Volume 45 — New York Miscellaneous Reports

<p>Action on contract in the State of New York by one foreign corporation against another — To bring the case within the inhibition of section 15 of the General Corporation Law or section 181 of the Tax Law it must be alleged that the contract was made within the State of New York — Sufficiency on an application for an attachment of averments as to damages and as to the defendant’s being a foreign corporation.</p> <p>The inhibition contained in section 15 of the General Corporation Law against the maintenance of an action by a foreign corporation or an assignee thereof in the courts of the State of New York, where the foreign corporation has neglected to procure from the Secretary of State the certificate prescribed by that section, is directed only against actions on contracts made within the State of New York.</p> <p>If the papers used on an application for an attachment made in an action on contract brought by an assignee of a foreign corporation do not disclose the fact that the contract sued upon was made within the State of New York, an averment that the statutory certificate was obtained is not necessary to support the attachment; nor is it necessary that the moving papers should allege compliance by the plaintiff’s assignor with the provisions of section 181 of the Tax Law (Laws of 1896, chap. 908) requiring foreign corporations to pay a license fee, for the reason that the said section of the Tax Law does not assume to prohibit the maintenance of an action by the assignee of a foreign corporation. When the averments of the moving papers as to the subject of damages and as to the defendant being a foreign corporation are sufficient, considered.</p>

<p>Insolvency of a building and loan association—Premiums are no longer chargeable against a borrowing member — A voluntary payment by him to its receiver, of a sum in excess of the amount due — The expense of a proceeding to obtain reimbursement is chargeable to the borrowing member — The rule that a voluntary payment is conclusive is inapplicable.</p> <p>Where a building and loan association becomes insolvent, its claims against borrowing members for premiums charged in carrying through the building transactions are no longer an asset, since the consideration for the members’ promise to pay the premium, to wit, the continuing benefit from the existence of the association, failed with the cessation of business, and in the adjustment of a member’s account, the premium is not to be added to the actual indebtedness due from the member to the company, but the member’s indebtedness is simply the amount loaned with interest, less the amount of the payments made by the member as interest upon the loan and the premium.</p> <p>Where a borrowing member of an insolvent building and' loan association pays the receiver thereof an amount in excess of her indebtedness, she is entitled to reimbursement, but when it appears that the excessive payment was made upon the borrowing member’s own initiative and that the receiver of the association was free from fault, the expenses of the proceeding to obtain reimbursement should be borne by the borrowing member and not by the fund in the receiver’s hands.</p> <p>The rule which renders conclusive a voluntary payment is not applicable to a payment made to the court through the hand of an officer thereof.</p>

<p>Setting aside a judgment because rendered through the moving party’s surprise — What constitutes surprise — Contract with an attorney to perform legal services — Measure of damages for its breach.</p> <p>The power given to the court by section 724 of the Code of Civil Procedure to set aside a judgment and grant a new trial upon the ground that the judgment was rendered through the mistake, inadvertence, surprise or excusable neglect of the moving party, should only be exercised to remedy a clear and palpable wrong which otherwise would be remediless.</p> <p>What facts do not justify the exercise of this power, considered.</p> <p>The surprise which may be invoked upon a trial in opposition to a motion to conform the pleadings to the proof can only , mean the inability to procure evidence otherwise available.-</p> <p>Quasre whether an attorney, who níakes a contract to perform legal services in consideration of a contingent fee, may recover the stipulated amount upon proof that his client refused to permit him to perform any part of the contemplated services and that he was ready and willing to perform them.</p>

<p>Electric illuminating company’s switches, wires and meters — When attached to real property of others they should not be assessed as real property to the company — Preliminary objections need not be filed to such an assessement.</p> <p>' Switches, wires and meters owned by an electric illuminating company and installed on real property belonging to different individuals to whom the company was furnishing electricity; are not assessable as real estate to the electric illuminating company.</p> <p>Where they are so assessed, the assessment is void and illegal- and is subject to be attacked at any time without the filing of preliminary objections.</p>

<p>Erection of a building, the columns on the face of which project into a city street — Power of the legislature to authorize a city to permit it — When an adjoining abutting owner is not entitled to enjoin its erection.</p> <p>A corporation proposing to erect, on a lot abutting upon a street in the business section of a city, a bank building, the plans for which involve the erection, as a part of the front wall of the building, of five columns extending beyond the face of the wall into the street for a distance varying from twenty-three and three-sixteenths inches to sixteen and one-half inches, will not be enjoined from encroaching upon the street with the columns at the suit of the owner of an adjoining store building, where it appears that the street was originally a state road created by an act of the legislature, that the title of the abutting owners extends only to the street line, that the portion of the sidewalk left unobstructed by the projecting columns is of ample width to accommodate the public needs, that the common council of the city, pursuant to a provision of the city charter, authorizing it to permit the use of sidewalks for business purposes which do not interfere with the public use and to permit “ columns, pilasters and ornamental portions of any building to encroach upon any street,” adopted a resolution permitting the corporation to allow the columns to encroach on the street for a distance of not more than twenty-four inches and stating that the projecting columns “ would not interfere with the reasonable and substantial use of said streets,” unless it appears that the complaining property owner has sustained private and peculiar injury therefrom, and that such injury is substantial and not merely nominal.</p> <p>The consent of the common council to allow the columns to encroach upon the street, having been given pursuant to the authority of the legislature concerning a highway created by the latter body, such consent had the same effect as though the legislature itself had authorized the encroachment; such a delegation of power by the legislature is proper.</p>

Motion by the defendant, The German Savings Bank, in the city of New York for an order substituting Mary Gottschall as a party defendant in its place and stead. The claimant, Mary Gottschall, claims the same fund as the plaintiff.

Action to restrain the defendant, a captain of police, from unlawfully trespassing upon and interfering with the running of the plaintiff’s hotel. Motion for an injunction pending the action.

<p>Motion for final judgment upon the report of a referee made pursuant to the provisions of an interlocutory judgment which directed an accounting.</p>

Motion by defendants for an order opening their default and permitting them to present a new proposed order on said motion. Motion for an interpleader.

<p>Motion on behalf of defendant upon the return of an order requiring plaintiff to show cause why an order should not be made determining and declaring that defendant is not in default, for failure to appear and answer, or should it be determined that defendant is in default, then opening such default and allowing defendant to serve an amended answer.</p>

<p>Motion under the provisions of section 618a of the Code of Criminal Procedure for a subpoena directing a citizen and resident of the city of ¡New York to appear and testify as a witness in a criminal action now pending in a court of the State of Pennsylvania.</p>

<p>Civil Service — Transfer by the comptroller of the city of New York of clerks from non-competitive to competitive positions — It cannot be sanctioned by the municipal Civil Service commission — Right of one placed upon the list of suspended employees to a mandamus — Notice of his claim — Who are proper parties.</p> <p>The position of disbursing clerk in the department of finance in the city of New York, which position is in the competitive class of the Municipal Civil Service, was abolished as unnecessary on January 1, 1902 and the name of the previous incumbent thereof was placed at the head of the list of suspended employees in accordance with Rule 42 of the Municipal Civil Service and section 1543 of the Greater New York charter.</p> <p>The latter section provides, “Wherever in any department or institution an office, position or employment is abolished, or made unnecessary * * * the person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, * * * if within one year thereafter there is need for Ms or their services * * *. It shall be the duty of the municipal civil service commission forthwith to place the names of said persons upon a list of suspended employees for the office, or position or for the class of .work in which they have been employed, or for any corresponding or similar office, position or class of work, and to certify the said persons for reinstatement, in the order of their original appointment, before making certifications from any other list.”</p> <p>In April, 1902, the comptroller undertook a re-classification of the employees in his office, and, finding that there, were two men performing the services of disbursing clerks who had been appointed assistants to expert accountants, which positions were in the exempt class of the municipal civil service, he applied for and obtained permission from both the Board of Estimate and Apportionment and from the Municipal Civil Service Commission to change the titles of the positions held by these two men from that of assistants to expert accountants to that of disbursing clerks.</p> <p>The change took effect September 1, 1902 and thereafter the two men in question were known as disbursing clerks and performed the same duties which the suspended disbursing clerk had previously performed. The two men thus transferred to the position of disbursing clerk did not pass any civil service examination for .the position of disbursing clerk and were not on the list of those eligible for that position.</p> <p>Upon an application by the suspended disbursing clerk for a writ of mandamus to compel the comptroller to reinstate him in his position, it appeared that one of the two men transferred to the position of disbursing clerk was still holding that position and that the other had died November 17, 1903, and that his position had not since been filled.</p> <p>Held that the application for the mandamus should be granted; That the attempt to transfer the two men beforementioned from the positions of assistants to expert accountants to that of disbursing clerks, was in violation of sections 13 and 15 of the Civil Service Law (Laws of 1899, chap. 370) and of Bule 40 of the Municipal Civil Service Commission;</p> <p>That the conduct of the comptroller in the premises operated as a determination that the services of a disbursing clerk were needed and as a request to the Municipal Civil Service Commission to certify the names of persons eligible to the position;</p> <p>That, under the circumstances, no quasi judicial authority was vested in or was exercised by the Municipal Civil Service Commission, and that the suspended employee had, ipso facto, the right to reinstatement by virtue of section 1543 of the Charter;</p> <p>That, in view of the fact, that the suspended employee was never lower than second upon the list of suspended employees during the entire time of his suspension and that there were two positions as disbursing clerks to be filled, it was not material that the suspended employee was not first on such list during the entire time of his suspension;</p> <p>That it was not incumbent upon the suspended employee, before instituting the mandamus proceeding, to give notice of his claim to a preference and to demand reinstatement;</p> <p>That it was not necessary for the suspended employee to make •the survivor of the two men illegally transferred to the position of disbursing clerk a party to the proceeding, as he was entitled to claim the position made vacant by the death of the other of such two men, together with the salary incident to that position which had accrued since the latter’s death and which the city had not paid to any person.</p>

