Volume 53 — New York Miscellaneous Reports

<p>Motions and orders — Obtaining testimony to be used on motion — In general — Not ordered when useless.</p> <p>Where, in an action to rescind a contract for the purchase of defendant’s land and to recover moneys deposited, the court finds that defendant had falsely represented that the land was firm, natural ground suitable to support buildings, a referee to take depositions for use upon a motion for a new trial will not be appointed where it clearly and positively appears that the persons to be examined will not swear to the facts which defendant seeks to establish. Where one of the persons whose depositions are sought not only refused to verify a proposed affidavit upon the ground that he had no knowledge of the matters therein contained but also refused to make any affidavit whatever upon the application, the motion as to him will be granted.</p>

<p>Abatement and rivival — Revival or continuation of suits — Death of one of several plaintiffs or defendants — Death of defendant jointly liable.</p> <p>Where a complaint against three defendants sued jointly alleges a cause of action for unlawful entry and detainer, another for assault and battery and a third for conversion, the first two causes of action abate as to a defendant who dies before judgment but the third cause of action survives and may be continued separately against his executrix.</p> <p>Upon the decease of one of several defendants jointly liable, the action can only be revived as a separate action against the representative of the deceased defendant; but an order may be made herein, severing the action with leave to continue the first two causes of action, separately, against the surviving defendants and with leave to continue the third cause of action, separately, against the executrix of the deceased defendant.</p>

Motion to cancel Us pendens in an action to recover deposit made by a vendee on a contract to purchase real estate, together with expense of searching title, the complaint asking that the judgment be declared a lien upon the real estate.

<p>Motion for a temporary injunction.</p>

<p>Injunction — Preliminary injunction — Papers on motion for injunction — Sufficiency of affidavit without complaint.</p> <p>Although the failure of the affidavit upon which a preliminary injunction was granted to state whether any previous application has been made for the order asked and the failure of the injunction to state the grounds upon which it was granted are mere irregularities which the court might disregard, the fact that the affidavit was not made by the plaintiff and that no excuse for his failure to make the same was shown, in connection with the fact that the affidavit is largely the conclusions of the attorney who made it and not statements of his personal knowledge nor of the sources of his information, and the injunction was not founded upon the summons and complaint, it should be vacated upon defendant’s motion.</p>

<p>Receivers — Nature, grounds and subjects of receiversMp — Particular actions and proceedings — Actions affecting partnerships. /</p> <p>Code of Civil Procedure, § 713.</p> <p>Where an action is brought for the dissolution of an alleged partnership and the appointment of a receiver, and the. existence of the partnership is denied, and there is a serious conflict with respect to the transactions and statements of the parties, from which their intentions and the nature of the agreement between them must be determined, and facts are not stated from which danger may be apprehended that the profits of the business will be appropriated by the defendants who are managing it or dissipated, and there are no averments of fraud, mismanagement or dissipation of assets, and the defendants are financially responsible and the circumstances indicate that the successful management of the business requires that the defendants should remain in charge, the case has not been brought within the provisions of section 713 of the Code of Civil Procedure relating to the appointment of receivers; and plaintiff’s motion for a receiver should be denied.</p>

<p>Two motions are made by different defendants upon the same or like affidavits for an order directing the change of the place of trial of this action from Nassau county to New York county' upon the ground that the plaintiff, Daniel LeEoy Dresser, was not, at the time of the commencement of this action, and is not now a resident of Nassau county, but that he was at that time and is now a resident of New York county. One of these motions is made by the defendants, The Mercantile Trust Company and Krech, and the other by the defendants McCook, Alexander, Gulliver and Deming.</p>

<p>Motion to" change the place of trial.</p>

Motion by the defendant to confirm referee’s report, in action for a divorce, in favor of plaintiff, but awarding custody of children to defendant.

<p>Reference — Report and findings — Time for making report.</p> <p>A party may not, under section 1019 of the Code of Civil Procedure, terminate a reference within sixty days after the time when he submits to the referee his proposed findings of fact and conclusions of law. As to him the time within which the referee is required to make his report will not begin to run before the date of such submission.</p>

<p>Negligence — Actions — Trial and review — Questions for jury.</p> <p>In an action for personal injuries, resulting in the death ot plaintiff’s intestate, received in jumping from the fourth story of defendants’ burning building in which he was employed, where it appeared that defendants had long neglected to comply with an order of the municipal government requiring them to provide adequate fire escapes, and that plaintiff’s intestate, finding a crowd about the only existing fire escape struggling and fighting for access to it and all other means of egress from the building choked with smoke or flames, jumped from a window; and where the questions of defendants’ negligence and the contributory negligence of the deceased and the questions of proximate cause, sudden peril and assumption of risks had all been submitted to the jury under instructions to which no exception was taken, and the jury found a verdict for the plaintiff for an amount which is not deemed excessive, a new trial will not be granted.</p>

Motion by defendant for a new trial on the ground of newly-discovered evidence in an action by a passenger against a carrier to recover for personal injuriés.

<p>Damages — Double and treble damages — When recoverable. Where tlie plaintiff seeks treble damages for a forcible entry under section 1669 of the Code of Civil Procedure, it should appeal' from the complaint that the action is brought to recover such damages; and, in such a case, where there is no allegation of such a claim in the complaint, a motion for treble damages will be denied, although the facts as found by the jury might authorize their recovery.</p>

<p>Costs — Amount — Statutory allowances at various stages of proceedings — Proceedings before notice ■— On interlocutory judgment. Upon an interlocutory judgment sustaining a demurrer to the complaint, the defendant is not entitled to tax costs before notice of trial.</p>

<p>Stay of proceedings — Supersedeas or stay by proceedings for review — Allowance or order for stay — Necessity for allowance. Contempt — What constitutes — Disobedience — Excuse for disobeying generally. Where a judgment directing defendant to remove forthwith certain obstructions from plaintiff’s premises is affirmed by the Appellate Division, the usual undertaking to perfect an appeal tc the Court of Appeals, pursuant to section 1326 of the Code of Civil Procedure, does not stay the judgment; but, where it appears that defendant’s failure to obey the judgment was because of an honest belief that the giving of the undertaking effected a stay, a motion to punish him for contempt will be denied, upon condition that, if within five days after the service of notice of the entry of the order denying such motion, defendant fails to move for a stay of proceedings on notice, or if he makes such a motion and does not bring it diligently on for argument, or a stay is granted upon terms not complied with, or denied, the motion to punish him for contempt may be renewed.</p>

<p>Motion for the discharge of a judgment.</p>

<p>Motion to set aside and vacate a judgment.</p>

<p>Appeal — Who may appeal — Persons not parties. The owners of the equity of redemption of property of which a receiver has been appointed are entitled to appeal from an order denying them leave to come in as parties defendant, and a motion tu compel acceptance of their notice of appeal will be granted.</p>

<p>Attorney and client — The relation with the client — Lien: Right to lien — In what courts lien may be acquired; Enforcement — By action in Supreme Court. Although the Municipal Court of the city of New York has no jurisdiction to enforce atí attorney’s lien, an attorney who has ■ rendered services in an action brought in that court is entitled to a lien under section 66 of the Code of Civil Procedure and may maintain an action in the Supreme Court to enforce it.</p>

<p>Action on a bond.</p>

Action under section 2607 of the Oode of Civil Procedure by William M. Rouse, late infant, against Carrie A. Whitney, his former guardian, and the sureties upon her bond for the recovery of moneys alleged to have been lost through improper investments.

