any other domicile which she desired, and, after having established her own matrimonial domicile in Nevada, was entitled to institute an action for divorce in that forum.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 201, 217; Dec, Dig. @=63.]</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>•5. Divorce @=63—Domicile.</p> <p>Where a wife abandons her husband in New York, the matrimonial domicile eontitiues in the state, and she cannot obtain a valid decree of divorce in Nevada.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 201, 217: Dec. Dig. @=63.]</p> <p>•6. Divorce @=54-—Desertion by Husband.</p> <p>A husband, after wrongfully deserting his wife in New York, cannot obtain a valid decree of divorce in any other state.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 190-196: Dec Dig. @=54.]</p> <p>'7. Divorce @=327—Foreign Decree—Recognition,</p> <p>Where a wife’s former husband wrongfully deserted her in the state of New York, and thereafter the wife acquired a separate domicile in Nevada, where she remained longer than the statutory period necessary to give its courts jurisdiction to grant divorce, and remained there for months after a decree was granted her, until she changed her domicile to New York at the request of the party she subsequently married, the New York court will not refuse to recognize the Nevada decree in the suit of the party she subsequently married to annul the marriage on the ground she had a former husband living.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 831-834; Dec. Dig. @=327.]</p> <p>■@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes „</p>

<p>Motion for injunction pendente lite by the Bobbs-Merrill Company against the Universal Film Manufacturing Company and another. Motion granted.</p>

<p>Action by Michelangelo Montagnino against Salvatore Minolfi, with writ of attachment, in which a third party filed a claim to the goods. Directed verdict of sheriff’s jury for claimant, and plaintiff moves to set aside the verdict. Verdict set aside, and a new inquisition to be had.</p>

<p>Action by the Mutual Life Insurance Company of New York against Eugenie Rothschild and others. Judgment for plaintiff against all defendants save Lily D. Wicks.</p>

<p>1. Injunction <@=3—Grounds of Relief—Action for Damages.</p> <p>Where a motion for injunction is made upon a summons served with moving affidavits which recite that the action is for damages for forcible entry or detainer, under Code Civ. Proc. § 1669, there is no basis for injunctive relief.</p> <p>[Ed. Note.—Por other cases, see Injunction, Cent. Dig. § 3; Dec. Dig. <@=3.]</p> <p>2. Injunction <@=118(4)—Grounds of Relief—Possession of Lessee.</p> <p>Injunction will not lie to protect lessee’s possession under a lease, unless it is alleged that irreparable injury will result and that he has no adequate remedy at law.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 236-238; Dec. Dig. <@=118 (4).]</p> <p>3. Injunction <@=38—Grounds of Injunction—Protection of Possession Under Lease.</p> <p>Under Code Civ. Proc. §§ 603, 604, where there is no claim that defendants threatened to remove their properly in fraud of plaintiff, or that the acts of the defendants sought to bo enjoined will render ineffectual any judgment for plaintiff, defendants will not be enjoined from interfering with plaintiff’s possession under lease.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 86-90; Dec. Dig. <@=38. ]</p> <p>4. Injunction <@=3S—Grounds of Injunction—Protection of Possession Under Lease.</p> <p>Where plaintiff was ousted of possession under lease by defendants, who claim a right of possession for violation of terms of lease, injunction will not issue to restore plaintiff to possession pending a trial of action for forcible entry and detainer.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 86-90; Dec. Dig. <@=38.]</p> <p>5. Injunction <@=152—Grounds of Injunction—Protection of Possession Under Lease.</p> <p>The determination of the right to- injunctive relief must be based on the facts as they were when the order to show cause was granted, and the fact that plaintiff was restored to possession of leased premises under the order to show cause in no way affects Ms rights in an injunction for possession.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 337, 343; Dec. Dig. <@=152. J</p> <p>other cases see same topic & KEY -NUMBER in all Key-Numbered Digests & Indexes-</p>

<p>Executors and Administrators <@=>122(3)—Payments by Temporary Administrator—Statute.</p> <p>The power of the Surrogate’s Court to authorize payments by a temporary administrator is limited by Code Civ. Proe. § 2597, under which the court in a contested probate proceeding cannot authorize payment by a temporary administrator of the referee’s fees and other expenses of an examination before trial of testator’s son.</p> <p>[Ed. Note.—Por other eases, see Executors and Administrators, Cent. Dig. § 495% ; Dec. Dig. <®=>122(3)J</p> <p><£^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Taxation <8=886%—Tbansfer Tax—Hate.</p> <p>Where a testatrix directs trustees to divide her residuary estate into three shares, and pay the income of one share to each of her children for life, and on the death of a child to pay the income of his or her sitare to the surviving husband or wife, and on the death of the surviving husband or wife to pay the share to the deceased child’s issue, if any, and, if not, to the surviving child or children of testatrix, and, if all the children die without issue, the share of the last survivor is to go to such persons as such survivor may by will designate, two of the shares are subject to a 1 per cent, tax, and one to a 5 per cent. tax.</p> <p>[Ed. Note.—For other cases, see Taxation, Dec. Dig. ©=886%.]</p> <p>2. Taxation <8=886%—Transfer Tax—Hate.</p> <p>Where the remainders after two life estates are subject to a 1 per cent, tax, and the remainder after the life estate of a third, last surviving, to a 5 per cent, tax, it will be assumed that the youngest life tenant will be the last survivor, and the 5 per cent, tax imposed on the remainder after her life estate.</p> <p>[Ed. Note.—For other cases, see Taxation, Dec. Dig. ©=886%.]</p> <p>In the matter of the estate of Henrietta Hutton, deceased. From an order assessing a tax on remainder interests, an appeal is taken. Modified.</p> <p>or other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Nick Todoro was convicted of rape in the second degree, and moves for a certificate of reasonable doubt. Certificate granted.</p>

