Volume 52 — New York Supplement

Action by Augusta C. Davidson against George L. Davidson. From an order directing judgment on the pleadings, and from such judgment, defendant appeals. The plaintiff had obtained, in 1869, a judgment for divorce against the defendant, with alimony, but for more than 24 years prior to April, 1895, when the amount unpaid amounted to $40,000, she made no effort to collect it.

<p>Mechanic’s Lien—Rights of Subcontractor.</p> <p>A subcontractor, in attempting to enforce his lien, has the burden of showing that there was something due to the principal contractor at the time of filing the lien, or that thereafter a sum became due which would be applicable to the payment of his debt to plaintiff.</p>

In the matter of the opening of Lexington avenue from 97th to 102d streets. James A. Deering petitioned for an order for payment of his services in obtaining an award for John Schreyer, from the amount of such award.

Contest between the town of German Flats and the town of Warren, in Herkimer county, over the settlement of one Merville, a poor person. . From the decision of the county superintendent of the poor adjudging the town of Warren not liable, the town of German Flats appeals.

Certiorari by the people, on the relation of the Newburgh Savings Bank, against George W. Peck, assessor of the city of Newburgh, and others, to review an assessment of personal property for taxation. From an order of the special term (50 N. Y. Supp. 820) directing that an assessment against relator be set aside and canceled and stricken from the assessment roll as unauthorized, defendants appeal.

Action by Benjamin Garvey and others against the Union Trust Company and others. From judgments overruling demurrers to the complaint, certain defendants appeal.

<p>Sale—Overpayment—Recovery.</p> <p>Upon a sale of tobacco by the defendants to the plaintiff, the bought note contained a statement that he bought the same at a “long price,”' including the duty; but before he would complete the contract he insisted on knowing the duty, and had it placed at the end of the note. As thus stated, it was 45 cents per pound, and he paid for the tobacco on that basis, but on learning that the duty paid was only 35 cents, he brought this action to recover the balance, claiming that he bought at the “short price" of 95 cents, plus the actual duty, field, that the evidence-supported a conclusion in bis favor.</p>

<p>Supplementary Proceedings—Examination of Third Party.</p> <p>A failure, in the affidavit upon which an order for the examination of a third party in proceedings supplementary to execution is granted, to state the residence of the judgment debtor at the time of the institution of the proceeding (Code Civ. Proc. § 2458), renders it fatally defective.</p>

Action by Julia O’Brien against the Buffalo Traction Company. From a judgment dismissing the complaint on the merits, with costs, entered on a decision of a special term separately stating the facts found and the conclusions of law, plaintiff appeals.

Action by Michael H. Shea, as administrator, etc., against the Great Gamp of the Knights of Maccabees for New York. From a judgment in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.

In the matter of the opening of Lexington avenue from 97th to 102d streets. Petition of James A. Deering for an allowance of attorney’s fees from the award granted John Schreyer. Judgment for petitioner. From an order denying a motion to vacate the judgment, defendant appeals.

<p>1. Partnership—What Constitutes—Sharing Profits.</p> <p>A subscription agreement to drill for gas, providing that all the subscribers were to be sharers in the profits, proportioned to the sum subscribed, constitutes the subscribers partners inter se.</p> <p>2. Surscribers—Joint Liability.</p> <p>Subscribers to an agreement to drill for gas and share the profits are liable jointly for the acts of their executive committee, which existed with the approval and authority of the subscribers, in employing third persons in such work, who relied on said agreement, even though not considered as co-partners, in the strict sense.</p>

<p>Appeal from court of sessions, Suffolk county.</p> <p>Proceedings by the people, on the relation of George L. Chichester, against Isaac Jewel. From a judgment affirming an order of filiation made and issued by two justices of the peace, defendant appeals.</p>

<p>Witness—Competency—Transactions with Decedent.</p> <p>One Smith, the owner of certain real property, executed two mortgages thereon,—one to the plaintiff, and the other to the defendant’s testator. In an action brought by the plaintiff, he alleged an agreement by which, in consideration of his subordinating his mortgage to that held by defendant’s testator, the latter agreed to pay such sums as might thereafter become due under the mortgage thus subordinated; the agreement as alleged being of such a character that plaintiff’s success in the suit would relieve Smith, the mortgagor, from liability upon his mortgage to the plaintiff. Held, that Smith was so far interested in the event of the action that he was not competent, under Code Civ. Proc. § 829, to testify to conversations and transactions between himself and defendant’s testator.</p>

Action by Sarah M. Disbrow against Griffin B. Disbrow and another. From a judgment for plaintiff, defendant Disbrow appeals. The action is to set aside a deed of the premises No. 128 West 130th street, in the city of New York, made by the plaintiff on April 27, 1892, to the two defendants, her sons.

