Volume 41 — New York Supplement

Action by Charles E. Pearsall against Harriet F. Van Za-nctt to-foreclose a mechanic’s lien for labor and material in building a crib-bulkhead on property owned by defendant jointly with James B. Ludlow and Annie L. Winters.

<p>Appeal from judgment on report of referee.</p> <p>Claim by Mary E. Parker against Smith Williamson, as executor of the will of John L. Burnett, deceased, for services rendered by claimant to decedent, who was her father. The claim was referred by consent, and from a judgment in favor of claimant defendant appeals. Affirmed.</p> <p>The referee found that on or about October 1, 1891, claimant, who then lived with her husband and son, broke up housekeeping and went to the house of decedent, at his request, to nurse him and wife, and other members of her family going elsewhere to live; that between October 1, 1891, and the time of the death of decedent, on May 30, 1894, claimant performed work, labor, and services for him, in managing his household, and nursing and taking care of him and his wife during illness of each of them, and until their respective deaths; that said services were performed at the request of decedent; that he promised to pay claimant liberally therefor; and that the services were reasonably worth the sum of $500, for which sum judgment was directed. The evidence as to the rendition of services by claimant, and decedent’s promise to pay her therefor, was as follows: Isaac W. Ferries testified that he saw claimant at decedent’s house, taking general oversight of the affairs, and taking care of decedent and decedent’s wife, and of the house and children. „Mrs. Anna Fitzgerald testified that she frequently talked with decedent about claimant, and her faithfulness to him and to his wife; that decedent frequently told her how greatly he appreciated her services, that she did more for him than any of the rest of his children, and that he would see her doubly paid for her services and attentions; and that he frequently said that he would pay claimant for the services rendered by her to him and to his wife. Mrs. Cornelia Swift testified that she frequently saw decedent during his last illness; that he told her that he would amply reward claimant, and that she should be doubly paid for her services. Emma E. Foster testified that she frequently heard decedent say that he was pleased at claimant’s devotion, and that he would reward her for her services. Mrs. Hannah M. Eltinge testified that she frequently spoke to decedent about claimant’s attendance, and he told her that he sent for her to come and nurse his wife and him, and said that, if she did not remain with him and care for him, no one else would; that he meant that she should be well compensated; that claimant objected to breaking up her home to come and wait upon him and nurse him steadily; and that he said that, if she would do so, he would compensate her well. Annie O’Neill, a professional nurse, testified as to the value of the services rendered by claimant. The only evidence to the contrary was that of Henry G. Cooper, who testified that decedent told him that claimant had lived with him for nearly three years; that he intended to do by his children exactly alike; that he had made a will directing an equal division among his children; that claimant had been making her home with him, and had been under no expense for rent or living expenses; and that she should, nevertheless, have an equal share of his estate. The witness further testified that he never heard about the claim, except that certain persons were urging claimant to make it.</p>

Action by William L. Avery and others against John H. Sand to-set aside a deed and for other relief. A compulsory reference was-granted, and plaintiffs appeal. Reversed.

<p>Appeal from special term, Columbia county.</p> <p>Action by Effie B. Oliver against Margaret R. French, as administratrix of John W. French, deceased, and others, to have a sale of mortgaged real estate made under a judgment of foreclosure in the action by Margaret R. French, substituted as plaintiff in place of John W. French, deceased, against Effie B. Oliver and others, set aside, with the referee’s deed on such sale, and for a resale under the judgment of foreclosure. Judgment was entered in favor of plaintiff on April 26, 1893. Plaintiff moved on March 26, 1894, to conform the judgment to the findings and decision. The motion was denied on March 31, 1894, and the order of dismissal was affirmed in December, 1894, with leave to renew the motion. The motion was renewed in March, 1895. It was again denied, and plaintiff appeals. Reversed.</p>

Action by the Commercial Bank against Moses Foltz and others. From an order settling issues to be tried by a jury, and from an order denying motion to amend the order, defendant Foltz appeals; and from an order denying defendant Benjamin Catto’s motion to correct an order denying plaintiff’s motion to strike out said Catto’s amended answer, and denying his motion to vacate another order, denying plaintiff’s motion to strike out said amended answer, said Catto appeals.

Application by Oscar A. De Long for a stay of proceedings pending appeal from an order adjudging him guilty of contempt. Granted. For decision in contempt proceeding, see 39 N. Y. Supp. 903.