<p>1. Sales ©=>202(5)—Transfer of Title—Payment as Condition—Waiver.</p> <p>Where plaintiff, under an executory contract of sale providing for payment on delivery, title to remain in plaintiff until payment, placed apples in a freight car designated by buyer, with the consent of defendant railroad, before payment by the buyer, title remained in plaintiff; there being no absolute delivery such as would waive condition of payment in advance.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 546; Dec. Dig. ©=>202(5).]</p> <p>2. Sales ©=>202(5)—Executory Contracts—Title.</p> <p>Under Personal Property Law, art. 5, Sales of Goods, §§ 99, 101, subd. 1, added by Laws 1911, c. 571, the rule of the common law is not changed, but a condition of an executory contract of sale, providing for payment on delivery, title to remain in the seller until payment, is not waived by the seller loading the property in a freight car, where he expressly notifies the railroad company that title remains in him until payment is made by the buyer.</p> <p>LEd. Note.—For other cases, see Sales, Cent. Dig. § 546; Dec. Dig. ©=>202(5).]</p> <p>3. Carriers ©=>72—Carriers of Goods—¡Relation to Shipper.</p> <p>The relation of shipper and carrier does not attach until property has been delivered and accepted by the carrier for immediate transportation, and when the goods are not to be transported until further orders a carrier is only a depositary or bailee.</p> <p>I'Eti. Note.—For other cases, see Carriers, Cent. Dig. §§ 243-250, 258-261, 266-269; Dec. Dig. ©=>72.]</p> <p>4. Carriers ©=>72—Rights of Shipper.</p> <p>Where plaintiff, under an executory contract of sale, loaded apples in a freight car with the consent of the railroad company and notified the latter "that title remained in plaintiff until payment by the buyer, the railroad company was liable to plaintiff for damages for refusing to deliver apples to plaintiff upon demand; such a refusal amounting to conversion.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 243-250, 258-261, 266-269; Dec. Dig. ©=>72.]</p> <p>.5. Carihees ©=>72—Rights of Shipper.</p> <p>Where plaintiff loaded apples in freight cars after notifying the defendant railroad company that title to such apples remained in plaintiff until payment by buyer, and thereafter demanded return of the apples upon buyer’s failure to pay, held, that railroad company, as bailee, had a right to defer delivery for a reasonable time to investigate title to such property, but its refusal thereafter to deliver! goods to plaintiff was a conversion, for which it was liable.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 243-250, 258-261, 266-269; Dec. Dig. ©=>72.]</p> <p>6. Bailment ©=>16—Liability of Bailee fob Refusal to Deliver Property to True Owner.</p> <p>The rule that an innocent purchaser under a defective title cannot hold personal property as against the true owner, although changed by the Factors Act (Laws 1830, c. 179), now Personal Property Law (Consol. Laws, c. 41) § 43, as to purchasers from agents clothed with possession by their principal, still applies to bailees, who are liable for conversion in refusing to deliver the property to the true owner.</p> <p><£cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 64-74; Dec. Dig. @=>16.]</p> <p>7. Bailment @=>19—Delivery to Owner—Liability—Right to Require Bond.</p> <p>A bailee has no right to require an indemnity bond as a condition precedent to the delivery of property to its true owner.</p> <p>[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 85, 86; Dec. Dig. @=>19.]</p> <p>8. Carriers @=>71—Delivery to True Owner—Right to Require Indemnity Bond.</p> <p>Carrier of goods has no right to require an indemnity bond as a condition precedent to delivery of goods to the true owner, who had loaded them onto a car placed on a track for the purchaser, who was not there to receive them, after notifying the carrier that title was not to pass until payment therefor by the purchaser.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 240-242, 247, 256, 257, 363, 561; Dec. Dig. @=>71.]</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by James B. Andrews, as testamentary trustee under the last will and testament of William P. Kirk, deceased, against Annie L. Kirk, individually and as testamentary trustee under the last will and testament of William P. Kirk, deceased, and others. On motion by plaintiff for judgment upon the pleadings. Motion granted.</p>

<p>1. Mortgages <§=3174—Priorities—Consideration—Extension of Time.</p> <p>The giving and taking of a note payable in the future, for amount of debt, immediate payment of or security for which was being demanded, evidences an extension, constituting consideration for the mortgage, so as to give it, recorded, priority over a prior, but unrecorded, mortgage.</p> <p>[Ed. Note.-—Por other cases, see Mortgages, Cent. Dig. §§ 413^16; Dec. Dig. <§=3174.]</p> <p>2. Mortgages <§=>492—Foreclosure—Relief Awarded.</p> <p>Though the complaint to foreclose a mortgage alleges the mortgage of a defendant to be inferior, and such defendant pleads and shows his mortgage to be superior, and asks that the complaint be dismissed as to him, all the parties being before a court of equity foreclosure will be had, and the proceeds applied first to payment of such defendant.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 1438; Dec. Dig. =§=3492.]</p> <p><@zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by Bertha Oppenheim as executrix, against Katherine H. Abbott and another. On motion by defendants to vacate an order for their examination by plaintiff before trial. Denied.</p>

<p>Action by David E. Singer against the New York Life Insurance Company. On defendant’s motion for interpleader. Motion granted.</p>

