Volume 46 — New York Supplement

<p>Appeal from special term, New York county.</p>

<p>Use op Corporate Name—Injunction.</p> <p>The S. Howes Co. was organized in January, 1895; the Howes Grain-Cleaner Co. in February, 1896, the latter being named for its president, and having a considerable capital invested in business. Both companies manufactured the same class of machinery. Held, that the latter company should be enjoined from using its corporate name. Green and Foilett, JJ., dissenting, on the ground that as no fraud or deception of customers was shown, and all the equities of the complaint were denied by the answer, no preliminary injunction should be granted.</p>

<p>Motion for New Trial—Notice.</p> <p>Obtaining a stay for the purpose of making a case and exceptions, preparatory to a motion for a new trial, making and service of such case and exceptions by one party, and preparation of amendments thereto by the other, for the purpose of a motion for a new trial on such case and exceptions, constitute the “notice therefor” required by Code Civ. Proc. § 1002, to be given before the expiration of the time within which an appeal can be taken, in order that a motion for a new trial may be made, and after such notice has been given the entry of judgment does not prejudice a subsequent motion for a new trial.</p>

Action by John 0. Waydell and others against Edwin W. Adams and others to recover freight moneys. Plaintiffs were charterers, and defendants were shippers.

Action by Columbia M. Binny, by her guardian ad litem, James O. Binny, against Joseph Carney, for personal injuries caused by defendant’s negligence. Pending the action, plaintiff became of age, and the complaint and answer were amended by striking out the words “by her guardian ad litem, James C. Binny,” wherever they occurred.

Appeal in the matter of the estate of John H. Beach from an order of the surrogate affirming an appraisement and fixing a tax.

<p>Appointment op Receiver—Revocation.</p> <p>The appointment of a receiver by a decree of court cannot be revoked, nor the decree modified, upon the mere application of a stranger to the action, claiming to have acquired a right in the property which is the subject thereof.</p>

<p>Appeal from trial term.</p> <p>Action by Charles Becker against the Third Avenue Railroad Company. Judgment for plaintiff. From an order denying a motion to resettle case, defendant appeals.</p>

In the matter of the appraisal for taxation of the estate of Jay Gould, deceased, under the act in relation to taxable transfers of property, the surrogate made an order .fixing the value of the property of the estate and the amount of the transfer tax thereon, and from his order affirming that order the comptroller and the executors appeal.

<p>Appeal from trial term.</p> <p>Action by James A. Dennison against Fannie E. Musgrave. From a judgment for defendant, plaintiff appeals.</p>

<p>Work and Labor—Sufficiency of Evidence.</p> <p>The evidence as to payment to plaintiff, and as to the amount of work performed by plaintiff, under a contract for excavating and clearing" ground, considered, and held to justify the findings of the referee.</p>

In the matter of acquiring title by the mayor, aldermen, and commonalty of the city of New York to certain lands on Chambers street, Georgetta Brown and others petition to remove two commissioners appointed to condemn property.

Suit by William M. Scott against Charles E. Twombley and others, trustees of the village of Jamaica, and another.. From an order granting an injunction pendente lite, defendants appeal.

Action by John H. Stocks against John B. Foote to recover damages-for the destruction of property by fire alleged to have been negligently set by defendant. From a judgment dismissing the complaint, and from an order denying a new trial, plaintiff appeals.

