Volume 61 — New York Miscellaneous Reports

<p>Claim against the State for damages for overflowing the claimant’s lands.</p>

<p>Claim against the State for failing to repair a bridge over a State canal and preventing the use of such bridge.</p>

<p>States — Contracts — Power of officers or boards — Modification of contract for building State road.</p> <p>Where one contracts with the State for the construction of a good • road and provides the material called for by his contract, but a division engineer, without authority to bind the State, rejects the material provided and requires more expensive material, the contractor, neither standing on his contract nor obtaining the approval of the proper authorities to the substitution of the more expensive material, cannot maintain a claim against the State for its extra cost though he told the division engineer that he would not waive his rights.</p>

<p>States — Claims: Court of Claims—Jurisdiction — Damages from canals: Liability of State in general — Damages from canals —</p> <p>Acts or omissions imposing liability — Destruction of bridges.</p> <p>A ditch, long used by the State to convey the surplus waters of the Erie canal into Oneida lake and for the widening and deepening of which the State has made a provision, is part of the canal system of the State; and one who has a claim for damages caused by the widening and deepening of the ditch may prosecute his claim in the Court of Claims, under section 37 of the Canal Law, without any ot'-er legislative "authority.</p> <p>And where the negligent manner of conducting the work of widening and deepening the ditch results in the destruction of two highway bridges across it, the town in which the bridges are situated may maintain a claim therefor against the State.</p>

<p>Eminent domain — What constitutes taking of property so as to entitle to compensation — Indirect or consequential damages — Impairing easement in public street-</p> <p>States — Claims — Liability of State in general — Damages from canals — Damages from taking lands for canal — Impairing public easement in street.</p> <p>In the absence of an express statute, one owning lands upon a village street which is intersected by a new State canal, so that communication from one direction with such lands is intercepted, but where such lands do not abut upon the canal and no part of them is taken, has no claim against the State for damages.</p>

<p>Claim for damages sustained by "falling or driving into an excavation made for the barge canal.</p>

<p>Appeal from a judgment of the city magistrate’s court.</p>

<p>Motion for an injunction pendente lite restraining the prosecution of a summary proceeding to recover the possession of real property.</p>

Appeal, by the landlord, from a final order, entered in favor of the tenants in the Municipal Court of the city of New York, ninth district, borough of Manhattan, after a trial before the court and a jury.

Appeal by the defendant from a judgment and order of the Municipal Court of the city of New York, first district, borough of Manhattan.

<p>Taking case from jury and nonsuit — Effect of request to direct verdict — Request by both parties — Request to go to jury not too late until entry of verdict by direction.</p> <p>Where motions for the direction of a verdict have been made but the verdict has not been entered, a request upon the part of one of the parties to go to the jury upon a question of fact is in time; and a denial of such request in a proper case is error.</p> <p>Seabury, J., dissents.</p>

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

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

<p>Damages — Particular contracts and relations— Liability of bailees, carriers, and telegraph companies — Liability of carrier — Liability for delay — Without notice of special circumstances.</p> <p>In a suit against a carrier for unreasonable delay in the delivery of a consignment of castings constituting parts of machinery, in consequence of which the consignee had been compelled to procure duplicate parts and therefore declined to receive the consignment, the consignor may not recover the value of the castings, unless it is shown that the carrier had knowledge of the peculiar relations and contract between the shipper and consignee, or that the circumstances were fairly within the contemplation of the shipper and the carrier when the contract for transportation was made.</p> <p>In such a case, the measure of damages is the difference between the value of the goods when the delivery should have been made and their value when the delivery was actually made.</p>

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Yew York, first district;' borough of Manhattan.

<p>Damages — Particular contracts and relations — Miscellaneous contracts — Construction contracts — Upon preventing performance.</p> <p>Where plaintiffs contracted with defendant to install fixtures in a store for a certain price, and the work was stopped by defendant, the measure of damages is not the unpaid balance of the contract price but the actual loss sustained by the plaintiffs, talcing into consideration the loss in value of the materials used at the time the work was stopped and the profits which plaintiffs would have reaped had they been allowed to complete the job.</p>

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

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

<p>Appeal by the plaintiff from an order of the Oity Court of the city of 3STew York, granting defendant’s motion to dismiss the complaint for want of prosecution, upon terms.</p>

<p>Insurance: Avoidance of policy — Policy of insurance on property — Misrepresentations in application — Warranties — Previous loss by burglary: Estoppel, waiver, etc.— Examination of insured as to circumstances of loss.</p> <p>A breach by the assured under a policy of burglary insurance of her warranty that she had never before suffered loss by burglary is not waived by the company by continuing the examination of the assured under the provisions of the policy, upon her having made a claim for loss against the company, after she had admitted the facts relating to her previous loss.</p>