<p>L States <S=^27—Assembly Districts'—Latins Out—Review—Presumptions.</p> <p>Under Const, art. 3, § 5, providing that “in counties having more than one senate district, the same number oí assembly districts shall be put in each senate district unless the assembly districts cannot be evenly divided among the senate districts oí any county, in which case one more assembly district shall be put in the senate district in such county having the largest, or one less assembly district shall be put in the senate district in such county having the smallest number oí inhabitants, excluding aliens, as the case may require,” where there were 8 senate districts and 23 assembly districts in a county, it must be presumed, on application to compel the board of aldermen apportioning a senate district into assembly districts to reconvene and reapportion it, that the board, in laying out but 2 assembly districts in the senate district in question, while in other senate districts in the county there were 3 assembly districts, complied with the Constitution, where the application does not allege that the senate district in question was not the one having the smallest number o£ inhabitants.</p> <p>[Ed. Note.—For other cases, see States, Cent. Dig. §§ 28-33; Dec. Dig. @=¿27.]</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. States <@=27—Assembly Districts—Apportionment—Compactness—Difference in Population.</p> <p>’ Under Const, art. 3, § 5, providing for division of counties into assembly-districts “as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory in as compact form as practicable,” and providing that no assembly district shall “contain a greater excess in population over an adjoining district in the same senate district than the population of a town or block therein adjoining such assembly district,” and that “towns or blocks, which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens,” where two assembly districts in a senate district contained, respectively, 90,481 and 89,656 inhabitants, the difference,being greater than the number of inhabitants in any block on the dividing line between them, and the larger district had an end, or tail, consisting of six blocks, and the straight -line of division between the districts was varied by including another block, the apportionment was invalid, where no necessity for such apportionment arising out of other provisions of the Constitution was shown or explanation made of the manner of apportionment.</p> <p>[Ed. Note.—For other cases, see States, Cent. Dig. §§ 28-33; Dec. Dig. <S^>27.]</p> <p>3. States <@=27—Assembly Districts—Apportionment.</p> <p>Under this constitutional provision, the reasons for violation thereof are immaterial, where they show no necessity arising out of a compliance with other provisions of the Constitution.</p> <p>[Ed.- Note.—For other cases, see States, Cent. Dig. §§ 28-33; Dec. Dig. <@=27.]</p> <p>4. States <@=27—Assembly Districts—Apportionment—Trivial Errors.</p> <p>A difference in population between two assembly districts in the same senate district greater than the population of any of the blocks on the boundary line between them cannot be permitted, unless the difference is so small as to be trivial.</p> <p>[Ed. Note.—For other cases, see States, Cent. Dig. §§ 28-33; Dec. Dig. <S=27.]</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Deeds <§=>133(4)—Trust Deed—Construction—Remainders.</p> <p>Under a trust deed transferring certain securities in trust to pay the income to the grantor during her life, and after her death to deliver the securities to the persons to whom she might bequeath them by her last will, and, if she left no will, to deliver them to her next of kin who were the descendants of her father and mother, excluding her husband from any participation, a brother and sister of the grantor and an adopted daughter of her deceased brother, who on her death would be her next of kin under the description of the deed, took a vested remainder, not by operation of law, but by virtue of the trust deed, subject to the exercise of the reserved power of appointment, and to divesture by their death before the grantor, and to open to let in other members of the same class who might be born prior to the death of the grantor.</p> <p>[Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 368-370; Dec. Dig. <§=>138(4).]</p> <p>2. Remainders <§=>14—Wills <§=>7—Vested Remainder—Alienability. Such vested remainder was both aliena,ble and devisable.</p> <p>[Ed. Note.—For other cases, see Remainders, Cent. Dig. § 10; Dec. Dig. <§=>14 ; Wills, Cent. Dig. § 11; Dec. Dig. <§=>7.]</p> <p>3. Descent and Distribution <§=>57-—Surviving Husband.</p> <p>The personal property of a married woman, upon her death intestate without descendants, would become the property of her surviving husband, subject to the payment of her debts.</p> <p>[Ed. Note.—For other cases, see Descent and Distribution, Cent. Dig. §§ 145, 159; Doc. Dig. <§=>57.]</p> <p>4. Trusts <£=50(1)—Trust Deed—Revocation—“Persons Beneficially Interested.”</p> <p>Under Personal Property Law, § 23, as amended by Laws 1909, c. 247, providing that the creator of a trust of personal property may revoke it upon the consent of all the persons beneficially interested therein, persons taking a vested remainder under the provisions of a trust deed subject to the exercise of the grantor’s reserved power of appointment, and to divesture by their death prior to that of the grantor, and to opening to let in other members of the same class bom prior to the death of the grantor, were “persons beneficially interested,” so that, without their consent, the grantor could not revoke the trust deed.</p> <p><©=^>For otkor cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 78, 79; Dec. Dig. <S=^59(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Beneficially Interested.]</p>

<p>In the matter of the estate of Caroline G. Hilliard. Application for construction of will. Application denied.</p>

<p>1. Statutes <g=^228—Exceptions—Construction.</p> <p>Under Code Civ. Proc. § 2637, requiring testamentary trustees to give bonds, and section 2639, which, after a similar requirement, excepts trustees under wills executed prior to its passage, Zteld, that the specific exception in section 2639 also applies to section 2637.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 310; Dec. Dig. <S=w228.]</p> <p>2. Statutes <S=228—Exceptions—Construction.</p> <p>Code Civ. Proc. § 2641, providing that the provisions of the chapter containing it and section 2639 should apply, without regard to the date of the will’s execution, does not affect the specific exception in section 2639.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 310; Dec. Dig. <§=”228.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Executors and Administrators <@=22(2)—Appointment Pending Appeal from Probate—Powers of Court.</p> <p>Where administration is necessary pending appeal from a decree admitting the will to probate, the court may issue limited letters testamentary to the executor named in the will, under Code Civ. Proc. § 2557, providing that appeal in such case does not stay issuing of letters if the estate requires that they be issued, and section 2560, defining powers of executors in such cases, although section 2596 provides for temporary administration in case of delay in probating the will.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ .117-122; Dec. Dig. <@=22(2).]</p> <p>cgss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Proceedings to appraise the estate of Laura Duncan for transfer tax. From an order fixing the tax, the executor appeals. Affirmed.