<p>Insurance—Restricting Right to Sue—Validity.</p> <p>A stipulation in a Lloyds insurance policy executed by one of the underwriters for himself, and as attorney in fact for the others, that no action “to enforce the provisions of this policy” shall be brought except against said attorney, who is designated to represent all the underwriters, and that each will abide the result of such action, is valid, and precludes separate actions against the several underwriters till their liability has been fixed in the action against their attorney.</p> <p>Action upon a Lloyds insurance policy, bearing the name of 25 underwriters, executed by. C. Hagen, as attorney in fact for the 24 underwriters, and by himself, as one of the 25. The policy provided, among other things, viz.: “No action shall be brought to enforce the provisions of this policy except against the attorney, and representing all the underwriters, and each of the underwriters hereby agree to abide the result of any suit so brought, as fixing his individual responsibility hereunder. Judgment in any such action shall be satisfied out of the unexpended premiums in the hands of the underwriters; if such premiums shall be insufficient, then out. of the deposit made by the •several underwriters, as hereinbefore expressed and limited; but in no case shall the judgment bind the property of the said attorney to a greater extent than his liability as an individual underwriter.” A loss occurred, and was adjusted and apportioned, and proofs of loss were furnished to the company, ■“and the proportionate liability of each underwriter is the sum of $83.46.” The court found as a fact, viz.: “That no suit has been brought against Hagen as attorney; that eatih underwriter has been separately sued on this policy, and twenty-five actions are now pending, including one against Hagen, as one of said underwriters.” The cause of action was duly assigned to the plaintiff. The court found as conclusions of law, viz.: “I find and decide that before any action can be maintained against the underwriters, individually, to recover upon said policy, and to assert any liability against them as individuals, their attorney in fact must first be sued, as stipulated in said policy. (2) That the clauses in said policy hereinbefore recited, requiring actions for the enforcement of said policy to be commenced primarily against the said attorney, 0. Hagen, are valid, and compose part of the contract between the underwriters and the assured.” Upon such conclusions of law, the complaint was dismissed, with costs. The trial judge, in an opinion (42 N. Y. Supp. 992), correctly states the facts, and elaborately discusses the questions of law.</p>

<p>Insolvency—Schedule op Assets—Time for Filing.</p> <p>An order extending time to an assignee to file his schedule of assets will not be vacated where it does not appear that the applicant has any interest either in the estate or in making the application.</p>

<p>Action by William W. Averell against Amsi L. Barber and others. W. W. Niles, for appellants. E. Hassett, for respondent.</p>

Action by Marie Eisler against the Eighth Avenue Railroad Company and others. The mayor, etc., appeal. Wheeler H. Peekham and Robert Earl, for appellant Marie Eisler. William L. Turner, for appellants may- or, etc. James C. Carter, Elihu Root, and John M. Scribner, for respondents.

<p>Action by Kate Davis against Charles Froliman and others. W. P. Burr, for appellant. W. M. Rosebault, for respondents.</p>

<p>William F. Donovan against Carrie E. Hiñe,</p>

<p>Action by Marie J. Fitzmahony, as administratrix, etc., against George Caulfield and Ellen Caulfield.</p>

<p>Action by the Gibson Electric Company against the Liverpool & London & Globe Insurance Company.</p>

<p>Action by Margaret Gilchrist against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company;</p>

<p>Action by Helen J. Hoffman against the president, managers, and company of the Delaware & Hudson Canal Company.</p>

<p>Action by Bernard Huber against the city of Buffalo.</p>

<p>Action by Henry A. LandgrafE against Charles H. Nicoll, impleaded, etc. W. C. Timm, for appellants. H. Thompson, for respondent.</p>

<p>Action by Robert A. McGillis and another against Ewen MeGillis, Morrison M. E. Jarvis, and others.</p>

<p>Action by Elizabeth Meister, as administratrix, etc., against the Sharkey Monument Works.</p>

<p>Action by the Milsom Rendering & Fertilizer Company against William H. Baker.</p>

<p>Action by Sarah O’Dwyer against Thomas J. O’Brien.</p>

<p>Action by the people of the state of New York, on relation of Michael J. Dady, against William V. B. Bennett, supervisor of the town of Gravesend, and others.</p>

<p>Action by James Russell against the Agricultural Insurance Company of Watertown, New York.</p>

<p>Action by Peter Roberts against 1he Eighth Avenue Railroad Company and another. Wheeler H. Pcckliam, for appellant. James C. Carter and Elihu Root, for respondents.</p>

<p>Action by Hannah Smith, as administrator of George W. Smith, deceased, against the Empire Transportation Company. -Elijah W. Holt, for appellant. John G. Milburn, for respondent.</p>

<p>Action by Margaret Sweeney against John O. R. Wilson, Maggie T. Wilson, his wife, and James T. Wilson. A. J. Rodenbeck, for appellants. B. Frank Dake, for respondent.</p>

<p>Action by William Weidman against Rufus A. Sibley and others.</p>

<p>Action by Daniel R. Tonge against Michael Newell.</p>

<p>Action by one Winthrop against the Manhattan Railway Company.</p>