Volume 19 — Bedell

The nature of the action and' the facts, so far as material, are stated in the opinion. The letters “ S. B.” were a legal trade mark, and Mr. Smith had probable cause to believe that he had a good cause of action for the violation of it. (Brown on Trade Marks, §§ 84, 89, 212, 234, 235 ; Moet v. Pickering, L. R. [6 Ch. Div.] 770; Hall v. Barrows, 4 De G., J. & S. 150; Giron v. Gartner, 47 Fed. Rep. 467; Godillot v. A. G. Co., 71 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The construction of the will at bar claimed by plaintiff, viz., that the defendant took the estate of the testator, coupled with an obligation imposed upon her to pay plaintiff §300 per year, is the only proper construction thereof. (Phillips v. Phillips, 112 N. Y. 197; Collister v. Fassitt, 163 N. Y. 281; Taggart v. Murray, 53 N. Y. 236 ; Van Horn v. Campbell, 100 N. Y. 287; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The statute only requires a consent to the construction of a sidewalk, not a consent to pay for it. (Matter of N. Y. & B. Bridge, 72 N. Y. 527; People v. Hyde, 89 N. Y. 18; People v. Board of Supervisors, 103 N. Y. 541; David v. Supreme Lodge, etc., 165 N. Y. 167; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. In fixing the assessment district and thereby determining what portion of the city was deemed to be benefited by the improvement, the common council exercised a discretionary power, confided to them by the charter, which cannot he interfered with in this action unless they went upon a rule wrong in law.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court committed reversible error on the question of damages. (3 Am. & Eng. Ency. of Law, 391; Staples v. Staples, 85 Va. 76 ; Spiller v. Davidson, 4 La. Ann. 171; Nesbet v. Lawson, 1 Ga. 275; Palmer v. Ashley, 3 Ark. 75 ; Collier v. Pulliam, 13 Lea [Tenn.], 118; Hoover v. Shackleford, 23 Miss. 520 ; Sedg. on Dam. [8th ed.] § 814; F. Nat. Bank v. F. Wat.

The following are the material facts, which are set forth in an agreed statement by the parties, upon the submission of their ■ controversy to the Appellate Division, in the first department.

The nature of the action and the facts, so far as material, are stated in the opinion. The act of incorporation of the Catholic Mutual Benefit Association does not authorize the members thereof to name beneficiaries who are not relatives or dependents. (Sanger v. Rothschild, 50 Hun, 157; 123 N. Y. 577; Simon v. O’Brien, 87 Hun, 165 ; McCord v. McCord, 40 App. Div. 275; Di Messiah v. Gern, 10 Misc.

<p>1. Corporations—When Sale of Its Own Stock Is “Dividend On.” Separate resolutions of the board of directors of a corporation read together and held to establish a sale by the corporation of shares of its own stock which was purchased by it from the estate of a decedent and held in its treasury, and to constitute the declaration of a dividend upon the capital stock including such shares, which dividend attached thereto and upon their subsequent transfer passed to the vendees.</p> <p>2. Issued Stock. Stock issued by a corporation, repurchased and resold by it cannot be regarded as unissued stock.</p> <p>3. Recognition op Vendees’ Bights. The crediting of such dividend upon the books of the corporation to the vendees, which stood unchallenged for over a year and a half, and the subsequent declaration and payment of a dividend upon all of the shares, held to constitute a distinct recognition of the rights of such vendees, and to entitle them to their proportion of any subsequent distribution by the corporation, whether in the form of a declared dividend or of a division of profits, which could not be defeated by unauthorized changes in the books in an attempt to make tbe distribution relate back to a time prior to the delivery to them of their shares, which were claimed to have been transferred “ex-dividend.”</p>

This action was brought by the plaintiffs as riparian owners to obtain an injunction restraining the defendant, the Gran-ville Electric Light and Power Company, from continuing to pump from the Mettowee river a supply of water for the village of Granville under a contract whereby said company agreed to supply that village with such quantity of water as it should demand for a specified compensation.