<p>Action by Andrew W. Easling and another against the Independent Brewing Company to enforce agreement relating to property sold on foreclosure. Judgment for plaintiffs.</p> <p>On November 8, 1915, Annie L. Easling was the owner of three parcels of land: (1) One known as lots 21 and 22 of the Vanderbilt Improvement Company in East Rochester; (2) another known as lot 4 of the same tract; and (3) a third known as lots 47 and 48 on the corner of North Goodman and Norton streets in the city of Rochester. On November 8, 1915, plaintiffs gave a demand promissory note to the defendant for $1,483, and secured it by a mortgage on the above premises. On or about December 1, 1915, in less than one month from the date of the note, defendant began an action to foreclose the mortgage against the above premises, the third parcel of which in the city of Rochester was occupied as a hotel by the plaintiff Andrew W. Easling as a subtenant under a lease from the defendant; the defendant being a tenant of the plaintiff Annie L. Easling, the owner of all three parcels.</p> <p>Plaintiffs claim to have had a good defense to the foreclosure action, and to have refrained from interposing it and bidding at the sale by an agreement made with defendant, through its representative, prior to the sale, by which the defendant agreed that, if plaintiffs would by sale or exchange of the mortgaged property, or a part thereof, realize for defendant the amount of its claim, with interest and costs, defendant would release or reconvey such part of said premises as remained after satisfying defendant’s claim, with interest and costs. Plaintiffs, in reliance upon the agreement, interposed no answer or defense, and refrained from bidding at the sale, and made no efforts to secure bidders at the sale to protect their interests; the equities in the property being much more than the claim of the defendant, with interest and costs.</p> <p>On or about December 23, 1915, judgment of foreclosure and sale was entered in Monroe county clerk’s office, and the property was advertised to be sold February 19, 1916. On January 27, 1916, before the foreclosure sale, plaintiffs made an agreement in writing with one Frank Gatz, and wife for an exchange of the Goodman street property in Rochester for a farm in Orleans county; the plaintiffs to give Gatz and his wife a mortgage on the farm for $6,800, which was to be assigned to the defendant as additional collateral security. Said agreement was approved by defendant, and said Gatz was let into possession of the Goodman street property, and the license to operate a saloon thereon was transferred to him; but the agreement was not thereafter carried out, but failed of fulfillment through the refusal of the defendant. On January 29, 1916, and before the foreclosure sale, plaintiffs entered into an agreement with one Henry F. Barnes to exchange the lots in East Rochester at a valuation of $3,400, with a payment by Barnes of $300 in cash. These lots were to be released upon the completion of the agreement with Gatz, but the agreement was not carried out prior to the sale.</p> <p>On February 21, 1916, the premises were sold to defendant for $25 each, ■or $75 for all three parcels, and defendant obtained a referee’s deed of the same. On February 23, 1916, defendant entered a judgment of deficiency -against plaintiffs for $2,019, although at the time of the sale the East Rochester lots were fairly worth $3,400, and the Goodman street property was fairly worth $6,875, over and above existing incumbrances, exclusive of defendant’s claim. The deficiency judgment has since been discharged of record by defendant. Subsequent to the foreclosure sale on February 21, 1916, defendant ■sold and conveyed the East Rochester lots to said Barnes, and received in ■exchange property equivalent to $3,400, a sum sufficient to satisfy defendant’s claim, with interest and costs, but still retains the Goodman street parcel.</p>

<p>Charles F. Stielow was convicted of murder in the first degree. On motion for new trial. Motion denied.</p>

<p>Reformation of Instruments <@==>16—Grounds.</p> <p>A grantee, whose deed by mistake or fraud assumes a mortgage, may obtain a reformation of the deed in an action brought to foreclose the mortgage and to hold him for a deficiency judgment, provided that the mortgagee has not acted upon the faith of the assumption clause, so that its rescission will work an injury to him, aside from the deprivation of the additional security afforded by the assumption clause.</p> <p>FEd. Note.—For other cases, see Reformation of Instruments, Cent. Dig. § 68; Dec. Dig. <S=»16.]</p> <p>tg=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action to foreclose a mechanic’s lien by Emil C. Meulenbergh against William S. Coe, Eucien Bilquez, and others. Judgment for plaintiff, with leave to the parties to submit requests.

<p> (Syllabus by the Court.) </p>

<p>1. Literary Property <§=>8—Dramatic Writings—Vai/cje.</p> <p>Although a play has not been produced for a period of one year, it is sufficiently valuable to be the subject of loss from competition.</p> <p>[Ed. Noto.—For other cases, see Literary Property, Cent. Dig. § 7; Dec. Dig. ©=58.]</p> <p>2. ' Trade-Marks and Trade-Names ©=>8—Arbitrary Designations.</p> <p>The name “The Come-Back,” applied to a one-act play, is fanciful and not descriptive, and therefore subject to protection of equity.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 12; Dec. Dig. ©=>8.]</p> <p>3. Copyrights ©=513'-—Arbitrary Designations—Priority oe Use.</p> <p>Under the role as to trade-marks, prior use of the title, “The ComeBack,” for a play entitles the author to protection even against subsequent use in copyrighted productions; the title not being subject to copyright.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. §; 16; Dec. Dig. ©=5Í3.]</p> <p>4., Trade-Marks and Trade-Names ©=503(3)—Arbitrary Designations— Priority oe Use—Accounting.</p> <p>That plaintiff, whose play first used a title, submitted his play to moving picture producers and they refused it after use by others of the same title for moving picture plays, is sufficient evidence of damages and loss of profits to allow an accounting against such other users.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 106; Dec. Dig. ©=593(3).]</p> <p><§^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Millie Blumberg against Jacob Corday. Defendant’s motion for judgment on the pleadings granted, with leave to plaintiff to withdraw the demurrer within 10 days, upon payment of costs. Affirmed by Appellate Division, 155 N. Y. Supp. 1095.

Action by Josephine P. Langie and others against Frederick Hebing and others. Demurrer on the ground that complaint does not state a cause of action. Denied.

<p>Action by Willard P. Schanck and another as committee, etc., against Mary Temple Van Voorhis Hooper, to set aside transfer of bank deposit. Judgment for plaintiffs.</p>

' Action by Emilie Klinzing, as administratrix, against Blauw Bros., Incorporated, and others. Judgment for plaintiff, except as against defendant J. Max Blauw, as to whom the complaint is dismissed.