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

<p>Discovery and inspection — Examination of party before trial: Right to remedy — To establish fact within exclusive knowledge of adverse party: Procedure — Production of books and papers — Subpoena duces tecum.</p> <p>In an action to recover money paid as margin on stock transactions in an alleged “bucket shop,” upon the ground that the transactions were mere wagering contracts and, therefore, void, an order may be granted for the examination of defendants before trial where they claim that they actually purchased and sold stocks for plaintiffs and did a Iona fide brokerage business.</p> <p>In such case, the order may provide for the issuance of a subpoena dueos teeum.</p>

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

<p>Landlord and tenant — Re-entry and recovery of possession by landlord — Summary proceedings — By whom maintainable — Landlord who has leased premises from expiration of term of present occupant.</p> <p>The conventional relation of landlord and tenant must exist in order to justify a final order removing an alleged tenant holding over.</p> <p>Under section 2235 of the Code of Civil Procedure, a landlord may maintain summary proceedings to remove a tenant holding over after the expiration of the term, although a new lease of the premises is to begin upon the expiration of the term of the tenant in possession.</p>

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

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

<p>Appeal by the defendant from an order of the Oity Court of the city of New York, denying a motion for a new trial.</p>

<p>Instructions — Power of court and necessity — As to credibility of witnesses — Witness who has made inconsistent statement or who has testified falsely.</p> <p>New trial — Grounds — Rulings and instructions at trial — Instructions — Necessity for showing that error did not influence verdict.</p> <p>A charge to a jury that, if they believe that any witness has testified falsely to a material fact, they must disregard the testimony as to that fact and may disregard his entire testimony is erroneous, because of the omission of the word “ knowingly ” or “ willfully.”</p> <p>A judgment will be reversed for error in the charge of the trial judge, unless the respondent shows affirmatively that the error could not possibly have influenced the verdict.</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, third district, borough of Manhattan.</p>

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

<p>Foreclosure of mortgages on land — Foreclosure by action and sale — Sale — Title or interest acquired by purchaser — Title of lessee not party to foreclosure.</p> <p>Landlord and tenant — Creation and extent of relation — Attornment — When required to create tenancy — Necessity of attornment to purchaser at judicial sale of landlord’s estate.</p> <p>The rights of a tenant are not affected by the foreclosure of a prior mortgage, unless he was a party to the suit.</p> <p>.Where the referee’s deed on such foreclosure expressly conveyed the premises subject to the leasehold interest and the tenant never attorned to the purchaser, no privity of estate or of contract exists between the purchaser and the tenant, and the purchaser cannot maintain an action for rent tinder the lease.</p>

<p>Taking case from jury and nonsuit — Weight and sufficiency of evidence — Evidence giving rise to doubt or difference of opinion.</p> <p>In an action by an infant for damages for personal injuries, where it appears that the plaintiff was in the street playing and was run over by & horse and wagon and that, when the horse was over twenty-five feet from the place where the plaintiff stood, some one called to the driver to stop, but he failed to pay any attention to the warning and, although there was enough light to see the child, and the driver had enough time to stop his horse and avoid the accident, he continued his course and ran over the plaintiff, the questions of the defendant’s negligence and plaintiff’s contributory negligence are questions for the jury and it is error to dismiss the complaint.</p> <p>MacLean, J., dissented.</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>Appeal by the plaintiff from an order of the City Court of the city of New York.</p>

<p>Municipal corporations — Officers and employees other than mayor and common council — In general — Chaplains of hospitals and in department of public charities.</p> <p>One appointed Jewish chaplain for Bellevue and allied hospitals and who is also thereafter appointed visiting chaplain in the department of public charities in the city of New York, is not, in consequence of either appointment, an officer of the city or within the prohibition of section 1549 of the Greater New York charter.</p>

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

Appeal by the judgment debtor from an order of the Oity Court of the city of Few York, denying a motion to vacate an order for examination in supplementary proceedings.

<p>Mandamus — Procedure and relief — Regulation by Code — Place where application should be made.</p> <p>Upon an application for a writ of mandamus commanding the Forest, Fish and Game Commissioner of the State of New York to reinstate the relator to the place of State oyster protector, the material fact is the relator’s removal from office; and this having taken place in the county of Albany, where the Forest, Fish and Game Commissioner has his office, the application for the writ should be made in that county.</p>

<p>Contracts — Interpretation of contract — Inception and duration of con-' tract — Termination by death of party.</p> <p>Where the owner of real estate made an agreement with an attorney to take all lawful proceedings to obtain compensation for property belonging to him taken for the opening of streets in Brooklyn, such agreement is terminated by the death of the landowner as to all proceedings which had not then been instituted; and the executors of the decedent have the right to employ such counsel as they think proper to represent them in proceedings instituted after the decedent’s death.</p>