The nature of the action and the facts, so far as material, are stated in the opinion. The payment by the indorsers, Dewey, ISTettleton and Phillips, of $811.46 on the note at different times did not pay the amount unpaid on this note. (Grey v. Barton, 55 N. Y. 68; Ryan v. Ward, 48 N. Y. 204; Redfield v. H. P. Ins. Co., 56 N. Y. 354; F. Ins. Assn. v. Wickham, 141 U. S. 564; Simons v. Supreme Council, 82 App. Div. 617; Shanley v. Koehler, 80 App.

<p>Partition — Infancy of Defendant Does Not Entitle Him to Reference of Issues of Fact Against Objection of a Party — Code Civ. Pro. §§ 1544, 1545. Issues of fact joined in an action of partition are triable by jury as a matter of right (Code Civ. Pro. § 1544) whether an infant is a party or not. Section 1545, providing that where a party has made default in appearing or pleading, ‘ ‘ or where a party is an infant the court must ascertain * * * by a reference or otherwise,” refers only to defaults, including the case of an infant defendant who has served a formal answer which raises no issue, which is a practical default, and gives him no right to insist upon a reference against the objection of one of the parties who is an adult.</p>

The nature of .the action and the facts, so far as material, are stated in the opinion. The Labor Law has no application to the facts of this case. (L. 1897, ch. 415 ; Conley v. L. I. & S. Co., 94 App. Div. 149 Rotondo v. Smyth, 92 App. Div. 153; Stewart v. Ferguson, 164 N. Y. 553; Holloway v. McWilliams, 97 App. Div. 360; Jenks v. Thompson, 179 N. Y. 20.) This action properly comes within the scope of the Labor Law.