Action by Charles G. Hanmer and Raymond H. Brooder against the Wells Fargo & Co. Express. From a judgment of the County Court of Steuben County, affirming a judgment of the Corning City Court for plaintiffs, defendant appeals. Reversed, and plaintiffs’ complaint dismissed.

<p>1. Trade-Marks and Trade-Names <8=»21—Original User—Rights of Parties.</p> <p>The exclusive right to a trade-mark does not belong to the one who suggested or Invented it, but to him who was the first to appropriate and use " it in his business and to give it a name and reputation.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 24; Dec. Dig. <@=>21J</p> <p>2. Trade-Marks and Trade-Names <@==>30—-Right to Exclusive Use—Employment of Owner.</p> <p>Where cartoonist entered the employ of plaintiff and so continued for a long period, plaintiff, being a newspaper publisher and operator of the syndicate, did not acquire as against the cartoonist, from the mere fact of his employment, the permanent exclusive right to the use of a title to the cartoons, the reputation therefor having been acquired before the cartoonist entered Ids employ, although plaintiff did have the exclusive right during the term of employment to the use of the name in connection with the cartoons.</p> <p>[Ed. Note.—For other eases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 33, 34; Dec. Dig. <S=>30.]</p> <p>3. Trade-Marks and Trade-Names <@=>2<L-Proper'J'y Subject—Cartoons.</p> <p>Cartoons used in syndicated comic strips are to be treated as a commodity of barter and sale, the same as tangible goods or merchandise, which may be sold under a distinctive mark or name wldeh the vendor may exclusively use as a trade-mark in their sale.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 27; Dec. Dig. <@=>24. ]</p> <p><@^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by Harry C. Fisher against the Star Company. Decree for plaintiff.</p>

<p>Action by the Wheeler Syndicate, Incorporated, against the Star Company. Decree for plaintiff.</p>

<p>Action by Otis H. Cutler against Mary R. Winberry and others. Judgment for plaintiff.</p>

Action by Alexander Schwimmer against Rudolph Bergman. From two interlocutory judgments rendered in favor of the defendant, sustaining demurrers to the plaintiff’s complaint, plaintiff appeals. Reversed, with leave to the defendant to plead anew.

Action upon account stated by Melvin McFee against Roland Van Deboe and another, with counterclaim by defendants. Judgment of justice of the peace for plaintiff, and defendants appeal. Reversed, and new trial granted.

<p>Suit for annulment of marriage by one Elser against one Elser. Complaint dismissed.</p>

Frank J. Stahl was charged with a violation of the Public Health Law, prohibiting the unlawful practice of medicine. Demurrer to information overruled.

Proceeding to assess inheritance taxes on the estate of Marianna Blyn, deceased. From the appraiser’s report, and the order entered thereon, the State Comptroller appeals. Appeal dismissed, and order fixing tax affirmed.

Proceeding to assess inheritance tax on the estate of Betty Spiegelberg, deceased. From the appraiser’s report, and the order entered thereon fixing the tax, the State Comptroller appeals. Appeal dismissed, and order affirmed.

In the matter of the estate of Ferdinand S. M. Blun. From the transfer tax appraiser’s report, and the order entered thereon fixing the tax, the State Comptroller appeals. Order vacated, and report remitted to the appraiser for correction.

<p>Action by Elijah W. Holt against the City of Buffalo. Complaint dismissed.</p>

In the matter of the appraisal for taxation under the transfer acts of the property of St. Clair McKelway, deceased. From an order imposing a transfer tax, the widow of deceased appeals. Order modified.

<p>Divorce <S^79—Summons—Obdeb fob Publication—Affidavit of Plaintiff.</p> <p>As plaintiff in a divorce suit cannot personally serve the summons, and under Code Civ. Proc. § 831, cannot by his testimony give proof of jurisdiction, the court cannot acquire jurisdiction, where the service of summons is pursuant to an order of publication based solely on his affidavit, so that such order will not bo made merely on such proof.</p> <p>[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 258-203; Doc. Dig. <@=^79.)</p> <p>^^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Contempt <@=>61(1)—Motion to Punish—Proceedings.</p> <p>Although the usual procedure on motion to punish for contempt by taking testimony on application of either party may be waived, the court may on its own motion direct that it be taken.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. §§ 188, 190, 191; Dec. Dig. <@=>61(1).]</p> <p>2. Intoxicating Liquors <@=>279—Regulation of Sale—Violation of Injunction—Evidence.</p> <p>Evidence held to show that accused violated injunction restraining sale of intoxicating liquors, though the business was nominally his daughter’s.</p> <p>[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 414; Dec. Dig. <§=279.]</p> <p>3. Contempt <@=>60(1)—Burden of Proof.</p> <p>In punishing for contempt of court, it is enough to show that defendant did any act prohibited, and it is then necessary for him to explain and exonerate himself.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. § 183; Dec. Dig. <@=>60(1).]</p> <p>4. Intoxicating Liquors <@=>279—Violation of Injunction—Effect of Appeal.</p> <p>The fact that the defendant has appealed from the judgment enjoining him from selling intoxicating liquors, and that that appeal is pending, is no excuse for a violation of the judgment.</p> <p>[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 414; Dec. Dig. <@=>279.]</p> <p>5. Contempt <@=>61(3)—Scope of Investigation—Judgment.</p> <p>Judgment of court having jurisdiction, not being void, cannot be reviewed in contempt proceeding for its alleged violation.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. § 192; Dec. Dig. <@=>61(3).]</p> <p>><2=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Contempt <@=>74—Civil Actions—Proof of Damage.</p> <p>To warrant fine covering damages of plaintiff in civil contempt proceeding, the damages must be proved as in an action.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. § 257; Dec. Dig. <@=>74.]</p> <p>7. Contempt <@=>75—Civil Actions—Proof of Damage—Penalty.</p> <p>When no damages are proved in civil contempt proceeding, the fine must, under Judiciary Law (Consol. Laws, c. 80) § 773, be limited to $250 and plaintiff’s costs and expenses, and he may also be imprisoned, as provided by section 774.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. §§ 258-260; Dec. Dig. <@=>75.]</p> <p>8. Intoxicating Liquors <@=>279—Injunction—Contempt—Proof of Damage.</p> <p>Violation of judgment restraining sales of intoxicating liquors is a contempt, punishable under Judiciary Law, §§ 773, 774, even though damages to plaintiff in civil contempt proceedings are trivial.</p> <p>[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 414; Dec. Dig. <@=>279.]</p> <p>9. Contempt <@=>74—Civil Actions—Proof of Damage—Penalty.</p> <p>Although Judiciary Law, § 773, provides for allowance of costs and expenses of plaintiff in civil contempt proceeding, they cannot be allowed unless he makes proof thereof.</p> <p>[Ed. Note.—For other cases, see Contempt, Cent. Dig. § 257; Dec. Dig. <§=>74.]</p> <p><©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes*</p>