<p>Examination of a witness after service of the complaint and before issue joined — Effect of a stay of proceedings for non-payment of costs — Irregularity cured by their payment — Statement in the moving papers as to intent to use the testimony on the trial.</p> <p>The court has power, on the application of a plaintiff, to grant an order for the examination of a witness, pursuant to sections 871-876 of the Code of Civil Procedure, after the complaint has been served and before issue has been joined.</p> <p>The fact that at the time the plaintiff obtained the order his proceedings were stayed, under section 779 of the Code of Civil Procedure, because of his failure to pay the costs awarded to the defendant on another motion, does not deprive the court of jurisdiction to issue the order, but merely renders the proceedings irregular; if the plaintiff pays the costs in question before the return day of a motion to vacate the order for the examination of the witness, and the defendants have not been prejudiced by his previous failure to pay the costs, the irregularity of the' proceedings may be considered cured. -</p> <p>A party applying for an order for the examination of a witness pursuant to sections 871 to 876 of the Code of Civil Procedure need not in his moving papers make the express statement that he intends to read the.testimony of the witness on the trial; it is sufficient if such inference may be necessarily drawn from the facts alleged and the statements made.</p>

<p>Action by a non-resident against a foreign corporation — The place of the breach of a contract sued upon determines the right to sue — Pleadings alone considered — Question raised by demurrer or answer— Orders and decrees have no extraterritorial force—Amendment of imperfect papers.</p> <p>When determining whether a cause of action arose within the State of New York, for the purpose of deciding whether the courts of the latter State have jurisdiction, under section 1780 of the Code of Civil Procedure, of an action brought by a non-resident against a foreign corporation, the allegations of the pleadings may alone be considered.</p> <p>If the action is for breach of a contract and such breach occurred within the State of New York, the courts of the latter State have jurisdiction, no matter where the contract was made.</p> <p>The question of jurisdiction of the subject matter of an action is properly raised by demurrer or answer.</p> <p>The orders or decrees of a court have no extraterritorial force or effect.</p> <p>Where the papers used on a motion for an injunction pendente lite are imperfect in that the certificates authenticating the notary’s signature to the original affidavits are not appended to such affidavits, the court may allow the defect to be corrected.</p>

<p>Motion to strike out exceptions to a referee’s report.</p>

<p>Action to redeem from the lien of mortgages held by the defendant Cody.</p>

<p>Agreement to give money by will — When it will be specifically enforced — “ Leave ” used in the sense of “ will.”</p> <p>An uncle sent to a favorite nephew the following letter: “Delos if there is not any change in my family, I shall leave one-half of what I have for you, but have willed you $1,000 — now I want to say to you — you get me up a cane that will be good enough for you when I get through with, and I will leave the cane and $1,000 with it when I get through. Keep this note.” The nephew furnished the uncle a cane' worth forty dollars and the uncle accepted it, used it for many years and expressed satisfaction with it. Upon his death, the uncle did not leave the $1,000 to his nephew, but left substantially all of his property to an adopted daughter. There was no evidence that she would, not be amply provided for without such $1,000.</p> <p>Held, that the letter constituted a valid contract oh the part of the uncle to leave the nephew $1,000 and that the nephew was entitled to compel specific performance of such contract;</p> <p>That the word “leave” was used in. the letter in the sense of “will”;</p> <p>That the first clause of the letter, “ if there is not any change in my family,” related to the uncle’s proposition to leave the nephew one-half of his estate and not to the proposition to leave the nephew $1,000 if he provided the uncle with a cane.</p>

<p>Action upon a written guaranty. Demurrer to complaint.</p>

<p>Police — Stationing an officer before a disorderly house will not he enjoined — Notice to customers will be.</p> <p>A police captain in the city of Hew York will not be precluded from posting officers in front of and from inspecting a hotel in which liquors- are sold and which he claims is conducted as a disorderly house, but will be enjoined from interfering with customers entering the hotel by statements that it is a disorderly house and as such is likely to be raided at any moment by the police and the occupants thereof arrested.</p>

Action in equity for the dissolution of a partnership, for an accounting and the appointment of a receiver. Motion for final judgment.

<p>The petitioner, in his own behalf and in behalf of others named upon an official primary election ballot, applied for a writ of mandamus, requiring the board of primary election inspectors in the first primary election district in the thirty-first assembly district to produce all ballots used at said election, and for a recount of said ballots, and to compel the board of elections of the city of ¡New York to issue to the petitioner and to the other persons mentioned on said election ballot a certificate of election. The ballots having a majority were printed upon paper lighter in weight than were the ballots upon which the ticket of the petitioner was printed.</p> <p>The Primary Election Law provides that the custodian of primary elections shall prescribe the sample paper for use at primaries, and that “ ballots not conforming to the provisions of this section shall not be counted at any official primary election.”</p> <p>Further facts appear in the opinion.</p>

<p>Demubbeb to complaint.</p>

<p>Injunction restraining defendants from obeying orders of a court in another State, made 'in an action in which the plaintiff is not a party.</p> <p>A New York corporation cannot maintain an action against a person residing in the State of New York and against another New York corporation to secure an injunction restraining the defendants from acting in accordance with orders made in actions instituted by the defendants in the State of Montana, where it appears that the plaintiff was not a party to the Montana actions and it is not shown that the Montana court did not have jurisdiction to make the orders in question.</p>

<p>Auction sale — Secret agreement that the auctioneer is only to receive a bid satisfactory to the vendor — Suit against the surety for the auctioneer for the proceeds of the sale — Employment of a “ puffer.”</p> <p>The fact that an owner of personal property sold at public auction had a secret arrangement with the auctioneer that the property was not to be sold except at a bid satisfactory to such owner, does not render the auction sale illegal or constitute a defence to an action brought by the owner of the property against the surety on the auctioneer’s bond, to recover the proceeds of the auction sale which the auctioneer has failed to turn over to the owner, where it is not disputed that the property was actually sold to the highest bidder and no claim is made that the owner made use of a “ puffer ” to bid up the price of the property.</p> <p>Semble, that if the owner had made use of a “ puffer ”, the sale would not have been void, but voidable only at the election of the purchaser.</p>

<p>Application to strike the name of respondent from the register of electors of the first election district of the sixth assembly district.</p>

<p>Action to recover damages for personal injuries. Motion to set aside the verdict as against the evidence.</p>

<p>Equity — When a written instrument will be reformed — What proof is required — Presumption in favor of the instrument as signed.</p> <p>The mistake in a written instrument which a court of equity will rectify must be the mistake of both parties to the instrument, unless fraudulent conduct on the part of the defendant is charged.</p> <p>The burden is upon the plaintiff to establish the mistake by clear, positive and most convincing proof; a mere preponderance of testimony is not sufficient.</p> <p>There is a strong presumption that where the parties to a written instrument have examined and deliberately signed it, the instrument is what they intended it to be.</p>

<p>Mortgage — When a purchaser at a foreclosure sale is estopped from asserting the invalidity of a prior mortgage — Appointment pendente lite of a receiver of the rents of the mortgaged premises — What must be shown where the mortgage does not contain a receivership clause.</p> <p>Where a judgment foreclosing a mortgage upon real property, decrees that the property shall be sold subject to a prior mortgage of $18,000, and. the advertisement of sale and the terms of sale also refer to such prior mortgage, a person who purchases the property at the foreclosure sale for the sum of $100 is estopped from asserting the invalidity of the prior $18,000 mortgage, although the deed executed to him did not specifically mention such mortgage but simply stated that the premises were conveyed " subject to all liens that are.now thereon.”</p> <p>In an action brought to foreclose a mortgage which does not contain a receivership clause, a receiver of the rents and profits of the mortgaged premises will not be appointed pendente lite unless it clearly appears that the mortgagor liable on the bond to which the mortgage is collateral is unable to meet any deficiency judgment and that the property itself is not worth the amount of the incumbrance thereon.</p>

<p>A cause of action for the breach of a contract cannot be joined with one to rescind the contract for fraud.</p> <p>A cause of action based on the breach of a contract is not properly united in the same complaint with a cause of action for a rescission of the same contract on the ground of fraud. The two causes of action are not consistent.</p>

<p>Action for the sequestration of corporate property—A denial of any information and belief as to the entry of judgment and the return of an execution — The pendency of proceedings for the dissolution of the corporation.</p> <p>Where, in an action for the sequestration of the property of the defendant corporation and the appointment of a receiver, the defendant interposes an answer alleging that it has no knowledge or information sufficient to form a belief concerning the allegation of the complaint respecting the entry of a judgment in favor of the plaintiff against the defendant and the return, wholly unsatisfied, of an execution issued thereon, and also alleging, that proceedings for the dissolution of the corporation had been begun, but had not as yet been prosecuted to judgment, such answer is frivolous," first, because the entry of the judgment and the return of the execution being a matter of public record, the defendant’s denial of any information or belief respecting those matters will not be permitted, and second, because the proceedings for dissolution, not having yet eventuated in a judgment and the appointment of a receiver, were not effective to preserve the property, the dissipation of which the sequestration suit sought to prevent.</p>