<p>1. Appeal — When Appellate Court Has Power to Award Final Judgment. To justify an appellate court in awarding final judgment it must appear that the facts upon which the right of recovery rests are undisputed and cannot be varied upon another trial, or that tlie)r are established by official records, or that they have been specifically found by the jury or trial court.</p> <p>2. Appeal—Erroneous Modification of Judgment by Appellate Division. Where in an action brought against the former directors and officers of a corporation, dissolved for insolvency, to indemnify the plaintiff for money invested by him in the stock of the corporation, the plaintiff claiming that the investment was induced by false and fraudulent representa tions of the defendants, the trial court decided in favor of all of the defendants except the manager of the company, whom it found guilty of fraud as charged in the complaint, but found that the plaintiff suffered nominal damages only, whereupon judgment was entered against the manager for six cents without costs and in favor of the other defendants with costs, and the plaintiff appealed therefrom, the Appellate División lias no power to modify such judgment so as to direct that the plaintiff should recover from the manager the amount invested with interest thereon; on the facts found by the trial court the plaintiff was not entitled to the judgment awarded by the Appellate Division, since that court found that the plaintiff was entitled to nominal damages only, and “fraud without resulting in pecuniary damages is not a ground for the exercise of remedial jurisdiction'in equity.”</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 16, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>There is a fatal variance between plaintiff’s allegations and its proofs. (Hawley v. Upton, 102 U. S. 314.) Plaintiff failed in proof essential to make out a cause of action. (Hawley v. Upton, 102 U. S. 314.) The subscription agreement is without consideration in its support so far as this defendant is concerned. It lacks the essential element of mutuality. It is worthless, ineffective, of no legal effect, and insufficient in law to create any obligation from defendant to plaintiff. (E, etc., Co. v. Owen, 32 Barb. 625; S. B. G. Co. v. Bain, 9 Misc. Rep. 425; .Clark on Corp. 267; Hamilton College v. Stewart, 1 N. Y. 581; T., etc., Co. v. Tibbetts, 18 Barb. 297; Dorris v. Sweeney, 64 Barb. 636; E. P. R. Co. v. Vaughan, 14 N. Y. 546; L. O., etc., R. R. Co. v. Curtiss, 80 N. Y. 220 ; B., etc., Co. v. Clark, 22 Hun, 359; 87 N. Y. 295; Yonkers Co. v. Taylor, 30 App. Div. 334.) Subscription agreements, like the one in suit, are not recognized by our statutes, are void as contrary to public policy, and have been condemned by our courts. (Matter of Rochester R. R. Co., 50 Hun, 29; G. E. Co. v. Wightmore, 3 App. Div. 118.)</p> <p>The unanimous decision of the Appellate Division that there is evidence supporting or tending to sustain the findings of fact made by the trial court cannot be reviewed in this court. (Const. N. Y. art. 6, § 9; Code Civ. Pro. § 191, subd. 4.) The alleged variance between the plaintiff’s allegations and its proofs is utterly immaterial. (Cook on Corp. [5th ed.] § 75 ; Thompson on Corp. §§ 1175, 1178.) The plaintiff was under no obligation to tender to the defendant the stock for which he had subscribed prior to instituting this action to recover the amount of the defendant’s subscription on his refusal to pay the same. (Kohlmetz v. Calkins, 16 App. Div. 518; Beals v. B. C. Co., 49 App. Div. 589 ; Cook on Corp. [5th ed.] § 192; Morawetz on Priv. Corp. §§ 56, 61, 148 ; Thompson on Corp. § 1902.) The evidence is uncontradicted that the plaintiff corporation was organized pursuant to, in reliance on, and in accordance with, the subscription agreement which the defendant signed. (Y. G. Co. v. Taylor, 30 App. Div. 334; Thompson on Corp. §§ 1274, 1283.) The fact that the defendant did not subscribe to the plaintiff’s certificate of incorporation, and the further fact that his name was not inserted in said certificate as a subscriber, while, perhaps, some evidence that the plaintiff’s incorporators had not recognized his subscription, are in no manner probative of an election on the part of the corporation to accept or reject his subscription because the corporation was not in existence when the certificate was drawn. In this case the evidence is, in any event, nullified by the uncontradicted proof that, immediately after the incorporation of the plaintiff, its board of directors, on the first call for the payment of preliminary stock subscriptions, made demand upon the defendant for the payment of his said subscription. (7. G. Co. v. Taylor, 30 App. Div. 334; Thompson on Corp. § 1170 ; Cook on Corp. [5th ed.] 216, § 72; R. U. Seminary v. McDonald, 34 N. Y. 379 ; Martin v. R. M. Co., 95 App. Div. 18; Oldham v. M. S., etc., Co., 103 Ky. 529; S. J. M. Co. v. Munger, 106 Mich. 90.) The subscription by the defendant to the plaintiff’s capital stock was absolute and unconditional. It constituted a continuing offer until the plaintiff became incorporated. The plaintiff’s acceptance made the offer irrevocable, and fixed the defendant’s liability without proof of consideration other than the plaintiff’s incorporation. (U. G. Co. v. Eisner, 22 App. Div. 1; Cook on Corp. [5th ed.], §§ 71, 75, 172, 175; Morawetz on Corp. §§ 50, 72, 133; Y. G. Co. v. Taylor, 30 App. Div. 334; 2 Clark & Marshall on Priv. Corp. §§ 437, 442; Thompson on Corp. 920, 922, 923, §§ 1165, 1170; R. & K. F. L. Co. v. Roe, 7 App. Div. 366; Raegener v. Brockway, 58 App. Div. 166; Stoddard v. Lum, 159 N. Y. 265 ; B. & J. R. R. Co. v. Gifford, 87 N. Y. 294; Dayton v. Borst, 31 N. Y. 435; B. & P. R. R. Co. v. Hatch, 20 N. Y. 157; B., etc., R. R. Co. v. Dudley, 14 N. Y. 336; Sagory v. Du Bois, 3 Sandf. Ch. 466 ; Spear v. Crawford, 14 Wend. 20.)</p>

The nature of the action and the facts, so far as material, are stated iii the opinion. The judgment of the Special Term having been affirmed by a unanimous Appellate Division, two questions at least are open for review in this court. First. Whether there was any legal error in the admission and rejection of evidence on the trial. Second.