<p>Alimony — Scope and amount of award — Temporary alimony — Limiting amount to wife’s needs and husband’s ability — Husband’s ability how far considered as affecting question of wife’s needs.</p> <p>In awarding alimony to a wife during the pendency of an action in her favor for an absolute divorce, no rule has ever been adopted by the courts that she is entitled to one-third of her husband’s income, irrespective of its relation to reasonable expenditures, nor to any particular fraction of such income.</p> <p>• Where the Ifusband’s income is many times excessive of all reasonable needs for the maintenance of a family in lavish abundance, and he has voluntarily contributed at the rate of $25,000 a year to his wife’s support, the court will not hold that such provision is inadequate for the purpose nor make an order awarding alimony at a greater rate.</p>

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

<p>Motion to dissolve a temporary injunction.</p>

<p>Motion by plaintiff for judgment upon the answer as frivolous.</p>

<p>Motion to set aside the verdict of a jury on the grounds' specified in section 99'9 of the Code of Civil Procedure.</p>

<p>Motion to set aside verdict and for a new trial.</p>

<p>Evidence — Documentary evidence — Official books and documents — Authentication and certified copies — Records of another State — Under laws of United States.</p> <p>The record of a judgment rendered in another State by a court composed of more than one judge, authenticated only by a certificate signed by a judge of the court, who also certifies that he is one of the judges with full authority to make the certificate, and from which it also appears that one of the associate judges of the court was present and presided at the trial of the action in which the judgment sued upon in this State was obtained, is properly excluded as evidence, upon the ground that it was notsuffieiently and properly authenticated as required by section 905 of the United States Revised Statutes, relating to authentication of judgments in any State or territory to enable them to be proved or admitted in evidence in any other court within the United States. '</p>

<p>Actions for injunctions.</p>

<p>Insane persons — Guardianship — Liabilities of committee — For personal injuries from failure to keep building in repair.</p> <p>The committee of the estate of an incompetent person, though ithe bailiff of the court, is not for that reason exempt from responsibility for his own negligence in caring for the property committed to his care, but is personally liable to a tenant for damages arising from his failure to keep the common passageway used by all the tenants in repair.</p>

Action by vendee to recover purchase price paid under contract for purchase of real estate upon vendor’s failure to give good title.

<p>Demurrer to complaint.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Foreclosure of mortgages on land — Foreclosure by action and sale — Pleading and trial — Complaint — Allegation as to payment of recording tax.</p> <p>Usury — Elements and indicia: Intent or agreement — Necessity: Exchange, discounts, commissions, etc.— Payment of recording tax.</p> <p>In the. complaint in an action for the foreclosure of a mortgage upon real property, it is not necessary to allege that the recording tax upon the mortgage has been paid.</p> <p>Where the full amount of a loan on a mortgage, with interest at 6 per cent., is paid by the lender to a title company which deducts the mortgage tax, without objection of the borrower or the knowledge of the lender and without any agreement between the parties in relation thereto, the transaction is not usurious.</p> <p>Semble, in such a case, an agreement by the mortgagor to pay the recording tax upon the mortgage would not contravene the statute against usury.</p>

<p>Negotiable instruments —1 Payment — Payment to person in possession.</p> <p>Sales — Nature of contract — Sale or agreement to pay money.</p> <p>Whether a check was payable to Tong Sing Wo Kee or to Long Sing Wo Kee will not be decided upon demurrer to the complaint from an inspection of the instrument.</p> <p>Where the defendant, an express company, delivered to plaintiff in the city of New York a written instrument directing a bank in Hong Kong, China, to pay to the individual named therein a certain sum “on presentation of this cheque from our balance,” the instrument constitutes an agreement to repay at Hong Kong, out of defendant’s balance at the bank, a certain sum deposited in New York with it for the individual named in the instrument, and does not constitute the sale of a chattel.</p> <p>Where a complaint alleges the execution and delivery by defendant of a certain instrument described as a “ cheque,” directing a bank at Hong Kong to pay the individual therein named a certain sum in local currency “on presentation of this cheque from our balance;” that the instrument was mailed by registered letter to. Tong Sing Wo Kee but was not delivered to him, but came into the possession of a person who received payment on an indorsement of “ Long Sing Wo Kee ” at a time when the instrument was in a “ battered condition,” and that payment of a duplicate was refused by the bank, it states a cause of action; and a demurrer to the complaint for insufficiency will be overruled.</p>

<p>Demtjbbees to complaint.</p>

<p>Assignments — Property or rights assignable — Expectant estates. Dower—'In what dower may be had — Lands inherited after assignment by husband of his expectancy.</p> <p>Where a father died intestate and seized of certain real estate nearly three years after his son, one of his heirs at law, had for a valuable consideration by an instrument in writing assigned, transferred and conveyed all his interest in and to the real and personal estate of his father which he had or might have after the death of his father, and authorized and empowered the assignee to take possession of the assigned property, the wife of the son is not entitled to dower in any part of the real estate of which his father died seized, and which descended to the son subject to the right of his assignee to enforce in equity the rights acquired under the assignment.</p>