<p>Nomination for the office of State Senator — It may, where the regular-convention fails to act, be made by a joint meeting called by the chairman of the general county committee.</p> <p>Where a party convention regularly called under the provisions of the Primary Law fails, owing to a deadlock, to nominate a candidate for the office of State Senator, the chairman of the county general committee of the party, pursuant to a rule or regulation adopted to provide for the contingency- of a primary convention having failed to act, may call a joint meeting of the members of the county general committee of the assembly districts comprising the district affected, and of the executive committee of the general county committee, and this joint meeting may nominate a candidate for the office.</p>

<p>Trial of demurrer to complaint.</p>

<p>Justice of the Peace — His duty where a summons and verified complaint are filed and the plaintiff fails to appear on the return day and the defendant appears, but does not file a verified answer.</p> <p>Where a summons and verified complaint are filed in a justice’s court and on the return day the plaintiff fails to appear, the justice, in default of the filing of a verified' answer, should, although the defendant appears, enter judgment for the plaintiff against the defendant for the amount demanded in the complaint without further proof.</p> <p>It is improper for the justice, in such a case, to dismiss the action under subdivision 2 of section 3013 of the Code of Civil Procedure.</p>

<p>Action to recover on a check.</p>

<p>Motion to vacate a judgment against a decedent’s estate — The lapse of a year is not a bar—Res adjudicata — Terms of the order granting the motion where an appeal from the judgment has been discontinued — Security for costs — Motion distinguished from a special proceeding.</p> <p>The court has inherent power to vacate a judgment at any time in furtherance of justice, and sections 724 and 1282 of the Code of Civil Procedure are not effective to limit the exercise of this power to a period of one year subsequent to the entry of the judgment.</p> <p>Where an administrator and his attorney are accused of fraud in secretly entering into an arrangement to discontinue an appeal from a judgment recovered on a claim against the intestate’s estate and to satisfy such judgment and the matter has been thoroughly considered in the Surrogate’s Court in a proceeding for the removal of the administrator, a finding in that proceeding that the administrator was not guilty of fraud, is res adjudicata in a subsequent proceeding instituted by the next of kin of the intestate to vacate the judgment.</p> <p>Where it appears that the administrator withdrew his appeal from the judgment establishing the claim, after the making, but before the hearing, of an application by the next of kin for leave to intervene in the action for the purpose of taking part in the appeal, and that the court with full knowledge of the discontinuance of the appeal granted the motion allowing the next of kin to intervene, the court will, irrespective of any question of fraud, grant a subsequent motion made by the next of kin, to vacate the judgment appealed from, unless the attorneys for the parties to the action consent to proceed with the appeal.</p> <p>Intervening parties made defendants in an action cannot be required to give security for costs.</p> <p>A motion to vacate a judgment is a motion in the action and not a special proceeding.</p>

<p>A marriage, in another State, by the guilty party to a divorce suit is valid — Interlocutory judgment of divorce — It does not dissolve the marriage — Final judgment may be entered as of course — Dis- • solution of marriage contracted between interlocutory and final judgment, denied because of cohabitation after the entry of the final judgment.</p> <p>The provisions of section 1761 of the Code of Civil Procedure forbidding the guilty party in a divorce action from marrying another during the life of the other party do not affect the validity of a marriage contracted in another State.</p> <p>The entry, in an action for an absolute divorce, of'the interlocutory judgment required by section 1774 of.the Code of Civil Procedure does not effect a dissolution of the marriage between the parties.</p> <p>The marriage remains unimpaired until the entry of the final judgment of divorce, which, unless otherwise provided in the interlocutory judgment, may be entered as of course, i. e., without further application to the court.</p> <p>While a marriage contracted in another State by a guilty husband, intermediate the entry of the interlocutory judgment and the entry of the final judgment, is invalid, the court will not annul such marriage at the suit of either party to such second marriage where it appears that they cohabited for two years after the entry of the final judgment; such subsequent cohabitation should be regarded as confirming the second marriage.</p>

<p>Application for confirmation of the final report of commissioners of estimate and assessment for the opening of 85th street in the borough of Brooklyn from 18th avenue to Stillwell avenue, and other sections thereof, exceptions having been filed to the said report.</p>

<p>Libel — Meaning of words, “ in trouble with the police before ” — When the plaintiff is limited to the meaning imputed to the alleged libelous words — When he is not — Use of two counts in the complaint.</p> <p>A publication which after stating that there was a hearing before a magistrate in the case of the plaintiff, who had been arrested upon the charge of keeping a disorderly house, adds that the plaintiff had “been in trouble with the police before,” does not justify an innuendo (1) that the plaintiff had on previous occasions been charged by the police with keeping such a house, and (2) also that she was guilty of the charge then before the magistrate.</p> <p>Where the complaint is based on an alleged meaning only, and is thereby given a distinctive character, and the words are not capable of the meaning so alleged, the plaintiff cannot fall back on the true meaning of the words.</p> <p>The rule that if the innuendo meaning fails, the case may go to the jury on the actual meaning, applies only where the innuendo simply colors or exaggerates the actual meaning of the words without departing from their general nature. It does not apply where the innuendo departs from the general tenor and trend of the words, and alleges a meaning outside thereof.</p> <p>In the latter case, if the plaintiff wishes to fall back on the natural or actual meaning of the words, he should frame his complaint in two counts, one setting up the article with the innuendo, and the other setting up the article without the innuendo.</p>

Motion on behalf of plaintiffs for an order resettling the terms of an order recently made denying plaintiffs’ motion to strike this cause from the calendar upon the ground that no motion of trial had been served by either party.

<p>Contribution — Eight of one stockholder paying an indebtedness of the corporation to compel contribution from other stockholders who were also liable for the indebtedness — It does not depend upon the insolvency of the corporation — The corporation is not a necessary party to the action.</p> <p>The right of á stockholder in a corporation to compel contribution from his fellow-stockholders towards a payment made by him upon a note given by the corporation, to secure the payment of which the stockholders agreed to pay the amount of their respective stock subscriptions to the payee of the note at its maturity, is not dependent upon proof of the insolvency of the corporation^'</p> <p>The corporation is not a necessary party to such an action.</p>

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

<p>Real estate broker — When a written authority to offer property for sale is not necessary.</p> <p>Where a real estate broker employed to negotiate a sale of certain premises makes a contract with a proposed purchaser of the premises by which the latter, in consideration of the broker furnishing information respecting the name and address of the owner of real property, and permitting the proposed purchaser to deal directly with the owner without the intervention of the broker, agrees to pay the broker a certain sum in case the negotiations should result in a purchase of the property, it is not a defense to the enforcement of the contract by the broker that he did not have at any time written authority from the owner of the property to offer it for sale; as the statute requiring such written authority was not intended to apply to such a contract.</p>

<p>Demurrer to complaint.</p>

<p>Trial of the issues under an alternative writ of mandamus — The facts are to be found at the Trial Term, and the law applied thereto at the Special Term — Stipulation that the trial judge shall determine the questions of law.</p> <p>Under sections 2082, 2083 and 2084 of the Code of Civil Procedure, where the issues raised by the return to an alternative writ of mandamus are tried at the Trial Term without a jury, the decision filed by the trial judge should embrace only the findings of fact and the parties should then move at Special Term for such final order as the court may determine that the law applied to the facts found warrants.</p> <p>Semble that it would be competent, in such a ease, for the parties to stipulate that the trial judge should determine both the law and the facts.</p>

Motion by the petitioner for the appointment of commissioners of estimate and appraisal; also a motion on behalf of various property owners respondents who favor such appointment, to sever the proceedings against those who favor, from the proceedings against those who oppose the appointment.

Objection to original certificate of nomination of the Social Democratic party of candidates for presidential electors and for Governor and for other State offices.

<p>Application for a bill of particulars — If made before issue for the purpose of preparing a defense it is premature — If merits are sworn to it is unnecessary to enable a party to plead — Motion to make definite and certain — Matters of time, etc., are to be secured by a bill of particulars—A motion to make definite and certain, or for a bill of particulars, is irregular.</p> <p>Where an action is not at issue an application by the defendant for a bill of particulars of matters alleged in the complaint on the ground that such a bill is necessary to enable him to prepare his defense is premature.</p> <p>Where, in such a case, the defendant has, in his moving papers, sworn to merits, a bill of particulars is unnecessary in order to enable him to plead.</p> <p>It is only where the precise meaning or application of the allegation of a pleading is indefinite and uncertain that the court can require the pleading to be amended. If the meaning and application of the allegation can be seen with reasonable certainty an amendment should not be directed.</p> <p>Matters of time, place and circumstance, unless they constitute material parts of the cause of action or defense, are strictly within the province of a bill of particulars, and must be obtained by that method.</p> <p>Semble, that there is no authority for combining in one motion •an application to make a complaint more definite and certain, or in the alternative to require service of a bill of particulars. Such practice is irregular, and should not be encouraged.</p>

<p>Residence for the purpose of voting — How affected by the constitutional provision as to soldiers in service.</p> <p>The question as to the place at which an elector is entitled to vote is still, notwithstanding the provision of the Constitution of the State of New York, “ Nor the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States,” in each case, as it was before the adoption of this provision, one of domicile or residence to be decided upon all the circumstances of the case.</p> <p>A soldier may acquire a residence in the locality in which he is placed by reason of his employment in the service of the United States.</p>

