Volume 43 — New York Miscellaneous Reports

<p>Appeal from a judgment of the City Court of the city of ¡New York, entered in favor of the plaintiff after a trial before the court and a jury.</p>

Appeal by plaintiff from a judgment of tbe City Court of the city of New York, entered in favor of tbe defendant upon a dismissal of the complaint at the trial.

Appeal by the plaintiff from an interlocutory judgment of the City Court of the city of New York, overruling the demurrer of the plaintiff to the fourth, further, separate and distinct defense contained in defendant’s answer, entered in the office of the clerk of the City Court of the city of New York on November 27, 1903.

Appeal by defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon the verdict of a jury in the sum of $412.31, and also from an order denying defendant’s motion for a new trial. The plaintiff complained to the defendant in May, 1903, in regard to the withdrawal, on April 1, 1902, of $300.

<p>Appeal by the plaintiff from an order of the City Court of the city of ISTew York, made at Special Term.</p>

<p>Appeal by the defendant from a judgment of the City Court of the city of Hew York, made at Special Term, overruling his demurrer to a reply to the second defense contained in his answer.</p>

<p>Appeal from an order of the City Court of the city of FTew York at Special Term, denying the defendant’s motion to vacate a judgment.</p>

<p>Slander per se—Charging one with keeping a house of prostitution — Complaint.</p> <p>A complaint alleging “ That the defendant * * * maliciously spoke concerning the said plaintiff the false and defamatory words following: ‘Mrs. Wilkens, don’t get excited, I simply tell you that your name is down at the Tenement-House Department for keeping a house of prostitution the same -as the people on the floor below, and I can take you there and show it to you,’ meaning thereby to charge the plaintiff with keeping a house of prostitution ”, etc., is not demurrable for insufficiency as it is slander per se to charge a person with keeping such a house, and in view of the allegation that the words were spoken maliciously and were intended to charge the keeping of a house of prostitution the defendant cannot be heard to say that they were such as any friend i might address to another in friendly warning to apprise him of a supposed charge.</p>

Appeal by the defendant from an interlocutory judgment of the Oity Court of the city of ¡New York, overruling a demurrer interposed to the amended complaint. The demurrer was taken upon the ground that the complaint fails to state facts sufficient to constitute a cause of action.

Appeal by the defendants from an order denying their motion to vacate an order of arrest issued in the Municipal Court of the city of Few York, fourth district, borough of Manhattan.

Appeal by plaintiff from a judgment of the Municipal Court of the city of. ¡New York, tenth district, borough of Manhattan, in favor of the defendant, dismissing the complaint.

Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan, in favor of the defendant,

Appeal by the defendant from a judgment entered in the office of the clerk of the Municipal Court of the city of Hew York, eleventh district, borough of Manhattan, on October 16, 1903, in favor of the plaintiff, for the sum of $534.31.

<p>Surety bond indemnifying an employer against loss from the fraud of employees — Construction — Doubtful provisions how construed.</p> <p>Under a surety bond guaranteeing an employer against any loss from the fraud or dishonesty of any of its employees, requiring the employer, if requested by the surety, at its expense, to use all diligence in prosecuting any employee to conviction for any fraud or dishonesty committed by him for which a claim is made, and making “ such action ”, when requested, by the employer a condition precedent to a recovery on the bond, it is enough that the employer, when requested, used all diligence in prosecuting the employee and the employer need not show that the prosecution resulted in a conviction.</p> <p>Doubtful provisions in an instrument drawn by a party must be interpreted favorably to the other party thereto.</p>

<p>Surety discharged by variations from the contract of suretyship.</p> <p>A surety, on an undertaking given on the arrest of a husband for contempt in failing to pay Ms wife alimony awarded her by an order made in an action for a separation and subsequently by the judgment therein, who has contracted that the husband would pay in accordance with the order or judgment or at all times render himself amenable to proceedings to punish him for the omission, is discharged from liability to the wife where it appears that instead of exacting alimony of her husband she before entry of the judgment became reconciled to her husband and lived with him for six months, and, that, although he then abandoned her, she waited for more than two years, after that abandonment and after entry of the order awarding alimony, before she applied under the judgment for an order for his arrest for failing to pay alimony, he having then run away, and that only then she sought to hold the surety liable and in the meantime had done other acts indicating an intention not to hold him.</p>

<p>Attorney and client — Client cannot abandon a case arbitrarily and recover of the attorney what she has paid him in advance.</p> <p>Where a client retains an attorney to bring an action for her and consults with him in regard to it but abandons the case before issue of the summons without giving any sufficient reason therefor, she cannot recover of him a payment which she made him in advance in full of his services where he has rendered all the services he could and is ready and willing to go on with the case.</p>

These separate appeals by the defendants from three separate judgments of the Municipal Court of the city of New York, borough of Manhattan.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, in favor of the plaintiff.

Appeal by the plaintiffs from a judgment rendered in the Municipal Court of the city of New York, first district, borough of Manhattan, in favor of the defendant.

Appeal by the defendant from a judgment rendered in the Municipal Court of the city of New York, eleventh district, borough of Manhattan, in favor of the plaintiff.

Appeal by the defendant from a judgment rendered in the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, in favor of the plaintiff.

Appeal by plaintiff from a judgment of the Municipal Court of the city of ¡New York, eleventh district, borough of Manhattan, in favor of the defendants.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, fourth district, borough of Manhattan.

Appeal by the tenant from an order, made herein September 14, 1903, disallowing the disbursements as costs in summary proceedings brought against him in the Municipal Court of the city of New York, to recover possession of real estate, and from so much of a final order made herein September 15, 1903, as fails to award him his actual disbursements after a discontinuance of the proceedings by the landlord before final submission.

Appeal by defendants from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, rendered in favor of plaintiff on November 4, 1903, for the sum of seventy-one dollars and forty-one cents.

Appeal by defendants from an order made in the Municipal Court of the city of Eew York, fourth district, borough of Manhattan, setting aside a judgment and granting a new trial.

<p>Life insurance — Validity of a condition making proofs of death evidence for but not against the insurer.</p> <p>A condition in a policy of life insurance providing that “All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of but not against the company ” is valid.</p> <p>Where the policy, which had lapsed, is revived upon condition that the insured is in sound health proofs of death containing a certificate of the attending physician showing that the insured was at the time of the revival suffering from chronic pulmonary tuberculosis, a disease which continued and caused his death, are competent evidence for the company, in an action by the beneficiary, to show that the insured was not in sound health when the policy was revived.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of Uew York, seventh district, borough of Manhattan, in favor of the plaintiff.