<p>Demubbeb to complaint.</p>

<p>Pleading: Complaint or declaration — Statement of cause of action in general; Demurrer — Hearing and determination — Nature of reliei demanded. Contracts — Interpretation of contract — Particular agreements—Agreements for sharing profits and losses on venture in stocks. Where a plaintiff’s right of action, because of the absence of anv allegation as to the legal effect of the contract sued on, must be inferred from the contract which constitutes the parties joint undertakers in a stock venture, the profits and losses to be borne equally, with the right to call each other to account, and contemplates both the holding and sale of stock, and where, although the complaint fails to allege a cause of action for an accounting of profits and losses or for contribution, the same may be inferred from other allegations and the facts may be regarded as sufficient to constitute a cause of action for terminating the joint engagement but the prayer for relief is for a sum of money only, the complaint does not state facts sufficient to constitute a cause of action for an accounting and contribution. And where, in such a case, the stock still remains with the parties and the loss therein has not been determined by an actual sale, a mere allegation of its worthlessness will not serve as a sufficient foundation for an action for debt.</p>

<p>Injunction — Actions for injunctions — Parties — Defendants. Corporations — Actions against corporations — Parties in action against — Joining stockholders. Parties — Defendants — Who must be joined. A complaint, which alleges that certain persons not parties to the action received stock of the defendant corporation in consideration of their personal promissory notes and in violation of section 42 of the Stock Corporation Law; that said persons are a majority of the directors of the corporation and in control thereof and, by means of the- stock which they have thus illegally received, can control the pending election of the corporation, and which concludes by praying that the defendant be enjoined from permitting votes to be cast on said stock, is demurrable upon the ground of a defect of parties defendant.</p>

<p>Easements: Change of interest in estates — Eight of purchaser of dominant estate; Extinguishment and revival — Extinguishment generally— Street between upland and wharfage. Where, under a deed from the city of New York in 1847, the grantee of upland and bulkhead rights acquired, as appurtenant thereto, the wharfage rights immediately opposite the dominant tenement, and, upon a partition of the land in 1860 by the heirs of the grantee from the city, the deed of four lots to one of said heirs granted all the wharfage rights lying in front of the land conveyed to her, and tlio city in 1868 by a deed to the heirs of its grantee confirmed the deed of 1847, a specific devise of the four lots by the grantee of the deed in partition, by reference to their numbers in the partition map of 1860, embraces the wharfage and bulkhead rights opposite thereto although no specific reference thereto was made in the deed. A separation of riparian rights from the upland will not be permitted because of the existence of a public street or road between the outer edge of the upland and tide water.</p>

<p>Taxpayer’s action. The opinion states the case.</p>

Demurrer to the complaint in an action to enforce against a stockholder of a Maryland corporation a statutory liability to its'creditor alleged to be created by the laws of Maryland.

<p>Election of remedies — Inconsistency of remedies — Different remedies where rule of inconsistency is not violated.</p> <p>Landlord and tenant — Rights, duties and liabilities in regard to the premises — Injuries from defective condition — Actions for injuries from negligence.</p> <p>An allegation iff the complaint, in an action against a landlord for damages caused by leaks in the roof of the demised premises, that defendant had expressly agreed to protect the plaintiff from such damages, does not constitute an election to sue upon contract; and a judgment merely dismissing said complaint is not a bar to an action in tort for damages caused by the same leakage.</p>

<p>Gifts: In general — Particular instances — Funds in bank; Delivery and acceptance — Evidence.</p> <p>A mother, about a year after her account in savings bank standing in the name of her son, as her trustee, had been changed to him as an individual, executed, in the presence of two subscribing witnesses and with full knowledge of its contents, a writing containing a positive declaration that, of her own free will and without influence exercised upon her, she had given the money in the savings bank to her son and delivered it to him and put him in the absolute possession and ownership thereof and which paper further ratified and confirmed said gift to the son and declared that it was made with full understanding of its effect and that said gift was made as a simple act of justice to her son and that he had become the absolute owner of said money. By her instructions this paper was delivered to the son. Held, that the evidence showed a valid gift inter vivos.</p> <p>The mother by her will and codicil thereto, executed respectively one and two years after said declaratory paper and subsequently admitted to probate, declared that said money in the savings bank was at the time of the execution of the will held by the son in trust for her and was specifically bequeathed to legatees named. In an action by her executor against the son for an- accounting and to set aside the declaratory paper and to recover the amount of the bank deposit with interest, held, that the said declaratory paper would have been conclusive upon the testatrix until attacked and explained away; and, there being no sufficient evidence against its validity in this action, defendant was entitled to judgment dismissing the complaint.</p>

<p>Wills — Interpretation and construction — Expenses of the estate, charges, etc.— Rules and implications — Implied charges on land.</p> <p>Where a testator, owning real estate, gives an annuity to his aged sister, but does not leave sufficient personal property to pay the annuity after the payment of his debts and funeral expenses, and it does not appear whether at the time the -will was made the testator had sufficient personal property for such purpose nor how much, if any, will remain after paying debts and funeral expenses, and the will contains no expression making the annuity a charge upon the testator’s real estate, and there are no extrinsic circumstances to aid the court in determining the testator’s intent, and his language shows that he understood there would be personal property left after satisfying the bequest, held, that the will does not disclose an intention to charge the annuity upon testator’s real estate.</p>

<p>Action for rent. The opinion states the case.</p>

<p>Demubeee to complaint in action for libel.</p>

<p>Shipping — Liabilities of vessels and owners — Contracts of master for supplies.</p> <p>Former adjudication — Causes of action barred or merged in general — Causes of action on indebtedness and on collateral security.</p> <p>Where the captain of a vessel, for the purpose of paying ship brokers the expenses for port charges, supplies and services, drew to his own order and indorsed a note payable five days after the arrival of the vessel at the port of destination, and the brokers delivered the same to plaintiff who advanced the amount thereof which was applied to the payment of such expenses, the receipts for which were sent to the owners of the vessel; in an action thereafter brought against the owners to recover the moneys advanced ■ by the plaintiffs, a judgment of the Commercial Court of Antwerp, in favor of the defendants, in an action upon the note, brought by plaintiffs against the captain of the vessel in his representative capacity and the defendants in the present action, upon the ground that the master had no authority to make the note, is not an adjudication upon the 'question of the defendants’ liability in the present action.</p>

Demubbeb by the defendant, The United States Fidelity and Guaranty Company, on the ground that the complaint does not state facts sufficient to constitute a cause of action.