<p>Motion to vacate an order of arrest.</p>

<p>Lease — Executed to an association mot at the time in existence — When ratified by the association after its incorporation it is liable thereunder for rent, not for use and occupation — Presumption of assignment of the lease to it — When its directors are not liable.</p> <p>A written lease for a term of six years from May 1, 1899, recited that it was made between “Boyd Thistle * “ * party</p> <p>of the first part, and the Woman's Aid Nursery, an association incorporated or in process of incorporation * * * party of</p> <p>the second part ”, The lease contained among others the following clause: “ And the said party of the second part hereby covenants to pay to the said party of the first part the said yearly rent as herein specified”.</p> <p>It was signed as follows:</p> <p>Boyd Thistle, [L. S.]</p> <p>The Woman’s Aid Nursery,.</p> <p>1 by Elizabeth R. Moffat, [L. S.]</p> <p>'Ellie A. Jones, [1. S.]</p> <p>“ A Committee duly appointed by resolution adopted March 26th, 1889.”</p> <p>The Woman’s Aid Nursery was incorporated four months after the making of the lease when in August, 1899, it ratified, adopted and accepted such lease, entered into possession of the demised premises and paid rent in accordance with the terms of the lease until August, 1902, since which time it failed to make any payments of rent; .</p> <p>Held, that the lease was not void because it purported to be made by agents for a principal not in existence;</p> <p>That the lease having been duly executed by the lessor and delivered to a committee on behalf of the Woman’s Aid Nursery and the Woman’s Aid Nursery having, upon its incorporation, ratified, accepted and adopted the lease and entered into possession thereunder, it was bound by the, covenants in the lease from the time of such adoption and acceptance;</p> <p>That the facts above stated also warranted the presumption that the lease had been assigned to the Woman’s Aid Nursery after its incorporation, which assignment rendered it while in possession liable upon the' covenants contained in the lease;</p> <p>That consequently an action could be maintained against the corporation upon the covenant to pay rent contained in the lease and that it was not liable in an action for use and occupation;</p> <p>That rent, which became due from the Woman’s Aid Nursery three years after it had been adopted or assigned by that corporation, did not constitute a debt for which the directors of the corporation were liable under the Membership Corporations Law as such debt was not payable within one year from the date on which it was contracted.</p>

<p>Railroad company — Duty of a railroad corporation which made a contract for the use of another road under chapter 305 of the Laws of 1885 to carry passengers over both roads for one fare — The statutory penalty is recoverable for each failure to issue transfers.</p> <p>Section 34 of chapter 687 of the Laws of 1892 repealing chapter 305 of the Laws of 1885, which latter statute authorized street railway companies to contract with each other for the use of their respective roads and required the contracting companies to issue transfers entitling passengers to travel from one contracting road to the other for a single fare, should be construed in connection with section 36 of the act of 1892, which provides: “The provisions of this chapter, and of the stock corporation law, the railroad law, the transportation corporations law and the business corporations law, so far as they are substantially the same as those of laws existing on April 30, 1891, shall be construed as a continuation of such laws modified or amended according to the language employed in this chapter or in the stock corporation law, the railroad law, the transportation corporations law or the business corporations law, and not as new enactments</p> <p>Inasmuch, therefore, as section 104 of the Railroad Law (Laws of 1892, chap. 676) substantially reenacts the provisions of section 4 of the Law of 1885, relative to the giving of transfers, the fact that section 104 of the Railroad Law applies to contracts made in pursuance of section 78 of that law and that by the express provisions of the said section 78 it did not apply to any contract in existence prior to May 1, 1891, did not operate to relieve a corporation making a contract under the authority of the act of 1885 from the obligation to give transfers imposed by that act.</p> <p>In an action brought against a street railroad company for refusing to issue transfers as required by law the plaintiff may recover the statutory penalty for each refusal.</p>

Motion 'by the defendants Gould for an order directing the plaintiff to amend his complaint by separately numbering and, stating the facts constituting plaintiff’s alleged causes of action.

<p>Divorce — Rule 76 of the General Rules of Practice is not inconsistent with section 1774 of the Code of Civil Procedure — Duty of the clerk as to the entry of final judgment papers to he furnished to the court.</p> <p>Rule 76 of the General Rules of Practice which provides that “ no judgment in an action for divorce shall be entered except upon the special direction of the court ” is not inconsistent with section 1774 of the Code of Civil Procedure which provides that “ after the expiration of said period of three months, final judgment shall be entered as of course upon said decision or report unless for sufficient cause the court in the meantime shall have otherwise ordered ”. '</p> <p>■ The interlocutory judgment in such an action may contain the special directions required by Rule 76 for the entry of the final judgment and when it does contain such directions they are sufficient authority for the clerk to enter as of course the final judgment pursuant thereto.</p> <p>In such case the clerk when entering final judgment may take notice of the records contained in his office but should, however, require proof by affidavit that no order of 'the court has intervened since the filing of the interlocutory judgment.</p> <p>When application for final judgment in a divorce action is made to the court, either pursuant to the directions contained in the interlocutory judgment or, in the absence of such directions, in compliance with Rule 76, the presiding justice may not be presumed to have knowledge of the records in the clerk’s office and proof of all the necessary facts must be presented to him on such an application.</p>

<p>Venue — Change of, from Lewis county to New York county — Convenience of witnesses and the place where the cause of action arose considered — Affidavit of merits.</p> <p>A change of the venue of an action to the county where the cause of action arose will, as a general rule, be allowed when the convenience of a majority of the witnesses will be thereby promoted.</p> <p>Where the witnesses for the respective parties are nearly equal in number the place where the cause of action arose is an important circumstance to be taken into account in deciding the motion.</p> <p>A motion to change the venue of an action from the county of Lewis to the county of New York should be granted, notwithstanding the congested condition of the calendars in New York city, where it appears that the cause of action arose in the city of New York, that the defendant has seven material witnesses, all of whom reside in the city of New York, and that the plaintiff is the only material witness who resides in the county of Lewis.</p> <p>An affidavit of merits stating “ deponent has fully and fairly stated his defense to said action and all the facts relative thereto to his counsel ”, sustained.</p>

The city of Geneva is a city of the third class, incorporated by chapter 360 of the Laws of 1897. The act among other things provides that the common council shall consist of thirteen members, twelve aldermen and a president, all of whom are elective officers.

Motion by the defendant, the Mohawk Valley Lumber Company, for an order requiring the defendants Williams, Levesque and Conkey to return to the referee herein the moneys paid to them from the proceeds of the premises sold under the judgment herein.

<p>Motion to confirm report of commissioners in proceedings to discontinue highway, the county judge being disqualified.</p>

<p>Action to recover salary as counsel to the board of super- • visors of Nassau county.</p>

<p>Demurrer to separate defenses.</p>

<p>Eight of a tenant, whose lease has been extended, in the surplus money arising in an action of mortgage foreclosure the sale on which has terminated the leases.</p> <p>Where, prior to the expiration of a lease for a term of years, .the lessor executes to the lessee another lease of the premises for an additional term of years beginning on the expiration of the former lease, the lessee is entitled to continue in the possession of the premises until the expiration of the original lease as though such original lease had been made for the term covered by both leases.</p> <p>If, prior to the expiration of the term demised by the original lease, the lessee’s right of possession under both the leases is cut off by the foreclosure of a mortgage executed by the lessor, the lessee’s claim to be reimbursed out of the surplus moneys arising on the foreclosure sale for the damages resulting from the termination of the leases is superior to that of the owners of the equity of redemption.</p>

Action for the dissolution of a copartnership and for the appointment of a referee to take and state the partnership accounts, and for the appointment of a receiver of the partnership property.

<p>Action for the partition of real estate.</p>

<p>Action for divorce.</p>

<p>A court of equity will give all necessary relief — It will set aside, in an action for an accounting, a release obtained by fraud — Motion to separately state causes of action — Motion to make a pleading more definite and certain — When the remedy is by bill of particulars— What facts must be stated where fraud is alleged — The names of parties referred to as “ other parties ” must be stated.</p> <p>A court of equity having jurisdiction of a cause of action will give such relief as is necessary to make a complete settlement of the controversy.</p> <p>Thus, in an action for a partnership accounting, the court may set aside, on the ground of fraud, a release or assignment which is an apparent bar to the plaintiffs’ right to relief.</p> <p>When it is fairly doubtful whether the complaint in an equitable action states more than one cause of action and it was the plaintiffs’ intention to state but one cause of action, a motion to separately state and number the causes of action should not be granted, but the defendants should be left to their remedy by demurrer.</p> <p>A party to an action is entitled to" a definite statement in his adversary’s pleading of the nature of the charge intended to be made against him, but not of the particulars or circumstances of time and place, unless such particulars are material parts of the cause of action.</p> <p>Tu any other case,- the proper practice by which to obtain these particulars is by a motion for a bill of particulars.</p> <p>Where fraud or unlawful combination is alleged, the pleadings must state facts showing the nature and essence of the offense and how and in what manner it was committed.</p> <p>If the meaning or application of an allegation contained in a complaint in an action for fraud is reasonably apparent and the party is informed of the nature of the charge, an amendment will not be directed on a motion to make the complaint definite and certain.</p> <p>In the absence of an averment that the names of parties referred "to in a complaint as “ other persons ” are not known, the defendants are entitled to have the complaint made more definite and certain by stating the names of such persons, particularly when such persons may be necessary parties for a complete determination of the questions involved in the action.</p>

<p>Laches in moving to amend an answer — Amendment denied where the case is on the day calendar — The affidavit therefor should be made by the party.</p> <p>Except under extraordinary circumstances, the defendants in an action, which, after a trial and reversal, has been placed upon the day calendar for a second trial, will not, at such stage of the proceedings, be permitted to amend their answer by denying an allegation of the complaint which was admitted by the original answer.</p> <p>On a motion to amend a pleading, the moving affidavit must be made by the party and not by his attorney, as it is the party’s knowledge and not that of his attorney which is material.</p>

Motion to vacate an order for the examination of a witness before trial, granted under the provisions of section 871 et seq., of the Code of Civil Procedure.

