Volume 38 — New York Supplement

<p>Motion by defendant for reargument or leave to appeal.</p>

Action by John Stewart against Simon Arendt. A judgment for defendant was affirmed without written opinion. Plaintiff moves for reargument or for leave to appeal to the appellate division.

<p>Motion for reargument, or for leave to appeal to the appellate division.</p>

Action by William E. Uptegrove and another against the Central Railroad of New Jersey. From a judgment (35 N. Y. Supp. 1118) affirming a judgment in favor of plaintiffs, defendant moves for leave to appeal to the appellate division.

<p>Appeal from special term, New York county.</p> <p>Action by the Clinical Instruction Company against the New York Elevated Railroad Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Fourth district court.</p> <p>Action by Thomas R. Egan against Cevelia Vera Kieferdorf. From a judgment for plaintiff, defendant appeals.</p>

Action of partition by Louise J. Bernhardt against Charles Kurz and others. Plaintiff moves to compel John C. Klatzel to complete his purchase of certain premises sold under the decree.

<p>1. Administrator—Contract to Release Mortgage.</p> <p>A contract by an administrator to release, for a valuable consideration, a mortgage executed to his intestate, is binding on the estate.</p> <p>2. Mortgage—Conveyance op Premises—Release op Mortgagor.</p> <p>In an action hy an administratrix to foreclose a mortgage, in support of a defense of a release defendant and his wife testified that plaintiff’s co-administrator (who became insane shortly before the action was commenced), 20 years before, orally agreed to release defendant if he conveyed the premises to his comortgagor, and that he consequently conveyed the premises. It also appeared that defendant and wife, on hearing that plaintiff was going to foreclose, told her of the agreement, and demanded a written release; that plaintiff’s coadministrator, then sane, came in during the conversation; that plaintiff did not, at this meeting, deny the release, and refused a written release only because her son, who attended to her business, was away. Keld, that an executed release, and not an executory contract to release, was shown.</p> <p>8. Principal and Surety—Change op Rate op Interest—Release op Surety.</p> <p>An oral agreement by a mortgagee, made before maturity of the mortgage, with the mortgagor’s grantee, without consideration, to accept a less sum than the rate of interest specified in the mortgage, and the acceptance of interest at the lower rate, will not release a surety on the mortgage bond.</p>

Application by James Freel for peremptory writ of mandamus to compel the comptroller of the city of Brooklyn to draw a warrant in payment for work done and material furnished under contract.

<p>Lunatic—Appointment of Guardian—Practice.</p> <p>In a proceeding for the appointment of a guardian for an alleged lunatic, who has not been judicially declared such, the proper practice is to apply to the court for an order under Code Civ. Proc. § 427, designating a person on whom service shall be made in addition to the defendant himself, and the order may require such person to appear, and protect the interest of the lunatic. There is no provision in such cases for the appointment of a guardian ad litem.</p>

<p>Action by one Hubbard against the Jaeger Electric Lamp Company. The property of defendant was sold on execution.</p>

Action by Frank A. Munsey & Co. against the Tadella Pen Company on a contract. Plaintiff demurs to the answer upon the ground that it did not state facts sufficient to constitute a cause of defense.

Certiorari by Joseph B. Bloomingdale and othei-s, to review the action of the excise commissioners in refusing to grant a liquor license.

<p>Certiorari by John Schomaker to review the action of the board of excise in refusing a license.</p>

Action by Maria L. Winterson against Hector M. Hitchings, in which there was a judgment in favor of plaintiff for certain costs. Defendant moves to set off such judgment against a judgment against plaintiff rendered in another action, and assigned to defendant.

<p>Action by James Garvey, as receiver, against the United States Horse & Cattle Show Society. Complaint dismissed.</p>

In the matter of the Atlas Iron Construction Company, certain creditors of the company moved to vacate an order appointing a receiver.