<p>Lease — Construction.</p> <p>A condition, in a lease, secured by a deposit, that should the lessor desire to sell the demised premises she shall give the lessee sixty days’ notice in writing, the deposit and $500, “to surrender said premises ” and that the lessee on receiving the same “ will surrender ”, is merely a privilege to the landlord so to act in case he wishes to end the lease when he sells, and is not a provision available to the tenant as a counterclaim, for the deposit and the $500, to an action for rent unpaid brought by a purchaser under the landlord who has permitted the tenant to remain in occupation.</p>

<p>Mutual mistake as to the area of land contracted to be sold — Specific performance refused.</p> <p>A purchaser should not he compelled to perform an executory contract for the sale of a rectangular' plot of suburban residence property where it appears that in purchasing he relied upon a newspaper advertisement, authorized by the equitable owner of the property, which falsely but not' fraudulently represented the, frontage as fifty-four feet greater than it was in fact and the depth as more than one hundred feet greater than it was in fact, thus making a shortage in the'area of the land of about one-third, it appearing that both parties were mistaken as to the area.</p>

<p>Evidence — Physician cannot disclose professional information — Right of the beneficiary to contradict a statement contained in the attending physician’s certificate as to the cause of the death of the insured.</p> <p>Where an action upon a policy of life insurance brought by the beneficiary is resisted by the insurer upon the ground that prior to the issue of the policy the insured had had an attack of apoplexy which he wrongfully concealed from the insurer when he applied for insurance, and the proofs of death contain the certificate of the physician, who attended the insured at the time of his death, stating its cause as apoplexy, and the certificate also states that he attended the insured at the time of the alleged prior attack, the beneficiary may show that the certificate’s statement as to the prior attack was false but Code Civ. Pro., g 834 precludes the physician from testifying as to that attack, in support of his certificate, and to contradict the beneficiary.</p>

<p>Liquor Tax Law — Verdict against the State, in an action on a bond to the People, set aside as against the weight of evidence.</p> <p>Where the State Commissioner of Excise moves for a new trial of an action brought by him on a bond given under the Liquor Tax Law for alleged violations of that law and to set aside a verdict for the defendants as against the weight of evidence, the evasive and unsatisfactory character of their evidence may properly be considered even though it may be sufficient to require the submission of the question to the jury in the first instance.</p> <p>Where the plaintiff charged several violations of the law and the sum total of all his evidence as to them preponderated greatly over the defendants’ evidence given in contradiction, the court set the verdict aside.</p>

Motion by plaintiff for a new trial, after dismissal of complaint.' This is an action to- recover damages for an alleged abuse of process, growing out of the following facts: On September 21, 1903, the defendant in this action, Charles H. Childs & Co;, a corporation doing business at Utica, H. Y., instituted an action against the plaintiff herein by the service of a summons and complaint in this court, in which complaint judgment was demanded for ninety-eight dollars and…

This is an action to foreclose a mortgage for the sum of $3,300, executed hy defendants, Rufus P. Smith and wife, to Julia A. Smith, the plaintiff’s testatrix, on the 31st day of March, 1883, on a farm situated in the town of Aneram, 27. T. On the 15th day of April, 1898, the mortgagors conveyed said mortgaged premises to the mortgagee, who thereupon took full possession thereof and remained in possession until her death.

<p>Place of trial — Plaintiff may move for a change for convenience of witnesses. %</p> <p>Code Civ. Pro., § 987, does not limit to the defendant the right of having the place of trial changed for convenience of witnesses and the method of applying for the change is by motion.</p>

<p>Deed — When “ east half ” and “ west half ” do not mean mathematical halves — Weight to be given to boundaries and monuments — Practical location of boundaries when not to be disturbed.</p> <p>The words “ east half ” and “ west half ” occurring in the description in a deed, while naturally importing an equal division of the lands described, may lose that effect where it appears that at the time some fixed line or known boundary or monument divided the lands somewhere near their center so that the words more properly refer to one of such parts than to a mathematical division of them which has never been made.</p> <p>Such words are controlled by the situation existing on the premises, the manner of their use and the boundaries and monuments existing.</p> <p>A conveyance is to be construed in reference to its visible locative calls, as marked or appearing upon the lands, in preference to quantity, course or distance, and any particular of the description may be rejected, if inconsistent with other parts of it, provided that enough of it remains to locate the lands intended to be conveyed.</p> <p>A practical location of boundaries which has been acquiesced in for a long series of years will not be disturbed and this in the interests of public policy.</p>

<p>Action to recover wages. Trial by jury waived.</p>

<p>Action of negligence. Motion for a new trial upon the minutes.</p>

Hearing on the returns to writs of habeas corpus and certiorari, the defendants having been held by a magistrate of the borough of Brooklyn for the grand jury on a charge of grand larceny for stealing a quantity of clams in Jamaica Bay, the same having been planted there by one Denton, the prosecutor.

<p>Attorney and client — Disputes between them will not be summarily settled by the court in the Second Judicial Department.</p> <p>It seems that in the Second Judicial Department the court will not summarily adjust a dispute between an attorney and his client but will remit the aggrieved party to his action.</p>

<p>Application for a writ of mandamus against Hon. Burt J ay Humphries, County Judge of Queens County, to compel him to reinstate the petitioner in the office of crier .to the courts of record in the said county, and to permit him to perform the duties of'the said office.</p>

Suit by a stockholder of a business' corporation against the corporation and its directors to set aside a sale of a printing plant and business by one of the directors to the company, and to require the consideration, paid therefor to be paid back to the company.

<p>Negligence — Evidence of a previous accident at the place admissible against the defendant as notice of the condition of the place but not to show it dangerous.</p> <p>Where a passenger sues a street surface railroad company to recover damages for its alleged negligence in stopping the car at night where there was a deep hole in the street, alongside the car, into which she fell when getting down from the running board, evidence that another person had previously fallen into the same hole in the same way when getting oS a car is admissible against the defendant, not to show that the place was in a dangerous condition, but to prove that the defendant had notice of its condition, and if upon the trial the place is proved dangerous by competent evidence, the notice goes to charge the defendant with negligence in not remedying the dangerous condition or in not guarding or taking precaution against it.</p>

<p>Motion on the minutes by the plaintiff to set aside a verdict for defendant, and for a new trial.</p>

Motion by the plaintiff on the minutes for a new trial. Action to recover damages for an alleged breach of a contract of employment for one year by a discharge of the plaintiff before the end of the year, the contract being in writing as follows, and signed by both parties, viz.: “ Jan. 20, 1902. “Agreement between1 F. Eichenaur and the Rentz Candy Co. The Rentz Candy Co. of the first part will pay E. Eichenauer of the second part Fifteen Dollars ($15.00) per week for his…

<p>Lease — A person hiring desk room in an office has no estate or interest in the demised premises.</p> <p>A person hiring desk room from tenants of a single room, occupied by all the parties as an office, has no estate or interest in the realty, and therefore where the landlord duly dispossesses the tenants without making him a party he cannot subsequently maintain an action against the landlord to recover damages which he alleges he suffered from the dispossession.</p>

<p>Action for salary.</p>

<p>Negligence — An accident which could not have been foreseen by the exercise of reasonable care.</p> <p>Where the proof made in an action to recover damages resulting to the plaintiff’s house from rock-blasting done on the adjoining lot by the defendant, a contractor, tends to show that the damage did not result from his negligence in conducting the blast but from the then unknown fact that a seam of soft rock, running under the plaintiff's house, existed beneath the hard surface of the rock and that the force of the explosion was thereby diverted obliquely through the seam, which yielded, and did not pass upward as expected, the plaintiff does not prove actionable negligence where she fails to show by a fair preponderance of testimony that the contractor could by the exercise of proper care have discovered the seam and avoided the consequences resulting from the blast.</p>

