Volume 48 — New York Supplement

Action by the town of Conewango against Julius N. Shaw and others, as commissioners, to compel them to build a bridge across a drainage ditch. Demurrer to- plaintiff’s complaint overruled.

<p>Conversion—Necessity of Demand.</p> <p>One who wrongfully prevents an owner of store fixtures from removing them is not entitled to have the owner demand them before suing for conversion.</p>

Action by Clara Hunt against John Wesley Webber and Charles GL Webber as executors, etc. From a judgment on a verdict, and an order denying a motion for a new trial, defendants appeal.

<p>Appeal from trial term.</p> <p>Action by Henry McCready against Friend G. Haight and I. Marshall Freese. From an order denying defendants’ motion to vacate an order requiring defendant Haight to appear for examination before trial, and from an order refusing to change the cause of action, defendants appeal.</p>

Action for conversion by Joseph Levine, as assignee of a mortgagee of chattels, against Samuel Lubow and others. From a judgment for dismissal of the complaint, plaintiff appeals.

Two actions by Mary T. Clark against the Vilas National Bank of Plattsburgh, N. Y., impleaded with others. From an order staying nil proceedings in said actions until the further order of the court, plaintiff appeals.

<p>Defective Street—Injury to Traveler.</p> <p>A foot passenger in attempting, on a stormy night, to cross an outlying and wholly unimproved village street, fell into a furrow which a contractor working on behalf of the village had run in connection with proposed grading, and was injured. There was nothing in the surroundings to constitute an invitation from the authorities to use the street, and no reason for them to suppose it would be used .under such circumstances. In an action against the village to recover for the injuries, held, that the facts failed to establish any liability of the defendant.</p> <p>The action was brought to recover damages sustained by the plaintiff, from alleged negligence of defendant, from the fracture of her knee pan from a fall while in Hudson avenue, an outlying street of the village of Peekskill, on May 1, 1893. The avenue was wholly unimproved, and had an unfrequented path on each side. The path on the north side was better than that on the south side, but no sidewalk had been made or ordered made. On the day of the accident a contractor working on behalf of the village commenced to grade the avenue, and ran a furrow along the southerly side. The accident happened at night, during a violent storm, when plaintiff, who had been walking on the south side of the avenue, along the path, turned to cross the street, and fell between two trees into the furrow.</p>

<p>Appeal from special term.</p> <p>Action by William N. Coler, Jr., against Hugh Lamb and others. From a judgment sustaining a demurrer to a counterclaim contained in an amended answer of the defendants, they appeal.</p>

Action by Ann E. S. Tillson against the Manhattan Railway Company. From a judgment entered on the report of a referee dismissing the complaint, with costs, and from an order granting an extra allowance, plaintiff appeals.

<p>Appeal from Sixth district court.</p> <p>Action by M. and others against W. From a judgment in favor of plaintiffs, defendant appeals.</p>

Action by Barbara Brozek, as administratrix of Alois Brozek, deceased, against the Steinway Railway Company of Long Island City. From a judgment for plaintiff:, and from an order denying a neiv trial, defendant appeals.

Action by Julia Barlow and Howard Barlow against William H. Barlow, individually and as executor of Catharine S. Barlow, deceased, and others. Judgment for plaintiffs, and defendant Barlow appeals.

<p>Motion to Dismiss—Weight op Evidence.</p> <p>Where an exception to the denial of a motion to dismiss was made when plaintiff rested, but was not renewed at the close of the whole case, and no motion for direction was made, a finding in favor of plaintiff will not be disturbed, as being against the weight of evidence.</p>

<p>1. Attachment—Affidavit—Venue—Amendment.</p> <p>The fact that the affidavit on which an attachment was granted had no venue, did not render such affidavit void, as such defect was not jurisdictional, and might be corrected by amendment.</p> <p>2. Foreign Corporations—License Fee—Right to Sue.</p> <p>A foreign corporation, required by Tax Laws, par. 181, to pay a license fee within 13 months after beginning its business within the state, as a condition precedent to the right to maintain an action in the courts of the state, may invoke the aid of such courts for the enforcement of its contracts before the expiration of such period, without showing the payment of such license fee.</p> <p>3. Same—Certificate of Authority.</p> <p>Under Laws 1892, c. 687, § 15, providing that no foreign corporation doing business in the state without the required certificate of the secretary of state shall maintain any action in the state on any contract made by it in the state, until it shall have procured such certificate, such corporation was not entitled to an attachment where the cause of action accrued before it had obtained such certificate.</p>

<p>Motion to strike cause from calendar, and counter motion to amend nunc pro tunc.</p>

