Volume 59 — New York Supplement

■' Action by Adelbert Kullman against Henry‘H. Cox for specific performance of a contract for the purchase of land. There was a judgment for plaintiff, and defendant appeals.

<p>Action by Arthur M. Hamblen against George Birch. Complaint dismissed.</p>

<p>Appeal from trial term, Hew York county.</p> <p>Action by David Spero against the West Side Bank of the City of Hew York. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.</p>

<p>Action by Ida Watson against John J. Moriarty, as executor. Motion for a new trial.</p>

<p>Appeal from special term, New York comity.</p> <p>Action by Frederick W. Sander against the New York & Harlem Railroad Company and the New York Central & Hudson River Railroad Company. From the judgment both parties appeal.</p>

Action by Betsey Barr against the village of Bainbridge for personal injuries caused by her horse taking fright at a pile of rubbish lying in a street in the village. At the trial her complaint was dismissed, with costs, and judgment entered thereon, and plaintiff appeals.

<p>Appeal from trial term, Warren county.</p> <p>Action on a note by Emerson E. Crandall against Philip Moston. From an order setting aside a verdict for defendant, defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Abram V. Whiteman against Julius Siebert. From an order substituting Fernando Solinger as attorney in the place of Francis T. Magill, the latter appeals.</p> <p>The following is the opinion of the lower court (OLCOTT, J.):</p> <p>A motion may be renewed, without leave of court, upon a new state of facts arising after the denial of the motion. Since February last, when Mr. Justice Oonlan denied a motion herein of the same import as that now made, two things have transpired: First, a court of competent jurisdiction has found that the law agency is indebted to the plaintiff herein upon a prior transaction; and, secondly, many months have elapsed, during which neither the agency nor its attorney has progressed this action at all. Its excuse for this inaction— that the plaintiff would not communicate with it—is not sufficient. It would be strange if he would take any other course while he had an unsatisfied judgment against the agency, arising from its failure to account to him for a prior collection which it made for him. No excuse whatever is offered by the agency for not at least putting this case on the calendar. With the above-mentioned unsatisfied judgment against the agency, it would be preposterous to order this plaintiff to pay it any money as a condition for procuring the substitution now asked for: nor do I think that the plaintiff should be forced to wait for his relief until the result of the unsecured appeal which the agency has taken from said judgment has been determined. Motion for substitution of attorneys granted.</p>

<p>Appeal from trial term.</p> <p>Action by Jonas Luxenburgh and another against Michael Cohen' and another. From a judgment in favor of plaintiffs, defendants appeal.</p>

Action by Henry Hoyle against Robert McCrea and another. From an order refusing to discharge defendant Murray from imprisonment on an execution against his person issued on a judgment for plaintiff against both defendants, and refusing to cancel and satisfy the judgment, defendants appeal. The facts herein are the same as those stated in the appeal of the defendant Robert McCrea in the same action, passed upon at this term of court. 59 N. T. Supp. 200.

<p>1. Partition—Possession of Plaintiff.</p> <p>In the absence of statute, possession of plaintiff is essential to the right to maintain a partition suit.</p> <p>2. Same—Action by Heirs.</p> <p>In order that plaintiffs out of possession may maintain partition under Code Civ. Proc. § 1537, which provides that one claiming to be entitled as joint tenant or tenant in common, by reason of his being heir of a person who died holding and in possession of real property, may maintain partition, whether in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such devise, the complaint must allege that plaintiffs are claiming lands by descent from an ancestor who died in possession of the same, and that the lands are held under an apparent devise which is void.</p> <p>3. Wills—Bequests—Estate Created.</p> <p>A bequest of realty and personalty “to my brother, * • * for the benefit of himself and his family,” creates an absolute title in the brother, to the exclusion of his children.</p>

