Volume 60 — New York Supplement

Action by Edward A. Thompson, as executor and personally, against Emma L. Vidal to construe a will. Judgment that plaintiff and defendant take share and share alike.

In the matter of the settlement of the account of Joseph Gabriel and another as executors of the will of Catharine Gabriel, deceased. From a decree surcharging the account, the executors appeal.

Application of the American Surety Company of Rew York in the matter of the estate of Edmund G-. Thurber, an incompetent, to be relieved as surety on the bond of Fannie C. Thurber, the committee (or said incompetent’s estate. From an order denying the application, the company appealed.

Action by Charles Hyman against the London Assurance Corporation on a fire insurance policy. From an order opening a default judgment in favor of defendant dismissing the complaint, on condition that plaintiff pay the costs of the judgment and motion, plaintiff appeals.

<p>Appeal from special term, Onondaga county.</p> <p>Action by the Delaware, Lackawanna & Western Bailroad Company and another against the Syracuse, Lakeside & Baldwinsville Bailway Company and others. From an order vacating an injunction (59 N. Y. Supp. 1035), plaintiffs appealed.</p> <p>As a condition of vacating the injunction, the defendant was required to enter into an indemnity to pay the plaintiff any damages or compensation, under sections 12 and 90 of the railroad law, that it should be finally declared the plaintiff was entitled to, and that it would, within a reasonable time, take the proper steps to have such compensation fixed.</p>

<p>Appeal from municipal court, borough of Manhattan, Fourth district.</p> <p>Action by Aaron Perlus against Bruno B. Spiess and Rose Spiess, sued as Jacob Spiess and Mary Spiess. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from municipal court, borough of Manhattan, Second district.</p> <p>Action by Frank W. Beberdick against Browning, King & Co. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from municipal court, borough of Manhattan, Tenth district.</p> <p>Action by Moses Tannenbaum against Simon Natehtigall. From a judgment for plaintiff, defendant appeals.</p>

<p>Appealable Order.</p> <p>An order of the municipal court of New York City refusing to open a, default is not appealable.</p>

<p>1, Assignment for Benefit of Creditors—Preferences—Employes.</p> <p>A creditor seeking the aid of the statute granting preferences to employés on assignment by the employer must show such employment and relation between himself and the assignor with respect to the claim presented as will bring it within the statute.</p> <p>3. Same.</p> <p>A claim for commission upon sales solicited by a salesman engaged at a weekly salary is not entitled to preference under the statute granting preferences to employés on assignment by the employer, when the soliciting of such sales was made under an agreement which was independent of, and inconsistent with, the relation of employer and employé, as established by the contract of employment. “</p>

<p>Action by the people, brought by the attorney general by way of quo warranta, against Edward W. Neubrand, to oust him from the office of a member of the board of water commissioners of the village of Tarrytown. Complaint dismissed.</p>

<p>1. Street Railroads—Eight to Place Track on Highways—Consent of Commissioners of Highways.</p> <p>Laws 1893, c. 434, requires street railroads to obtain the consent of the commissioners of highways of the town before it can lay its tracks on the highways thereof. Laws 1890, c. 555, gives the board of supervisors of Richmond county exclusive jurisdiction of the roads of that county for the purpose of improving and maintaining the roadbed thereof for carriages or other vehicles, but for no other purpose. Section 7 requires the consent of the supervisors, in addition to the requirements of existing laws, before the laying of street-railroad tracks on the highways. Held, that if there is any repugnancy between the two acts, the former, being the more recent, will prevail, and the commissioners of highways are the only body whose consent is necessary.</p> <p>2. Same—Consent to Lay Tracks—Conditions.</p> <p>Where the consent of the commissioners of highways is a necessary prerequisite to the right of a street-railroad company to lay Its tracks on the highways of a town, they may attach, as a condition to their consent, a requirement that the company transport passengers for a given fare between designated points, and that it issue transfers to its connecting lines.</p>

<p>Village Board of Health—Powers—Appointment of Sanitary Inspector.</p> <p>A village hoard oí health is empowered by Laws 1893, c. 661, to appoint a health officer and fix his compensation, and to perform its other duties by orders, by the imposition of penalties, and the employment of competent persons to carry its orders into effect. Its power over sewers is recommendatory, merely, to the village trustees, and its expenses have to be audited and paid as other village charges. Held, that it was unauthorized to appoint a sanitary inspector and fix his compensation.</p>

Action by Anna B. Ray against the Paterson General Hospital and others to foreclose a mortgage. From an order relieving Henry Waters, purchaser at foreclosure sale, from his purchase (59 N. Y. Supp. 1047), some of the defendants appeal.