The nature of the. action and the facts, so far as. material, are stated in the opinion. There is no evidence to support the alleged agreement to the effect that if the plaintiff procured a loan of the sum of $5,000, which could be used for the purpose of completing the repair of and rebuilding the vessel, the defendant William H. Strong would convey and set over unto the said plaintiff, William L. Misner, an undivided one-third interest in the said vessel.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial judge erred in directing a verdict for the plaintiff, because: The presumption of law was that the trunk was not opened while in the defendant’s custody; and that fact was positively proved. (Smith v. N. Y. C. R. R. Co., 43 Barb. 225; Springer v. Westcott, 2 App. Div. 295 ; Fasshender v. W. T. Co., 26 N. Y. S. R. 112; Strong v. L. I. R. R. Co., 91 App.

The nature of the action and the facts, so far as material, are stated in the opinion. There is no evidence that accelerating the motion of the car either caused or contributed to this accident.

<p>Principal and Agent—When Agent’s Failure to Obey Instructions as to Property Pledged to It by Principal Does Hot Create Liability as por a Conversion But Only for the Resulting Damages. Where a trust company to which certain promissory notes of a third party and mortgages given as collateral thereto had been pledged and which had been instructed by the pledgor to foreclose the mortgages and “bid in the property for somewhere near its present value and take judgment against the makers of the notes for any deficiency there may be,” instead of following instructions, bids in the property at the full face value of the securities with interest and costs thereon, which was much more than the value of the land, thus releasing the makers from any liability for deficiency, it is liable, not as for a conversion of the securities, but only for the difference between the value of the land and the amount bid for the same.</p>

The action is based upon alleged negligence resulting in personal injuries. On the loth of January, 1901, the plaintiff, a steamfitter forty-eight years of age, and employed by the defendant, sustained the injuries complained of. He had been directed by the foreman of the defendant to .take down a line of pipe which ran along and near the- ceiling of one of the rooms in the defendant’s factory.

The nature of the action and the facts, so far as material, are stated in the opinion. The property was not impressed with a trust at the time of its purchase by plaintiff’s father. (Schierloh v. Schierloh, 148 N. Y. 103; Storm, v. McGrover, 70 App. Div. 39; Wheeler v. Reynolds, 66 N. Y. 227; Goldsmith v. Goldsmith, 145 N. Y. 313; McClellan v. Grant, 83 App. Div. 599; Lamb v. Lamb, 18 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence does “conclusively establish” that the agreement under which the plaintiff seeks to. recover was a wager contract and void, and that a nonsuit should have been granted. (Embrey v. Jemison; 131 U. S. 336.) The transactions detailed by plaintiff were absolutely void.

<p>1. Mubdeb—Insanity as Defense—Sufficiency of Evidence to War-</p> <p>bant Conviction.</p> <p>The evidence upon the trial of an indictment for murder in which insanity was interposed as a defense reviewed, and held sufficient to sustain a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>2. Besponsibility fob Cbime.</p> <p>Whatever may be the opinions of medical experts as to the insanity of a person charged with crime, but one test of responsibility is known to the law, and that is found in section. 21 of the Penal Code; and when the evidence adduped upon the trial affords little reason to doubt that the defendant both knew the nature and quality of the act done by him and that the act was wrong, the jury is justified in holding him responsible whatever may have been his eccentricity of conduct, or however abnormal his disposition.</p> <p>3. When Admission of Opinion of Lay Witness as to Rationality of Acts of Defendant Not Observed by Him, Although Erroneous, Does Not Justify Reversal of Judgment of Conviction—Code Or. Pro. § 542.</p> <p>Where a lay witness who has observed certain acts and conduct of the defendant is called by the defense to testify to them, but is not asked to express any opinion as to their character, it is erroneous to permit the prosecution, against objection and exception, to show by the witness that other acts, not observed by him but stated in hypothetical questions, were rational. The error, however, is insufficient to justify a reversal of the judgment of conviction where such testimony is not altogether prejudicial to the defendant and no substantial weight could have been accorded by the jury to the answers of the witness, himself a prisoner.</p>

The facts, so far as material, are stated in the opinion. No separate assessments having been made, so far as is disclosed by the tax rolls, of the relator’s vaults, they must, as a matter of law, be deemed to have been included in the assessments of the several parcels of real estate to which they were respectively affixed. (Smith v. Mayor, etc., 68 N. Y. 552; People ex rel. v. Cassity, 46 N. Y. 46; Matter of A. & B. Turnpike, 94 App.