<p>Compulsory reference where a long account must he examined — When . . denied —One who opposes on the ground that difficult questions of law are involved must point them out.</p> <p>A motion for a compulsory reference, on the ground, that the trial will necessarily involve the examination of a long account and that no difficult questions of law are involved, should be denied where it appears that the examination of the account will be merely collateral and serve only as evidence upon which the plaintiff will rely to fix the recovery and where it does not appear that it will be necessary to litigate the items of the account.</p> <p>Where the defendants insist that difficult questions of law are involved these must be pointed out in such a manner as to enable the court to determine whether they are difficult, except in a case where they appear on the face of the pleadings.</p>

<p>Motion to continue an injunction pendente lite.</p>

<p>Receivers’ sale — Refused confirmation where the order of sale was made without disclosure to the court of a prior order for the same relief, where the terms of sale tended to stifle competition and the price received was inadequate — Right of minority stockholders to oppose the sale although refused permission to intervene in the action in which the sale was ordered.</p> <p>A receivers’ sale of all the New York State properties of an insolvent foreign corporation, made at public auction and as a whole, to the holder of a majority of its stock, the same being a company organized to take over its stock and restore it to solvency, should not he confirmed against the opposition of minority stockholders of the foreign corporation although refused permission to intervene in the action in which the sale was ordered and which action was one to liquidate its debts and distribute its assets equitably among its creditors, where it appears that the said company had by its use of a claim it had against the corporation promoted the bringing of the said action, that although the receivers had insisted in the Supreme Court of this State, in order to be permitted to continue the business, that the corporation was making money and had subsequently made similar representations in a United States court in order to prevent the corporation from being put in bankruptcy, they were at the latter time assenting to an application on default for a final judgment in the action, that this application resulted in an order of reference “to take proof of the facts stated in the complaint for the purpose of enabling the court to render judgment ”, that no proceedings were ever had under the order of reference, that subsequently the receivers, without on either occasion informing the court of the making of the order of reference, procured ex parte at Special Term from another justice of the said Supreme Court an order to advertise for bids for the said properties on only two weeks’ notice although the properties were extensive and situate in several counties, and that, bids failing to be made, they subsequently procured of him, no one but the plaintiff and the receivers being before the court, the order to sell at public auction — an order granting in effect the same relief as that sought under the order of reference.</p> <p>Equity and good conscience require those acquainted with the facts to advise the court of them before appealing to it for similar relief by different means.</p> <p>A provision in the terms of sale, that the properties should be offered for sale in parcels and then again as a whole, and that if the price for the whole should exceed the aggregate price offered for the parcels then the properties should be struck off to the purchaser of the whole, must be deemed to have been drawn in the interest of the bidder for the whole, the majority stockholder, and is a provision which tends to stifle competition upon the part of those desiring to buy parcels.</p> <p>The same criticism is applicable to a further provision of the terms of sale that, if any creditor of the insolvent corporation, having a claim allowed by the receivers, becomes the purchaser he shall be allowed to offset seventy per cent, of his claim against his bid, it appearing that the majority stockholder was the only creditor having such a claim.</p> <p>A bid for the properties must be deemed inadequate where it is not one-half of their forced sale value as estimated by a competent expert.</p>

Applioatiok for a peremptory writ of mandamus to compel the defendant to file plaintiffs acceptance and oath of office as mayor of the city of Fulton, and to issue to him a certificate of election.

Action under section 2653a of the Code of Civil Procedure, to establish the validity of the probate of the last will and testament and codicils thereof of Robert F. Westcott, deceased.

<p>Contract between a village board of education and the trustees of a private academy for the instruction therein of public school pupils — Construction — Injunction — Defense of ultra vires when untenable.</p> <p>By the terms of a contract made between the trustees of a private academy and a village board of education the trustees were to hire the principal of the academy at a stated salary and nonresident pupils were not to be admitted free; the board was to pay all sums necessary to maintain the academy and keep the receipts. It appeared that the board occupied with its schools parts of the academy not used by its trustees.</p> <p>Held, that the court would at the suit of the trustees restrain the board from increasing the principal’s salary and from admitting nonresident pupils free, as such acts were a clear violation of the contract, and, if it was ultra vires, the said acts were an unauthorized and illegal interference with the business of the trustees.</p> <p>By the village charter (L. 1851, eh. 206, §§ 98, 108) the board could pay the trustees tuition for nonresident pupils but no proof was made as to h<jw many nonresident pupils were taught in the academy, how much, if any, the expenses of maintenance exceeded the receipts nor was any proof made that during many years of performance of the contract the board had been required to pay an excessive or an unreasonable sum.</p> <p>Held, that the court would not declare the contract ultra vires because the board was to pay the cost of maintenance and have the receipts.</p> <p>That while the hoard was occupying a part of the building with its schools and enjoying all the benefits of control it could not ask a coui't of equity to declare the contract ultra vires.</p>

<p>Action on an entire contract to furnish electrical energy by installments— Insufficient pleading.of performance — Prospective profits not recoverable unless there is an abandonment — Counterclaim when permissible to avoid cross-actions — Demand excused where the party liable to respond has already refused — Forfeiture made while the other party had been lulled into seeming security — Conspiracy to avoid the contract.</p> <p>A complaint alleging performance by the plaintiff, a power company, of an entire contract it had made with the defendant, a traction company, to furnish it with electrical energy for ten years in monthly quantities and on monthly payments to be made on the tenth day of the ensuing month, the defendant to be entitled to certain deductions if the power company failed to furnish the energy because- of accident or lack of water, its motive power, or other matter beyond its control and the defendant to be entitled at a price named to all the surplus energy the plaintiff’s plant produced, and seeking to recover the price of the second month’s energy and prospective profits under the contract is demurrable for insufficiency where it admits the failure to furnish the whole month’s power, alleges certain deductions or deficiencies without specifying how they are excusable under the terms of the contract relating to that matter and fails to allege the delivery or offer of delivery of all the surplus energy produced during the month.</p> <p>The defendant’s failure to pay the monthly installment is not such a breach as entitles the plaintiff, where it has not abandoned, to rescind the contract and recover prospective profits.</p> <p>Where the plaintiff claims damages growing out of the contract the defendant may deny its liability or default and, as a counterclaim, allege and establish the liability or default of the plaintiff and recover damages of it.</p> <p>A counterclaim for the surplus energy produced* but not delivered is not demurrable for failing to contain an allegation that the surplus energy was demanded where the counterclaim also alleges that the plaintiff had refused to deliver it and had wrongfully sold it to others.</p> <p>An answer alleging performance by the defendant, refusal by the plaintiff to perform, that the contract energy was cheaper than could be obtained elsewhere and that the refusal would entail large damages presents a proper counterclaim.</p> <p>An answer, alleging in substance that while the parties were negotiating as usual through their engineers as to the amount due the plaintiff and it had requested time to consider the matter, the law day for payment passed and that the plaintiff instantly re-, pudiated the contract although the defendant was ready and willing to pay, presents a defense to the action.</p> <p>An answer which, after repeating the allegations of the last above answer, alleges that the plaintiff after making the contract sold out to another company and that company to a third, that the companies together had a monopoly of the production on the Hudson river of electrical energy by water power, that the plaintiff conspired with the other companies to have the contract forfeited for nonpayment on the law day in order to compel the defendant to buy energy at a higher rate of the successor company in control, presents an appeal to the equitable power of the court to relieve the defendant from the condition of forfeiture which the plaintiff’s acts have produced.</p>

Action for damages for a trespass by the defendant on the oyster bed of the plaintiff in Tiana Bay, town of Southampton, Suffolk Go., N. T. The trustees of the common lands of the town leased the land under water on which the oyster bed was to the plaintiff in June, 1902.