<p>Action to recover upon a check. Tried before the court without, a jury.</p>

<p>Negotiable instruments: Accommodation paper'—Liability to one who has not parted with value; Bona fide holders — What constitutes a bona fide holder — Parting with value.</p> <p>Where a note is given for a preceding note of the same amount made by the same parties and the original note is not surrendered or canceled, the holder has not parted with value and cannot recover thereon against an accommodation maker.</p>

<p>Bankruptcy — What passes to the assignee and the nature of Ms title — Effect of discharge of trustee.</p> <p>By the adjudication in bankruptcy and the appointment of the trustee a bankrupt is divested of all title to his property, and the trustee’s discharge does not restore title to the bankrupt or his heirs.</p>

Action for damages. Motions to vacate an order made for the examination before trial of two of the defendants, former directors of the company.

<p>Conversion (Equitable) — How and in what cases effected — By testamentary direction to sell realty — Direction not imperative.</p> <p>Suspension of power of alienation — Validity of particular future estates— Where executor has power of alienation.</p> <p>A power of sale contained in a will though not conferred in imperative terms, where its exercise is necessary to accomplish the testator’s purpose and intention in the disposition of his estate, works an equitable conversion of his lands.</p> <p>The Statute of Perpetuities is pointed only to the suspension of the power of alienation and not at all to the time of its exercise; and no suspension of the power of alienation arises merely from the possible non-action of executors to whom a power of sale is given.</p> <p>In the case of a trust for sale and distribution without restriction as to time where the trustees are empowered to receive the rents and profits pending the sale for the benefit of beneficiaries, the fact that the interest of the beneficiaries is inalienable by statute during the existence of the trust does not constitute a suspension of the power of alienation.</p>

Motion to dismiss the complaint, in an action for the specific performance of a contract for the sale of real property, on the ground that it appears from -the complaint that the plaintiff is not entitled to equitable relief.

Motion to dismiss complaint at close of case, the decision of which was reserved until after the jury returned their verdict.

<p>Action for an injunction. The opinion states the case.</p>

<p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Trusts — The beneficiary, his estate, rights and interest — Alienability of interest — Trusts of personal property.</p> <p>Where a certain sum of money is bequeathed to executors in trust to invest and to pay the net income thereof to testator’s two sisters in equal shares and to pay the entire net income to the surviving sister, and upon her death to pay over the corpus of the trust estate to such person or persons and in such manner as such surviving sister shall during her lifetime by will or otherwise have directed, the right of each of the beneficiaries in the trust fund is, under section 3 of the Personal Property Law (L. 1897, ch. 417), incapable of transfer by assignment or otherwise; -and an assignment by the beneficiaries of both the income and the corpus 'of the trust estate is ineffectual to frustrate the testator’s purpose to provide a life income for each of them and cannot be enforced.</p>

<p>Election of officers — Nominations, etc.—Committee — Democratic State committee may not expel its duly elected members.</p> <p>The State committee of the Democratic party, which has no constitution or bylaws but which controls the State convention of the party and the nominations for public officers made by- it, is under existing law elected by delegates from the respective senatorial districts and no power resides anywhere to reject their choice". Therefore, the attempted expulsion by a majority of said committee of the representatives from Kings county will be enjoined.</p>

<p>Action to compel the specific performance of a contract for the sale of real estate.</p>

Appeal by the landlord from a final order of the Municipal Court of the city of New York, borough of Manhattan, in summary proceedings upon the submission of an agreed state of facts.

Appeal by the defendant from an order of the City Court f the city of Hew York denying defendant’s motion to set •i side the service of the summons herein, and to vacate the judgment herein.

<p>Appeal from an order of the City Court of the city of New York entered in the office of the clerk the 17th day of January, 1907, denying a motion of plaintiff to amend his complaint hy changing the name of his assignor from Wallace E. Brown to Theresa" E. Brown without prejudice to the position of the case upon the calendar.</p>

<p>Appeal from order of the City Court of the city of Hew York, dated Hovember 24, 1906, for the examination of defendant before trial; and from orders dated December 5 and December 13, 1906, denying defendant’s motions to vacate and set aside said order of November 24, 1906.</p>

<p>Motions and orders — Orders — Settling order — Destroying one of two¡ different orders inadvertently signed but not entered and adopting, the other.</p> <p>Where, upon the affirmance of an interlocutory judgment overruling a demurrer, the plaintiffs enter a final judgment in the action, and, upon the granting of defendant’s motion to vacate the same, both parties hand up proposed orders for signature and the judge inadvertently signs both and they are filed in the clerk’s office without having been entered, and, thereafter, the justice, after examining both orders in the presence of plaintiffs’ attorney and a representative of defendant’s attorney, destroys defendant’s order, a denial of defendant’s motion to have filed and entered a copy of the destroyed order with the same legal effect as the original order is proper and the order entered thereon affecting no substantial right is not appealable.</p> <p>Defendant could have made a motion to resettle the plaintiffs’ order and if, by a denial of such motion, he was injured in a substantial right, he could have appealed from the order entered thereon.</p>

Appeal by the defendant from an order of the Municipal Court of the city of blew York, second district, borough of the Bronx.

<p>Default — Right to take default — In general — At trial term not until cause reached on calendar.</p> <p>Where, upon the day set for the trial of a case in the City Court of the city of New York, the trial justice had before him an unfinished case and another case ready for trial, which was tried, and defendants’ counsel was actually engaged in the trial of a case in the Supreme Court, an inquest was improperly ordered; the case should have been marked “ Ready ” and an inquest should not have been ordered until the case was actually reached for trial.</p>

Appeal by the defendant Charles Muller from an order entered in the City Court of the city of Mew York, denying appellant’s motion to retax costs on appeal.

Appeal by the plaintiff from an order of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan, granting a new trial on the ground of newly discovered evidence.

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

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

<p>Appeal taken by the defendant from a judgment for $120.11 damages and costs, rendered after a trial in favor of the plaintiff in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan, in an action for services rendered.</p>

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

Appeals by the defendants from judgments of the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, in favor of the plaintiffs, entered upon the verdict of a jury.

<p>Brokers — Compensation — Performance of duty by broker — Necessity of procuring binding legal contract.</p> <p>Where a person produced by a real estate broker as a purchase]1 of certain premises declined to sign a contract therefor unless there should be inserted a provision that, in case he should reject title on account of certain encroachments, which would not otherwise have constituted a ground for such rejection, his deposit should be returned in full for all claims, the broker is not entitled-to commissions, as the contract is thus rendered a mere option and he has not produced a party ready and willing to take the premises upon the terms proposed by the owner.</p>

<p>Bill of paitictilars — When authorized — Damages — Special damages in action against carrier for loss of baggage.</p> <p>Where, in an action against a carrier for the loss of a dress suit case, the plaintiff claims a certain sum for the cost of a bond required to obtain the reissue of certain shares of corporate stock, which were lost, and another sum for the loss of contracts covering a gold dredge in California, held, that plaintiff should furnish a bill óf particulars,' stating the amount of the premium claimed to have been paid on the bond and the. items going to make up the sum claimed to have been the cost of procuring it; also, the nature of the contracts, with their dates, the nature of the damage claimed to have been suffered by their loss and the particular items of such damage.</p>

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

Appeal by the defendant from a judgment of the Oity Court of the city of New York, entered in favor of the plaintiffs on the verdict of a jury -and also from an order denying defendant’s motion for a new trial.