The facts, so far as material, are stated in the opinion. Section 896 of the New York city charter, as amended (L. 1901, ch. 466), authorizing the board of taxes and assessments to increase the assessed valuation of real and personal property, is unconstitutional in that it fails to provide for giving notice to persons affected by such increase and affording them an opportunity to be heard before the assessment becomes conclusive against them.

This action was brought to establish and enforce a legacy as a lien upon real estate and on the trial the following facts appeared: Henry Weatherwax, a resident of the county of Rensselaer, died on the 8th of May, 1868, leaving a will which was dated March 14th, 1863, and was admitted to probate on the 3rd of September, 1868. He left a widow and three children, a son, Charles, now deceased, and two daughters, the plaintiff Clarissa and the defendant- Emily.

This action was brought to recover one-half of the amount collected by the defendant upon certain checks, drawn to the order of the plaintiff and his brother jointly, the said brother having, without the knowledge of the plaintiff, received the checks, indorsed them in the name of himself and the plaintiff, and deposited them to the credit of his individual account with the defendant bank, thereafter drawing out the proceeds.

Appeals, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 18, 1905, which modified an order of Special Term permitting the assessors of the city of Rochester to intervene, be made parties to, and serve an answer in a proceeding by certiorari, by substituting an order directing that the writ granted be amended by directing that it run to said assessors as well as to the original parties and that they…

<p>New York City — When Charges “Pending” Are Insufficient to Prevent the Retirement of a Police Officer on a Pension. Whatever may be the nature or form of the charges which will prevent the retirement on a pension of a member of the police force of the city of New York, who isa veteran, has served twenty years and has made application therefor under section 355 of the charter (L. 1901, ch. 466) providing that he must be relieved if “there are no charges against him pending,” an anonymous communication, containing no statement of an act, default or neglect upon his part which would constitute a breach of duty, although certain statements were made therein which by argument or inference might reflect upon him as a public officer, in the possession of the commissioner two weeks before the application for íetirement was filed and upon which no charges were formulated, cannot be regarded as a charge “pending ;” and the subsequent formulation of charges, his trial thereon and removal, cannot affect his status as a retired member of the force.</p>

<p>Rochester (City of) — Condemnation of Land for Municipal Purposes— When Property Owner Who Has Accepted Award and Conveyed the Premises May Thereafter Recover the Costs of the Proceeding. The statute entitled, “ An act for the government of cities of the second class ” (L. 1898, ch. 182, § 149, as amd. by L. 1899, ch. 581, § 16), provides that whenever any real estate shall be required for any municipal purpose it may be acquired “by condemnation proceedings conducted under the laws prescribing the method of procedure of acquiring title to real estate by the right of eminent domain in force in the several cities respectively at the timé of the taking effect of this act and, where the charter in force in the city of Rochester at that time (L. 1880, ch. 14, as amd. by L. 1897, ch. 784), provided in section 162 that title to lands, waters and property might he acquired by that city in the manner prescribed by the Condemnation Law (Code Civ. Pro. §§ 3357-3384), a property owner whose lands have been condemned in a proceeding instituted by the city under that law and who has accepted the award made therein and conveyed the land to the city upon the payment of the award, but reserving all rights as to costs and allowances, is entitled, under section 3372, to recover from the city the costs of the proceeding to be taxed as therein provided.</p>

The relator is a corporation organized under the laws of the state of New Jersey, and the objects for which it was formed, as stated in its articles of incorporation, are “ to acquire by purchase, lease, exchange' or otherwise, lands or any interest therein, or any rights, easements or privileges appertaining thereto; to erect a,nd construct buildings or structures of every description on any lands of the corporation, or to rebuild, enlarge, alter and improve structures, and…

d electricity in the city of New York. - The averments of the petition show, in substance, that on August 31st, 1904, the petitioner was a clerk in the department of water supply, gas and electricity at a salary of $2,700 a year.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 30, 1904, affirming a judgment entered upon the report of a referee, in an action of ejectment.

