Volume 58 — New York Supplement

Action by Adelle Secor, as administratrix of the estate of Francis M. Secor, deceased, against William Kreuder. From a judgment for defendant, and an order denying a new trial, plaintiff appeals.

Action by John A. Lynch, an infant, by Ellen Murray, his guardian. ad litem, against the Nassau Electric Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Lawrence county. Action by Eose Tetherton, as administratrix of the estate of Alfred Tetherton, deceased, against the United States Talc Company, for damages for the death of her intestate. From a judgment for plaintiff and an order denying a motion for new trial, defendant appeals.

Action by Ellen Smith against the- New York Central & Hudson River Railroad Company. From a judgment for plaintiff, an order denying a motion for a new trial, and an order granting an extra allowance of costs, defendant appeals.

Action by Cora M. Douglass, as administratrix of the estate of Virgil D. Douglass, deceased, against the Northern Central Railway Company. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Discovery—Examination of Party before Trial—Necessity.</p> <p>Where plaintiff makes affidavit that defendant, whom he employed to collect a legacy, had collected a certain amount, and paid over a portion thereof, but had refused to account for the balance, plaintiff is not entitled to an examination of defendant before trial, such being unnecessary for framing the complaint.</p>

<p>Appeal from trial term. ■</p> <p>Action by John C. Mohn, by guardian, against John King and John G. McCullough, as receivers, etc., of the New York, Lake Erie & Western Bailroad Company. From a judgment for plaintiff and an order denying a new trial, defendants appeal.</p> <p>The plaintiff in his complaint alleges that he was, and still is, the owner and in possession of about 100 acres of land, located in the town of Oochecton, Sullivan county, in this state; that such lands were wild timber lands, and were covered with valuable trees, timber, and a growth of young saplings- and poles; that on the 15th, 16th, and 17th days of May, 1894, fire .caught from the locomotives which were run by the defendants, as receivers of the New York, Lake Erie & Western Railroad Company, and that such fire was communicated to the premises of the plaintiff, where it burned up, killed, and destroyed a large quantity of trees, timber, lumber, saplings, and poles on plaintiff’s premises; and he alleges that such fire was caused by and through the negligence of the defendants. The defendants in their answer put in issue all the allegations of the plaintiff’s complaint, except the allegation that the .New York, Lake Erie & Western Railroad Company, as a railroad corporation, is the owner of the New York, Lake Erie & Western Railroad, and that the defendants ate the receivers of such railroad company. The plaintiff, to establish his title to the premises in question, upon the trial offered in evidence a deed of such premises from Peter Seip and Peter Fahrenz, described therein as the surviving executors of the last will and testament of Gabriel Miller, late of Damascus,- Wayne county, Pa., to Christopher Mohn, of the town of Cockeeton, county of Sullivan, state of New York. The defendants objected to its being received in evidence “as making title, as it does not appear to have been executed in accordance with the powers contained in the will.” It appeared in evidence that the widow of Gabriel Miller was named as one of the executors of Miller’s estate, and before ruling upon the objection the court asked the following question: “Q. She never qualified, did she? A. I do not know whether she qualified. She lived in Pennsylvania. She did none of the business.” The defendants’ objection was thereupon overruled, no exception was taken to that ruling, and the deed was admitted in evidence. Upon the cross-examination of the witness upon the stand, when the deed was offered in evidence, it appeared that Mrs. Miller was living when the deed was executed and for several years afterwards. Subsequently the plaintiff offered in evidence the will of Gabriel Miller, together with the evidence taken upon its probate in the state of Pennsylvania, and with the qualifications or oaths of office of Peter Seip, Peter Fahrenz, and Elizabeth Miller, as executors of such last will and testament, which purported to have been recorded in the surrogate’s office in the county of Sullivan, in accordance with the provisions of chapter 311 of the Laws of the State of New York passed in 1864. By such will it appears that the testator appointed his wife, Elizabeth Miller, Peter Seip, and Peter Fahrenz his executors, and provided therein also as fol-. lows: “I hereby vest in my executors, or the survivors of them, full power- and authority to dispose of my estate in fee simple, or any part thereof, should it become necessary for the payment of my debts and the foregoing bequests.” The record from the surrogate’s office having been offered and received in evidence, the counsel for. the defendants renewed his objection to the reception of the deed in evidence, and moved to strike it out' on the, following grounds: “First. It appears now that Mrs. Miller qualified and took the oath, by which she qualified herself to act, that she would well and truly comply with the provisions of the will, and well and truly administer to the will. Secondly. It nowhere appears yet that any persons qualified to act as executors of this will, in the state of New York, and had letters issued to them as required before they could act.” The objection of the defendants to the deed was overruled, and the motion to strike it out denied, to which the defendants excepted. The plaintiff, to complete his chain of title, then put in evidence a deed from Christopher Mohn to himself of the same premises, conveyed to him by Seip and Fahrenz, as executors. The jury rendered a verdict against the defendants, and in favor of the plaintiff. A motion was made upon the minutes for a new trial, which was overruled, and from the judgment entered upon such verdict and from the order denying the motion for a new trial this appeal is taken.</p>