Appeal by the defendant from a judgment for $121.50, entered in plaintiff’s favor in the Municipal Court of the city of Hew York, twelfth district, borough of Manhattan, upon October 3, 1906, after trial therein before the justice and a jury.

<p>Municipal Courts — Procedure — Transfer to another court or district.</p> <p>In an action in the Municipal Court of the city of New York the trial judge has no authority to interrupt the trial, which is being had in the proper district, and take the ease to another district for the completion of the trial; and by so doing he loses jurisdiction of the case.</p>

<p>Master and servant — The relation — Actions for wrongful discharge — Presumptions and burden of proof — Seeking other employment.</p> <p>In an action to recover damages for the breach of a contract of employment, the plaintiff is not required to show affirmatively, as part of his case, that he sought other employment but could not find it; that he found other employment elsewhere, or refused similar employment when, offered, or that he might have found such employment, is matter of defense.</p>

85 in favor of plaintiff against defendant, on a verdict, after trial in the City Court of the city of Hew York. The clerk of the Trial Term did not include interest in his minutes of the trial and verdict; and, on motion of plaintiff, the court amended the verdict by adding interest, with an opinion. Defendant appeals from the order so amending the verdict and also from the order denying motion to set aside the verdict and for a new trial on the minutes.

<p>Frauds, Statute of — Promise to answer for debt, etc. of another — New consideration — Forbearance.</p> <p>Where one, who states that he has succeeded to another’s business, writes to one of the latter’s creditors that additional capital necessary to develop the business will be forthcoming and asks the creditor’s indulgence until matters are straightened out, which he hopes will be soon, when the creditor’s account will be taken up, and, relying upon the letter, the creditor forbears to sue the original debtor, such request for indulgence and promise, followed by the creditor’s forbearance for a reasonable time, will render the promisor liable for the payment of the creditor’s claim though no definite period of forbearance was specified.</p>

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

<p>Appeal from a judgment and order of the City' Court of the city of New York, entered upon a verdict -directed by the court, in favor of the plaintiff.</p>

<p>Appeal by the plaintiff from a judgment of the Oity Court of the city of New York dismissing the complaint.</p>

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

<p>Brokers — Compensation — Agreements as to compensation — Payment when title is passed.</p> <p>Where, by express contract, the commissions of a real estate broker are not payable until title to the premises passes, and, because of defects found in the title, the contract of purchase is canceled and the deposit returned to the prospective purchaser, the real estate broker has no right to commissions.</p>

Appeals by the the plaintiffs from two judgments of the Municipal Court of the city of blew York, ninth district, borough of Manhattan, rendered in favor of the defendant.

<p>Vendor and purchaser — Enforcement generally — Action by purchaser for recovery back of purchase price — Burden of proof and presumptions.</p> <p>The burden is upon the vendee, under a contract for the sale of real estate, to show that his rejection of the title was for a good and valid reason.</p> <p>Where a vendee, under a contract for the sale of certain real estate, occupied by a tenant and sub-tenant, seeks to recover a deposit made as part of the purchase price, upon the ground that he had rejected the title because the lease had not been termi- ' nated as prescribed therein, and it appears that the tenant had agreed to annul the lease and had surrendered the premises, it will be presumed, in the absence of proof to the contrary, that the surrender of the original lease was executed in conformity with the terms of the lease and that the sub-tenant’s rights had been extinguished.</p>

<p>Motion to set aside and vacate the award made by arbitrators.</p>

<p>Taxes — Equalization, correction and review of assessments — Certiorari — Review—Reference.</p> <p>Where in certiorari proceedings, twenty-one in number, brought by eight separate and distinct sets of relators to review assessments for taxation for two or more years of various large parcels of improved real estate in the city of New York, the issue is that the relators’ property is assessed higher in proportion to its value than other property in the tax rolls, and it is clear that the testimony of experts, whose time is so occupied that it might well be impossible to assemble them and to keep them together for the purpose of trial in court, will he offered in evidence and that the interests of justice require that ample opportunity to cross-examine them and to introduce testimony in rebuttal should he afforded, the court, in the exercise of the discretion conferred upon it by section 253 of the Tax Law (L. 1896, eh. 908), may send the proceedings to various referees under orders containing such reasonable provisions for expediting the proceedings as may be agreed upon.</p>

<p>Taxes — Persons, objects and interests taxable — In general — Deductions— Debts for the purchase of non-taxable property.</p> <p>A stock exchange seat is non-taxable property; and, where the purchaser of a seat in the New York Stock Exchange, in compliance with its constitution and by-laws and in order to obtain its assent to the transfer of the seat and his admission to membership, procures from the person from whom he borrowed the purchase price a general release to him of all claims and demands arising out of the loan, which is delivered to the exchange, and, thereafter, realizing the moral obligation, he promises to pay the lender the amount of the loan with interest, he is not, under section 6 of the Tax Law (L. 1896, ch. 908) which provides: "Ho deduction shall be allowed in the assessment of personal property by- reason of the indebtedness of the owner contracted or incurred in the purchase of non-taxable property ”, entitled to deduct the amount of the loan from- his personal assessment.</p>

<p>Eminent domain — Condemnation proceedings — Petition — Amendment of petition — Terms.</p> <p>Where -the petition of a railroad company in condemnation proceedings, in describing the strip of land to be taken adjoining its right of way, excepted so much of the premises described as is included -within the lines of the highway ”, because petitioner’s attorney was misled by the official search into the belief that the defendants had no title to the highway, and the mistake is discovered before an award is made, the petition, under section 721 of the Code of Civil Procedure, made applicable to condemnation proceedings by section 3368 of said Code, may be amended so as to include in the description of the property to be taken the highway itself.</p> <p>But, where the railroad company, while an action is pending by the owners of the highway to restrain it from entering thereon, obtains an order permitting it to go into immediate possession upon depositing $5,000, which is done, the amendment will h» granted on condition that the petitioner pay all taxable costs to date in said action and also all witnesses’ fees paid and taxable on the part of the owners in the condemnation proceedings to the date of the order, together with an allowance to their attorney'upon the motion to amend and as compensation for his appearance to date before the commissioners.</p>

<p>Eminent domain: Condemnation proceedings — Hearing by commis-</p> <p>sioners— Admissibility and rejection of evidence — Evidence given on former hearing; Measure of compensation — In general — Valuing lot with open exposure as inside lot.</p> <p>In a proceeding to acquire lands for streets in the city of New York, where the report of the original-commissioners of estimate and apportionment was not confirmed and new commissioners were appointed who were directed to reconsider the previous report and the subject matter thereof and return it corrected and revised or to make a new report, it was error to reject portions of the testimony given before the first commissioners when offered by property owners</p> <p>A lot having a space of twenty-five feet between it and the building on the adjoining property, giving it light andair on three sides, should not be treated as an ordinary inside lot, although the city owned the adjoining property and might build upon it.</p>

This is a proceeding, instituted under section 27 of the General Corporation Law, to review the election of nine directors claimed to have been chosen at the annual meeting of the association held on June 19, 1906. The essential facts will be stated in the opinion of the court, which follows.