<p>Action by James Cremins against the East Lake Woolen Company. Plaintiff moves for leave to file an affidavit nunc pro tunc in support of an attachment, which had been set aside. Denied.</p>

<p>Appeal from special term, New York county.</p> <p>Action by David M. Koehler and Morris Goldstein against the New York Elevated Railroad Company and the Manhattan Railway Company for an injunction and damages by reason of the construction and operation of -defendant’s elevated railroad in front of plaintiffs’ premises, No. 520 Third avenue, in the city of New York. There was a judgment in favor of plaintiffs, and defendants appeal. Affirmed.</p>

<p>1. Costs—Extra Allowance—Foreclosure of Mortgage.</p> <p>A leasehold is not real estate, within Code Civ. Proc. § 3253, subd. 1, providing for an extra allowance in an action to foreclose a mortgage on realty.</p> <p>2. Same—Case where Defense is Interposed.</p> <p>The fact that a defense has been interposed in an action, so as to authorize an extra allowance (Code Civ. Proc. § 3253, subd. 2), must appear as a condition precedent.</p>

<p>1. Summons—Date—Variance between Original and Copy.</p> <p>Service of summons will not be set aside because of a variance between the date of the original and the copy served.</p> <p>2. Same—Order of Publication—Correction of Error.</p> <p>Error in granting an order of publication can be corrected only on appeal where the order was granted on affidavits which satisfied the judge that the facts authorized the service.</p>

<p>1. Supplementary Proceedings—Private Sale op Personalty.</p> <p>Personal property may Ue sold privately in supplementary proceedings, where more cash will be realized than at a public sale.</p> <p>2. Same—Right to Sell Real Estate.</p> <p>A vested interest in real estate cannot be sold in supplementary proceedings, as it may be sold under execution.</p>

Action by the New York Life Insurance & Trust Company, as trustee under the will of Francis W. Lasak, deceased, against Guthbert, Ives, and others, for an accounting. Plaintiff moves for an order of reference, and defendant Ives moves that issues arising on the complaint and her amended answer be framed for trial by jury. Granted.

<p>Appeal—Dismissal—Rules of Court—Failure to File Printed Case.</p> <p>An appeal will be dismissed on appellant’s failure to file the printed case within the time allowed by court, after default in filing the same within the time required by the rules of court, without excuse, or attempting to. secure an extension of time.</p>

Agnes K. M. Mulligan presented a claim to Louise M. H. Cannon, executrix of the will of Newton Cannon, deceased. The claim was referred by consent. Judgment for plaintiff.

<p>Action by George F. Hebler against Marshall Brown to recover damages for breach of covenants in a deed. Judgment for defendant.</p>

Action by the Holland Trust Company against the Thomson-Houston Electric Company of New York and others to foreclose a mortgage. From an order denying the motion of one Hayward and others to compel the purchaser at foreclosure sale to pay a portion of the price in cash, they appeal. Reversed.

<p>Action by the National Bank of Commerce in New York and others against the Bank of New York and others. Defendants demurred to the complaint. Overruled.</p>

Action by Conrad R. Schmitt and others against Joseph A. Hoffmann and others to recover for professional services. There was a judgment in favor of plaintiffs, and defendants appeal. Reversed.

Richard S. Emmett, Jr., and Joseph E. Ennis presented to the ■county clerk of Westchester county certificates of nomination for member of the assembly for the Second district of Westchester county, each claiming to be the regular nominee of the Republican party.

<p>Master and Servant—Defective Appliances.</p> <p>The evidence does not clearly indicate that the defects complained of were the cause of the injury received where it shows that plaintiff’s hand was crushed by deadblocks while he was by daylight coupling a car to a .slowly-backing train; that one deadblock was perceptibly lower than the other because twisted, yet presenting a resisting surface as a bumper; and that deadblocks vary in size and thickness. Goodrich v. Railroad Co., 22 N. E. 397, 116 N. Y. 398, distinguished.</p>

<p>Judicial settlement of the accounts of Horace Gr. Young as trustee under the will of Thomas Cornell, deceased.</p>

Action by Michael McGuire, as administrator of Michael McGuire, Jr., deceased, against the Third Avenue Railroad Company, to recover damages for the death of plaintiff’s intestate. From a judgment for $1,000, and $254.65 costs,, entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed.

Action by John Kennedy and another against Joseph F. McKone to foreclose mechanics’ liens. From an order denying a motion to vacate the taxation and bill of costs in favor of defendant, Mc-Kone, and to direct a taxation of the costs in accordance with the referee’s report and the former taxation, plaintiffs appeal. Reversed.