<p>Will — Extrinsic evidence of the testator’s intention when admissible.</p> <p>Resort may be had to extrinsic evidence in order to find out the real intention of a testator in disposing of his property where his will when read with a codicil thereto leaves his intention uncertain and obscure.</p> <p>Admission in evidence of a letter written by the testator to his residuary legatees three days before he executed an obscure codicil tending to show his intention in making it.</p>

<p>Action in equity for an injunction.</p>

<p>Appeal from a judgment rendered in a justice’s court in favor of plaintiff.</p>

<p>Trial before the court without a jury.</p>

<p>Action to recover a statutory penalty. The facts are sufficiently stated in the opinion.</p>

<p>Mechanic’s lien — Consent of owner to improvements.</p> <p>An executory contract for the sale for one dollar paid down of six lots of land, made by vendors having no interest in a hotel proposed to be built thereon by the vendees or in any property in the vicinity, giving the vendees immediate possession, requiring them to pay the balance of the purchase price and take title in sixty days, erect within eighteen months a large hotel upon the premises and give a bond guaranteeing such erection, indicates by its terms no intention of the parties that the hotel shall be erected before the price has been paid and the bond and deeds given, and therefore where the vendees default, upon these provisions a contractor with the vendees who began a stone foundation for the hotel on one of the lots but abandoned the work, can have no lien on that lot as against the unpaid vendors upon the ground that the contract itself was a consent to the work, in that it was thereby contemplated and was to be done to benefit the vendors’ lien for the purchase price.</p> <p>Under such a contract and circumstances the vendors’ immediate surrender of possession of all the lots is not equivalent to a consent upon their part that the work upon the hotel shall begin at once and upon their account.</p>

<p>Action to set aside as fraudulent and void, a conveyance in foreclosure.</p>

<p>False imprisonment — Not maintainable where the deposition for the warrant is sufficient for jurisdiction — Deposition for a warrant for peddling in the streets' of a town without a license.</p> <p>Where the deposition upon which a justice of the peace issued a warrant for the arrest of a person is sufficient to give jurisdiction, the person arrested cannot subsequently maintain an action for false imprisonment even though the justice may have erred in judgment or it may have appeared in the proceedings subsequently had before him that no crime had in fact been committed.</p> <p>A deposition upon which a justice of the peace issued a warrant for the arrest of a person for hawking and peddling goods in the streets of a town without a license in violation of the Town Law, sections 184 and 187, is sufficient to give jurisdiction where it states on positive knowledge the facts required to bring the case within the Town Law and that the town board had under that law duly prohibited such acts by resolution.</p> <p>The deposition need not set forth in full the resolution of the town board prohibiting such acts.</p>

<p>County — Liability for expenses incurred by its sheriff in summarily removing from the county jail a prisoner suffering from a contagious disease and keeping him in custody in another place.</p> <p>Where the sheriff of a county jail, situate in a village of a town and containing many prisoners and their custodians, discovers that one of the prisoners is suffering from1 a contagious disease it is his right and duty at once to remove that prisoner from- the jail, which must be deemed a "public place" within section 434 of the Penal Code, to a suitable place and keep him there in custody until he has served his sentence, if necessary.</p> <p>The rent of the place selected and damages its owner suffered from its use as a pest house are a proper charge upon the county where it appears that the act of the sheriff, a salaried officer, in selecting the place was ratified by the purchasing committee of the county, a body given by a local statute (L. 1900, ch. 324) certain control and supervision over the sheriff’s contracts and liabilities.</p> <p>The fact that the president of the village and the chairman of the board of health took an active interest in the removal and approved the place selected by the sheriff does not shift the liability from the county to the town.</p>

<p>Condemnation Law, Code Civ. Pro., § 3379 ■—Owners cannot be restrained from maintaining a right of action which accrued prior to condemnation — Damages for a prior trespass not to be included in an award — Misjoinder of causes of action.</p> <p>The Condemnation Law, Code Civ. Pro., § 3379, does not authorize the court to restrain owners of premises sought to be condemned from maintaining a right of action which accrued prior to the commencement of the condemnation proceedings.</p> <p>Semble that the said law does not authorize commissioners for ascertaining compensation to include in their award damages for a prior trespass.</p> <p>Semble, that a single complaint which embraces causes of action for injuries to real property, for ejectment, and for injuries to personal property, is defective under Code Civ. Pro., § 484, for misjoinder of causes of action as no two of these causes of action can be joined in the same action.</p>

Motion by the defendants Brownell and Fort for an order changing the place of trial from the county of Rensselaer to the county of Washington as the proper county.

<p>Action by a father to annul the marriage of his infant daughter on the ground that she was under the age of consent — The infant a necessary party.</p> <p>A father cannot maintain an action under Code Civ. Pro. § 1744 to annul the marriage of his infant daughter upon the ground that she had not at the time of the marriage attained the age of legal consent unless she is made a party to the action.</p> <p>The marriage contract of an infant is not void, is voidable only at the election of one of the parties to the contract and a parent or guardian is not such a party.</p>

<p>Motion to confirm a referee’s report in partition1.</p>

Appeal by the defendants from a judgment entered on the verdict of a jury in the City Court of the city of New York, and from an order denying defendants’ motion for a new trial.

Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of New York, twelfth district, borough of Manhattan, in favor of the defendant.

<p>Appeal by the defendants from a judgment of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, in favor of the plaintiff, entered upon a verdict directed by the court.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, first district, borough of Manhattan, in its favor for eighteen dollars and sixteen cents, damages and costs, upon a trial had before the court, without a jury.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan, rendered in' favor of the plaintiff for $100 damages and costs, upon a trial had before the court without a jury.

Appeal by the plaintiffs from a judgment rendered in the Municipal Court of the city of New York, first district, borough of Manhattan, dismissing the plaintiffs’ complaint

<p>Appeal from a judgment rendered upon the vérdict of the jury, in favor of the plaintiff, after trial before Mr. Justice Murray, in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.</p>

<p>Bankruptcy Law of 1898 — Filing the petition ousts the bankrupt of title — A receiver in bankruptcy cannot transfer bankrupt property without an express order of the court.</p> <p>Upon the filing qf a petition in bankruptcy title to the property of the bankrupts at once passes out of them and an assignment of a debt due them made by them subsequent to the filing is valueless and not actionable by a mesne assignee.</p> <p>A receiver in bankruptcy is under the Bankruptcy Law a mere custodian of the bankrupt property, pending appointment of a trustee in whom title vests, and such a receiver cannot transfer title to any such property, coming into his charge, except by express order of the court.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of New York in favor of the defendant, entered upon a dismissal of the complaint by the court at a Trial Term. Bank street, referred to in the opinion, runs parallel with Market street, with Campbell street intervening between them.

Appeal by the defendants from a judgment of the City Court of the city of 3STew York, entered in favor of the plaintiff upon a verdict directed against the defendants, and from an order denying, the defendants’ motion upon the minutes of the trial for a new trial.

