Volume 56 — New York State Reporter

<p>Master and servant—Railroad—Negligence.</p> <p>Plaintiff’s intestate, a locomotive fireman on defendant’s railroad was killed by the collapse of the crown sheet of the engine on which he was working. On the trial no serious question was raised as to the intestate’s freedom from contributory negligence. The main question litigated was as to defendant’s negligence, plaintiff's position being that the crown sheet had been burned prior to the trip on which the accident occurred, while defendant’s position, was that it was not burned until the time of its collapse. Held, that the question whether the engine was in a defective condition or not when it entered upon the trip on which intestate was killed, by reason of defendant’s fault or negligence, was a question of fact for the jury.</p>

Appeal from order denying plaintiff’s motion for leave to serve an amended complaint The following is the opinion of the court below:

Appeal by relator from an order quashing writ of certiorari, issued to review action of the board of estimate and apportionment of the city of New York, in reducing his claim against the city.

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Compromise—Disputed claim.</p> <p>Where there is an actual dispute as to the amount due from one to another party, a settlement for a less amount than claimed is binding upon them.</p>

<p>Appeal from an order restraining the defendant from all resistance to the enforcement of an execution in this action.</p>

Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff and from order denying motion for new trial.

Appeal by the defendants from judgment entered on verdict of jury in favor of the plaintiff, and from order denying motion for a new trial.

Appeal by Charles M. Levy, petitioner, etc., from so much of the order made at special term as 'imposes upon him the payment of fifty dollars costs, and disallows interest on counterclaim.

<p>1. BrOBEBS—CONTRACT.</p> <p>The phrase "all else can be satisfactorily arranged" means that, if the details prove satisfactory to both buyer and seller, and their minds meet in reference thereto, a sale will be made or a liability for brokerage incurred.</p> <p>H. Same.</p> <p>Where the terms of a brokerage contract have not been definitely prescribed, the broker assumes the hazard of being able to find a person whose terms may prove so satisfactory to the owner that some definite arrangement may be made, and in respect to which the minds of the parties may meet.</p>

<p>Appeal by defendants from order made by the trial judge declining to pass upon certain findings proposed by them.</p>

<p>, 1, Master and servant—Duty.</p> <p>Where the master provides the usual appliances for the work, which are suitable, -reasonably safe, properly constructed and do not cause injury by breakage or imperfection, he discharges his full duty to his servant.</p> <p>3. Same—Risk.</p> <p>Where the servant knows of the dangers when he enters the employ of the master, he assumes the risks incident to the employment.</p>

<p>Appeal by the landlord from a final order of the district court of the city of New York for the first judicial district, made upon a trial had before a justice thereof, without a jury, in summary proceedings for the recovery of possession of real property because of the nc n-payment of rent.</p> <p>In February, 1891, James S. Wilson and Edwin B. Wilson, then being the landlords of the leasehold premises known as No. 55 Yesey street in this city, by an instrument in writing leased to one Raphael Ghasse, the respondent herein, as tenant, the front basement of said premises for the term of two years from May 1, 1891, as a barber shop, and by which lease the respondent was given the first refusal of said premises for a further period of five years from May 1, 1893. The respondent entered into the occupation of said premises. He gave notice of his election to take a renewal of the lease for five years May 1, 1893, and he still occupies premises in controversy. The said premises are leasehold premises and the ground upon which the building thereon stands was at the time of the said Ghasse lease held by the said James S. and Edwin B. Wilson under a lease from the corporation of Trinity church in the city of New York, which lease the former assigned to one Albine Schultheis, who obtained from said last named owner of the fee a renewal of the lease for twenty-one years from May 1, 1893, and who on or about said last mentioned date executed and delivered to Alfred Stover, the appellant, a lease of the premises in controversy, together with other premises, for a term of five years from May 1, 1893, under which the appellant demands possession of the premises occupied by the respondent. The appellant demanded from the respondent the rent of said premises due since May 1, 1893, but payment thereof was refused. The respondent made tender of his rent to Mrs. Schultheis, who refused to accept the same, and who told him to pay his rent to the appellant and look to him as his landlord, but the respondent refused to recognize the appellant as his landlord. Summary proceedings were then instituted by the appellant against the respondent to remove him from the said premises for non-payment of rent. There was no dispute as to the facts upon the trial. At the close of the evidence the respondent’s counsel moved for the dismissal of the proceedings, on the ground that the appellant failed to show the conventional relation of landlord and tenant. The justice made a final order in favor in favor of the tenant, respondent, “ on the ground that the petitioner, appellant, has not the entire estate of Schultheis in the premises demised to Chasse, the tenantand the landlord has brought this appeal. »</p>