<p>Application to review the determination of the village clerk of Hastings-on-the-Hudson sustaining objections to an alleged certificate of nominations of the Independence League for village officers.</p>

<p>Proceedings to revoke and cancel a liquor tax certificate.</p>

<p>Taxes — Taxation of mortgages on real property — What mortgages are „ taxable — Mortgages upon chattels real.</p> <p>A lease for five years is a chattel real and does not lose its character after the expiration of two years of the term; and it is, therefore, real property within the meaning of the Mortgage Tax Law (L. 1906, ch. 532).</p>

<p>.Municipal Courts — Review — Transfer to another district.</p> <p>Mandamus — Mandamus against judicial officers — Grounds and defenses — Existence of remedy hy appeal.</p> <p>Where a justice of the Municipal Court of the city of New York, after issue joined and several adjournments of the trial, ordered the transfer of an action from the district over which he presided and in which neither of the parties resided to another district in which the defendant’s office for the transaction of its business was situated, his action may be reviewed upon appeal from the final judgment in the action; and a mandamus will not he granted to compel the justice to retain jurisdiction and try the action.</p>

<p>Municipal corporations — Officers and agents — Officers and employees or agents other than mayor and common council — Resignation, removal, etc.— Investigation of charges and proceedings to remove — Review on certiorari.</p> <p>Prohibition — Nature and grounds — Existence and adequacy of other remedies — Certiorari.</p> <p>A veteran employee of the Tenement House Department of the city of New York against whom charges have been preferred, triable before the commissioner and deputy commissioner of the department, has a remedy by certiorari to review the proceedings in case they result in his removal or attempted removal; and á writ of prohibition will not be granted to prevent the officers having jurisdiction from trying the charges.</p>

<p>Attachment — Affidavit to obtain attachment — Affidavit for attachment against foreign corporation.</p> <p>Since an affirmative allegation that defendant is a foreign corporation would suffice to establish the fact upon a trial in the absence of an affirmative allegation that the defendant is not a corporation, such a positive and unqualified allegation in an affidavit to procure an attachment is a sufficient foundation therefor.</p>

<p>Motion to change venue.</p>

<p>Supplementary proceedings — Procedure in general — Setting aside — Time to move on ground judgment improperly entered.</p> <p>It is too late for a judgment debtor, after having submitted to an examination in supplementary proceedings, to move to vacate the order for the examination on the ground that the judgment was not properly entered.'</p>

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

<p>Reformation of instruments—Right to remedy—Grounds—Mistake in supposed duplicate.</p> <p>Where the parties intend to execute an agreement in duplicate but one of the copies, by mistake, does not conform to the agreement of the parties, parol evidence is competent to show which of the two papers embodies the real agreement, and a case is not presented for the interposition of a court of equity to reform the erroneous copy.</p>

<p>Corporations — Officers and agents — Transactions between corporations and officers, etc.— Contracts between corporations and officers or in which officers are interested.</p> <p>Injunction — Preliminary injunction — Grounds and matters considered — Injunction when right depends on extrinsic facts —Acts tending to render judgment ineffectual.</p> <p>Where one who is the general superintendent and purchasing agent of a corporation and, part of the time, one of its directors engages in business secretly as a partner with another in manufacturing material used by the corporation in its business and the co-partnership does work for the corporation to a large amount and finally sells out its plant to the corporation, which gives its notes therefor, the corporation, upon subsequently discovering the relation of its superintendent, agent and director to the co-partnership may maintain an action against the members for an accounting of the profits made by them upon the work of the corporation and the cancellation of its notes and will be entitled to an injunction during the pendency of the action restraining the defendants from negotiating or transferring the notes and from destroying the bboks or other records of the firm’s business and restraining the payment to the former superintendent of the plaintiff of any par-of the purchase price of the defendant’s plant.</p>

<p>Injunction — Who and what may he enjoined — Breach of contract — Contracts for use of copyright, etc.— Unauthorized changes in text.</p> <p>One who undertakes to produce a play written by another, under an agreement providing that no changes or alterations in the play or additions thereto shall be made without the consent of the author, will be restrained by injunction from making unauthorized changes and modifications in the text and structural arrangement thereof.</p>

<p>Action to compel the specific performance of an agreement.</p>

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

<p>Motions are made by the plaintiff in the above four actions to continue temporary injunctions, and in two of them plaintiff also moves for leave to serve supplemental complaints. The actions are brought to enjoin the local authorities of the town of Brookhaven and the village of Patchogue respectively from granting to defendant railway companies, and said defendant companies from accepting, consents or franchises to construct and operate a railway over certain streets, on the ground that the right to construct a railway on said streets had previously been granted to the plaintiff by the municipal authorities. In two of the actions the Suffolk Traction Company is impleaded with said town and village respectively as a party defendant, and in two of 'them the Cross Island Traction Company is impleaded as a party defendant. The further facts are fully stated in the opinion.</p>

<p>Motion to open a default.</p>

<p>Depositions — Perpetuating testimony — Application — Sufficiency of affidavit.</p> <p>Where the affidavit, upon which an order to take the deposition of expected adverse parties was obtained, omits to state the street and number of the office or place of business of the expected adverse parties and that they are of full age and does not state that it is desired to perpetuate the testimony of the witnesses, nor show a necessity for p'erpetuating it, nor show that a cause of action exists in favor of the applicants," the order must be vacated.</p>

<p>Damages — Particular contracts and relations — Contracts relating to transfer or exchange of property — Agreement to take or deliver corporate stock.</p> <p>Values — Market value — Evidence of value of corporate stock.</p> <p>In an action for damages for failure to deliver a $5,000 share in a shooting club, where the election of the purchaser to membership in the club is a prerequisite to his enjoyment of its privileges or to any rights as a shareholder, the plaintiff is entitled to nominal damages only; and a verdict for $3,000 will be set aside, though it appears that a share has been sold for $5,000 and the club has lands for which it paid $100,000.</p>