<p>Appeal by the defendant from a judgment of the City Court of the city of Rew York sustaining the plaintiff’s demurrer to three separate defenses in the defendant’s answer.</p>

<p>Discharge in bankruptcy—Vacation, on motion, of a judgment recovered against the defendant after his discharge — Code Civ. Pro., § 1268.</p> <p>A defendant in an action on contract who, after obtaining leave to set up by answer a discharge in bankruptcy granted him after joinder of issue, declined to avail himself of the leave it being accompanied by certain conditions, is, after recovery of judgment against him and the expiration of one year after his discharge, entitled as a matter of right to an order under Code Civ. Pro., § 1268, as amended in 1899, cancelling the record of the judgment where it clearly appears upon the hearing of the motion that the discharge covered the debt for which the judgment was recovered.</p>

<p>Appeal from so much of an order of the City Court of the city of Hew York as denies the application of the plaintiff for an order directing the defendant-respondents or their attorneys to serve upon the attorneys for the plaintiff their bill of costs with notice of retaxation thereof, and for the costs of that motion.</p>

Appeal by the defendant from a judgment of the City Court of the city of Hew York, entered upon the verdict of a jury and also from an order denying defendant’s motion for a new trial.

This action was brought in the Municipal Court of said city to recover $266.50, but 'was removed into the Oity Court of said city. The second action was brought in the Municipal Court to recover $249 on the same claim, and was between the same parties.

Appeal by the defendant from an order of the City Court of the city of Hew York, denying the motion of the defendant for an interpleader. Lena Helene was a judgment creditor of Ered J. Shalek and brought her action in equity.

<p>• Appeal from two orders of the Municipal Court of the city of New York, thirteenth district, borough of Manhattan.</p>

<p>Appeal by the landlords from a final order rendered in. favor of the tenant in the Municipal Court of the city of New York, tenth district, borough of Manhattan, in a dispossess proceeding taken for the nonpayment of rent.</p>

<p>Appeal "by the defendants from a judgment rendered in the Municipal Oourt of the city of Mew York, seventh district, borough of Manhattan.</p>

Appeal by the defendant from,a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, second district, borough of The Bronx.

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of New York, first district, borough of Manhattan, vacating an attachment and dismissing the action.</p>

Appeal by the plaintiffs from a judgment rendered in the Municipal Court of the city of Hew York, eleventh district, borough of Manhattan, in favor of the defendant.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan, entered on the verdict of a jury in favor of the plaintiff in an action of replevin.

<p>Application for a peremptory writ of mandamus to compel the defendant to deliver to the relator, the books and papers pertaining to the office of village clerk.</p>

Action by the plaintiff to recover damages for the cutting of trees on unoccupied forest lands claimed to be owned by the plaintiff, and to restrain the defendant • from removing the timber so cut.

Brown, deceased, and to require the plaintiff to bring in as defendants certain creditors and others interested in the estate of Fayette Barton, deceased.

<p>Motion by the plaintiff for a new trial upon the ground of newly discovered evidence.</p>

Suit to foreclose an attorney’s lien. The defendant Nathan brought an action for damages against the defendant railroad company. This plaintiff was his attorney, and they had an agreement that the attorney was to receive for his services one half of whatever sum might be obtained by recovery or by a settlement. Nathan settled the case with the company after it was placed on the calendar for trial for $2,000, and that sum was paid to him.

<p>Motion to vacate an order to take the deposition before trial of the defendants.</p>

<p>Motion by the plaintiff to postpone a cause which is on the day calendar for trial.</p>

<p>Action on an undertaking.</p>

<p>Action to recover the contract price of goods sold, tried before the court without a jury.</p>

Application by Francis Flynn, as sheriff of Ontario county, for an order directing that a writ of mandamus be issued directed to Porter F. Leech, as clerk of the county of Ontario, requiring him to pay over to said sheriff fifty cents for every cause for trial by jury placed on the calendar for a trial term of the Supreme Court held in and for the 'county of Ontario, at Canandaigua, ET.

Appeal by the defendant from a judgment rendered in favor of the plaintiff and against the defendant, by E. B. Lawrrowe, Esq., justice of the peace of the town of Urbana, Steuben county, N. Y., on the 11th day of January, 1902.

<p>Crimes — Application by the defendant for a commission to take testimony— When denied.</p> <p>An application by a defendant in a criminal ease for a commission to take the testimony of non-resident witnesses to prove that the defendant has hitherto borne a good character will be denied where the district attorney concedes that the proposed witnesses would so testify, and stipulates that he will not attack the defendant’s general good character.</p> <p>Such a commission will not be issued to secure testimony that the complaining witness had been indicted and tried for murder, as such testimony would be entirely incompetent.</p> <p>Nor will the commission be issued for the purpose of showing • that in certain business relations which existed between the defendant and the complaining witness the latter “ bested ” the defendant and broke faith with him, as these matters are irrelevant, and, while possibly a subject for the cross-examination of the complaining witness, the matter being a collateral one, his answers would be binding upon the defendant.</p>

<p>Crimes — When Sunday base ball playing is a crime.</p> <p>Playing a game of base ball on Sunday, which is not a public game, is a crime only where it seriously interrupts the repose and religious liberty of the community and unless the information charges and shows such an interruption the magistrate has no jurisdiction to issue a warrant.</p> <p>It is not the business of the police to stir up obsolete laws, or such as depend on the will of the community for enforcement.</p>

<p>Dower — When a legacy in lieu of dower survives the widow’s death, without election made, and is recoverable by her estate — Effect of her action to have probate of the will revoked.</p> <p>Where a testator gives his wife a legacy in lieu of dower and she dies within one year after his death without making an election but also without having entered upon the lands assigned to her for dower or beginning an action therefor, the legacy is not lost by her death, and this because section 181 of the Real Property Law declares that upon her failure to enter or sue within one year after his death she shall be deemed to have elected to take the legacy. Her personal representative may therefore after the lapse of the year maintain an action to recover the legacy.</p> <p>The fact that the widow brought an action to have probate of the will revoked and it declared invalid upon the ground of the testator’s alleged lack of testamentary capacity does not show an intention upon her part, not to take under the will, first, because she was not called upon to elect until it was judicially determined whether her husband had made the will, and, second, because said section 181 determined her election for her unless she entered or sued for dower within the year after his death.</p>

<p>Contract — Rescission and novation.</p> <p>Upon purchasing premises from executors, against whom one Schmidt had a claim for commissions, the defendant, Finn, on May 14, 1902, agreed in writing to pay, and did pay, Schmidt $1,000, on passing title, for releasing his claim to the executors and further agreed to pay Schmidt $8,600 in case of a sale of the premises and upon its consummation. Schmidt subsequently sought a settlement of the $8,600 claim with Finn who offered him $2,500 and Schmidt on Nov. 23, 1903, accepted it and his acceptance was reported to Finn. Two days later, when the matter was to he closed, Schmidt would not close and later on the same day assigned his claim against Finn for commissions arising out of 'a sale of the premises to Sandman, the plaintiff, who, after a sale of the premises made on Jan. 2, 1904, sued Finn to recover $8,600.</p> <p>Held, that the plaintiff could recover only $2,500 and that under the offer and acceptance of Nov. 23, 1903, which constituted % contract.</p> <p>That it rescinded the prior agreement of May 14, 1902, and effected a novation, under which Schmidt’s contingent claim for $8,600, whose time for performance had not arrived when he assigned it and which was therefore unenforcible as a debt, was transformed into a definite presently enf'orcible claim for $2,500, based upon a good consideration.</p>