<p>Action by Harriette E. Stevens against Nathan 0. Reed.</p>

<p>1. Executors and Administrators — Security for Costs — Discretion of Court.</p> <p>Whenever a resident or nonresident executor or administrator is plaintiff, an application for security for costs is addressed to the court’s discretion, under Code Civ. Proc. § 3271, allowing the court to require one. suing as executor or administrator to give such security.</p> <p>2. Same.</p> <p>Where one in good faith brings an action as executor or administrator, an application for security for costs, under Code Civ. Proc. § 3271, allowing the court to require one suing as executor or administrator to give security, should be denied.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Jane Wells against the city of Brooklyn. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles Howard Williams against Mary E. Lewis. There was a judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by John N. Ramsdill against James F. Swanick. There' was a judgment for plaintiff, and defendant appeals.</p>

On the settlement of the accounts of Morris J. G-ladke as administrator of the estate of George Asher, deceased. Appeal from a decree of the surrogate settling the accounts of the administrator.

<p>Appeal from surrogate’s court, New York county.</p> <p>In tlie matter of the estate of Zefita, Countess De Rohan Chabot, deceased, an order was made modifying an order fixing the transfer tax on the estate, and the comptroller appeals.</p>

Application by A. Lawrence Jensen for the appointment of a referee to hear and audit his claim for legal expenses against the city of New York, pursuant to chapter 700 of the Laws of 1899. From an order denying his application (59 N. Y. Supp. 653), he appeals.

<p>Appeal from trial term, Westchester county.</p> <p>Action by Mary A. Murphy against the city of Yonkers. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.</p>

<p>Pleading—Amendment—Damages.</p> <p>A court has no authority to grant plaintiff’s motion to increase the amount of damages demanded in his complaint.</p>

<p>Sale—Contracts—Construction—Future Delivery.</p> <p>A contract was made for the future delivery of goods, the terms being “sight draft, with documents attached.” Meld, that such terms merely required that a draft accompany the bill of goods delivered, and did not require a tender of payment before bringing suit for the nondelivery of the goods.</p>

<p>Appeal from trial term.</p> <p>Action by Lazarus Levy against Samuel Barnett and others. From a judgment for defendants, and an order denying a motion for a new trial, plaintiff appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Henry Krieger against Charles Kaye and another. From a judgment entered upon a verdict for plaintiff, and an order denying a motion for a new trial, defendants appeal.</p>

<p>Carriers op Goods—Delivery.</p> <p>A carrier is not liable to a consignor for a delivery of the goods to the consignee without his surrendering the bill of lading, where it did not have the word “order” written before or after the consignee’s name, as required by the bill of lading, to make it obligatory on the carrier to refuse to deliver the goods without receiving the bill of lading, and where no claim of loss was made prior to the expiration of 30 days after delivery, as required by the bill of lading.</p>

<p>Appeal—Failure to Present Exceptions.</p> <p>Where the record presents no exceptions to a ruling below, the question cannot be considered.</p>

<p>Appeal from special term.</p> <p>Action by Charles H. Meyerson against Beno Levy. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Direction of Verdict.</p> <p>Where there is no serious conflict in the evidence, unless it is between the defeated party and one of his own witnesses, there is no error in a direction in favor of the party apparently entitled to a verdict.</p> <p>2. Same—Motion for New Trial.</p> <p>Without a request to go to the jury, and a refusal, and an exception to the direction of a verdict, a motion for a new trial is ineffectual for any purpose.</p>

<p>Appeal from trial term.</p> <p>Action by Frank Luedecke against the Metropolitan Street-Kailway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

Action by Mary Smith against Michael Smith to recover for business losses and services. Shorn a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Action by Louis F. Haszlacher against the Third Avenue Eailroad Company for a personal injury. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>Contracts—Refusal to Perform-^Quantum Meruit.</p> <p>Where defendant agreed to place an order with plaintiff for a certain amount of advertising matter, provided a design therefor, to be made by plaintiff, was satisfactory to them, and plaintiff at some expense prepared the design, and defendant refused to accept it on the ground that they had made other arrangements as to a design, plaintiff can treat the refusal, as a breach of the contract, and sue on a quantum meruit for the expense-of preparing the design.</p>

<p>Appeal from trial term, Onondaga county.</p> <p>Action by Edwin S. Jenny and another against Henry Lacy and others to recover for services as attorneys for an executor. From a judgment in favor of plaintiffs, entered on a referee’s report, defendants appealed.</p>

Action by Alice A. Elyea, in behalf of herself and others similarly interested, against the Lehigh Salt-Mining Company and others, to recover the amount of a pledge secured by stock in said mining company. From a judgment dismissing the complaint without costs to either party, entered on the report of a referee, plaintiff appeals.