<p>Action by Edward M. Muller against the Scandinavian & Finlanders’ Emigrant Company, Limited, and others, to set aside an assignment for the benefit of creditors. Judgment for plaintiff. Another creditor then moved for a reargument, and to set aside the judgment for want of consideration. -</p>

Action by one Hopper against Ersler and others. Judgment for costs for defendant on appeal to the general term. . Thereafter plaintiff recovered judgment, and moved to set off a judgment for costs against the second judgment. The judgment for costs had in the meantime been signed.

Certiorari by the people on the relation of Connolly against Murray and others, constituting the board of excise, to compel said board to grant a liquor license.

Action by Joseph Hannegan against the Union Warehouse Companjr and others to recover for personal injuries received while working as a laborer by reason of the breaking of hoisting apparatus-while unloading a vessel. Judgment for plaintiff, and defendants, appeal.

Appraisal of the property of John F. Houdayer, deceased, for taxation under the transfer act. From an affirmance by the surrogate court of an order fixing and imposing a tax, the administrator appeals.

Petition by William A. Street and others, executors of the estate of George Morgan, deceased, for an appraisal of testator’s property. From a judgment affirming an order of the surrogate’s court fixing the assessment of such estate, the executors appeal.

Proceeding for the voluntary dissolution of the Electric Power Company of Staten Island, by certain creditors of the corporation, from that part of the order dissolving the corporation which provides for the cancellation of the bonds of the Richmond Light, Heat & Power Company to the amount of §03,700, now held by the receiver.

<p>General decision in reference to review of refusal of license by ■excise board.</p>

Action by Henrich Haase against William T. Levering. An attachment issued, under which the sheriff levied on certain goods of defendant. .The attachment was thereafter discharged by undertaking. Defendant moved to release the sheriff’s lien for poundage.

<p>Costs—Additional Allowance.</p> <p>Where judgment for defendant works a great hardship to plaintiffs, in the discretion of the court, no additional allowance will he granted.</p>

Action by Adelbert P. Little against Alfred W. Gallus and others to restrain defendants from using or disclosing secrets of trade or manufacture which belonged to plaintiff, and which defendants Gallus and Bostwick became possessed of while in his employ. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from circuit court, Warren county.</p> <p>Action by Lula Anthony, by 'Jacob Anthony, guardian ad litem, against the village of Glens Falls. From a, judgment for plaintiff, defendant appeals.</p>

<p>Application in the matter of the estate of Patrick M. Doran, by an alleged creditor of the estate, to compel an accounting by the administrators.</p>

<p>Banks and Banking—Acts of Officer.</p> <p>Plaintiff, then an unmarried woman, having a deposit in a bank, on leaving for Europe, to be absent a year, signed checks in blank, and left them with the cashier, who was also manager of the bank, to be used as she' might thereafter direct. The following year she returned, and later married, changing her name. Afterwards the cashier filled out one of the checks, though it was not charged to plaintiff’s account on her book. Held, that the bank could not charge plaintiff with the amount of the check.</p> <p>The defendant is a savings bank organized and existing under the laws of this state, and carrying on the ordinary business of a savings bank at the city of Buffalo. Prior to September, 1892, it transacted business under the name of The National Savings Bank of Buffalo. From the year 1SG8 until the commencement of this action, the plaintiff had been a depositor in, and had had large financial transactions with, the bank. During all that time, and up to the latter part of June, 1892, one Edward S. Dann was the secretary and treasurer and the general financial manager of the bank. ■ Upon the 17th day of. June, 1892, the plaintiff’s husband took the sum of $10,075-in currency, which had that morning been paid in upon a mortgage, to the-bank, and left it with Mr. Dann. He did not have his wife’s pass book with him at the time of leaving the money, and it appears that Mr. Dann, after-counting the same, made a package of it, and placed it in the bank vault, instead of mingling it with the other funds of the bank. Upon the following Monday, the 20th of June, the state bank examiners having instituted an examination of the bank, discovered that Dann had been, for many years, appropriating the moneys of the bank, and that, to a considerable extent, he-had used the plaintiff’s account to conceal his fraudulent transactions. Soon after the discovery was made the bank vault was opened, and it was then found that the money left by the plaintiff’s husband the Friday previous had been appropriated, and in its place was substituted a slip, in Dann’s handwriting, which read as follows: “June 17, 1892. $10,075 belongs to Mary E. Daniels, put in for mortgage, per Judge Daniels.” After the defalcation of Dann was discovered, and criminal prose’cution had been threatened, he restored $10,000 of the money abstracted by him. Upon further examination of the affairs of the bank a check was discovered which bore the signature of the plaintiff, and was dated the 16th day of April, 1879, for the sum of $4,000. This check had not been charged against the plaintiff upon her pass book, although a lead-pencil entry thereof had been made, under the-date of April 16, 1$79¡ .by Mr. Dann. This action was brought for the purpose, among other things, of compelling the defendant to credit the plaintiff with the sum of $10,075 as a deposit of that amount; and the defendant, on the-other hand, sought to charge the plaintiff with the $4,000 check. The trial court found that the $10,075 was left by the plaintiff’s husband at the bank by way of deposit, and that the bank should be charged with the same, and it also refused to charge the plaintiff with the $4,000 check.</p>