<p>Master and servant — Liability for injuries to third persons — Liability of master for acts of assistant employed by servants</p> <p>Carriers — Carriage of passengers — Liability for personal injuries to passengers — Operation and management of vehicles of transportation — Care required to avoid collision with other vehicles.</p> <p>Instructions — Power of court and necessity — Duty of judge to charge — As to consideration of evidence of parties separately defending.</p> <p>Where a passenger on a street railway car is injured by a collision with a wagon and it appears that the driver had given the reins to a strange boy and had left his seat and the boy was not able, through want of skill, to control the team but ran the pole of the wagon into the car, causing the injury, the owners of the team in whose business it was engaged Eire liable for the damages and are not excused by reason of their having instructed the driver not to permit strange boys to ride with him.</p> <p>And where it also appears that the car did not lessen its speed when crossing the street but proceeded at a dangerous rate beyond the control of the motorman, who was instructing another man then with him and was not properly attentive to his duties while crossing an intersecting street, the question of the negligence of the company was properly submitted to the jury.</p> <p>But where the testimony in behalf of each defendant was given separately, the counsel for each sitting by and not examining or cross-examining the others’ witnesses, and the railroad company thereafter requested the court to charge that, in determining the company’s liability, the jury should not consider the testimony given on behalf of the owners of the wagon, it was error for the court to refuse so to charge; and a motion by the company for a new trial should be granted.</p>

<p>This action was brought to recover against the sureties upon the official bond of Henry D. Leslie, as receiver, the amount of a judgment recovered by Jeremiah Casey against said Leslie, as receiver, in this court, in Monroe county, on June 19, 1901, amounting for damages and costs to $5,375.96. An appeal was taken by Leslie from this judgment to the Appellate Division of this court, which was subsequently dismissed. ' On July 28, 1902, an order was made by this court, at a Special Term in Monroe county on notice to Leslie, directing Leslie, as receiver, to pay the amount of said judgment to Oasey. That order was not complied with by Leslie, although served with a copy and compliance with the order demanded of him. On the 11th day of March, 1905, Oasey assigned said judgment, with all his rights thereunder, to plaintiff, and, on April 1, 1905, this court, at Special Term in Monroe county, made an order permitting this action to be brought by Coe against Leslie and the sureties upon his official bond; and, it appearing that Thomas Gr. Patterson, one of the sureties, had died, the order permitted the action to be brought against the defendants as administrators of his estate.</p> <p>The cause was tried at the November Trial Term in Monroe county; and, at the conclusion of the testimony, counsel for plaintiff and counsel for the defendants as administrators each moved for a direction of a verdict by the court in favor of their respective clients. A verdict was directed by the court in favor of the plaintiff for $7,118.78, being the amount of the judgment recovered by Casey against Leslie, as receiver, with accrued interest. Counsel for the defendants now moves to set aside the verdict and for a new trial upon all the grounds specified in section 999 of the Code of Civil Procedure.</p>

<p>Motion to confirm a referee’s report in partition and for final judgment.</p>

Motion by plaintiff to confirm referee’s report of sale in real estate foreclosure action. Frederick S. Lighthall, mortgagor, and Title Trust & Guaranty Company, junior mortgagee, defendants, oppose the motion and demand a resale.

Action against defendant as one of six sureties upon a bond given to the plaintiff for the benefit of the Waterloo Organ Company, January 31,. 1901.

<p>Action for an absolute divorce.</p>

<p>Former adjudication — What matters are concluded — Matters not in issue — Subsequently acquired interest or title.</p> <p>Where two successive assignments are made of the interest of the assignor in the estate of a deceased person and the junior assignee recovers a judgment establishing the invalidity of the prior assignment for fraud and misrepresentation and the senior assignee thereafter obtains from the assignee another assignment and brings suit against the junior assignee to set aside her assignment for fraud and misrepresentation, the former judgment, not being an adjudication of the validity of the junior assignment as against the assignor, does not conclude the senior assignee when claiming under his later assignment.</p>

<p>Actio h for injunction restraining the defendant from imposing toll for the passage of automobiles over its bridge.</p>

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

<p>Trial of the issues of law arising on a demurrer to the complaint.</p>

<p>Landlord and tenant — Re-entry and recovery of possession hy landlord —■ Summary proceedings — Redemption.</p> <p>Mortgages — Transfer of title of mortgagor — Purchase hy mortgagee — Merger.</p> <p>Foreclosure of mortgages on land — Foreclosure hy action and sale — Right to foreclose — Acquisition of mortgagor’s title except right of redemption.</p> <p>Where a tenant mortgages his estate and • is thereafter dispossessed for non-payment of rent, the unexpired term of his lease exceeding five years when the warrant is issued, and the mortgagee thereupon takes a new lease from the landlord for the whole of the unexpired term, she may nevertheless maintain an action to foreclose her mortgage; for the right of redemption given hy section 2256 of the Code of Civil Procedure is outstanding and is not merged in the plaintiff’s term.</p>

The complaint set forth a canse of action for goods sold and delivered. The defendant Arthur Wileman interposed an answer oontaining a general denial and setting up as a defense the Statute of Limitations. The action was tried before the court without a jury.

<p>Mechanics’ liens — Notice of lien — Sufficiency: Description of premises; Amount earned and unpaid on contract.</p> <p>Where a notice of lien states the contract price, the payments already made, the sum “now earned and unpaid” and the additional amount “ which will he due and owing to the claimant when the contract is completed,” in such manner that by a process of addition the total amount due and owing may he ascertained: and where the notice also states in one place that the lien is claimed upon a stable standing upon lots designated by certain numbers on Perry street, in the borough of Manhattan, and in another place upon lots designated by the same numbers on Ferry street, in the same borough; the notice sufficiently complies with the requirements of the statute to create a lien for the amount thus ascertained upon the premises designated by the given numbers on Perry street in said borough.</p>

<p>Mechanics’ liens — Eights of subcontractors — Counterclaims.</p> <p>Laborers and materialmen who perform labor and furnish materials to a subcontractor to enable him to perform his contract and who acquire a lien therefor upon the unpaid balance of the contract price for a public improvement are entitled to payment therefrom without regard to the existence of a counterclaim or offset in favor of the principal contractor against the subcontractor arising out of antecedent transactions between them.</p>

<p>Pleading — Motions relating to pleadings — Motion for judgment on. the pleadings — Frivolous pleadings — Demurrer.</p> <p>A motion for judgment upon a demurrer to the complaint upon the ground that the demurrer is frivolous cannot be granted where the demurrer raises a question that is doubtful.</p>

<p>Sales — Remedies of seller—• Action for price — Accrual of right of action — Conditions precedent.</p> <p>Foreign corporations — Recognition, regulation and status — What is carrying on business.</p> <p>Where, under the terms of an agreement for the sale of goods, the purchaser is to pay for them in thirty days, the performance of an agreement by the seller to publish certain advertisements thereof within one year is not a condition precedent to the recovery by the seller of the purchase price; and, in an action therefor, the seller need not allege nor prove performance of his agreement to advertise.</p> <p>A foreign corporation which has no capital employed, nor goods stored, nor branch office within this State, although soliciting and taking orders here by commercial travelers, is not doing business within this State within the meaning of the General Corporation Law.</p>