<p>Corporations <3=45—Name—“Aid”—“Benefit.”</p> <p>Under General Corporation Law (Consol. Laws, c. 23) § 6, as amended by Laws 1913, c. 24, providing that no corporation, except one formed under the banking or the insurance law, shall be organized with the word “benefit” as part of its name, the use of the word “aid” in the name is not allowable, as that would clearly lead the general public to believe that some “benefit” was to be derived from membership in the corporation.</p> <p>[Ed. Noto.—For other cases, see Corporations, Cent. Dig. §§ 130, 131; Dec. Dig. <3=45.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Aid; Benefit.]</p> <p><@£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by the Conrad Baking Company against Albert Kunkel. On motion to vacate an order of attachment. Denied.</p>

<p>Action by George W. Lewis and others against Alie Gordon. On motion to vacate temporary injunction. Denied, and injunction continued.</p>

<p>1. Action <@=38(1)—Joinder—Single or Separate Causes of Action.</p> <p>The complaint for false representations in making a contract and for breach of it contains two causes of action, as judgment in an action for the breach would not bar an action for the false representations.</p> <p>[Ed. Note.—For other eases, see Action, Cent. Dig. § 549; Dec. Dig. 0=38(1).]</p> <p>2. Pleading 0=369(1)—Joinder of Causes—Election.</p> <p>As a cause of action in tort may not be united in the same complaint with one on contract, plaintiff:, having in his complaint commingled the two causes, will be required to elect between them, and amend accordingly, and not to separately state and number them.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1199, 1200; Dec. Dig. 0=369(1).]</p> <p><@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p>

<p>On plaintiff’s motion for a reargument of the defendant’s appeal from a judgment of the municipal court, Borough of Manhattan, First District, in favor of plaintiff. Order reversing the judgment vacated, and judgment affirmed.</p>

<p>1. Brokers @=>82(2)—Action fob Commissions—Answer—Admission.</p> <p>In an action for a broker’s commissions, where the complaint alleged employment by the defendant under a written contract, that the broker procured a purchaser on terms satisfactory to the defendant, that a contract was entered into between the defendant and the purchaser, and that the defendant tendered the assignment of lease to the purchaser, who refused to accept it on the ground that the defendant’s lessor had only a life estate and could not lease for a fixed term, an answer, not denying the purchaser’s refusal to accept the assignment on such ground, but denying that the refusal was “solely” on that ground, admitted the fact that the purchaser refused to complete his contract because the defendant did not have title.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 102; Dec. Dig. @=>82(2); • Pleading, Cent. Dig. § 1334.]</p> <p>2. Brokers @=>61(1)—Right to Commission—Act of Principal.</p> <p>Where a sale is prevented because the seller does not have title, the broker is nevertheless entitled to his commission.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92; Dec. Dig. @=>61(1).]</p> <p>3. Brokers @=>82(4)—Action for Commission—Pleading.</p> <p>In a broker’s action for commission, an allegation that the purchaser was ready and willing to purchase, and proof thereof, is necessary only when no contract has been entered into between the purchaser and the seller. •.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 103; Dec. Dig, @=>82(4); Pleading, Cent. Dig. § 1334.]</p> <p>4. Pleading @=>349—Judgment on Pleading.</p> <p>On a complaint in an action for a commission, alleging that the broker found a purchaser, who refused to complete his contract because the defendant did not have title, where the answer admitted that the purchaser did make a contract with the defendant, the broker, without pleading or proving that the purchaser was ready and able to complete his contract, and even if it was not performed, was entitled to a judgment on the pleadings.</p> <p>[Ed. Note.—For other -cases, see Pleading, Cent. Dig. §§ 1067-1069; Dec. Dig. @=>349.]</p> <p><gz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Ceil iorari by the People of the State of New York, on the relation of the Astor Trust Company and the Atlantic Phosphate & Oil Corporation, to review a determination of the State Tax Commission in refusing to consider a mortgage as a supplemental mortgage. Determination confirmed.

<p>Action by Edgar Cassidy against Robert Cassidy and another. Demurrer to complaint overruled.</p>

<p>Catarina .Locatelli is prosecuted for sale of liquor. Defendant acquitted.</p>

Action by Max Radt against M. Harry Hirsh'and Samuel Mayers. From a judgment of the City Court in favor of the plaintiff, directed by the court after trial before a jury, the defendant Hirsh appeals. Reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Anna Doscher against Edgar Vanderbilt, as President of the Teachers’ Mutual Life Assurance Association. From a judgment for plaintiff for $540.41, defendant appeals. Affirmed.</p>

Action by Gustavus L. Lawrence against the Massachusetts Bonding & Insurance Company. From a judgment for defendant, dismissing the complaint on the merits, and from an order setting aside a verdict directed for plaintiff, plaintiff appeals. Reversed, and verdict reinstcitccl

<p>Application by Isabel W. G. Reed for mandamus to the National Order of the Daughters of Isabella and others. Granted.</p>