<p>Pleading — What are irrelevant allegations therein — Scandalous allegations, not stricken out if relevant — Allegations as to the relation between a plaintiff and defendant having been meretricious in their origin — That the" man was married to another woman — Greater latitude allowed in pleading evidence in an equity case.</p> <p>An irrelevant- allegation in a complaint is one which has no substantial relation to the controversy between the parties to the suit, and. one which cannot affect the decision of the court because it has no bearing upon the subject-matter of the controversy.</p> <p>Allegations in a pleading which are scandalous in character but are relevant to the issue, cannot be stricken out on motion.</p> <p>In an action brought to restrain the defendant from holding herself out as the wife of the plaintiff, in which the issue involved is whether any marriage, ceremonial or otherwise, took place between the parties, it is proper and relevant for the plaintiff to allege in his complaint that the relations between the parties were meretricious in their origin, as, if this was the fact, it would be presumed that their relations continued to be of that character.</p> <p>It is also proper and relevant for the plaintiff to allege in his complaint, for the purpose of showing the meretricious character of the relations between the parties at their inception, that the plaintiff was then married to another woman.</p> <p>In an equity action, greater latitude is given to pleaders in relation to alleging matters of evidence than is allowable in actions of law.</p>

<p>Action for an accounting.</p>

<p>Action upon a benefit certificate.</p>

<p>Restrictive covenant as to land bounded on the ocean — It binds accretions — A party may enforce it in the case of offensive violations and take no action in the case of others.</p> <p>Restrictive covenants, contained in a deed of land bounded by the ocean, bind land added to the original shore line by accretion from the ocean.</p> <p>A person entitled to enforce a restrictive covenant contained in a deed is not obliged to sue all of the persons violating the covenant at once. He may take no notice of violations of the covenant which are not especially offensive to him without losing his right to enforce the covenant in the ease of especially offensive violations thereof.</p>

<p>Action for slander. Trial of an issue of law on a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The allegation of the complaint is that the defendant spoke of the plaintiff as follows: “ You are only a low woman, you are a half negress innuendo, thereby imputing unchastity to her.</p>

<p>Motion by defendant to amend judgment.</p>

<p>Trial of demurrer to' the complaint by defendants Wet-more and Brooker. .</p>

<p>Appeals by defendant from judgments of the City Court of the city of New York, rendered after trial, without jury, in favor of the plaintiff.</p> <p>Actions upon judgments of the State Court of North Carolina.</p>

Appeal by defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon a verdict directed by the court.

Appeal by the defendant, T. H. Simonson & Son Co., from a judgment of the City Court of the city of New York, entered upon the decision of a justice after trial of the issues without a jury.

<p>Misjoinder of causes of action — Conversion of horses and a buggy and assault and battery.</p> <p>A complaint in the first count thereof charged the defendant rvith having unlawfully taken from the possession of the plaintiff a pair of horses and a buggy and converted them to his own use and with having seriously injured them in the course of such use. In the second count thereof it charged the defendant with an assault and battery upon the plaintiff while the latter was engaged in an endeavor to regain the possession of the horses and buggy.</p> <p>Held that the complaint was demurrable on the ground that two causes of action had been improperly united therein;</p> <p>That, assuming that the conversion set up in the first cause of action was a “ transaction ” within the meaning of subdivision 9 of section 484 of the Code of Civil Procedure, the assault and battery, set up in the second cause of action, having been committed subsequent to the conversion, it could not be said that the two causes of action arose out of the same transaction.</p>

Appeal by the plaintiff from an interlocutory judgment of the City Court of the city of Hew York, overruling plaintiff’s demurrer to defendant’s counterclaim.

<p>Appeal by defendants from an order of the City Court of the city of New York, opening plaintiff’s default on a motion, vacating the order entered on said default, and denying defendants’ motion to cancel and discharge the judgment on the ground of defendants’ discharge in bankruptcy.</p>

<p>Appeal from a judgment of the City Court of the city of Hew York, rendered for the plaintiff at Trial Term, upon a verdict in' his favor. Appeal also from an order denying defendant’s motion for a new trial. Action to recover for personal injuries sustained by the plaintiff in a collision with the defendant’s automobile in charge of its servant at the time.</p>

Appeal by defendant from a judgment of the City Court of the city of Dew York, entered upon a verdict for the plaintiff and from an order denying a motion for a new trial.

Appeal by petitioner from an order of the City Court of the city of Hew York, denying his motion for a direction, that James R. Torance, Esq., receiver, appointed in supplementary proceedings, of Roggenkamp & Munn, judgment debtors, proceed to collect certain rent due from one Ernest to said debtors.

<p>Appeal by defendant from a judgment of the City Court of the city of Hew York, entered upon a verdict for the plaintiff and from an order denying a motion for a new trial.</p>

Appeal by defendant from a judgment of the 'City Court of the city of Hew York, in favor of plaintiff entered upon direction of the court, and from an order denying a motion for a-new trial. ' -

<p>Laches in applying for a commission —It must be shown that no bad faith exists. \</p> <p>Mere delay in an application for a commission to take testimony may not amount to laches where no rights of the adverse party are affected and where the facts do not warrant an inference of bad faith; but where the delay, under the particular circumstances of the ease, does suggest an inference of bad faith, the commission will not be issued unless the inference is explained away by the moving party.</p>

<p>Appeal by plaintiff from an order of the City Court of the city of New York, requiring plaintiff to serve upon defendant a further bill of particulars.</p>

<p>Interpleader in the City Court of New York.</p> <p>The City Court of New York has power to grant an order of interpleader; section 820 of the Code of Civil Procedure, authorizing the granting of such an order, is expressly made applicable to the City Court of New York by section 3347 of that Code.</p> <p>Consequently, the fact that after the granting of such an order the action becomes one of equitable cognizance is not fatal to the right of the City Court of New York to grant such an order, as it is competent for the Legislature to confer equitable jurisdiction on the City Court of New York either expressly or by necessary implication.</p>

<p>Appeal from an interlocutory judgment of the City Court of the city of Hew York, which sustained a demurrer to the defendant’s counterclaim for the use and occupation of certain premises let by him to the plaintiffs, in an action brought by the latter to recover for the conversion of rents of other premises and alleged to have been collected by the defendant as the plaintiff’s agent.</p>

<p>Promissory note — Proof that the plaintiff is the holder of a note sued upon for value and in good faith, when required.</p> <p>Where the maker of a promissory note, when sued thereon'by an indorsee from the payee, gives proof tending to establish the illegality of the note it thereupon becomes the affirmative duty of the plaintiff to satisfy the jury that he is a holder of the note for value and in good faith, and it is improper for the court to charge that the defendant is obliged to prove the illegality of the note by a preponderance of evidence.</p>

<p>Appeal by defendants from a judgment of the City Court of the city of ¡New York, upon a verdict, and an order denying a motion for a new trial.</p>

<p>Negligence — Proof of negligence, in a re„spect not pleaded, is incompetent.</p> <p>Where, in an action brought to recover damages for personal injuries sustained by the plaintiff, a carpenter in the employ of an independent contractor engaged in erecting a building for the defendant, in consequence of being struck by a number of bricks which fell upon him while he was in the act of descending a ladder, the only charge of negligence set forth in the complaint was that “ while plaintiff was lawfully on said premises of the defendant through the negligence, carelessness and recklessness of his agents, servants and employees, certain bricks were caused to fall from the upper stories of said building striking the person of this plaintiff,” the plaintiff is not entitled to recover on the theory (evidence in support of which was given over the defendant’s objection) that the defendant was negligent in failing to provide proper coverings to safeguard p'ersons in the airshaft from being injured by materials falling from the upper stories.</p>

<p>Contempt — “ Willfully disobeying the order requiring him to appear on June 14th, 1904, for (Examination ” is a sufficient statement of the offense — Fine of $250 is authorized.</p> <p>An order adjudging a person guilty of contempt which describes the conduct constituting the contempt as “wilfully disobeying the order requiring him to appear on June 14th, 1904, for examination” sufficiently apprises the delinquent party that his disobedience consisted in not appearing, and is not subject to the criticism that the words quoted were merely descriptive of the order of June 14, 1904, and did not sufficiently set forth, the act or omission of which he was adjudged guilty.</p> <p>In such a case the court has power under' section 2284 of the Code of Civil Procedure to impose upon the delinquent party a fine of $250 and direct its payment to the complainant.</p>

Appeal by defendant from a judgment of the City Court of the city of ISTew York, entered in favor of the plaintiff upon a verdict directed by the court.