<p>J. Pleading—Amendment—Affidavit.</p> <p>„ Where the only affidavit made on motion to amend was that oí plaintiff’s attorney, who had recently been substituted for the original attorney, and there was no affidavit of plaintiff, and nothing to show what the knowledge of the plaintiff was in regard to the nature of Ms claim, an amendment was improperly allowed.</p> <p>2. Same—New Cause of Action.</p> <p>Where the original complaint sets up a claim for services as carpenter at a salary of $900 a year, and that, in addition, plaintiff acted as keeper of a prison, an amendment of the complaint, alleging work as carpenter for 11< hours per week, and claiming a certain rate per day for each legal day of 8 hours, with double pay for overtime and work on holidays, is improperly allowed, as setting up a ■ cause of action totally at variance with that set forth in the original complaint.</p>

<p>Appeal from municipal court, borough of Manhattan, First district. Action by Josephine W. Miller against the Northern Improvement Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Samuel Levy against Loyal Stanion to dissolve a partnership and for an accounting. From an order denying his motion to punish certain parties for contempt, James J. Nealis, receiver, appeals.

<p>Municipal Court of New York—Jurisdiction—Appeal—Record.</p> <p>In an action for the recovery of money only, brought in the municipal court of the city of New York, the failure of the record to show the jurisdictional fact that defendant resided in the county is fatal to the judgment, although the objection is made for the first time on appeal.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Daniel H. Bennett and another against William and Jane Campbell. Judgment for plaintiff, and defendants appeal.</p> <p>The action was brought to subject certain premises standing in the name of the defendant Jane Campbell to the lien of judgments against her husband, on the ground that the property was held by her in fraud of the rights of the creditors of said husband. Judgment was entered holding said land subject to such rights, and ordering sale of the same, and providing that if the proceeds were insufficient to pay the judgment, with costs, the deficiency should be collected either from the defendant William Campbell, or out of the separate property of the defendant Jane E. Campbell.</p>

Application by Josiah F. Crosby for mandamus to examine the books and records of the Corralites Company and the Candelaria Mining Company. From an order granting the application (59 N. Y. Supp. 865), defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Hugh McConnell against the Playa de Oro Mining Company and Hattie E. Ketchum. Judgment for plaintiff, and defendant Ketchum appeals.</p>

<p>Appeal from special term.</p> <p>Action by Walker 0. Stearns against Oliver M. Farrand. From a judgment on a verdict directed by the court for plaintiff, defendant appeals.</p>

<p>Appeal from municipal court, borough of Manhattan, Fourth district. ,</p> <p>Action by Joseph Fleischman and others against Max Glaser. From a judgment for plaintiffs, defendant appeals.</p>

<p>Action of replevin by Naomi Michaelis against Robert S. Towne. Motion by defendant to vacate order of arrest.</p>