<p>Appeal from Kings county court.</p> <p>Action by Thomas B. King against Charlotte M. Bierschenk and Charles M. Bierschenk. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Judgment—Rendition—Costs.</p> <p>Under Code Civ. Proc. §§ 738, 2892, providing that, on plaintiff’s failure to recover a more favorable judgment than defendant has offered, defendant shall be entitled to costs accruing after the offer, a single judgment should be entered for plaintiff for the amount recovered, less defendant’s costs.</p> <p>2. Leases—Holding Over.</p> <p>Defendant, under a lease which provided for payment of taxes by lessee, remained in possession after the expiration of the term. She agreed pay increased rental, but nothing was arranged as to other terms of the lease. Held, that defendant held over from year to year under the old lease, except as orally modified.</p>

In the matter of the probate of the alleged last will of Michael Mantón, deceased. From a decree admitting the will to probate, certain heirs appeal. Trial of issues by jurv directed.

Action by Mary Jane Connolly, executrix of Edmund Connolly, deceased, against S. Ellis Briggs. From judgment on the verdict, and from order denying a new trial, defendant appeals.

<p>1. Municipal Improvements—Assessment Districts.</p> <p>A comparatively level lot fronting on two streets, upon one of which a sewer bad been laid, was divided by the board of assessors, and the part fronting on the street without a sewer was placed in the assessment district which had to bear the expense of laying a sewer in that street. The entire portion placed in that district could be drained into the new sewer, although a part of it sloped towards the old sewer. Held, that the action of the board will not be disturbed.</p> <p>2. Same—Assessments.</p> <p>Under City Charter, § 145, providing that assessors, in making an assessment for local improvements, shall assess the whole amount “upon the parcels of land benefited by the work, act, or improvement, in proportion to such benefit,” the cost of constructing a sewer may be assessed at a uniform rate per square foot over the entire assessment district.'</p>

<p>Appeal from Fourth district court.</p> <p>Action by Isaac Fox against Katie Held and others. From orders of the municipal court, defendants appeal.</p>

Action by John L. Lawrence against George W. Smith and others to annul the action of the town board of the town of Hempstead, Queens county, in establishing a lighting district, and making a lighting contract therefor for 10 years, part of the territory included being within the incorporated village of Lawrence. Judgment for plaintiff.

<p>1. Appeal—Review.</p> <p>On appeal from a judgment of nonsuit the plaintiff’s testimony will be taken as true.</p> <p>3. Master and Servant—Personal Injuries—Questions for Jury.</p> <p>In an action for personal injuries sustained by an employé while operating machinery, whether or not he had been properly instructed as to its manner of operation and danger should he submitted to the jury, where he testified he was not.</p>

<p>Instructions—Assumption of Facts.</p> <p>Giving a charge which assumed as a fact a material matter, as to which the evidence was in direct conflict, was reversible error.</p>

<p>1. Justice Court—Terms of Officers.</p> <p>Sections 1373 and 1384 of the Greater New York charter, when read together, provide, in substance, that where an officer of the district and justices’ courts had a fixed term of office he should continue in like capacity until the expiration of such fixed term, but where he had no fixed term of office he continued in office until January 31, 1898, and his tenure then expired.</p> <p>•3. Same.</p> <p>Section 1373 of the Greater New York charter continues in office certain officials of the district and justices’ courts until the expiration of their respective terms, but does not include the case of an attendant appointed to hold office at the pleasure of the appointing power.</p>

<p>On motion for reargument. Denied.</p>

<p>Application by the people, on the relation of Isaac H- Klein, for; a writ of mandamus against James J. McDonald and others.</p>

<p>1. Vendor and Purchaser—Recovery of Money Paid.</p> <p>Where a vendor of a building agrees, as part of the contract, to procure an assignment of a lease from the owner of the land on which it is located, containing an option of purchase, which he is unable to do, it is not a condition precedent to the vendee’s right to recover money paid that he tender the balance of the purchase price, since the vendor’s inability to perform renders a tender unnecessary.</p> <p>2. Same—Tender—Necessity.</p> <p>Where a vendor refuses to complete a contract of sale on demand, no tender of an unpaid balance of the price is necessary before a recovery of the amount paid can be had.</p>

<p>On motion for reargument. Denied.</p>

<p>On motion for reargument.</p>

Action by James Thom against Charles Weber. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Estella A. Thurber against the Commercial Travelers’ Mutual Accident Association of America. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Nathan Tisch, an infant, by Marcus Tisch, his guardian ad litem, against Isaac Hirsch and Benjamin Hirsch. Prom a judgment on a verdict of a jury, and from an order denying a new trial, defendants appeal.