<p>Action by the Third Avenue Railroad Company against one Klinker and others. On motion for injunction pendente lite.</p>

Action by one Dunne, as administrator, against the American Surety Company. Plaintiff moves for the vacation of an order requiring him to give security for costs.

Action by Edgar H. Rosenstock, as ancillary executor of Levi Jacobs, deceased, against Adolph Dessar and others. From an order denying his motion for a bill of particulars, plaintiff appeals.

<p>Pleading—Amendment—Teems.</p> <p>Where plaintiff recovers judgment, and the same is reversed on appeal on account of the insufficiency of the complaint, with costs to abide the event, plaintiff will be permitted to amend only on condition that he pay the costs of the action subsequent to the service of the complaint, and also the costs of the appeal.</p>

Action by Otis Corbett against the Spring Garden Insurance Company. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals.

In the matter of the opening of Brook avenue. From an order confirming the report of a referee, directing the payment of an award to Mary A. Baxter, Bernhard Schweizer appeals.

<p>Appeal from special term.</p> <p>Action by Mary L. Goldstein against Aaron Guedalia and others. There was a judgment for defendants, and plaintiff appeals.</p>

<p>1. Public Wharves—Lease—Lessee Holding Over.</p> <p>A wharf erected by a city on a site belonging to it slid over partly onto waters belonging to others, and thereafter a ferry company leased from the city the exclusive privilege of landing passengers on the side which had so slid over. After so using the wharf for several yearsr during which time the lease was renewed from time to” time, the ferry company leased the lands opposite that part of the wharf slid over, and the land under the water under it, but continued to use the wharf in the same manner it had used it under the lease. Held, that the ferry company continued liable for the value of the use of the dock, its use thereof having been under the lease.</p> <p>2. Same—Rental.</p> <p>The use being the same as when continuing under the lease, its value was determined by the rental stipulated for a like period in the lease.</p>

Action by the administratrix of one Baxter against Charles F. Parker & Co. to recover for personal injuries. Verdict for plaintiff, and motion by defendant for new trial.

Action by John A. Merritt, successor of John Hodge, as assignee of Charles Whitmore & Co., against the Shale-Brick Exchange of Canton, Ohio. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appealed.

<p>Liability op Sheriff—Replevin—Failure to File Claim.</p> <p>One cannot maintain an action against an officer for property seized under replevin directed against a third person, without having previously filed an affidavit with the officer asserting his claim, as required by Code Civ. Proc. §§ 1709, 1710.</p>

Action by Francis H. Gates against Sidney L. Bowers. From a judgment for defendant and an order denying a motion for new trial, plaintiff appeals. . Appeal from a judgment in favor of the defendant entered upon a verdict of a jury upon the trial in the Madison county court, and from an order denying a motion made upon the minutes for a new trial.

<p>Action between Alfred Zucker, incorporated, and George A. Blumenthal. On settlement of proposed case.</p>

<p>Appeal from municipal court, borough of Manhattan, Eleventh district.</p> <p>Action by John F. Sierichs, administrator of Henry Sierichs, deceased, against the John Hancock Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

Application by Philip Klingensmith for judicial settlement of his account as executor of the will of Annie Beck, deceased. Account settled, and distribution ordered.

<p>Railroads—Fires—Sufficiency of Plaintiff’s Title.</p> <p>Plaintiff, suing for damages from a fire started by defendant railroad company, sufficiently establishes a legal title to the property involved, where, in addition to a paper title, he showed actual possession and acts of ownership for a considerable time, under a contract of purchase.</p>

Action by John F. Snediker against the Nassau Electric Railroad Company. From a judgment in favor of defendant, and from an order denying a new trial, plaintiff appeals.