<p>Appeal from trial term.</p> <p>Action by Vincent P. D'onihee against John A. Gray. From a judgment in favor of plaintiff, defendant appealed.</p> <p>This is an action brought by an assignee of a judgment debtor against the judgment creditor to recover his salary as a police officer, paid by a captain of police, under whom he was serving, to the judgment creditor, pursuant to an order in supplementary proceedings. After such money had been paid over, the order therefor was reversed on appeal. Plaintiff, in the second paragraph of the complaint, alleged as follows: “(2) That said moneys were at said time and at the time of the payment thereof by said Grant to said Gray the property of said Charles H. Ashley [plaintiff’s assignor], and were and constituted the December, 1897, salary of said Ashley, which he earned as an officer or patrolman in the police department of the city of New York, said Grant being at said time the captain of police in said department, under whom the said Ashley was serving as such police officer, and which salary and money was collected by said Grant, to be paid by him to the said Ashley.” The second paragraph of defendant’s answer is as follows: “(2) He denies that he has any knowledge or information sufficient to form a belief as to the truth of the allegation contained in the second paragraph of the complaint, that the said moneys were at the time of the payment thereof by said Grant to said Cochrane for said Gray the property of said Charles H. Ashley, except subject to defendant’s judgment lien, as hereinafter alleged; and this defendant alleges upon information and belief that at the time said moneys were paid by said Grant to said Cochrane, and prior to said alleged assignment to plaintiff by said Ashley, and for a long time prior thereto, and from the 31st day of December, 1897, the said moneys were, and still are, subject to an order of this court duly made in supplementary proceedings in an action wherein said John A. Gray was plaintiff and judgment creditor and said Charles H. Ashley was defendant and judgment debtor, brought against said Grant, as a third party, and said Ashley, and that said moneys, as defendant is informed and believes, were from the 31st day of December, 1897, and still are, subject to the lien of said supplementary proceedings and the judgment upon which said proceedings are founded.” The defendant, by way of counterclaim, alleged that “on or about the 4th day of November, 1897, in an action duly brought in the then district court in the city of New York for the Third judicial district, wherein John Gray (this defendant) was plaintiff and the said Charles H. Ashley, referred to in the complaint as plaintiff’s assignor, was defendant, a judgment was duly rendered in favor of said John A. Gray and against said Charles H. Ashley for the sum of 872.00, and that said judgment is still due and unpaid, and that at and prior to the time of the alleged assignment from said Ashley to plaintiff herein, and at the time of the commencement of this action, the said Charles H. Ashley was justly indebted to this defendant the amount of said judgment; and in connection herewith defendant further alleges upon information and belief that at the times referred to in the second paragraph or subdivision of the complaint the said Grant referred to in said paragraph was not the captain of police in said department under whom the said Ashley was serving as such police officer, as alleged in the complaint.”</p>

<p>Trade Name—Corporate Name—Injunction.</p> <p>Plaintiff was an established corporation, organized and doing business under the name óf the “International Society,” and engaged in publishing and selling books and periodicals. Defendants, co-partners, opened a rival establishment opposite plaintiff’s place of business, adopting as trade names “International Society,” and “The International Society of Literature and Bookbinders’ League,” to attract trade. Helll, that plaintiff was entitled to an injunction prohibiting the use of these names.</p>

. Action by Hascal A. Hogel, as receiver, against George E. Warner and others, as the board of health of the city of Rochester. From a judgment in favor of defendants, plaintiff appealed.

<p>Mortgage—Foreclosure Sale—Compensation of Referee.</p> <p>Code, § 3297, providing that, where property on mortgage foreclosure sells for $10,000 or upwards, “the referee may receive such additional compensation as to the court may seem proper,” applies only to a case where •the referee actually receives more than $10,000 in cash, and becomes accountable therefor.</p>

<p>Mortgage—Foreclosure Sale—Compensation of Referee.</p> <p>Under Code, § 3297, providing that, where property on mortgage foreclosure sells for $10,000 or upwards, “the referee may receive such additional compensation as to the court may seem proper,” the referee is not entitled to such compensation for every sale amounting to $10,000 or over;</p> <p>but only for those wherein the fixed compensation seems to the court inadequate because of the unusual amount of labor required.</p>

<p>In re assignment of Clinton H. Smith. Application to compel assignee to pay claim of petitioner.</p>

<p>Action by Albert J. Morgan against James Gordon Bennett. Motion by plaintiff to strike out parts of the answer.</p>

<p>Action by one Strauss against one Scott for failure to deliver a quantity of wall paper on which plaintiff had made a certain payment, and had agreed to pay the balance on delivery. The evidence showed that the value of the paper to be delivered was less in amount than the price plaintiff had contracted to pay therefor. Verdict for plaintiff, and defendant moved to set aside the verdict, and to dismiss the</p> <p>complaint.</p>

<p>Bill by John Jerome and others against George T. Johnson and others. Motion for injunction pendente lite.</p>