Action by the Jefferson County National Bank against Margaret A. Townley and Hugh C. Townley, impleaded with the Eureka Chemical Company, to set aside certain judgments obtained by defendant Mary A. Townley against the Eureka Chemical Company. There was a judgment in favor of plaintiff, and defendants appeal.

Action by John I. Blair against George Hagemeyer and others. From an order making an assignee for creditors of defendants Hagemeyer a defendant, plaintiff appeals.

Bastardy proceedings against Charles Tripicersky. Complainant, Anna Simanck, testified that she had intercourse with defendant from September up to the end of December, 1894, and that from September, 1894, until the birth of her child, on July 30, 1895, she did not have intercourse with any other man. Defendant was adjudged to be the father of complainant’s child, and appeals.

<p>Appeal from special term, New York county.</p> <p>Action by James F. Gfuilfoyle against Catherine C. Pierce. From a judgment in favor of defendant, plaintiff appeals.</p>

Action by Ambrose P. Hullar, as assignee, etc., against Mary T. Wynne, for work, labor, and services rendered by plaintiff’s assignor, Dora Schwartz, at the request of defendant. From a judgment in favor of plaintiff for $82.50 and costs, defendant appeals.

Action by Amandus H. Cruse against Robert G-. Findlay for work, labor, and services, and materials furnished. From a judgment in favor of plaintiff, defendant appeals.

<p>Appeal from justice court.</p> <p>Action by John E. Standring, as overseer of the poor, against John Moore and Philip Frederick, on an undertaking given by defendants,, as sureties for one Charles Moore, the putative father of a bastard. Judgment was rendered in favor of plaintiff for $64.88 and costs, and, defendants appeal.</p>

Action by John L. Harris against David Gregg, as committee of the estate of Amasa N. Gregg, an incompetent person. From an order granting a motion for a new trial after a judgment in favor of defendant, defendant appeals.

Action by Elias C. Benedict and others, as executors of Edwin Booth, deceased, against George T. Arnoux, and Joseph Campbell, Emma Campbell, and Martha Campbell, as executors of .William Campbell, deceased, and Hannah Campbell and others, to foreclose a mortgage. Before the time to answer had expired an extension of time was obtained from plaintiffs’ attorney by Niles & Johnson, as attorneys for defendant Hannah Campbell.

Action by Adele W. Leach against Friend C. Haight and others to recover damages for the conversion of money. From an order directing an inspection and discovery of certain books of account, defendants appeal. Plaintiff’s petition for the discovery is as follows:

Action by Benjamin Dreyer against John H. Meyer and Henry ' Meyer for balance due for work. From a judgment affirming a judgment in favor of plaintiff, recovered before a justice of the peace, defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Bell’s Asbestos Company against the H. W. Johns Manufacturing Company. From an order directing service of a bill of particulars, plaintiff appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by R. H. Macy & Go. to compel the granting of a storekeeper’s license. The writ was quashed, and relator appeals.</p>

Action by Frank E. Wheeler against Henry S. Mowers to recover an installment of $100 alleged to be due plaintiff on a hot-water heater placed in defendant’s house by plaintiff under a written^ contract. A verdict was rendered in favor of defendant, and plaintiff moves to set the verdict aside, and for a new trial.