In the matter of the judicial settlement of the accounts of Mary A. Johnson, executrix of John Tighe, deceased. From a decree settling such accounts charging her with certain money, and enjoining executrix from acting under said will, she appeals.

Action by Peter Wilhelm against the Brooklyn, Queens County & Suburban Bailroad Company. From a judgment on a verdict of $5,000 in favor of plaintiff and from an order denying a new trial,, defendant appeals.

<p>Action by the American Surety Company against Moses R. Crow, impleaded.</p>

<p>Action by Nancy E. Bliss against Charles L. Sherrill, impleaded, etc.</p>

<p>Action by James T. Briggs, as admintrator of James H. Briggs, deceased, against ary L. Goerke.</p>

<p>Action by John Catoir against George F. Budenbender.</p>

<p>Action by Warren 0. Browne igainst the Empire Type-Setting Machine Com->any.</p>

<p>Action by William J. Buttling against Loftus D. Hatton and others.</p>

<p>Action by Delia E. Donihee against Daniel E. Seybel, impleaded.</p>

<p>Action by the Commercial Bank against Moses Foltz and Beaman Catto, impleaded with others.</p>

<p>Action by John Conway against the city of Rochester and others.</p>

<p>Action by-William F. Cochran against Lorenz Reich and Elizabeth Reich.</p>

<p>Action by Timothy Doorley against Mary O’Gorman.</p>

<p>Action by John H. Fogarty, as administrator, etc., of John Henry Fogarty, deceased, against the Long Island Railroad Company and John R. Carpenter.</p>

<p>In the matter of the petition of Martin Dunn, Jr.</p>

<p>Action by Mary Eagan and William Eagan, Jr., infants, by Martin Eagan, their guardian ad litem, and William Eagan, against Sarah M. Scully, individually and as executrix, etc., of Patrick Scully, deceased, and Richard Lannigan, defendant. Robert Galvin and James Galvin, by guardian ad litem, appeal.</p>

<p>Action by John B. Hicks against the New Jersey Car-Spring & Rubber Company.</p>

<p>Action by Hiram W. Hunt aaainst George D. Patten, impleaded with others.</p>

<p>Action by Alexander Jablowski and others against the National Prohibition Park Company.</p>

<p>Action by Thomas Hill, Jr., against Abram L. Warner.</p>

<p>Action by John D. Lehon against Priscilla H. Judson, impleaded, etc.</p>

<p>Action by Albert E. Jones against Charles J. Close and others.</p>

<p>Action by Bernard Levy against the Nassau Electric Railroad Company.</p>

<p>Action by Dennis McCarthy and another against the New York Central & Hudson River Railroad Company and the Syracuse, Ontario & New York Railway Company.</p>

<p>Action by Bridget Mannix against the Nassau Ferry Company.</p>

<p>Action by Henry H. Lyman against Henry Korndorfer.</p>

<p>In the matter of Anna Muller.</p>

<p>Action by William Lane O’Neill linst the New York Press Company, Limited.</p>

Action by the people of the state of New York against the Family Fund Society,_ and in the matter of the petition of James Wright and others, living members.

<p>Action by George B. Shearer against Alfred P. Roth and Frederick Engelhard!.</p>

In matter oí the application of Clarence L. Reid admission to practice as an attorney and mselor at law in the courts of this state.

<p>Action by ’auline M. Rockwell, as administratrix, etc., gainst Charles L. Petrie.</p>

<p>Action by Charles S Stone against the Board of Supervisors ( Broome County and others.</p>

<p>Action by Margaret Ulmer, as administratrix, etc., against the Third Avenue Railroad Company.</p>

<p>Action by the Unit-1 Waterworks Company against the Omaha rater Company and others.</p>

<p>Action by the Yellow Pine Company against the Lehigh Valley Oreosoting Company.</p>