<p>Appeal from Wayne county court.</p> <p>Action by Robert Silliman against Stanley Sampson. Judgment</p> <p>for defendant, and plaintiff appeals.</p> <p>Plaintiff, in his complaint, alleged that the defendant “assaulted and beat the plaintiff, knocked him down with his fist, and struck him many violent blows after he was down, in anger and malice, whereby the plaintiff was greatly injured, both in body and mind, to his damage of five hundred dollars.” The answer of the defendant contains a denial of most of the allegations of the complaint, and alleges “that on the 1st day of March, 1S98, in the village of "Wolcott, Wayne county, N. Y., while defendant was talking with plaintiff on the streets, the plaintiff became angry, and assaulted the defendant, and used vicioús and threatening language towards defendant; that plaintiff at the time had an open knife in his hand, and that defendant, in fear of injury to himself, and in self-defense, repelled the assault by striking the plaintiff away from him with his fist; that this act is the assault complained of in the said complaint; that the plaintiff has at various times to this defendant, and in the hearing of others, used violent and abusive and threatening language towards the defendant, and that the defendant, by reason thereof, had become apprehensive of a personal assault on himself by plaintiff."</p>

Action for separation by Lorenz Gansz against John Gansz. Defendant interposed a counterclaim for absolute divorce, and from a judgment for him plaintiff appeals. Motion by plaintiff for alimony, counsel fées, and appeal money pending her appeal.

Application by the receiver of taxes against the Welsbach Incandescent Gaslight Company for the payment of taxes for the year 1892. To the report of the referee the receiver of taxes excepts.

<p>Motion for confirmation of referee’s report in the matter of the receivership of Blight.</p>

<p>Application by the people against the Manhattan Fire Insurance .Company for the payment of certain taxes. To the report of the referee, defendant excepts.</p>

<p>Appeal from special term. , .</p> <p>Action by Welsbach Commercial Company against Emil Popper. From an order denying a motion to vacate the judgment, plaintiff apJ)6£llGCl«</p>

<p>1. Justices op the Peace—Demand por Jury Trial—Prepayment op Fees.</p> <p>The amendment to Code Civ. Proc. § 2990, which went into effect September 1, 1897, requiring a party demanding a trial by jury before a justice of the peace to deposit the fees for the constable and jurors, does not affect the provision of section 3328, which authorizes a justice, constable, juror, or witness to demand his fees in advance; and under such provision, on a demand for trial by jury, the justice may demand his fees for issuing the venire, in addition to the amount required to be deposited by section 2990, and, if not paid, he may refuse to issue a venire, and proceed as if a jury trial had not been demanded.</p> <p>2. Same—Appeal—Sufficiency op Evidence.</p> <p>Where, on a trial before a justice, defendant is represented by counsel, who makes no objection to the character of plaintiff’s evidence, nor claim that it is insufficient to warrant a recovery, it will be held sufficient to sustain the judgment on appeal.</p>

<p>1. Accounting by Executor—Counsel Fees.</p> <p>. When the question of compensation of an attorney for an estate is presented, his ability and success in litigation are not the only elements to be considered, but the size of the estate plays an important part.</p> <p>2. Same.</p> <p>Where able counsel, employed by an executor of an estate worth only $8,000, rendered valuable professional services in litigation connected with the estáte, requiring much time and labor, a fee of $4,000 was excessive, and $2,000 was allowed by the court as a reasonable fee.</p>

<p>In the matter of the settlement of the account of Fred J. Lancaster and another, as executors, etc., of Anna E. Thcker, deceased.</p>

Petition by Harry B. Chapman for an accounting, and removal of Jeffrey P. Thomas as committee of the person and estate of Haney C. Warner, an incompetent person.

Action by William Sleicher, Jr,, and others against James Grogan, as president of Iron Moulders Union No. 2, and others, for a final injunction restraining defendants from interfering with their business. From an order continuing an injunction granted pendente lite, defendants appeal.