<p>Deed creating a trust for the grantor’s life with remainder at her death to her children — Reservation in the grantor of power to revoke the trust with her husband’s consent — Clause authorizing the trustee to terminate the'trust by a reconveyance to the grantor — Construction of such deed — A party claiming under the deed cannot impeach its validity — Proof of its delivery — Sale of an infant’s real estate — What does not estop him from attacking it.</p> <p>In 1889 Henrietta E. G-uldenkirch conveyed premises to one Lowrey, in trust, to receive the rents, etc., pay her the net income for life and upon her death convey the premises to such of her children as she might leave surviving and to the issue of any predeceased children. The deed reserved to the grantor power to revoke the trust by written notice, executed as conveyances of real estate are required to be, but only upon her husband’s written consent similarly executed and the trustee agreed on receipt of said notice and consent to convey the premises to any person nominated therein, in which event it was provided that he would be relieved from further liability under the trust without resort to legal proceedings. The trustee accepted the trust upon the condition stated in the deed that he might, at any time, resign the trust and reconvey the premises to the grantor without judicial authority or resort to legal proceeding and would thereby relieve himself from- any liability thereafter by reason of the trust. The husband died 'in 1890 without having given the consent to the revocation of the trust, and in 1891 the trustee, as such, reconveyed the premises to the grantor as an individual by a deed reciting his desire to resign and reconvey and also that the grantor had revoked and terminated the trust. The grantor subsequently died, leaving a will by which she devised her residuary estate to her executor in trust to pay the rents, etc. to her three infant children during minority and at the majority of the youngest to divide the principal among them equally. Pursuant to a power of sale contained in the will the executor and trustee sold the premises in question and, in the execution of the trust, has since paid the income of the purchase price to his testatrix’ children. In an action brought by a party claiming under the deed executed by the executor and trustee against the children of the testatrix to determine the questions affecting the title to the premises.</p> <p>Held, that the plaintiff, having set up the trust deed as one of the muniments of his title and having introduced it in evidence, could not be heard to contend that it never became operative.</p> <p>That the recital in it that it was delivered, the acknowledgment of its execution by the grantor and the trustee, and its recording at the request of a stranger, established its delivery in the absence of proof to the contrary.</p> <p>That proof that, after the execution of the trust deed, the grantor continued to exercise control over the property and collected the rents thereof did not affect the validity of the trust deed, as she might have done so at the request or with the permission of the trustee.</p> <p>That, in the absence of any fraud or misrepresentation on their part, the infant children of the grantor were not estopped from asserting title to the premises by their receipt from the testamentary trustee of the income of the purchase money.</p> <p>That the trust deed created an express trust for the benefit of the grantor and a power in trust for the benefit of such of her children as survived her and for the issue of those predeceased.</p> <p>That the grantor, having elected to make her power to revoke the .trust conditional upon her husband’s consent, such consent was a prerequisite to the exercise of that power, and that the husband having died prior to the enactment of section 154 of the Real Property Law (L. 1896, ch. 547) without having executed the consent, the grantor’s power to terminate the trust was lost forever.</p> <p>That as the trust deed gave the trustee power to terminate the trust by a reconveyance to the grantor and did not make such reconveyance conditional upon the consent of the grantor’s husband, the deed of reconveyance executed by the trustee operated to vest in the grantor the absolute title to the premises free from any trust in favor of her children.</p>

<p>Negligence — Death of an employee caused by falling through an insufficiently lighted hatchway in the lower deck of a steamship — Concurring negligence of an employer and a co-servant. — Duty of employer to light the place.</p> <p>In an action brought to recover damages for the death of the plaintiff’s intestate which occurred while he was helping to unload at night a steamship of the defendant, his employer, it appeared that after he had been working on the lower deck, with the middle hatchway open to take cargo from the hold, the defendant’s stevedore, who was in charge of the vessel, ordered that hatchway closed and the intestate assisted in placing the hatches upon it, that he was then sent to the upper deck to help in unloading there, that while he was there one hatch was, by order of a co-servant of the intestate, taken off the said hatchway to make a step for men who were unloading lumber on the lower deck, that immediately in front of this hatchway thus exposed was a pile of lumber about five feet high the top of which projected somewhat over the hatchway, that a lamp giving but poor light was on top of the pile and that the pile cast a shadow over the hatchway so that the latter was in the dark, that the intestate was sent back to the lower deck and while' assisting another employee in raising lumber from that deck by passing it up to men on the deck above, he fell through the open hatchway into the hold and was killed.</p> <p>Held, that the plaintiff was entitled to recover.</p> <p>That while the immediate cause of the intestate’s death, the opening of the hatchway, was the act of a fellow servant, the jury were justified in finding the defendant guilty of concurring negligence in omitting to provide a proper light which would have enabled the intestate to see that the hatch had been removed from the hatchway in his absence.</p> <p>That if the defendant desired to rely on the claim that it had done its duty in the matter of furnishing lamps, it should have shown affirmatively that proper lamps were at the disposal of the intestate and that he had actual or constructive knowledge of the fact.</p>

<p>Will — Construction of a residuary clause — Residue of a residue — Intestacy not favored.</p> <p>The will of a testator, after creating in his residuary estate a trust to raise and pay his widow a certain income for life in lieu of dower and one to raise an income for his son Harold for life and pay it to him -unless he was deemed by them incompetent to receive and disburse it, in which case the trustees were directed to pay the income to his legal representatives, or his estate, or disburse it. for his support, accompanied in the latter case by a statement that no further provision was made for Harold because his condition mentally and physically was such that he was incapable of managing his own affairs or any business, directed the trustees to divide “all the rest, residue and remainder of my estate ” into two equal parts and hold them for the benefit of his son Edward and his daughter Eleanor.</p> <p>Held, that in view of the testator’s expressed intention to exclude his son Harold from any share in the estate and of the general provisions of the will, the words “ all the rest, residue and remainder of my estate ” were intended by the testator to cover the remainder in the property held in trust for the annuity of the widow and that the remainder would, upon her death, pass to the trustees for the other purposes of the will and that the testator did not intend to die intestate as to it or as to any portion of his estate.</p>

<p>Action to foreclose a mortgage.</p>

Motion to confirm an inquisition. The hearing was had before Timothy M. Griffing, Esq., sole commissioner, and twenty-one jurors. It began in the morning of March first and continued, with only brief adjournments, until nearly two o’clock in the morning of March second, at which time the ease was submitted to the jury. After being out for about one hour, the jury came in with an inquisition tó the effect that Mr. Preston was competent.