<p>Slander — Demurrer to a defense of justification — When not properly overruled on the theory that matter alleged in justification and mitigation together constituted but one defense.</p> <p>The answer interposed in an action for slander stated “And for a first, separate and distinct defense to the complaint herein, and by way of justification thereto,” following which was new matter which was alleged to constitute a justification. Nothing was said in such matter concerning mitigation of damages. Finally, in a separate paragraph, the answer stated as follows: “ That in mitigation of any damages to which plaintiff might otherwise appear to be entitled by reason of the alleged slanderous words set forth in the complaint, this defendant repeats and renews all, and singular, the matter stated under the separate defense hereinbefore set forth and will give evidence thereof as a partial defense in mitigation as well as in justification upon the trial of this action.”</p> <p>Held that a demurrer interposed to the separate defense get forth by way of justification should not be overruled upon the theory that the matter alleged in justification and mitigation taken together constituted but one defense, and that, as the said matter was sufficient in mitigation of damages, the demurrer was untenable although such matter was not sufficient as a justification owing to the fact that the justification pleaded was not as broad as the charge.</p>

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

<p>Recovery by a landlord of full rent without deduction for expenditures on the house made by the tenant — When the use of a check for less than the amount actually due paid under a claim that it was in full does not constitute an accord and satisfaction.</p> <p>A, lease of a furnished house provided for the payment of a rental of $1,600, payable, $400 on the signing of the lease, $400 on taking possession June 1, 1903, $400 on July 1, 1903, and $400 on August 1, 1903. The tenant, on entering into possession, June 1, 1903, claimed that certain articles in the house when leased were missing and that certain articles should be furnished and certain work done upon the premises to make it a furnished house in the ordinary acceptance of the term, and notified the landlord that if she did not furnish the articles and perform the work she (the tenant) would do so and would deduct the expense thereof from the rent. The landlord denied her right to do this and on June 25, 1903, the tenant sent the landlord her check for the sum of $293.09, being the $400 due June 1, 1903, less $106.91, the amount which she claimed to have expended for the articles and work above mentioned. The landlord acknowledged the receipt of the check, but disputed the tenant’s right to make the deduction except as to one item of $2.25 and stated that she would credit the tenant with the amount of the check on account of the rent due June 1, 1903, and asserted that if the balance was not paid promptly a suit would be instituted to recover it.</p> <p>July 1, 1903, the tenant paid the third installment of rent due under the lease. July 2, 1903, the tenant, replying to the statement made by the landlord in June that she had credited the tenant with her check of $295.34 and claimed a balance still due of $104.66, informed the landlord that she had paid her previous installment of rent in full and that if the landlord “ cannot see it in the light she (the tenant) will fight the case in the courts.” The landlord replied maintaining her original position and stating that she had credited the tenant’s payment of $400 made on July 1, as part payment of her indebtedness.</p> <p>August 7, 1903, the tenant sent to the landlord her check for $390.05, which' bore upon its face this indorsement, “ Payment in full.” With the check, the tenant enclosed a bill of articles purchased and work done by her and also a letter, stating, “ Enclosed find check from Mrs. Henes, (the tenant) payment in full for rent of cottage.” The landlord thereupon wrote the tenant acknowledging the receipt of the check and stating that suit would be brought to recover the balance of rent due. The landlord retained the check and cashed it October 14, 1903, without further communications with the tenant. In September, the lahdlord notified the tenant that suit would be brought to recover “such amount as you have not paid on account of rent.”</p> <p>Held that the landlord was entitled to recover from the tenant the $104.66 which the tenant had assumed to deduct from the rent;</p> <p>That the transaction between the parties did not constitute an accord and satisfaction.</p>

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

Appeal by the tenant from a judgment of the- Municipal Court of the city of Hew York, twelfth district, borough of Manhattan, dismissing a counterclaim in a summary proceeding brought for nonpayment of rent.

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

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 Tort, eleventh district, borough of Manhattan, dismissing the complaint for failure of proof.</p>

<p>Appeal from order correcting judgment for defendant which was granted on plaintiff’s motion.</p> <p>Where a judgment for defendant is, on plaintiff’s motion, corrected to read: “Complaint dismissed for failure of proof”, the plaintiff cannot subsequently appeal from such corrected judgment as it was made on her own motion and enables her to begin another action for the same cause.</p>

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

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Hew York, tenth district, borough of Manhattan, which directed the dismissal of the complaint.

Appeal by the defendant from a judgment rendered by the justice, of the Municipal Court of the city of New York, tenth district, borough of Manhattan, in favor of the plaintiff. Action for broker’s commissions upon the sale of real estate.

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

<p>Author’s contract for royalties — Effect of prior contract for publication, not carried out.</p> <p>Where a publisher contracts to publish a novel “ in book form ” it is no defense to an action by the author for royalties that he, with the knowledge of the defendant, had previously contracted with another publisher for the publication of the same book, the conditions being that the book be published within a given time, (which was not done) and which failure gave to the author a reversion of his rights upon the payment of a given sum.</p> <p>Nor is it a defense that the author has not yet paid such given sum to the other publisher, because under the contract the defendant purchased the plaintiff’s permission to publish, not the right.</p>

<p>Appeal by the plaintiff from a judgment for the defendant, rendered by the Municipal Court of the city of Wew York, first district, borough of Manhattan. Action to recover damages for the alleged conversion of a watch and chain claimed to have been delivered to the defendant by the plaintiff’s assignor, under an agreement for the return of the articles should they not be sold and the purchase money paid. The defenses were a general denial and infancy.</p>

Appeal by the plaintiff, Eebecca Surkin, from an order made by the justice of the Municipal Court of the city of Mew York, eighth district, borough of Manhattan, setting aside the verdict of a jury in her favor and ordering a new trial. Appeal by the plaintiff, Charles Surkin, from a judgment rendered by the justices of the said court, sitting without a jury, in favor of the defendant.

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

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

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

Appeal by defendant from a judgment rendered by the justice of the Municipal Court of the city of New York, ninth district, borough of Manhattan, in favor of the plaintiff. Action for money had and received.

Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the cit-y of Hew York, thirteenth district, borough of Manhattan]

<p>Appeal by defendant from judgments rendered in favor of the plaintiffs by the justice of the Municipal Court of the city of Hew York, thirteenth district, borough of Manhattan.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, in favor of the defendant in an action for breach of contract.

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, in favor of the plaintiff, in an action to recover damages for negligence in transporting poultry and eggs.</p>

<p>An assignment of a lease and a sublease distinguished — When agreement to sublet enforceable.</p> <p>An agreement by a lessee to convey a lesser interest than he himself possesses is not an agreement to assign a lease but is an agreement to sublet; and, in the absence of a prohibition against subletting, in the original lease, is enforceable. In such case the consent of the original lessor is unnecessary.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, thirteenth district, borough of Manhattan, in favor of plaintiff in an action to recover damages for personal injuries.

Appeal .by the defendant from a judgment of the Municipal Court of the city of Mew York, fourth district, borough of Manhattan, for money had and received.

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

<p>Action for perpetual injunction to restrain pollution of a stream — Injunction not granted when plaintiff participates in the wrong of which he complains.</p> <p>In an action, by. riparian owners for a permanent injunction to' restrain a city from discharging sewage into a stream, it was shown that the plaintiffs and their predecessors in title had and still continued to discharge mill refuse into said stream, which pollution was prior to that of the defendant. Many drains from the premises of other persons emptied into said stream.</p> <p>Held, injunction refused and complaint dismissed. A court of equity ought not to grant the plaintiffs any relief until they are free from committing similar acts themselves;</p> <p>That the injury complained of was in part produced by the plaintiffs themselves, and though, when an injury is caused by the separate wrongs of two persons, the court may apportion the damage against each, yet when plaintiff is one of the wrongdoers a court of equity will not strike a balance in favor of such plaintiff.</p>

<p>Action for damages and for an injunction.</p>

<p>When criticism.of an author becomes libelous — When the question as to whether the criticism is libelous or not is for the court; when for the jury — Scope of lawful criticism discussed — Motives of critic immaterial.</p> <p>The plaintiff published a book recounting the confidences given to him by certain women who answered a “ personal ” advertisement which he had published. In an article, published by the defendant, criticising said book, the author was charged with “pruriency ”, “ scandal ” and “ shamelessness ”.</p> <p>Held, that where the facts are undisputed and different inferences cannot be drawn from an alleged libelous article the court should direct a verdict; but if different inferences can be drawn from said article it is a question for the jury whether it be defamatory;</p> <p>That the words “ prurient, scandal, shameless ” affect personal character and are capable of different interpretations by different persons; hence, the libelous character of the article was for the jury;</p> <p>That the motives of the author of a criticism are irrelevant; the truth may be spoken even with a bad motive;</p> <p>That an author by publication challenges discussion and criticism and everyone has a right to indulge therein fully and freely; but such criticism must be kept within lines of reasonable opinion on the facts. If the personal character of the author be touched by false statements or aspersions, that is defamation and not criticism. A critic is no more entitled to make false aspersions or misstatements of facts than other persons. Criticism is no exception to the general law of defamation. Criticism is an expression of opinion on facts on which differences of opinion may arise.</p>

<p>Action against landlord for damages for personal injury — Landlord not liable when hidden defect in building, which causes injury, is unknown to him—Decision of appellate court, not isolated statements in opinion, binding on the lower court on new trial — How charge to jury to be interpreted.</p> <p>Plaintiff, a tenant of the defendant, was injured by falling from a window by reason of the lack of a cleat to hold said window on the outside.</p> <p>.Held, the liability of a landlord can only be based on his failure to disclose to a tenant a hidden defect of which he had actual, knowledge at the time of making the lease. He is not obliged to examine the premises for such defects.</p> <p>The question as to whether landlord had such knowledge is properly left to the jury.</p> <p>On a new trial the court below is only bound by the judgment of reversal of the appellate court; it is not bound by isolated passages in the opinion of said court.</p> <p>A charge to a jury should not be interpreted by selected passages but as a whole.</p>

Action for damages for negligence. Motion, for direction of a verdict for the defendant reserved until after verdict, which was for the plaintiff.