Action by Menzo Mosher against Alpheus G-. Davis. There was a judgment for defendant, and plaintiff appeals. The action was brought to recover damages for failure of defendant to let plaintiff into possession of the premises described in the complaint, and pursuant to a land contract. The complaint, in substance, recites the agreement; stating it was to become effective by transfer of possession of the real estate to plaintiff April 1, 1896,—three days after its execution.

<p>1. Surrogate Courts—Jurisdiction—Claims—Issue op Fact.</p> <p>The surrogate court has no jurisdiction, without the consent of both parties, to determine whether an indorser of a note that had been executed and paid by a decedent is liable to the decedent’s estate therefor, on an issue whether decedent was an accommodation maker, or executed the note for his own benefit.</p> <p>2. Same—Adjournment.</p> <p>Where, on an executor’s accpunting, an issue of fact is raised as to the ■ validity of a claim in favor of the estate, the proceeding must be adjourned for a sufficient time to enable the parties to establish their rights in some tribunal having jurisdiction.</p>

<p>In the matter of the estate of De Witt C. Lawrence, deceased. Proceedings to probate a will.</p>

Suit by Robert H. Martin against the New York Elevated Railroad Company and another, to enjoin the maintenance of an elevated railroad constructed in front of plaintiff’s premises in 1880, and for damages. From a judgment dismissing the complaint, plaintiff appeals.

<p>Corporations—Election of Officers—Injunction</p> <p>In an action to determine the validity of the election of a president and treasurer of a corporation, the question being not free from doubt, it is not proper to oust these officials by temporary injunction pending the action.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Richard K. Fox against the New York Elevated Railroad Company and another. From a judgment dismissing his complaint, plaintiff appeals.</p>

<p>Appeal from trial term, Wayne county.</p> <p>Action by Charles H. Chapman against New York Central & Hudson River Railroad Company. From an order refusing a new trial, after a directed verdict for defendant, plaintiff appealed.</p> <p>On the 23d day of May, 3898, at the Wayne trial term, the issues of fact were brought to trial. Defendant operates a railroad through the village of Palmyra, consisting of two tracks,—one, the north track, for west-bound trains; and the other, the south track, for east-bound trains. The freight house is located on the north side of the tracks east of Limerick street, which crosses the tracks in a northerly and southerly direction. North of the main track, and running from the freight house westerly, near to the said crossing, are several branch tracks, upon which, at sundry times, are stored freight cars; and it is claimed, when the cars are left standing thereon, they obstruct the view of an approaching train from the east to a person driving westerly from the freight house to reach the crossing; and, to some extent, it is claimed, the freight house also furnishes an obstruction, until persons pass the west end of the same, and pass the end of the cars standing on the branch tracks. The crossing is in the village of Palmyra, and is used by the public to a considerable extent. When the plaintiff rested, no motion for a nonsuit was made. Defendant called an engineer, who gave testimony in respect to the location of the tracks, and produced some photographs in evidence and a map made by the witness. Then the defendant moved for a nonsuit, upon the grounds (1) that the plaintiff failed to show that the injuries which he received were due to the negligence of the defendant; and (2j that the plaintiff has failed to show that he himself was free from contributory negligence. This motion was denied, and the defendant took an exception. Further evidence was given by the defendant, and thereafter some further evidence was given by the plaintiff, and at the close of all the evidence, on the motion of the defendant, upon grounds substantially as already stated, its motion for a direction of a verdict was granted, and the plaintiff excepted. Plaintiff asked to be allowed to go to the jury upon the question of the negligence of the defendant, and also upon the question of the contributory negligence of the plaintiff, and upon all the issues in the case. Plaintiff’s motion was denied, and an exception was taken. Subsequently a motion for a new trial was made, as appears by the order in the case, upon all the grounds stated in section 999 of the Code of Civil Procedure, and was denied, and the plaintiff appeals from the order denying such motion.</p>

Action by William W. Fuller against Francis E. Cole and E. Vernon Spellman to recover for work, labor, and services under specific contracts. There was a judgment for plaintiff, and defendants appeal.

<p>Review—Judgment—Evidence not Affecting Verdict.</p> <p>A judgment will not be reversed for the admission of evidence which could not have affected the verdict.</p>

Action by Joseph P. Carson against Moritz Eisner and another. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendants appeal.