<p>Notice of Trial—Waiver of Defects.</p> <p>An irregularity of plaintiff in serving a notice of trial for a term subsequent to that in which the note of issue was filed, where defendant waited until the cause had appeared for the second time on the calendar before taking advantage of the irregularity, and neglected to return the notice subsequently served, and moved, when the cause first appeared on the calendar, to have it adjourned to a future day, is waived.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Ellen Demings against Supreme Lodge, Knights of Pythias of the World. From a judgment for plaintiff on the report of a referee, defendant appeals.</p>

<p>Objections to Evidence.</p> <p>Plaintiff offered evidence that the misstatement in an application for insurance was made by the company’s agent, which evidence was excluded, on the ground that the policy provided that the person making out the application was to be considered agent of insured, and the complaint dismissed. Held, that, after the ruling has been reversed, defendant, on motion for rehearing, cannot raise the question that the conversation with the deceased, offered by plaintiff in evidence, was with the insurance solicitor, and not with the physician; the offer of plaintiff being broad enough to cover all agents.</p>

<p>Trusts—Acknowledgment—Interpretation.</p> <p>M., who owned an interest in certain lands, gave to S. an instrument reciting that he held an assignment made by S. of his interest in the lands, for which S. had paid A. $2,500, “being said A.’s interest in said property”; and an acknowledgment of the memorandum stated that M. held such assignment in trust for S.’s wife. A second memorandum was executed as an acknowledgment and continuation of the former one, in which the statements were made “that [the wife] has $2,500 invested in the property,” etc., “and that she owns an interest in the amount named above.” At the time of giving this to her, M. stated that her interest in the property would be $2,500. Held, that the papers acknowledge the holding in trust of S.’s interest in the real estate for the wife’s benefit, not the holding in trust of any sum of money for her benefit, or the acknowledgment of any charge, claim, or lien on the lands; and that the statements were merely statements that S. had said amount invested in the property, and were not covenants that M. would pay that amount.</p>

<p>Appeal from special term, New York county.</p> <p>Action by William E. D. Stokes against Frederick E. Hyde for specific performance. From a judgment dismissing his complaint, ■plaintiff appeals.</p>

In the matter of Erastus Van Houten, as executor of Edward G-. Van Houten. Application of Isaac E. Pye and others, for removal of executor. The executor appeals from an order of the surrogate.

<p>Proceeding for the appraisement of the estate of Jay Gould, deceased, for taxation, under Laws 1892, c. 399.</p>

Action by the United States Glass Company,”on behalf of itself and all others similarly situated, against Alexander Levett and others. From an order denying a motion to strike case from special term calendar, defendants appeal.

In the matter of the final accounting of Sandford H. Weeks, Jr., executor of Joseph Mathews, deceased, Isaiah Washburn, as executor of Mary F. Mathews, deceased, filed objections. From the decree of the surrogate’s court, Weeks appeals.

Action by the New York & Mt. Vernon Transportation Company and Stuart W. Cowan against George Tyroler and others. From an order continuing the injunction pending the action, defendants appeal.

<p>In the matter of the application of Delbert A. Adams against thé board of supervisors of Monroe county.</p>

<p>Action by Benjamin F. Angel against Alexander S. Clark and others.</p>

<p>Action by Barbara Brozek, as administratrix, etc., of Alois Brozek, deceased, against the Steinway Railway Company of Long Island City.</p>

<p>Action by the Brooklyn Elevated Railroad Company against the Brooklyn, Bath & West End Railroad Company, the Atlantic Avenue Railroad Company, and the Nassau Electric Railroad Company.</p>

<p>Action by Sarah E. Cassidy •against the Nassau Electric Railroad Company.</p>

<p>In the matter of the application of the Colonial City Traction Company for the appointment of commissioners.</p>

<p>Action by the city of Johnstown against Andrew J. Rogers, impleaded with David Ireland and others.</p>

<p>In the matter of the of C. Foote for admission to the bar.</p>

<p>Action by Lewis Eveland against the Metropolitan Life Insurance Company.</p>

In the matter of the application of the grade crossing commissioners of the city of Buffalo for the appointment of commissioners to ascertain the compensation to be paid to the owners of and parties interested in certain lands in the city of Buffalo, proposed to be taken by the city of Buffalo, and claimed to be owned by Joseph Bear and others.