<p>Application to appoint a committee of an incompetent person — Merits when not triable upon the affidavits.</p> <p>Where it appears from the allegations of the petition, and accompanying affidavits, presented upon an application for the appointment of a committee of the property of a person upon the ground of her incompetency to manage her affairs, lhat the court has jurisdiction of the person and of the matter and that" the allegations, if true, would presumably require the appointment of a committee, the court should not hear the merits on the affidavits but must send the matter to a commission or a jury, and this although, upon all the affidavits of both sides, the court be of opinion that, if such were the evidence given upon the hearing of the proceeding, it should be dismissed or the finding of incompetency he set aside.</p>

<p>Pleading — Verification of the pleading of a domestic corporation by an officer.</p> <p>An officer of a domestic corporation is, for the purpose of verifying a pleading interposed by it, to be deemed a party within Code Civ. Pro., § 525, subd. 1, and therefore need not state in his affidavit of .verification the grounds of his belief as to all matters not stated upon his knowledge.</p>

<p>^Execution, upon an order of the court — The provisions of Code Civ. Pro., § 1391, added in 1903, are applicable to a privare but inapplicable to a municipal corporation — Public policy.</p> <p>Public policy exempts a municipal corporation from being subject to the operation of the clauses, added in 1903, to Code Civ. Pro., § 1391, entitling a judgment creditor, with an execution returned unsatisfied in whole or in part issued upon a judgment rendered upon a debt of a nature described in the section, to reach by an execution issued by an order of the court not more than ten per cent of a salary exceeding twenty dollars a week due or to become due to the judgment debtor from a corporation employing him, requiring it, after presentation of the execution by the collecting officer and while it remains a lien upon the debt, to pay "the officer the percentage thereof fixed by the execution until it is satisfied and making the corporation, upon its refusal or neglect ■so tes pay, liable to an action by the judgment creditor for such percentage-—and this because a creditor should not be permitted To reach the salary of a municipal employee, due or to become due, before it has come into his possession and it is against "the public interest that city officers be exposed to be harassed in "their duties by having to attend legal proceedings taken by the -creditor to reach the percentage of the salary, or that the city be -exposed to possible, litigation with the debtor if the officers make an improper payment and to liability to the creditor if they do not pay the collecting officer.</p> <p>The said provisions are applicable to a private eorporation.</p>

Appeal by the plaintiff from an order of the City Court of the city of New York vacating a prior order denying the plaintiff’s motion for a new trial.

Appeal by the defendant from a judgment of the City Court of the city of Few York, entered, in favor of the plaintiff, upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial.

<p>Bankruptcy Law of 1898 — A discharge does not release the bankrupt from a judgment recovered against him for damages for a malicious injury to the property of another.</p> <p>A judgment recovered in an action against a defendant upon allegations that he willfully and maliciously injured the plaintiff’s property cannot lawfully he discharged and canceled of record by an order of a State court upon his presentation of his subsequent discharge in bankruptcy, as subdivision 2 of section 17 of the Bankruptcy Law of 1898 declares that a discharge shall not release, such a liability.</p>

Appeal by the defendant from an order of the Special Term of the City Court of the city of New York, denying a motion to vacate a warrant of attachment. The plaintiff, a dealer in furniture, occupied the second floor of a building and the defendant occupied the fourth floor of the same building.

Appeal by the plaintiff from an order of the Special Term of the City Court of the city of Eew York, denying his motion for an inspection of an alleged written agreement made between the parties.

<p>Sale — On an executed present sale of an article, with a warranty as to quality, the vendee need not and cannot return the article for a breach of the warranty — When the admission, in the vendor’s action for the price, of proof, that no offer to return had been made by the vendee, is erroneous.</p> <p>On an executed present sale of a machine, with a written warranty as to power, it is neither necessary nor permissible for the vendee to return the machine on account of a breach of the warranty.</p> <p>The right to damages for the breach survives acceptance and acceptance is qualified by the warranty and is to be construed in reference to it.</p> <p>Where the vendor sues for an unpaid balance of the price and the vendee sets up the breach of warranty and claims damages for it, it is erroneous for the trial justice to permit the vendor to prove by the vendee, on cross-examination, that the vendee never offered to return the machine as, in view of the admission of the evidence which would not have been admitted unless considered by the court as material, the appellate court cannot say that the verdict for the vendor, directed by the trial justice, was not directed by him upon the theory that the vendee had not offered to return the machine after he discovered the breach of the warranty.</p>

<p>Action on a contract — Recovery must be had secundum allegata et probata — When, in an action for damages fer delaying completion, there can be no' recovery for extra work — What constitutes extra work—Construction of a clause that, if the owner delays the work,, the time for performance shall be extended correspondingly — Effect* upon a claim for extra work, of a clause limiting the net cost of completion to a fixed sum.</p> <p>A complaint alleged a written agreement made between the plaintiff and the defendant whereby the plaintiff was to provide all materials for and perform all work, shown on drawings of the-defendant’s architects, for a plaster model of his residence, to be finished by Dec. 15, 1898, at a price of $1,000, that the plaintiff furnished all the materials and did all the work but did not, until Feb. 15, 1899, complete the model because of alleged unreasonable delay of the architects in furnishing the drawings, causing, him, for reasons alleged, increased expense, and for this delay and consequent expense he asked and recovered damages in excess of $1,000, which sum lie admitted had been paid him. Upon the trial the plaintiff proved the delay and, against the defendant’s objection that it was extra work, for which kind of work no claim was made in the complaint, was permitted to prove that frequently after Dec. 15, 1898, after work on parts of the model had been correctly-completed, according to the drawings furnished, they were materially changed by the architects and the work done on those parts-of the model thereby rendered useless. The written agreement provided that if the plaintiff was delayed by the neglect, delayer default of the owner or of the architects, the time fixed for completion of the work should be extended for a period equivalent to-the time lost by any or all of those causes and, further, that the net cost of all labor and materials should not exceed $1,000, which sum was covenanted to include all changes and alterations required by the architects.</p> <p>Held, that, as the complaint was framed merely to recover damages for unreasonable delay in furnishing the drawings, the admission of the testimony as to the work correctly done on parts of the model according to the drawings furnished and rendered useless by subsequent changes in them — and which work was recoverable for, if at all, only as extra work — was erroneous, and that, under the rule that a recovery must he secundum allegata ,et probata, the verdict for the plaintiff could not be permitted to stand under .proofs erroneously admitted as a measure of damages for delay. ,</p> <p>Semble, that the plaintiff could not in any event recover damages for delay as it was contemplated by the parties, as appeared from the clause providing for an extension of the time of completion of the work, in case of the owner’s or architects’ delay, commensurate with the time so lost.</p> <p>That this time clause affected the plaintiff alone and was intended to absolve him therefrom to the extent and in the manner provided by the contract.</p> <p>Semble, that, in the absence of proof that the architects had authority to order changes affecting the contract price, the clause, providing that the net cost should not exceed $1,000 and should cover all changes and alterations required by the architects, would prevent any recovery for extra work.</p>

<p>’ Appear by the defendant from a judgment of the City Court of the city of New York, entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial.</p>

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, in favor of the plaintiffs, entered on the verdict of a jury.</p>