The following .statutes are involved : Laws of 1831 (chapter 291, page 366), entitled “An act to consolidate and amend the charter of the village of Watertown.” Section thirteen provides: “ The firemen and hook and ladder men shall be exempt from service on juries in courts of record and in the militia, except in case of war, invasion or insurrection.” Laws of 1850 (chapter 322, page 688), entitled “An act to incorporate the fire department of the village of Watertown.”…

The order below was made by Cochrane, J., and was entered in the office of the clerk of Albany county upon Dec. 28, 1904.

This proceeding was instituted by the relator, the County of Essex, to compel the state comptroller to credit it with the :sum of $58,423.52, which it claimed under the provisions of •chapter 515, L. 1901, providing for the restoration to various counties, including the relator, of moneys lost by reason of the exemption from taxation of certain lands owned by railroads situated therein.

The nature of the action and the facts, so far as material, ■are stated in the opinion. The statutory duty of the defendant was to erect and maintain fences on the sides of its road with farm crossings and openings, with gates therein at such farm crossings whenever and wherever reasonably necessary for the use of the owners and occupants of adjoining lands. When made and in good repair the railroad company is not liable for any damages unless negligently or willfully done.

<p>1. Married Women—When Earnings Belong to Wife. Under the acts relating to the rights of married women (L. 1860, ch. 90, § 2; L. 1884, ch. 381, § 1) the earnings of the wife from services rendered to a third party, distinct from the common-law duties she owes her husband in the marital relation, in this case as a nurse or attendant, belong to the wife, and she, and not he, is entitled to recover therefor.</p> <p>2. Evidence as to Election to Labor on Her Own Account. The fact that a married woman enters upon an independent employment which she pursues openly for six years, without protest or interference from her husband, shows a sufficient election on her part to labor on her own account and thereby entitle herself to her earnings.</p> <p>3. Presumption as to Earnings. Section 30 of chapter 289 of the Laws of 1902, an act to amend the Domestic Relations Law in relation to a married woman’s right of action for wages, etc., was not passed to overcome any common-law presumption that, notwithstanding the passage of the Married Women’s Acts, the services of the wife belonged to her husband, but to make clear the principle which is to be found in many of the decisions construing these statutes in the interest of married women.and providing a presumption in their favor.</p>

The facts, so far as material, are stated in the opinion. There is no evidence that the appellants Benz and Powers knew the terms and provisions of the order appealed from. (Bradbury v. Bliss, 23 App. Div, 606; Davis v. Davis, 83 Hun, 500; Goldie v. Goldie, 77 App. Div. 12.) Benz and Powers were each adjudged guilty of a criminal contempt of court.

The nature of the action and the facts, so far as material, are stated in the opinion. In an action upon a negotiable instrument, as in all other actions, the burden of proving a consideration remains at all stages of the case with the plaintiff.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in excluding the letters written by plaintiff’s co-lessor to the defendant in 1889. (Chadwick v. Fonner, 69 N. Y. 404; Lyon v. Ridker, 141 N. Y. 225; Pitts v. Wilder, 1 N. Y. 525; Leary v. Corvin, 63 App. Div. 151; McClelland v. Grant, 116 N. Y. Supp. 208; Ward v. Hoag, 78 App. Div. 510; Hanlon v. Ehrich, 80 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 11, 1901, which modified and affirmed as modified a decree of the New York County Surrogate’s Court settling the accounts of the executors and trustees herein and directing distribution of the trust fund.</p>

<p>1. Action to Charge Lands with Payment op Legacies. Iu an action to charge the payment oí legacies upon lands which had been sold in various parcels to various defendants by the executrix, who applied the consideration to her own use and thereafter became insolvent, a judgment providing for contribution among several defendants pro rata without any regard to the time when they purchased the several parcels, held to be erroneous and that the lien of the legacies should be enforced upon the specific parcels in the inverse order of alienation.</p> <p>2. Interest. Two of the legacies involved not being due, held that, if paid in advance, proper deduction should be made for interest on account of payment before they became due.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 5,1904, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for •a new trial and granted a new trial.</p>