<p>Action by Charles-R. Grannan against the Westchester Racing Association and others.</p>

<p>Action by the Geneva & Waterloo Railway Company against the Fall Brook Railway Company, impleaded with the New York Central & Hudson River Railroad Company. Charles A. Hawley, for appellant. Albert H. Harris, for respondents.</p>

<p>Action by the health department against Frederick Dassori.</p>

<p>Action by Elizabeth Hartman . against Nassau Electric Railroad Company.</p>

<p>Action by William Irvine against the Atlantic Avenue Railroad Company.</p>

<p>Action by Flora Stearns Holton against 'Frederick Wurster, mayor, etc., Martin F. Conly and others, aider-men, etc., and East River & Atlantic Ocean Railroad Company.</p>

<p>Action by Philip H. Hover against Martha Hover.</p>

<p>Action by Jacob Koehler, Jr., against Nassau Electric Railroad Company.</p>

<p>Action by Alfred Lyth against Edward J. Green and James L. Baldwin.</p>

<p>Action by Ellen McNamara against the Third Avenue Railroad Company.</p>

<p>Action by Newberry A. Morían against Ephraim L. Davis.</p>

<p>Action by R. Singleton Peabody against Julia F. Chandler. Frederick G. Paddock (Austen G. Fox, of counsel), for appellant. S. A. Beman, for respondent.</p>

<p>Action hy Edward H. Murphy against Henry L. Davis, guardian, etc., and another.</p>

Action by the people, on the relation of the American Type-Founders’ Company, against Edward P. Barker and others, commissioners of taxes and assessments. John B. Green, for appellant. James M. Ward, for respondents.

<p>Application for peremptory writ of mandamus by the people of the state of New York, on the relation of James Finn, against James R. Sheffield and others, as fire commissioners. George N. Messiter, for appellants. William L. Findley, for respondents.</p>

<p>Action by Gilbert F. Pearse, as assignee, etc., against John H. Day and others.</p>

<p>Action by the people of the state of New York against John F. Dorthy.</p>

Action by the people of the state of New York, on the relation of C. Oliver Iselin, against William H. Tilford and others, assessors of the town of Mamaroneck.

<p>Certiorari by the people of the state of New York, on the relation of John T. Stephenson, against J. J. Martin and others. John Vincent, for appellant. F. M. Scott, for respondents.</p>

<p>Action by the people of the state of New York, on the relation of Louis T. Hoyt, against the board of trustees of the village of New Brighton and Thomas H. and etc.</p>

<p>Application for peremptory writ of mandamus by the people of the state of New York, by relation of David Hyde, against James R. Sheffield and others, as fire commissioners. George N. Messiter, for appellant. William L. Findley, for respondents.</p>

<p>Action by Thomas J. Reeves and another against Amelia F. Frost.</p>

Action by the people of the state of New York, on the relation of Squire H. Wilber, against J. W. McCombs, George Fraser, and John Fitzgerald, trustees and assessors of the village of Clayton, Jefferson county, N. Y.

<p>Action by Joseph Schohn against Alois Utenthaler, as treasurer of the Brewers’ Union, No. 4, of Buffalo, Fred Maser, and others.</p>

<p>Action by Wilber H. Selleck, as sheriff of Oswego county, against Ezra Williams.</p>

<p>Action by Edwin F. Salisbury against Benjamin J. Slade and others.</p>

<p>In the matter of the application of the Staten Island Midland Railroad Company, etc.</p>

<p>Action by William W. Starr against Frances 0. Starr, as administratrix; etc., of Lemuel W. Starr, deceased, respondent.</p>

<p>In the matter of the probate, etc., of Joseph Thorne, deceased. Action by Slay Thorne Brantingham against Eunice B. Huff.</p>

<p>Action by Morris Strauss against the Haberman Manufacturing Company. Robert Thorne, for appellant. E. J. McCrossin, for respondent.</p>

<p>Action by Adolph D. Strauss and others against Russell H. Hoadley, Joshua Piza, and others. A. G. Weil, for appellant. C. Putzel, for respondent.</p>

<p>Action by Elizabeth S. Van Beuren and others against Sarah Lazarus and others. Nelson S. Spencer, for appellants. William Mitchell, for respondents.</p>

<p>Action by Mary B. Train against George L. Davidson.</p>

<p>Action by Elizabeth S. Van Beuren and others against Francis A. Wotherspoon and others. Nelson S. Spencer, for appellants. William Mitchell, for respondents.</p>

<p>Action by the trustees of the Exempt Firemen’s Benevolent Fund of Long Island City against the Exempt Firemen’s Association of Long Island City.</p>

<p>Action by John P. Waldmuller and Mary Emily Waldmuller against the Brooklyn Elevated Railroad Company and another. In the matter of the application for leave to implead Frederick Uhlmann, as receiver of the Brooklyn Elevated Railroad Company.</p>

<p>Action by Maud B. Winkemeier against Christian _F. Winkemeier.</p>

<p>Action by the Woodside Brewing Company against the London Assurance Corporation.</p>

<p>Action by Walter O. Witherbee and others against Lewis H. Roe and Wallace T. Foote, Jr., as executors, and others.</p>