<p>Payment—Evidence.</p> <p>A finding that the note sued on had not been paid is sustained by the evidence, where defendant’s testimony that it had been paid by delivery of ■ notes of a third person to plaintiffs is contradicted by plaintiffs, and it appears that the notes so delivered by defendant were slightly in excess of another debt due from him to plaintiffs, and that plaintiffs gave him a check for the excess.</p>

<p>Action by Richard Beeves against the Metropolitan Realty Company of the city of New York for the foreclosure of a mechanic’s lien.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Frederick C. Hoormann against the Climax Cycle Company. From an order granting the motion of George Schubach, a junior attaching creditor, to vacate plaintiff’s attachment because of the insufficiency of the affidavit on which the attachment was granted (40 N. Y. Supp. 1067), plaintiff appeals. Affirmed.</p>

Action by Julia A. Dayton against the H. B. Claflin Company, substituted as defendant in place of the Mutual Life' Insurance Company of New York, °on two policies of life insurance. Judgment for defendant.

<p>Action by John Allen against Levi B. Banks and others.</p>

<p>Action by the A. F. Englehardt Company against Louis Kaufman and another.</p>

<p>Petition by the Brooklyn Elevated Railroad Company relative to acquiring title to real estate on Lexington Avenue owned by Betsie R. Dexter, in the city of Brooklyn, county of Kings.</p>

<p>Action by Timothy Y. Brown against Joshua James and Asa Gibbons.</p>

Three actions by George C. Buell and others against Edward P. Searle, late sheriff of Orleans county. The Orleans County National Bank, John Sawyer, and Keeler & Salisbury were made parties to the motion by the order herein, and are appellants. Also an action by Joseph Van Camp against Edward P. Searle and others.

<p>Action by the Citizens’ National Bank of Adams against Harrison Fuller, impleaded with De Alton Dwight, Austin W. Ingraham, A. Kent Hale, and John Sinclair.</p>

<p>Action by William H. Burgess against Oscar Ehlers, impleaded, etc.</p>

Judicial settlement of the accounts and of the proceedings of Frank Curtiss and Frederick De Billier, as executors of and trustees under the last will and testament of Abijah Curtiss, deceased, and their application for leave to resign as such executors and trustees.

<p>Action by Annie X. Dawson, as' trustee, etc., against John D. Parsons and others.</p>

<p>Action by J ames F. Cunningham against the Lake Shore & Michigan Southern Railway Company.</p>

<p>Action by the Department of Buildings of the City of New York against Richard Field.</p>

<p>Action by David Gideon against Philip J. Dwyer.</p>

<p>Action by Richard Gilloren against the board of supervisors of Oneida county.</p>

<p>Action by Henry F. Gillig against the George C. Tread-well Company.</p>

<p>Action by Sacharme Isear against William Daynes and others.</p>

<p>Action by Nathan Hutkoff against Amelia Gorman, as executrix, James Collins, and Robert D. White, Jr.</p>

<p>Action by Sarah Lazarus and others against the Metropolitan Elevated Railway Company.</p>

<p>Action by Meyer W. Livingston against Louis Spero.</p>

<p>Action by James B. Ludlow against Dorothy H. G. Johnson and Genie H. Rosenfeld. 38 N. Y. Supp. 1146.</p>

<p>Action by Mahlon B. Oakley against John S. Cokalete.</p>

<p>Judicial settlement of the account of Frederick Noll, as general guardian.</p>

<p>Proceeding for the dissolution of the Murray Hill Bank.</p>

<p>Action by Wesley J. Penny, by guardian, against the Rochester Railway Company.</p>

<p>Application by John Vanderhoof for a writ of mandamus against George W. Palmer, Comptroller of the city of Brooklyn.</p>

<p>Action by William O. Platt and William Man, as trustees, against the New York & Sea Beach Railway Company and others.</p>

<p>Action by Frederick F. Proctor against Henry P. Soulier.</p>

<p>Action by William H. Proctor against the Sidney Sash, Blind & Furniture Company and others.</p>

<p>Action by Pollatschek and others against Goodwin. Motion for leave to appeal to the appellate division for reargument.</p>

<p>Action by the Rach’s Mashing Process Company against Michael Seitz.</p>

<p>Action by James J. Shipman and another against the Long Island Railroad Company.</p>

<p>Action by John Thomas, administrator, against William F. Lennon.</p>

<p>Action by Serena Toch against Henry M. Toch and others. Chas.</p>