<p>Co-operative Insurance Company—Action by Member.</p> <p>Section 56 of the insurance law (Laws 1892, c. 690), providing that'no order, judgment, or decree for an accounting, or restraining or interfering with the prosecution of the business of an insurance company, should be made, except on the application of the attorney general, or in an action by a judgment creditor, or in supplementary proceedings, applies to an action by a member against a co-operative insurance company, and deprives him of the legal capacity to maintain it, where he seeks thereby to compel it to perform the agreements of his policy in the common interest of a large body of the policy holders, so as to involve a more or less serious interference with the management of the company, the necessity of accounting with a great number of other persons respecting vast sums received by defendant in the course of its corporate existence, and an inquisition into the management of its business.</p> <p>Woodward, J., dissenting.</p>

. Action by Thomas Hickman against the .Nassau Electric Bailroad Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Isaac T. Meyer against Nathan Strauss to recover commission as a real-estate broker. From judgment dismissing complaint, plaintiff appeals.</p>

<p>Slander or Title—What Constitutes.</p> <p>Action for slander of title will not lie because of defendant selling plaintiff’s property under execution, since such sale was predicated on the validity of plaintiff’s title.</p>

<p>1. Appeal—Conclusions op Referee.</p> <p>The court will not reverse the conclusions oí fact of a referee, in the absence of clear and convincing indication that it is wrong.</p> <p>2. ' Executors—Resistance of Ci.aim—Costs.</p> <p>An executrix will not be charged with costs for resisting the allowance of a claim against estate of decedent for nursing his wife during her last illness, when the claimant was a niece of the wife, and the evidence was conflicting as to the making of a contract and the length of services performed, although the claim was finally allowed.</p>

Action by Alfred Mussinan against the New York Steam Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>Wills—Residuary Clause—Construction.</p> <p>A clause in a will providing that the residue of testator’s estate, consisting of deposits in banks and insurance money, “I give and bequeath unto my executor hereinafter named, in consideration of defraying my funeral expenses, and keep my burial lot in good condition,” vests title in the executor, subject to the condition.</p>

<p>Municipal Courts—Litigants without Counsel—Explanation op Rights.</p> <p>It is error for a justice of a municipal court to fail to explain the rights and remedies to which a litigant who is not represented by counsel is entitled, where he fails to avail himself thereof by reason of his ignorance. Per MacLean, ,T., dissenting.</p>

<p>Mutual Accident Associations—Assessments—Collection by Receivers.</p> <p>A receiver of a mutual accident association may maintain an action for an assessment on a member, made for liabilities under the by-laws, which he agreed to observe in his application for membership.</p>

Action by Mari A. Cuming against George W. Roderick, impleaded with another. From a-judgment dismissing the complaint after trial, plaintiff appeals.

<p>Corporations—-Contracts.</p> <p>A corporation is not bound by a- contract of employment made by the incorporators before its formation, and which it never adopted; and, where the employ® continues to work for the corporation without other arrangement, it is under an implied promise to pay for his services, and without agreement as to time.</p>

<p>Action by Caroline J. Brown against Andrew L. Harmon.</p>

<p>Action by Denman against Hamilton and others.</p>

<p>Action by Bridget T. Cunningham and Roger Cunningham against Elisha Han-shew, Jr.</p>

<p>Action by Francis Clark against the village of Batavia.</p>

<p>Action by Charles Deutermann and others, as executors, etc., against Alexander Pollock and another.</p>

<p>Orders requiring the judgment debtor to submit to an examination, and adjudging him in contempt for not appearing for examination, were affirmed by the general term, and he appealed. Motions are made to dismiss the appeal from each order.</p>

<p>Action by Josiah G. Fisk against Robert Harris and others.</p>

<p>Action by James G. K. Duer and another against Richard R. Hunt. From an order canceling and discharging a judgment, plaintiffs appeal.-</p>

<p>Actions by Gilbert W. Haggart against George E. Myers, and by A. B. Lehman against Gilbert W. Haggart.</p>

<p>Action by Charles Leef, an infant, by Joseph Leef, his guardian ad litem, against the. Nassau Electric Railroad Company.</p>

<p>Action by Eunice Niemoller against Naomi Duncombe.</p>

<p>Action by Michael O’Brien against the city of Syracuse.</p>

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

<p>Action by Harry S. Price, by guardian, against Clara M. Jones. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Action by James Powers against the New York Central & Hudson River Railroad Company.</p>

<p>Proceedings by the people, on the relation of John W. Smith, against Thomas L. Feitner and others.</p>

<p>Action' by Ezra Selleck against John Selleck.</p>

<p>Action by Charles Smyth, individually, etc., against the Western Zinc Company and others.</p>

<p>Action by Martha W. Sparling against George Wells and others.</p>

<p>Actiop by Sarah Sussman against James Rosenblum.</p>