<p>Appeal from Special Term, Suffolk County.</p> <p>Mandamus by the People, on the relation of Clarence E. Dare, against I. Willetts Gardner. From an order granting the writ, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of Buffalo.</p> <p>Action by Clara K. O’Brien against Marcus B. Clement. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Judgment <§=338—Vacation—Authority oj? Court.</p> <p>Where a trial judge erred in directing a, verdict for defendant instead of dismissing, the complaint, plaintiff’s remedy was by appeal and not by motion before another justice sitting in Special Term to vacate the judgment and order a new trial, and the granting of such a motion was error.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 721; Dec. Dig. <§=338.]</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 Fred Marotta against Gaetano Marvullo. From an order imposing payment of full bill of costs as terms on opening of default, plaintiff appeals. Reversed.</p>

Proceeding supplementary to execution by Louis R. Frank against Frank Pennaccso. From an order of the City Court of the City of New York adjudging defendant judgment debtor in contempt, he appeals. Order reversed, with leave to renew the motion.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Albert Krause against Jacob S. Jarkow. From an order denying motion for bill of particulars, plaintiff appeals. Modified and affirmed.</p>

Action by the Baltimore Roofing & Asbestos Manufacturing Company against the Rubber Roofing Manufacturing Company, in which the defendant filed a counterclaim. From an interlocutory judgment for plaintiff, sustaining a demurrer to the counterclaim, defendant appeals. Affirmed.

Injunction by one Neal for himself and others similarly situated against one Hutcheson, president of the United Brotherhood of Carpenters and Joiners of America, and against such brotherhood. On motion to continue the temporary injunction pendente lite. Motion granted.

<p>Reference @=>8(3)—Long Account—When Proper.</p> <p>Although plaintiff claims to have served as attorney in three cases, covering two years, and his account comprises 70 items which defendants claim were not rendered lor all of them, but should be apportioned, there is no warrant for order of reference under Code Civ. Proc. § 1013, providing for reference of long accounts.</p> <p>[Ed. Note.—For other cases, see Reference, Cent. Dig. §§ 16, 17; Dec. Dig. @=>8(3).]</p> <p>(§^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

Action by Thomas Knipe against Margaret Wheel ehan. From an order permitting plaintiff’s attorney to continue the action, after mutual settlement by the parties, defendant appeals. Reversed.

Action by John J. and Adelaide Hughes against Joseph M. Eccles. From an order granting plaintiffs’ motion for judgment on the pleadings, defendant appeals. Reversed, and demurrer to complaint sustained, with leave to amend.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Joseph Danerhirsch and another against the Great Eastern Casualty Company. From an order denying motion for judgment on the pleadings, defendant appeals. Reversed, and motion granted.</p>

Action by Lewis Z. Harrison against Repetti. From an order setting aside a verdict in his favor and granting a new trial, plaintiff appeals. Order reversed, and verdict reinstated.

<p>Dismissal and Nonsuit <§»43(4)—Setting Aside.</p> <p>Where plaintiff’s counsel granted delay solicited by defendant under promises he did not fulfill, and defendant utilized the time to obtain dismissal for failure to prosecute, the dismissal should be set aside.</p> <p>[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 88; Dec. Dig. @=»43(4).]</p> <p>oiher 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 B. Wasserman Company against the Vaudeville Comedy Club and Gene Hughes. Judgment for plaintiff. From an order denying his motion to vacate order finding him guilty of contempt and imposing a fine, Hughes appeals. Reversed.</p>

Action by William Byers against the Flushovalve Company. On plaintiff’s motion for judgment on the pleadings. Motion denied, with leave to plaintiff to amend.

<p>1. Interpleader <@=8(1)—Riqht—Adverse Claims.</p> <p>An insurer standing ready to pay into court the sum admitted to be due on a certificate of insurance to the person legally entitled thereto, and showing that it was claimed by the beneficiary named in the certificates at the death of the insured, and by the insured’s heirs at law claiming that the change of beneficiary was void, was not required to establish the validity of the adverse claims, but simply to show that the amount was claimed adversely by the defendants, without collusion on its part, and hence was entitled to interplead, pay the amount into court, and to an order permanently staying all proceedings against it by the adverse claimants.</p> <p>[Ed. Note.—For other cases, see Interpleader, Cent. Dig. §§ 8, 11; Dec. Dig. <@=8(1).]</p> <p>2. Interpleader <@=10—Disputed Claims—Amount.</p> <p>In such action brought under Code Civ. Proc. § 820a, relating to a debt- or’s action of interpleader, where the real parties in interest were the defendants as between themselves, the fact that the plaintiff stated the amount involved to be $2,000, and that some of the defendants claimed that interest should be added, did not create such a dispute as to the amount as would require the court' to deny the interpleader.</p> <p>[Ed. Note.—For other eases, see Interpleader, Cent. Dig. § 12; Dec. Dig. <@=10.]</p> <p>.<§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Street Railroads <§=>98 (7)—Crossing Accident—Care.</p> <p>A traveler, who noticed that a, rapidly approaching car was about 30 feet from her when she was about 7 feet from the track, is guilty of contributory negligence, barring recovery for injuries from a collision, where she proceeded without further observation onto the track.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. § 207; Dec. Dig. <@=>98(7).]</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Robert J. Wildhack against the Cheltenham Advertising Agency, Incorporated. From a judgment of the City Court in favor of plaintiff, entered upon a verdict of a jury, defendant appeals. Reversed, and new trial granted.

Actions by Jack Strominger and by Sadie Strominger against the Bencken & Willenbrock Company, impleaded with Sam Rudow. From a judgment entered in the City Court on the verdict of a jury, and from an order denying a motion for a new trial, the defendant company appeals. Judgment and order reversed, and new trial ordered.