Application to strike the name of John Griffiths from the register list of voters of the Second election district in the Eleventh ward of the city of Utica, on the ground that said Griffiths was an inmate of the Home for Aged Men, supported wholly or partly by charity, and that he came to said home from some place without the election district, and therefore has not gained a residence.

Application by Richard Gilloren for correction of assessments and taxation, and refunding of illegal assessments and taxation, on the ground that the property on which petitioner paid said taxes was exempt from taxation, having been purchased with pension money.

Proceeding -to punish J. Soley Cole for contempt in refusing to answer questions put to him by a committee of the common council of the city of Útica appointed under a resolution to look over the bills from various city departments.

Action by Fred Newman against William Woodcock and others. Issue was joined May 4, 1895. The cause was then adjourned till May 11th, on which day plaintiff asked for a further adjournment, which was granted, over defendants’ objection, on condition that plaintiff pay defendants’ witness fees. Judgment was rendered in. favor of plaintiff, and defendants appeal.

Christian Hildebrandt, in a court of special sessions, was convicted of a violation of the regulations of the board of health of the town of Newtown, and from a judgment on the verdict appeals.

<p>Witness—Examination op Plaintiff by Dependant.</p> <p>Where a complaint alleged the employment oí plaintiff by defendant for a definite period, and the answer denied this, and plaintiff, testifying for himself, stated no time for which he was employed, an'd defendant testified that he made no contract for a definite period, defendant should have been allowed to ask plaintiff, when he was called in rebuttal and denied several matters testified to by defendant, to state the period of tijae for which he was to be employed.</p>

Action by Walter A. S. Chrimes against William C. Squier to set aside a mortgage on the ground that the mortgagor’s signature was forged, and the mortgage a cloud on plaintiff’s title. From a judgment dismissing the complaint, plaintiff appeals. The opinion of Mr. Justice PATTERSON at special term is as follows:

Action by Babette Welker and others against the New York Elevated Railroad Company and another to recover damages for construction and operation of defendants’ elevated railroad in front of plaintiffs’ premises, No. 1297 Third avenue, and for an injunction. There was a judgment in favor of plaintiffs, and defendants appeal.

Judicial settlement of the accounts of John McNeany, as administrator of the estate of Patrick McNeany, deceased. From a decree finally settling the account of the administrator, and directing distribution of the balance of the estate in his hands, the administrator appeals.

<p>Action by Honora Bolster against the mayor, etc., of the city of New York. J. B. Hands, for appellant. T. Connoly, for respondent.</p>

<p>Action by Max Bamberger against the Manhattan Railway Company. W. W. Badger, for appellant. Davies, Short & Townsend, for respondent</p>

<p>Action by Patrick H. Fay against the Manhattan Railway Company and another. Brainard Tolies, for appellants. E. W. Tyler, for respondent.</p>

<p>Action by Margaret Fifer, as administratrix, etc., against the Prudential Insurance Company of America.</p>

<p>Action by Charles S. Hat-, stead against Sarah B. Halstead.</p>

<p>Action by Eleanor Flynn against the Kings County Elevated Railway Company.</p>

<p>Action by Wilhelm Recke against the Manhattan Railway Co. W. "W. Badger, for appellant. Davies, Short & Townsend, for respondent.</p>

<p>Action by Erwin Stemback against Louise Diepenbrock.</p>

Proceeding to appraise the estate of John Turk deceased, under the transfer tax act. W. W. Niles, Jr., for appellant. Edgar J. Levey, for respondent.

<p>Action by Martha M. Wright and another, as executrices, etc., of John W. Hathorn, deceased, against George W. Lott. Sherman Moreland, for appellant. Rockwell, McDowell & McCann (George McCann, of counsel), for respondents.</p>

<p>Action by Joseph Von Hatten against Louisa Scholl and others.</p>