<p>Appeal by defendant, George H. MoAdam, from an order of the special term of this court entered August, 1. 1893, adjudging him guilty of contempt and fining him thirty dollars, and from so much of an order of the special term of January 3, 1893, as adjudges the defendant guilty of contempt.</p> <p>The said defendant was ordered to appear before a referee on November 9,1892, for examination in behalf of the plaintiff, in order to enable the latter to frame his complaint in this action. The examination was postponed several times by consent until November 22d, when the defendant appeared and was sworn and ■examined at length. The examination was then adjourned to a subsequent day, when defendant was again examined at length and adjournments were had thereafter until December, 1. 1892, when defendant, by advice of counsel, omitted to appear before the referee. On December 2d the referee issued a summons to defendant to appear, which was disobeyed under advice of counsel. On December 12th he was ordered by this court to show cause why he should not be punished for contempt in disobeying the original order for examination and the summons of the referee; and after hearing both parties an order was made on January 3, 1893, permitting the defendant to purge himself of his contempt in not appearing in obedience to the order and summons, by submitting to a further examination before the referee and further directing that the motion to punish him for contempt in the premises be suspended until his examination was concluded before the referee, then again to be brought to a hearing upon three days time. After the examination was concluded before the referee a motion to punish for contempt was heard and an order made on June 3, 1893, adjudging defendant guilty of contempt in failing to appear in obedience to the original order for examination and fining him thirty dollars therefor. The defendant appeals from such an order and from so much of the order of January 3,1893, as adjudges him guilty of contempt.</p>

<p>Appeal from a judgment entered on the verdict of a jury at trial term and from an error denying defendant’s motion for a new trial.</p>

Appeal by defendant from a judgment of the city court, general term, affirming a judgment of the special term, entered by ?laintiff upon the verdict of a jury for $283 for loss of baggage. 'laintiff was a passenger from Liverpool to Hew York, and the baggage was delivered to the agent of the steamship company ia Hamburg.

<p>Appeal from an order denying motion to intervene.</p> <p>This is an action to foreclose a mortgage given to secure a series of bonds given by the defendant.</p> <p>Pending the action, Helen M. Kellogg, a stockholder of the defendant, petitions to intervene and to be made a defendant, and permitted to interpose an answer. The court at special term denies her application, and from that order she appeals.</p>

<p>1. Corporations—Ultra vires.</p> <p>A lease by a gas company of all its property and franchises is ultra vires.</p> <p>2. Same—Recovery,</p> <p>Though the lease is void, the company may recover for the rent, where the lessee has occupied demised premises.</p>

<p>Tender—Interest.</p> <p>In order to keep a tender good, the deposit in court must include inter est on the amount admitted to he due up to the day of deposit.</p>

<p>Fraud—Essentials.</p> <p>The representations must he known to the party making them to he false and made with intent to deceive; mere expressions of opinion are not enough.</p>

<p>Judgment—Ejectment—Enforcement.</p> <p>A court of general jurisdiction can, by an order, enjoin a defendant from interfering with the execution of regular process for the delivery of land under a judgment.</p>

<p>Appeal from judgment on a verdict, and from order denying a new trial.</p> <p>The facts sufficiently appear in the opinion.</p>

Plaintiff recovered a judgment against the defendant for $22,559.05. The defendant appealed from the judgment and thereafter obtained leave to interpose a supplemental plea in bar to another action setting up the recovery of the judgment. The plaintiff thereupon moved to dismiss the appeal on the ground that by the supplemental plea the defendant _ had taken a benefit from the judgment which estopped him from disputing its correctness.

<p>Appeal from a judgment dismissing complaint.</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>Appeal from order denying motion to vacate attachment.</p>

<p>Motion for reargument or leave to go to court of appeals. Denied.</p>

<p>Application to vacate judgment on a forfeited recognizance.</p>

<p>Motion for reargument. Denied.</p>

<p>Motion by respondents for leave to appeal to the court of appeals. Granted.</p>

<p>Appeal from a judgment for plaintiff on a verdict.</p>

<p>Appeal from judgment entered on verdict in favor of plaintiff.</p>