<p>Appeal and Ekbor @=>1015(3)—Reversal.</p> <p>An order granting new trial on the grounds that the verdict was against the weight of evidence, and evinced passion and prejudice, evoked, in the opinion of the justice, by subtle appeal to racial prejudice, while not proper on the last ground alone, that being a mere suspicion, will be affirmed if the evidence sustains the first ground.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3866; Dec. Dig. @=>1015(3).]</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>X. Appeal and Error <@=>1004(1)—Review—Verdict.</p> <p>While in court cases the assessment oí damages is peculiarly a question ior the jury and will not ordinarily be disturbed on appeal, nevertheless a verdict for purely nominal damages, in a passenger’s action ior the assault of the conductor upon him, will, where the passenger showed the infliction of considerable injuries necessitating the expenditure of more than $10 for medical services, be reversed on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3944, 3916; Dec. Dig. <@=»1004(1).]</p> <p>2. Carriers <@=>319(1)—Carriage op Passengers—Conductor.</p> <p>That a passenger on a street car was the aggressor in an altercation over his right to a transfer does not justify the conductor in assaulting him, and, where the conductor so assaulted him, substantial damages should be imposed.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1340; Dec. Dig. <@=>319(1).]</p> <p><g=>For other cases see same topic & KEY-NÜMB53R in all Key-Numbered Digests & Indexes</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Amelia Poole against Timothy F. Paddell. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.</p>

Action by Louis Weinberg against Isaac Altman, impleaded with Jacob Weinberg. From a judgment for plaintiff, defendant Altman appeals. Judgment reversed, and new trial ordered.

<p>Evidexob <3^=271(19)—Sblf-Sbbvinq Deolabations—Lettebs.</p> <p>In a broker’s action for commissions for having procured an assignee of a lease of premises occupied by the defendant, the plaintiffs’ letters addressed to the defendant and to the new lessee, containing self-serving declarations as to plaintiffs’ rights in the premises, that they were the sole authorized brokers, and as to their recognition by the defendant as such, were inadmissible.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1097-1099; Dec. Dig. <3=271(19).]</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Landlord and Tenant @=>233(3)—Action for Rent—Question fob Jury— Constructive Eviction.</p> <p>In an action for the rent of an apartment, wherein the defendant pleaded a constructive eviction by reason, of dampness on the walls causing the paper and decorations to peel off and become discolored and rendering the premises unsanitary and unfit for habitation, held, on the evidence, that the issue of constructive eviction was for the jury.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 942; Dec.' Dig. @=>233(3).]</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Julius Cohen against Max Dorf. From a judgment for plaintiff, and an order denying defendant’s motion for new trial, defendant appeals. Judgment reversed, and new trial ordered.

<p>Appeal from Municipal Court, Borough of Brooklyn, Second District.</p> <p>Action by Charles II. Spiess against Joseph Linde. Prom a judgment for-plaintiff, defendant appeals. Affirmed.</p>

<p>1. Assault and Batteby ©=>3—Requisites—Intent.</p> <p>An intent to do the injury is an essential element of a cause of action for assault and battery.</p> <p>[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 2; Dec. Dig. <®=3.J</p> <p>2. Assault and Battery <9=315—Defenses—Trespass.</p> <p>As against trespassers, one has the right to use such force as is reasonably necessary to eject them from the premises, and is only liable for the use of unnecessary force, and then only when malice, willfulness, or a specific intent on his part to injure is shown.</p> <p>[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. §§ 13-la ; Dec. Dig. <9=15.]</p> <p>©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Assault and Battery @=28—Evidence—Intent.</p> <p>In an action for assault, evidence for tide defendant that before he started to eject the plaintiffs he asked plaintiff’s wife to get her things together and pack them up, so that she would know where they were, as they were going to be put out, and that she asked him not to put them out, as they would get a house and move, and that he told her he did not believe her after the way she had lied about him, was admissible to show that defendant was acting in good faith, with honest motives, and without wrongful intent.</p> <p>[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 41; Dec. Dig. @=28.]</p> <p>4. Witnesses @=268(1)—Cross-Examination—Scope.</p> <p>In an action for assault and battery, where defendant brought out by a witness that the plaintiff’s wife ha.d lied about him in a trial wherein the jury had decided against him, as bearing on the issue of his motive and intent, and as stating the reason for ejecting plaintiff and his wife, the witness might be cross-examined about such matter.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 931, 938, 939; Dec. Dig. @=268(1).]</p> <p>@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Katherine A. Deane against Charles E. Stegherr. Verdict for defendant, and plaintiff moves to set it aside, and for an order granting new trial. Motion denied.

<p>Taxation <@=»895(6)—Inheritance Tax—Deduction—Dower.</p> <p>Where decedent bequeathed to his wife a sum of money, and devised his family mansion, stables, etc., to her for life and gave his residuary estate in trust for division into four equal parts, paying the income from one of such parts to his widow for life, and the income from the other three parts to his children, a power to his trustee to sell the realty or lease it for a term manifested an intention that she should not have dower in addition to the provisions made for her, so that there was no error in refusing to deduct the value of her dower from the assets of the estate in fixing the inheritance tax.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1719; Dec. Dig. <§=895(6).]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

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

Action by Agnes Connolly, as administratrix, etc., against Glausen-Flanagan Brewery. From a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals. Judgment and order reversed, and new trial ordered, unless plaintiff stipulates to reduce the verdict to $3,000, in which event the judgment, as so modified, and the order, affirmed.

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

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

<p>Appeal from Court of Special Sessions, New York County. Abraham Goldstein was convicted of the misdemeanor of violating Penal Law, § 2354, subd. 8, and he appeals. Reversed, and prisoner discharged from custody.</p>

<p>Motion to resettle order denied.</p>

<p>Award reversed, on the authority of Matter of Bargey v. Blassaro Macaroni Go., 218 N. Y. 410, 113 N. E'. 407.</p>

Action by Michael Sheriff against the ¿Etna Life Insurance Company. From a determination of the Appellate Term affirming a judgment of the Municipal Court, defendant appeals. Determination and judgment reversed, and complaint dismissed.