<p>Slander.</p> <p>It is no slander to say of one that he is a “ swindler ”; it is a word of abuse and does not charge crime.</p> <p>Semble, if said of one in his office or calling such word is slanderous per se, whether imputing crime or not.</p>

<p>Limitation of action on judgment.</p> <p>A judgment was entered June 27, 1884. A summons in an action on said judgment was delivered to the sheriff for service on June 27, 1904.</p> <p>Held, that the action was not begun within twenty years as, when years are reckoned, the first day is included. The fact that the day before the issue of summons for service was Sunday makes no difference.</p>

<p>Right of commissioner of bridges of New York as successor in office to commissioners of Williamsburgh bridge, to contract for the operation of railroads across said bridge.</p> <p>Demurrer to a complaint in an action to restrain the commissioner of bridges of New York from entering into contracts allowing the use of the Williamsburgh bridge by certain railroad companies.</p> <p>The construction of the Williamsburgh bridge over the Bast river by commissioners was authorized by statute; said commissioners and their successors to have like powers as were vested in the trustees of the New York and Brooklyn bridge. One of the powers of the latter was to operate, and to authorize to be operated, railroads over said bridge and to fix the fare to be paid by passengers. The act creating the commission provided: “But nothing in this act contained shall prevent said commissioners in their discretion from contracting with any corporation to operate a railroad across said bridge ”,</p> <p>Subsequently, by statute, the Williamsburgh bridge commission was abolished and its powers conferred „upon the commissioner of bridges of the city of New York, one of the present defendants.</p> <p>Held, that where the complaint, in a taxpayer’s action to restrain a public officer from entering into a .contract, contains no allegations of fraud, collusion or bad faith, the sole question is one of legal authority in the officer;</p> <p>That the Legislature is under no constitutional restriction in providing for the building of bridges over the East river and chartering companies therefor;</p> <p>That the commissioners and their successors had statutory authority to “ operate or authorize to be' operated ” railroads over said bridge and to fix the fares to be paid by passengers; that the words “ authorize to be operated ” comprehended an authority to contract for such operation;</p> <p>That, - as the contract complained of only involved the use of the tracks and appliances already upon said bridge, on payment of a stated sum per annum, it did not create a franchise in the railroad companies, as there would be no vested property right under said contract at the termination thereof.</p> <p>Semble, had the act of the bridge commissioner created a franchise such act would have been invalid.</p> <p>Demurrer to complaint sustained.</p>

<p>Action in equity to enjoin several defendants who unite in the pollution of a stream — When such action can be maintained against all.</p> <p>The defendants, mill owners, discharged mill refuse into a stream, the combined effect of which was to injure the plaintiff, though the damage committed by each defendant was nominal. In an action against all for injunction and damage, the defendants demurred to the complaint on the ground of multifariousness.</p> <p>Held, that an action at law could not be maintained against the defendants jointly as each was only liable for the actual damage done by him;</p> <p>That a remedy at law against each defendant individually was inadequate;</p> <p>That equity will grant adequate relief in any case which may arise and will, if necessary, invent a remedy to prevent a wrong which otherwise cannot adequately be met;</p> <p>That the case was within the provisions of section 484 of the Code of Civil Procedure and that the demurrer should be overruled.</p>

. Motion for final judgment upon report of referee appointed by interlocutory judgment to take and state the accounts of defendants Melinda P. Schmidt and another, with regard to a certain trust fund of $200,000, created by the will of George Parhury Pollon, deceased, and hearing upon exceptions to said report.

Action by plaintiff against defendant Darrin, demanding a judgment annulling an alleged copartnership agreement and dissolving the copartnership. Demurrer to complaint.

Action to recover the amount due upon an award made to plaintiff for land taken by the city of .Hew York for public use. Demurrer to answer.

<p>Liability of director of foreign corporation for making unauthorized dividends-—Payment of dividends on preferred stock must be made from profits, not from capital — Expectation of future profits on contracts not to be figured as assets—Effect of absence of director when such unauthorized dividends declared — Losses through payment of commissions on sale of bonds.</p> <p>The statutes of this State allow the recovery, from directors of a foreign corporation, of dividends unauthorized by the laws under which such corporation is organized. It is the foreign statute that makes the dividends unauthorized but the recovery is to be had under the New York statute.</p> <p>No dividends can be made except from “ surplus or net profits".</p> <p>Contracts, entered into by a corporation, for future deliveries of a product not yet made by it, from raw material not yet purchased, cannot be taken as assets in figuring said surplus or net profits. Dividends cannot be made on a mere hope or expectation of profits.</p> <p>Where raw material is bought by weight and after manufacture is increased in weight and value, the corporation is entitled to treat it as an asset at its increased value.</p> <p>A director, who is not present when an unauthorized dividend is declared, is not liable under the statute, even though he is present at a subsequent meeting when the minutes of the former meeting are ratified.</p> <p>A director, sued for unauthorized dividends, cannot be credited with the profits which subsequently accrued under a change of management.</p> <p>A director is not liable for commissions, paid on the sale of bonds of a corporation which has made unauthorized dividends, in the absence of proof of fraud and conspiracy for the defendant’s personal benefit; such loss is included in the loss caused by the illegal dividends which defendant must pay.</p>

Motion by defendant for an order directing plaintiff to separately state and number causes of action alleged to be stated in the complaint* and to strike out certain paragraphs thereof.

<p>Proceedings to cancel liquor tax certificates — What constitutes an hotel — What constitutes service to “guests”.</p> <p>A party who seeks to justify the sale of liquor on Sunday, on the ground that he is an hotel keeper and furnished the liquor to guests at meals, must plead and prove facts which bring him within the exceptions as to hotel keepers made by statute.</p> <p>The mere fact that premises contain twenty-five rooms, without evidence that the building is equipped as required by the statute, is not sufficient to prove that it is an hotel.</p> <p>Sales of liquor on Sunday can only be made to guests and the mere service of a sandwich, costing five cents, to a casual visitor who orders liquor does not constitute service to a guest. 0</p>

<p>Effect of a discharge in bankruptcy on the lien of a judgment against real property — When the title to real estate, formerly owned by a bankrupt, is marketable — National Bankruptcy Act and Code of Civil Procedure construed — Minor errors in schedules of creditors unimportant.</p> <p>The fact that there are uncancelled judgments still docketed against the prior owner of real estate does not render the same unmarketable when such judgment debtor has been discharged in bankruptcy and the decree is unrevoked.</p> <p>The effect of the provisions of the National' Bankruptcy Act is to discharge absolutely such judgments and the debts on which they are based.</p> <p>The fact that the docket of such judgment has not been can-celled, under section 1268 of the Code of Civil Procedure, does not render a vendor’s title unmarketable, because the purpose of said section is not to continue an obligation which the Federal law has destroyed but merely to provide a method by which a cancellation of the judgment may be had.</p> <p>If construed otherwise, section ■ 1268 of the Code of Civil Procedure would be in contravention of Federal law enacted under the authority of the United States Constitution and hence void.</p> <p>Mere failure to state with exactness the names of creditors in the schedule in bankruptcy does not vitiate such bankruptcy.</p>

<p>. Motions respecting a fund held by the comptroller of the city of Hew York. The opinion states the case.</p>

<p>Right of a purchaser under foreclosure of a junior mortgage to the return of his deposit when the premises are subsequently sold under a senior mortgage prior to the completion of his purchase — Remedies against defaulting purchaser stated — Effect of failure to pursue these remedies.</p> <p>A junior mortgagee is not entitled to have the deposit made' by a defaulting purchaser on foreclosure applied upon his judgment when the proper steps have not been taken to fix the amount of such purchaser’s liability prior to a sale of the premises under a senior mortgage.</p> <p>By reason of such subsequent sale the referee loses power to give title to the premises. The claim of such junior mortgagee to such deposit cannot be based on the supposed contempt of the purchaser in not completing his purchase, because no steps have been taken to charge him with such contempt prior to the sale under the senior mortgage.</p> <p>Two courses are open to the mortgagee; the purchaser may be required by order to complete his bid on which motion he may show reasons -why he should not be compelled to do so; or, the property may be resold and the purchaser charged with the loss.</p> <p>When neither of these remedies is pursued prior to a sale under a senior mortgage, there is no way to charge the first purchaser with contempt or with a toss which cannot be ascertained; hence his deposit must be returned to him:</p>

<p>When receiver in supplementary proceedings not required to give security for costs of action — Leave to sue.</p> <p>A receiver in proceedings supplementary to execution will not be compelled to give security for costs in an action on the ground of insolvency, or because he has n'o funds. It is necessary to show in addition that the action is brought in bad faith, or heedlessly, or that the plaintiff probably will not succeed.</p> <p>Such receiver, not having obtained" leave to sue, may obtain and enter an order granting leave nunc pro tuno.</p>