<p>Negligence — Accident at a point in a street where the rights of hoth parties were equal and neither believed that there was any danger of an accident.</p> <p>Where a pedestrian voluntarily stops at a point, on a crosswalk at a street corner, fourteen feet from the curb of the street and two feet from the track of a street railroad, 'curving around the corner, on which she had seen a ear approaching when distant from her one hundred forty feet, and, as the ear reaches her and passes around the curve, is struck by the car’s extreme end, which swung out farther than its body, and is thereby thrown in front of a truck, passing behind her in the street, at a distance of three feet from the curb, and receives personal injuries, the pedestrian cannot maintain an action against the corporation operating the railroad to recover damages for her injuries on the ground of the alleged negligence of the employee in control of the ear, and this because, at the point where the accident occurred, the rights of the parties were equal, each owing the other the duty of ordinary care, and if the pedestrian considered the position chosen by her in the street as a safe one and was mistaken about it, the fact that the operator of the car was of the same opinion cannot charge Mm with negligence without a like fault falling upon her. Neither was negligent or both were.</p>

<p>Appeal by the plaintiff from an order of the City Court of the city of Hew York, setting aside a verdict of a jury rendered in favor of the plaintiff and ordering a new trial</p>

<p>Appeal by the defendants from a judgment,of the City Court of the city of New York, entered in favor of plaintiffs upon the verdict of a jury, and from an order denying the defendants’ motion for a new trial.</p> <p>The action was brought to recover damages for an alleged breach of an executory contract for the sale and delivery of six bales of silk, the breach consisting in the defendants’ refusal to receive the bales when offered for delivery on June 1, 1900. The contract was made in New York city by a local agent of the plaintiffs who had preceded Jar dine, Matheson & Oo. in that capacity.</p>

<p>Appeal by the defendants from a judgment of the City Court of the city of Rew York, rendered in favor of the plaintiff.</p>

<p>Sale by description — Imports a warranty that the article sold was of that description — When the rule of caveat emptor does not apply.</p> <p>In an action brought to recover the' price of seventy-one boxes of grape fruit alleged to have been sold by the plaintiff to the defendant, it appeared that, in the city where the sale was made, a custom existed, of which both parties to the action were cognizant, among buyers and sellers of fruit to sell it in bulk by sample boxes opened, the purchaser opening and being permitted to open only a few of them and then making his offer according to the sample, that the defendant’s buyer went to the plaintiff’s store and told him he wanted to buy "grape fruit” and, seeing in front of the store a load of boxes, consigned to the plaintiff from Florida as containing grape fruit, asked the plaintiff “what he had ” who replied that he “ didn’t exactly know what it was ”, that the buyer then opened in the plaintiff’s presence a few of the boxes and found grape fruit in them, that he then bought all the boxes as grape fruit and that they were so billed to the vendee by the vendor and were so entered in the vendor’s books. Upon being opened nearly one-half of them proved to contain “ shaddock ”, a worthless fruit, and for damages therefor the defendant unsuccessfully interposed a counterclaim below.</p> <p>Held, that the counterclaim was valid. ,</p> <p>• That the rule of caveat emptor had no application.</p> <p>That a bargain and sale of an article of a particular description, e. g. “grape fruit”, imported a contract or warranty that the article sold was of that description.</p>

Appeal by the defendant from a judgment of the Municicipal Court of the city of New York, second district, borough of Manhattan, in favor of the plaintiff.

<p>Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, third district, borough of Manhattan.</p>

Appeal by the defendants from a judgment rendered in favor of the plaintiffs in .the Municipal Court of the city of New York, ninth district, borough of Manhattan.

<p>Municipal Court Act, L. 1902, ch. 580, § 239 — The provision that a verdict shall be entered immediately after it is rendered is directory merely—■ Lease — A tenant’s covenant to use the premises for particular purposes not an implied covenant of the landlord that the premises were or will continue to be fit for those purposes.</p> <p>The provision of section 239 of the Municipal Court Act that judgment “must be entered thereon (on a verdict) immediately after the rendering of the verdict ” is directory merely and a party cannot be deprived of the benefit of his verdict by the justice’s delay or refusal to enter the judgment.</p> <p>A covenant in a lease, on the part of the tenant, that he will not use the demised premises except as a lyceum or dancing hall cannot be extended into an implied covenant, upon the part of the landlord, that the premises were or will continue to be fit for those purposes.</p>

<p>Jurisdiction — Not ousted by subsequent events if it existed when the action was brought.</p> <p>Jurisdiction depends on the state of things existing when an action is brought and cannot be ousted by subsequent events.</p> <p>Where a final order, awarding a landlord possession of a building and ousting an under tenant for having held over his term, is reversed on appeal by the latter upon the ground that a five-days’ notice was necessary to terminate the tenancy and that the notice had not been given, and the appellate court orders a new trial, with costs to the appellant to abide the event, the landlord is entitled to a new trial and the trial court has no authority to grant upon the new trial a motion of the under tenant to dismiss the proceedings, made upon the ground that the demised building having been demolished and removed since the first trial the trial court is without jurisdiction to try the issues.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, seventh district, borough ,of Manhattan, in favor of the plaintiff.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, dismissing the confplaint of the plaintiff.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, entered on the verdict of a jury, in favor of the plaintiff.</p>

Appeal by the landlord from a final order in favor of the tenant, made in summary proceedings taken for holding over, upon the verdict of a jury rendered in the Municipal Court of the city of Hew York, sixth district, borough of Manhattan.

<p>Costs — A charge of foreign lawyers for “ professional services ” rendered the defendant- in executing a foreign commission he took out is not taxable against the plaintiff as a disbursement — Affidavit necessary to a taxation for attendance of witnesses in the Municipal Court of the city of New York.</p> <p>An item, in a defendant’s bill of costs, representing a charge made against him by foreign lawyers for “ professional services ” rendered him in connection with the. execution of a foreign commission, issued at his instance, to take the evidence of a foreign witness in his behalf, is not, upon a discontinuance of the action by the plaintiff, taxable against the plaintiff as a disbursement although he consented to the issue of the commission and proposed interrogatories to be put to the witness named therein.</p> <p>Section 344 of the Municipal Court Act forbids allowance of a charge for attendance of witnesses without an affidavit stating the number of days of actual attendance.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, rendered in favor of the plaintiff.</p>

<p>Stock Corporation Law — Penalty for not keeping a stock book not recoverable by a stockholder — If the book does not exist an officer of the corporation can incur no penalty for neglecting or refusing to exhibit it.</p> <p>A stockholder of a stock corporation cannot maintain an action to recover of it the penalty imposed upon it, by section 29 of the Stock Corporation Law, for its failure or neglect to keep, or keep open for inspection, such a stock book as is required by said section, the right of action being given by the section to the People alone.</p> <p>Where such a book is not kept by the corporation, an officer of it cannot be made liable under the last clause of said section for an alleged willful neglect or refusal to exhibit the book, or allow inspection of it, or the making of extracts from it.</p>

Appeal by the defendants from a judgment rendered in the ¡Municipal Court of the city of ¡New York, tenth district, borough of Manhattan, in favor of the plaintiff.

<p>Municipal Court of the city of New York — Remedy of a defendant who has permitted a judgment by default to be taken against him.</p> <p>A defendant who has permitted a judgment to be taken against Mm in the Municipal Court of the city of New York by default, cannot appeal therefrom, his' remedy being to move under section 253 of the Municipal Court Act to open the default and vacate the judgment.</p> <p>No appeal lies in the first instance from such an order, as section 257 of the said act so enacts.</p> <p>Semble, that in such case the defendant has no alternative but to comply with the terms fixed by the order.</p>