<p>Taxes — Place of taxation — Lands in more than one district.</p> <p>Where a tract of land comprising 1,335 acres beside highways and marsh lands is situated partly in each, of two adjoining towns, having several dwelling houses in each town, each having an orchard, farm buildings and a tract of .land that might he called a farm, in no one of which houses the owner resides, but the owner’s son who manages the whole property for her lives in one of them, the others being occupied by employees and their families, and near the son’s house are barns and a warehouse to which many crops are drawn from both towns as soon as harvested but horses, cattle and farm implements are kept at the different houses and used indiscriminately upon the whole tract and no fence separates the lands lying in one town from those in the other, the fact that the larger and more valuable dwelling house is occupied by the owner’s son does not constitute it the dwelling house within the meaning of the Tax Law authorizing the assessment of a farm divided by a line between two tax districts in the district where the dwelling house or other principal buildings are located; and the provision relating to the location of other principal buildings for the purpose of controlling the place of taxation was intended to apply only to cases in which there was no dwelling house upon the tract. The present case does not, therefore, come within the exception to the general rule that land is to be assessed in the tax district where it is located.</p>

<p>Action by a taxpayer to restrain the highway commissioners of the town of Cortlandt, Westchester county, H. Y., from granting a franchise for conducting a public lighting service upon highways of said town.</p>

<p>Vendor and purchaser — Title and. incumbrances — Title derived through guardian.</p> <p>Infants — Property and conveyances — Sale, mortgage or lease under order of the court — Title and rights of purchaser, etc.</p> <p>Where the mother and surviving parent of an infant who had an interest in certain real estate acquired the title thereto a few days after it had been sold, under an order in a proceeding to sell the infant’s real estate instituted upon the petition of the mother, the circumstances are sufficient to create a reasonable doubt as to the</p> <p>- good faith of the proceeding and as to the marketability of thi title, and the vendees, under a contract of sale with the mother as owner, are entitled to recover back their deposit and the expenses incurred in the examination of the title.</p>

<p>Wills—Interpretation and construction: General rules—Subordination of language to intent; Designations and descriptions of property, funds, etc.— Particular terms of doubtful meaning — Corporate stock as including interest in mortgage.</p> <p>Suspension of power of alienation — Validity of particular future estates— Suspension within the limitation. •</p> <p>Where the intention of a testator appears clear, but his plan and definite purposes are endangered by inapt and Incorrect modes of expression, the court should subordinate the language to the intention; and to get at the correct meaning it may reject words or limitations, supply or transpose them.</p> <p>About two weeks after the execution of his will testator died, owning 149 shares of corporate stock in a brewery of the par value of $1,000 each, and left him surviving his widow, who died ten years thereafter, a son and four married daughters. The will directed that as to twenty-one shares the son should receive the net income thereof during the life of the widow and that as to the remaining shares she should receive the income thereof during her life; that after her decease forty-five of the shares should go to the son absolutely and that the trustee should continue to hold the remaining shares in trust for ten years from “ my decease ” but in no event beyond the lifetime of the son, and “during the said period” the income on twenty-six shares should be paid to each of his daughters or in the event of their death to their lawful issue. The will further provided that the son should have the right, at or within one year after the expiration of “ said ten years,” to purchase the entire amount of stock set apart for the benefit of testator’s daughters at par value. It further provided that, if the son should fail to exercise the option within one year after the expiration of the ten-year period, the stock set apart for the daughters should “belong to and be delivered to each of them at the expiration of said period of eleven years or upon the decease of my son, absolutely and as their own property, without any restriction whatever.” Held, that the plain purpose of the testator was to give his widow during life all the income except what was to go to the son, and for ten years after her death to give the daughters or their issue the income on twenty-six shares each, and that the 104 shares might then be transferred at par to the son who would, in the meanwhile and subsequently to his mother’s death, absolutely own forty-five shares in his own right; and that, as said provisions were inconsistent and conflicting only on the assumption that the testator meant “ my decease ” and not “ her decease,” all ambiguities would be eliminated and effect given to the design of the testator by substituting “ her ” for “ my and that the son’s option could not be exercised until ten years after his mother’s death.</p> <p>It appearing that, previous to the incorporation of the brewing company, the parties conducted the same business as copartners and a bond and mortgage of $150,000 was given in part payment for the transfer to the corporation of the copartnership property it was clear that the testator regarded his interest in said bond and mortgage as a mere incident to his stock; that they were inseparable, and that his disposition thereof was intended to embrace a pro rata interest in his one-half of the bond and mortgage.</p> <p>There being but two lives specified, the lives of the mother and son, during which the absolute ownership of the property was suspended, the Statute against Perpetuities had not been offended.</p>

<p>Action to construe a will.</p>

<p>Application for an order directing the former attorney of an incompetent person to deliver certain hooks and papers to her committee.</p>

<p>Appeal from a judgment of the Municipal Court of Buffalo.</p>

<p>Appeal from a judgment of a justice of the peace.</p>

<p>Damages — Double and treble damages — Who to sue. Trespass — Actions — Eight of actions and defenses — Title and possession —■ Highway. Abutting owners — Eights and liabilities in general — Eights as to trees.</p> <p>The right of action given by sections 1667 and 1668 of the Code of Civil Procedure to recover treble damages against any person who cuts down or carries off any wood, underwood, tree, or timber, or girdles or otherwise despoils a tree on the land of another, without the owner’s leave, is based upon the theory of an injury to the land owned by the person injured, and an action can he maintained only by the owner of the fee.</p> <p>Upon an appeal from a justice’s judgment, awarding treble damages for breaking off a limb from a tree in front of plaintiff’s premises, plaintiff made no claim to be the owner in fee of the street. Held, that the defendant was a trespasser and that plaintiff was entitled to recover his actual damages and was entitled to recover such damages without regard to whether the defendant was negligent or not, but was not entitled to treble damages, and that the judgment should be modified accordingly.</p>

<p>Criminal procedure — Proceedings on review — Right of review and procedure— Proceedings to obtain review: Service of affidavit, etc.—■ Review — Matters not in record — Conclusiveness of return. Code of Criminal Procedure, §§ 752, 754, 760.</p> <p>Where no copy of the affidavit upon which an appeal from a conviction in a police court, together with notice that the appeal had been allowed, has been served upon the district attorney, as required by section 752 of the Code of Criminal Procedure, nor an undertaking given as required by section 754, nor the appeal brought to argument at the next term of the County Court, and no justification for continuing the case “by special order,” as provided by section 760, exists, the appeal will be dismissed on motion of the district attorney.</p> <p>It seems, that, upon the hearing of an appeal from a conviction in a police court, the return of the magistrate cannot be attacked collaterally.</p>

<p>Motion to dismiss appeal for want of prosecution and because the appeal has not been perfected.</p>

<p>Appeal by the defendants from an order denying a motion to take the deposition of a witness without the State, entered in the City Court of the city of Hew York.</p>

Appeal by the defendants from 'an order of the City Court of the city of Hew York made at Special Term, modifying an order for the examination of the plaintiff as an adverse party before trial and for his physical examination.