<p>Appeal from surrogate’s court, Saratoga county.</p> <p>In the matter of the probate of the last will and testament of Huldah G. Wells, deceased. From a decree admitting the same to probate, John I. Wells appeals.</p> <p>John I. Wells and Huldah G. Wells were married, and lived together as husband and wife, about 50 years. John I. Wells was the owner of a farm, with a house and other farm buildings upon it. A portion of this farm, consisting of about 40 acres, upon which the buildings were located, he conveyed to his wife, Huldah G. Wells, retaining the remaining portion of the farm for himself. This 40 acres, with the buildings, seems to be the only property possessed by her. Some years before the death of Huldah G. Wells she and her husband, John I. Wells, made reciprocal wills, by which each bequeathed to the other all his or her real and personal property for life, with power to the executor to pay all the legatee’s debts and funeral expenses. The wills were exactly alike, with the exception of the necessary change of names. In 1894, Huldah G. Wells made another will,—the one in question,—by which she devised and bequeathed to her daughter, Anna E. Betts, all her property, real and personal, revoking all former wills made by her. This second will was made without the knowledge of her husband, and all knowledge of it was withheld from him until after her death. This last will was offered for probate by the daughter, Anna E. Betts, and its probate contested upon the ground of undue influence and want of capacity of the testatrix to make a will. Evidence was given to prove that for some time prior to the making of such will the testatrix was suffering from paresis, was sick and decrepit, and without sufficient knowledge, understanding, and mental capacity to make a will. The surrogate admitted such will to probate, and from such decree this appeal is taken.</p>

<p>Action by one O’Leary against one Candee and others. Motion for a bill of particulars.</p>

<p>Action by Orville <M. Barkley against the New York Central & Hudson River Railroad Company.</p>

<p>Action by the A. D. Farmer & Son Type-Founding Company against Alphonse S. Sorgi and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Action by Louis Ablovich against Louise C. Le Reime and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Action by Charles H. Bender and Kate M. Bender, his wife, against R. Watson Terwilliger and others.</p>

<p>Action by Alfonso Braceo against Hyman Schnitzer. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by E. Louisa Brown, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by James Brown, an infant, by Mary Brown, his guardian ad litem, against the Nassau Electric Railroad Company.</p>

<p>In the matter of the application of Tamar M. Coatsworth and others, landlords, for the removal of Louis Schoellkopf and others, tenants and under tenants, from premises.</p>

<p>Action by John Devlin against Mary E. Hinman.</p>

<p>Action by Benjamin Desbecker and others against Appolonia Warth, individually and as executrix, etc., and others.</p>

<p>Action by Jeannie Coon against Allison M. Coon.</p>

<p>Action by Thomas Collinson, Sr., against the city of New York.</p>

<p>Action by John R. Drake against the New York Suburban Water Company and others.</p>

<p>In the matter of the probate of the last will and testament of Caroline Remsen Gihon, deceased.</p>

<p>Action by Samuel Haas and others against Albert Hendricks. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Action by Samuel Jankelson against August Ruff. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Christina Koeth against the Knights Templars’ & Masons’ Life Indemnity Company.</p>

<p>Action by Levi L. Kessler against Patrick Cashin.</p>

<p>Action by Bridget Langin, an infant, etc., against the Trustees of the New York & Brooklyn Bridge.</p>

<p>Action by Julius Lewin and another against Bernard Towbin. Prom a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Actions by August L. Leto and Celestine Leto, respectively, against William R. Smith. There was a judgment ior plaintiff in each action, and defendant appeals.</p>

<p>Action by Ann McManus against the Western Assurance Company of Toronto, Canada.</p>

<p>Action by James O’Donohue and others against John F. Cronin and another.</p>

<p>Proceedings by the people, on relation of Ida G. C. Jones, against the board of supervisors of the county of Sara-toga, to review by certiorari the action of defendants in auditing certain bills of the relator. Determination of the board of supervisors confirmed.</p>

<p>Application for mandamus by Mathew McAvoy against the school board for the borough of Richmond, New York City, to secure relator’s reinstatement as janitor of the Rosebank School, in Richmond county. From a judgment dismissing the writ, relator appeals.</p>

<p>Action by Albert Reitman against Morris Neulander and Edward Roth. There was judgment for plaintiff, and defendants appeal.</p>

<p>Action by Jeanne Renoux against Thomas M. Blake and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Action by Anna Richards against J. Gilliam Ward. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Anna Rose against the Brooklyn Elevated Railroad Company and Frederick Uhlmann, as receiver, etc.</p>

<p>Action by Peter Scheich against the German Odd Fellows’ Home Association of the State of New York. From a judgment for plaintiff, defendant appeals.</p>

<p>In the matter of the petition of Richard Scott and another for an order requiring Clarence F. Birdseye, an attorney and counselor of the supreme court to pay over certain moneys.</p>

<p>Action by Emanuel Strauss against Edward. A. Murray, as marshal. From a judgment for defendant, and an order denying a motion for a new trial, plaintiff appeals.</p>

<p>Action by Mary T. Uppiington against the city of New York.</p>

<p>Action by Mordecai M. Willson, Jr., against Mary S. Eveline.</p>

<p>Action by Abraham Zubrinsky against Abraham R. Sabin. Judgment for plaintiff, and defendant appeals.</p>