<p>Costs in proceedings to condemn lands.</p> <p>The provisions of sections 3369 and 3372 of the. Code of Civil Procedure, allowing costs of trial in proceedings to condemn lands, refer to the trial of issues raised by the answer to the petition which is the only “ trial ” in such proceedings. When judgment is given against defendant, on such issues, plaintiff is entitled to costs before and hfter notice of trial and to a trial fee.</p> <p>But section 3372 of the Code of Civil Procedure also provides for costs upon the hearing before commissioners if no offer be made by the plaintiff, or if, in the case of an offer, the recovery be larger than such offer; hence, when no offer is made by plaintiff, defendant is entitled to costs before and after notice of trial and to a trial fee on a hearing before commissioners.</p>

<p>Action for salary by municipal officer -wrongfully discharged — When earnings under another appointment not to be offset — Section 1549, charter of the city of New York, construed.</p> <p>In an action for salary by a fireman, on reinstatement after a wrongful discharge from the municipal fire department of the city of New York, the defense was that, during the period of discharge, he had engaged in other and different employment and held another and inconsistent office, and that sums so earned should be deducted from his claim.</p> <p>Held, that the plaintiff’s employment as sergeant-at-arms to the council of the municipal assembly was that of a mere employee and did not constitute him an officer of the city. Hence, such employment was not in violation of section 1549 of the charter of the city of New York which prohibits municipal officers from holding two offices;</p> <p>Held, further, that by accepting such employment he did not abandon his prior office, under the provisions of said section, and his earnings, as such sergeant-at-arms, should not be offset against his claim for salary as fireman.</p>

<p>Right of an electric railway intersecting a steam railway to compel the latter to receive and deliver cars and freight — Railroad Law, sections 12 and 35, construed.</p> <p>Section 12 of the Railroad Law requires intersecting railroads to “ receive from each other and forward to their destination, goods, merchandise and other property.” Cars of such intersecting railroads come within the term “ other property,” hence such railroads must receive cars and freight from each other and transport the same.</p> <p>Section 12 of the Railroad Law, when taken in connection with section 35 which requires intersecting lines to afford each other equal terms of accommodation in “the transportation of cars, passengers, baggage and freight,” requires such roads to interchange cars loaded with freight and the intersection, provided for by section 12, is intended for that purpose.</p> <p>A railroad corporation, having power to make connections with other roads and empowered to condemn land for that purpose, must exercise the powers granted and use the connection for the purposes intended.</p> <p>Semble, a railroad company cannot require a connecting railroad to break packages and reship at the intersection of such roads.</p> <p>Held, further, on refusal of one road to receive the cars of another road the complainant is not remitted to the railroad commissioners as the sole tribunal for redress; the courts can determine the rights of interchange and if said roads cannot agree upon the terms and conditions thereof these may be fixed by the railroad commissioners.</p> <p>Semble, the fact that an electric railroad is not adapted for the transportation of freight, at the usual speed and under the usual conditions, is no ground for the refusal, by another railroad, to deliver or receive its cars.</p>

Appeal by the defendant, The Interurban Street Railway Company, from- a judgment of the City Court of the city of iSTew York, entered in favor of the -plaintiff upon the verdict of a jury, and also from an order denying said defendant’s motion for a new trial.

<p>' Exceptions of the plaintiff ordered to he heard in the first instance at the Appellate Term.</p>

Appeal by plaintiff from a judgment of the City Court' of the city of Rew York overruling a demurrer interposed by the plaintiff to the separate defense contained in the defendant’s answer.

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, and also from an order denying’ defendant’s motion for a new trial.

Appeal by the defendant Bloch, from a judgment of the City Court of the city of Hew York, entered in favor of the plaintiffs upon a decision of the issues by a justice of said court without a jury.

Appeal by plaintiff from an order of the City Court of the city of Hew York, denying plaintiff’s motion made upon the minutes of the trial justice to set aside the verdict of the jury in favor of the defendant and for a new trial.

Appeal by defendant Ellsworth, from a judgment of the City Court of the city of Hew York, entered upon a verdict for plaintiff, and from an order denying a motion for a new trial. Action for breach of contract of sale of goods.

Action by a passenger upon one of the defendant’s cars to recover for personal injuries sustained through the negligence of the defendant’s employees in the premature starting of the car and while the plaintiff was in the act of boarding it.

<p>Appeal by defendants from an order of the City Court of the city of Hew York, which vacated an order for the cancellation of a judgment.</p>

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

Action for damages for the breach of a contract of employment by the plaintiff’s wrongful discharge from the defendant’s employ.

Appeal by the defendant from, a judgment of the City Court of the city of Yew York, rendered in favor of the plaintiff, upon a verdict, and from an order denying a motion for a new trial.

Appeal by the defendants from an order of the City Court of the city of New York, granting a motion for resettlement of the case on appeal, by striking out certain papers.

Appeal by the defendants from a judgment of the City Court of the city of New York, rendered in favor of the plaintiff upon the pleadings.

<p>When lessee’s covenants enforceable after dispossession on summary proceedings — Allegations sufficient as general denial.</p> <p>A covenant in a lease, to answer for loss incurred in reletting for the lessee’s account, is enforceable notwithstanding the termination of the lease by summary proceedings.</p> <p>The words “ resume possession ”, contained in a lease, are not inconsistent with a possession obtained by summary proceedings and are not synonymous with the word “ reenter ”.</p> <p>An answer which, after specific admissions, denies each and every other allegation of the complaint “not hereinbefore specifically admitted, controverted or denied ” is sufficient as a general denial.</p>

<p>Action for conversion of certificates of inspectors of election.</p> <p>The assignee of sums due inspectors of election who has been given possession of the inspectors’ cards of certification, issued under section 12 of the Election Law, and who has filed the same, in compliance with the directions thereon contained, cannot maintain an action for the conversion of said cards.</p> <p>To maintain conversion it must be shown that the cards had some intrinsic value, were the plaintiff’s property and that he was entitled to possession at the time of his demand.</p>

<p>Appeal from a judgment of the City Court of the city of Hew York, entered on the verdict of a jury, in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.</p>

Appeal by the defendant from k judgment rendered in the Municipal Court of the city of Mew York, first district, borough of Manhattan, in favor of the plaintiff.

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

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

Appeal by the defendant from a judgment for the plaintiff rendered in the Municipal Court of the city of Hew York, second district, borough of The Bronx. Action by a subcontractor against the contractor to recover the compensation agreed upon under a contract calling for the removal of earth and rock necessary to the erection of a library building.

<p>Section 6403 Penal Co3e construed — When the same unavailable as defense to an action by broker for commissions — Estoppel.</p> <p>Section 6403 of the Penal Code, -which makes it a misdemeanor to offer real property for sale without written authority from the owner, is aimed against unwarranted sales by brokers. Hence the husband of the true owner of real estate, who had represented himself as the owner in writing, cannot assert the provisions of the Penal Code as a defense when sued by a broker for commissions. He is estopped by his representation, and is the owner for the purposes of the suit.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, ninth district, borough of Manhattan, in favor of the plaintiff, entered upon the verdict of a jury. Action for broker’s commissions.

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

Appeal by the plaintiff-from a judgment of the Municipal Court of the city of Rew York, fifth district, borough of Manhattan, in favor of the defendant, upon the verdict of a jury.

<p>Proof of scientific relation of goods not proof of commercial identity.</p> <p>Proof of the scientific relation of classes of fruit does not establish that for commercial purposes they are identical in kind.</p>

Appeal by the defendants from a judgment of the Municipal Court ■ of the city of New York,. eleventh district, borough of Manhattan, rendered in favor of the plaintiff. Action for goods sold and delivered.

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

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, tenth district, borough of Manhattan, rendered in favor of the plaintiff, upon the verdict of a jury. Action for negligence.

<p>Appeal by landlord from a final order in summary proceedings made by the justice of the Municipal Court of the city of Hew York, borough of Manhattan, in favor of the tenant.</p>

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

<p>Sheriff’s action for poundage — When person indebted to attachment debtor not liable for poundage.</p> <p>The plaintiff, a sheriff, served notice of attachment on the defendant- which was a corporation indebted to the attachment debtor. Subsequently, on an undertaking being given by the attachment debtor, the attachment was vacated and the present defendant paid its indebtedness to the attachment debtor. ■ In an action by the sheriff for poundage;</p> <p>Held, the sheriff’s rights under section 655 of the Code of Civil Procedure, authorizing him to collect and receive debts, etc., attached by him, do not survive the attachment itself and cannot be invoked when the attachment is discharged.</p> <p>Though upon the discharge of an attachment the sheriff may retain property “levied upon” until his fees and poundage are paid, yet such right exists only as to property actually reduced to possession by the sheriff and does not furnish grounds for an action for poundage against one indebted to an attachment debtor when the sum due has not been turned over to the sheriff.</p> <p>After an attachment is vacated such debtor may pay to the former attachment debtor.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, in favor of plaintiff for $240 damages and $22 costs.</p>

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

<p>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.</p>

<p>Appeal from an order of the Municipal Court of the city of Eew York, thirteenth district, borough of Manhattan, setting aside a final order in summary proceedings dispossessing tenant-re'spondent, and granting a new trial.</p>

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