<p>Reafpraisement of Property under Transfer Tax Act—Sale for Greater Amount.</p> <p>Under the transfer tax act, providing that the valuation of the property should be made as of the date of the death of the decedent, in the absence1 of any mistake, fraud, or concealment in the first appraisement, a reappraisement will not be allowed on the ground that after the order fixing the tax on the first appraisement the property was sold at public auction for a price exceeding such appraisement.</p>

<p>Action by Tito Bini against John Smith.</p>

<p>Action by Orville Balch against the city of Utica and others. Judgment for defendants. From an order adjudging Thomas Kinney in contempt for failure to obey the judgment, he appealed.</p>

<p>Action by Thomas J. Blanck, as trustee under the last will and testament of John W. Blanck, deceased, against Jesse S. Nelson.</p>

<p>Action by Aaron C. Allen against the Corn Exchange Bank.</p>

<p>Action by William Bracken against the Atlantic Trust Company, impleaded, etc.</p>

<p>In the matter of the voluntary dissolution of the Buffalo Ice Company.</p>

<p>Action by Simon Christiansen against Louis B. Mendham and another. From a judgment of the general term, affirming a judgment of the trial term for plaintiff (56 N. Y. Supp. 655), defendant Mendham appeals.</p>

<p>Action by Joseph E. Cook against A. Benson, as president of Local Union, No. 64, of the United'Brotherhood of Carpenters and Joiners of America. From a judgment for plaintiff, defendant appeals.</p>

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

<p>Action by Robert B. Corbett against Augustus Clason.</p>

<p>Action by Joseph Edall against the New England Railroad Company.</p>

<p>Action by George B. Fisher against Rochester Gaslight Company and others. From a judgment of the special term dismissing the complaint on the merits, plaintiff appeals.</p>

<p>Action by Sarah A. Flack against the Nassau Electric Railroad Company.</p>

<p>Action by Patrick J. Flynn against Bernard J. York and others.</p>

<p>Action by Anthony C. Guntzer against the Yonkers Railroad Company.</p>

<p>Action by Max Heller against William H. Mangels.</p>

<p>Action by Mary A. Huck against the Rochester Railway Company. Motion for a new trial upon exceptions ordered heard in the first instance by the appellate division, after a direction of a verdict in favor of the defendant.</p>

<p>Action by Margaret E. Littlejohn against Lucy A. L. Leffingwell, individually and as executrix, etc., and others.</p>

<p>Action by Fannie F. J. Leverich and others against Charles D. Leverich, impleaded with Matilda R. L. Bradford and others.</p>

<p>In the matter of the application for admission to practice of Samuel Evans Maires.</p>

<p>Action by John S. Martin against the New York Elevated Railway Company and another.</p>

<p>Action by Hannah Jane Mar-den against Hiram L. Barker, impleaded, etc.</p>

<p>Action by Catherine McGahey, as administratrix, etc., against the Nassau Electric Railroad Company.</p>

<p>Action by Edson Matthews against Josephine Noble, impleaded with others.</p>

<p>Action by William H. Morgan against the Wayne Building, Loan & Accumulating Fund Association. There was a judgment for defendant, and plaintiff appeals.</p>

<p>Action by Nellie Yale Nelson against the Nassau Electric Railroad Company.</p>

<p>Action by James O’Connell against John T. Clark and William Clark.</p>

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

<p>Proceedings by the people, on the relation of Robert Miller, against Thomas L. Feitner and others.</p>

<p>Action by the Springfield Metallic Casket Company against Joseph Wielar, impleaded with another. From an order for defendants, affirmed at general term (56 N. Y. Supp. 394), plaintiff appeals.</p>

<p>In the matter of Conklin Smith and another.</p>

<p>Action by William E. Thom, as trustee, against Samuel Lazarus and another.</p>

Action by Catharine Fisher Wieland, as administratrix, etc., against the president, managers, and company of the Delaware & Hudson Canal Company. From a judgment entered upon a nonsuit, and an order denying a motion for a new trial, plaintiff appeals.

<p>Action by Henrietta M. Vroman against Elias A. Pickering.</p>

<p>Action by John C. Whitehead against Homer Lee.</p>