Appeal by the respective plaintiffs' from orders denying motions to open defaults in the Municipal Court of the city of Hew York, third district, borough of Manhattan.

<p>Appeal from an order of the Municipal Court, of the city of Hew York, fourth district, borough of Manhattan, granting defendant’s motion to open his default, upon the payment of ten dollars costs.</p>

Appeal by the defendant from an order of the Municipal Court of the city of Yew York, eighth district, borough of Manhattan, denying a motion to open its default.

<p>Appeal from an order of the City Court of the city of New York denying defendant’s motion for a resettlement of the case.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, rendered in favor of the defendant, after a trial before the court, without a jury.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, sixth district, borough of Manhattan, rendered in favor of the plaintiff after a trial before the court without a jury.

<p>Principal and surety — Remedies of creditor — Necessity for demand on surety.</p> <p>Bonds — Breach — What constitutes breach. '</p> <p>An action cannot be maintained upon the contract of a surety, who agrees to make good upon demand up to a certain amount, any loss on account of misappropriation of funds collected by his principal, until a demand has been made.</p>

<p>Damages — Particular contracts and relations — Contracts with agents, brokers and factors.</p> <p>A recovery for breach of contract must be confined to the actual loss sustained; and, where defendant agreed to pay a broker for procuring a loan upon certain property, but refused to accept the loan, she may, in an action for breach of contract, prove that the broker had agreed to pay the lender one-half of his commission.</p>

<p>Building and construction contracts: Submission of question of performance to third person — Certificate of building department as condition precedent; Extra work — Right to additional compensation for extra work — necessity of having written authority for extra work.</p> <p>Contracts — Interpretation of contract — Conditions precedent — Effect of condition precedent and when deemed to have been fulfilled.</p> <p>Where a contractor abandons his contract and one who was working for him on the job goes on and completes it, at the request of the owner of the premises, and also performs extra work at prices agreed upon, the owner cannot defeat an action to recover the price, where he has written a letter to the plaintiff, at the time of making a payment to him on account, in which he has stated the price and the balance due on account thereof, on the ground that the order for the extra work was not in writing as required by the contract.</p> <p>And where it appears that the contract required the contractor to produce a certificate from the building department, though the defendant had made no objection at any time that such a certificate had not been produced, but that plaintiff had it and told the owner so and produced it upon the trial and offered it in evidence but it was excluded upon the objection of the defendant that it was not binding upon him, a judgment upon a verdict for "the plaintiff should be affirmed.</p>

Appeal by the defendant from a judgment of the City Court of the city of Hew York entered in favor of the plaintiff after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.

Appeal by the defendant from a judgment of the Municipal Court of the 'city of Mew York, eleventh district, borough of Manhattan, in favor of the plaintiff after a trial had before the justice, without a jury.

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

<p>Evidence — Weight and sufficiency — Preponderance.</p> <p>In a civil action to recover a penalty the plaintiff rests under the burden of proving his case by a preponderance of evidence only, and not beyond a reasonable doubt.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Yew York, thirteenth district, borough of Manhattan, dismissing the complaint for failure of proof.

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers — Actions by passengers for personal injuries — Sufficiency of evidence as to negligence.</p> <p>Where it appears in an action by a passenger to recover damages for personal injuries received by him in alighting from a street car that, after the car had stopped to allow him to alight and when he was in the act of alighting and had one foot on the "ground, the car suddenly started and threw him down, it is error to dismiss the complaint.</p>

Appeal by defendant from an interlocutory judgment made at a Special Term of the City Court of the city of New York, sustaining a demurrer to the second defense contained in the supplemental answer.

Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, entered against him in favor of plaintiff for the sum of one hundred and two dollars.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, first district, borough of Manhattan, in favor of the defendant, after a trial had before the court without a jury.

Appeal by tenants from a final order of the Municipal Court of the city of Mew York, thirteenth district, borough of Manhattan, awarding possession of premises to the landlord.

<p>Master and servant — Master’s liability for injuries to servant — Actions — Weight and sufficiency of evidence — Negligence on part of master.</p> <p>In an action to recover for personal injuries sustained by the falling of defendants’ elevator operated by-their servants, where it appears that the elevator fell with a crash and plaintiff was pulled out between two floors crying and hurt, there is evidence of negligence sufficient to submit to the jury and it is error to dismiss the complaint.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, second district, borough of the Bronx, in favor of the plaintiff, rendered upon a trial before the justice without a jury.

<p>Appeal by the plaintiff from a judgment of the City Court of the city of Hew York dismissing the action, with costs.</p>

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

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan, in favor of the plaintiff, rendered after a trial had before the court, without a jury.

<p>Appeal from a judgment of the City Court of the city of blew York in favor of the plaintiff, entered at a trial term upon a verdict directed by the court.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of blew York, fourteenth district, borough of Manhattan, in favor of the plaintiff, rendered after ia trial had before the court without a jury.</p>

Appeal by plaintiff from a judgment in favor of defendant dismissing the plaintiff’s complaint, rendered in the Municipal Gourt of the city of Mew York, fifth district, borough of Manhattan.

Appeal by the defendant, Isaac L. Shapiro, from three separate judgments, rendered in favor of the plaintiff in the Municipal Court of the city of New York, thirteenth district, borough of Manhattan, upon the verdict of a jury.

Appeal by defendant from a judgment, in favor of plaintiff for $204.29, entered in the Municipal Court of the city of Few York, eighth district, borough of Manhattan.,

Appeal by the defendant from two judgments of the Municipal Court of the city of Mew York, second district, borough of Manhattan, rendered in favor of the plaintiff.

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, after a trial had before the court, without a jury.

<p>Appeal by the defendant from a judgment for $301.50, entered in plaintiff’s favor in the Municipal Court of the city of Hew York, second district, borough of the Bronx.</p>

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

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

<p>Appeal by the defendants from a judgment taken by default in the Municipal Court of the city of New York, tenth district, borough of Manhattan, and also from an order denying a motion to open' said default.</p>

<p>Set-off and counterclaim — Subject-matter — Claim on contract against claim founded on tort.</p>

<p>Appeal by the plaintiff from a judgment and order of the Municipal Court of the city of New York, ninth district, borough of Manhattan.</p>

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers — Condition and care of premises — Duty to warn passengers.</p>

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

<p>Appeal from an order of the City Court of the city of New York denying plaintiff’s motion for leave to discontinue the action.</p>

<p>Appeal by the defendants from a judgment in favor of the plaintiff rendered by the Municipal Court of the city of New York, thirteenth district, borough of Manhattan, upon a trial had before the court, without a jury,</p>

<p>Municipal courts — Review — Judgments and orders reviewable —Judgment by default without service of summons.</p>

<p>Appeal from an order of the Municipal Court of the city of Hew York, fourteenth district, borough of Manhattan.</p>