<p>Action to recover royalties for manufacturing patented articles.</p>

<p>Action to recover a sum of money. Demurrer to separate defenses.</p>

<p>Railroads and railroad companies — Operation of railroad — Fires — Sufficiency of evidence.</p> <p>In an action against a railroad company to recover damages from a fire resulting from defendant’s negligence, proof that defendant cut the grass and weeds along its right of way and let them lie there in the swath until dry, and that thereafter a fire broke out, shortly after the passage of one of defendant’s trains, which was practically out when defendant’s station agent came back from dinner, about half an hour after the train left the station, and that the fire began inside the railroad fence and went toward the plaintiffs’ vineyard where it was extinguished, is sufficient to establish defendant’s negligence.</p>

Action to establish the title of the plaintiff to a strip of land under water claimed by the defendant under a grant from the State.

Appeal by the defendant from an order denying a motion to open a default, entered in the Municipal Court of the city of New York, second district, borough of Manhattan.

Appeal by the defendant from an order denying a motion to open his default entered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.

Appeal by the plaintiff from an order entered in the City Court of the city of New York, granting the motion of the defendant to open his default and leave to answer, and also from an order denying plaintiff’s motion for a resettlement of said order.

Appeal by the defendant from an order of the City Court of the city of ¡New York, referring the cause to a referee to hear and determine the same.

Appeal by the defendant from a final order of the Municipal Court of the city of New York, fifth district, borough of Manhattan, made in a summary proceeding and awarding possession of certain premises to the petitioner after a trial had before the court, without a jury.

<p>Appeal by the tenant from a final order in favor of the landlord, entered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

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

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

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, sixth district, borough of Manhattan, dismissing the complaint and awarding judgment in favor of the defendant upon a counterclaim contained in the answer, after a trial before the court without a jury-

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

Appeal by the plaintiffs from an interlocutory judgment, entered in the office of the clerk of the City Court of the city of New York, on the 25th day of September, 1908, sustaining the demurrer of the defendant to the first separate defense contained in the plaintiffs’ reply to the counterclaim set up in the amended answer.

Aeread by the plaintiff from a judgment of the City Court . of the city of New York, dismissing the complaint at the close of the plaintiff’s case.

Appeal by the plaintiff from a judgment of the Municipal Oourt, of the city of New York, sixth district, borough of Manhattan, in his own favor.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of 3STew York, eighth district, borough of Manhattan, rendered in favor of the plaintiff, after a trial before the court without a jury.</p>

-Appeal by the plaintiffs from an order of the Municipal Court of the city of ¡New York, third district, borough of Manhattan, dismissing the complaint as to the defendant railroad company and from an order setting aside a verdict of the jury in favor of the plaintiffs as to the defendant steamship company, and from the judgment entered thereon.

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

Appeal by the defendant from an interlocutory judgment overruling a demurrer to the complaint in the Municipal Court of the city of New York, second district, borough of Manhattan.

<p>Corporations — Eights of stockholders and actions by them — In general— Action against officers for penalty for refusal to exhibit stock book.</p> <p>Where a corporation had ceased business, given up its offices and deposited its books in a corner of a stock brokerage office where plaintiff, a stockholder, made a demand in writing and orally of two of the corporation officers for an inspection of the stock book, and the same night or the following morning a list of stockholders was mailed to plaintiff who acknowledged its receipt and requested the stockholders’ addresses; and where such facts appear in an action begun by him to recover the penalty, under section 53 of the Stock Corporation Law, for a refusal to allow him to inspect the stock book, commenced before a request for the stockholders’ addresses was received, no cause1 of action is established.</p>

<p>Contracts: Interpretation ef contract — Conditions precedent — What are conditions precedent: Performance of contracts — Particular acts constituting breach — What constitutes refusal to perform.</p> <p>Where plaintiff, in pursuance of a contract of employment with a corporation for a definite term, purchased certain shares of stock which, in the event of his death or his termination of the contract by a thirty days’ notice as therein provided for, the corporation agreed to repurchase at the same price or procure a purchaser therefor, a notice given by plaintiff only seven days before the end of the term of employment was not a compliance with the contract of employment.</p> <p>The contract only requiring the .corporation to procure a purchaser for the stock at the original price as soon as possible after the thirty days’ notice liad been given, the omission in the complaint, in an action for refusal and neglect to repurchase the stock or procure a purchaser therefor, to allege that the defendant with a reasonable effort could have found a purchaser for the stock at the agreed price was fatal; and a judgment overruling a demurrer thereto will be reversed and the demurrer sustained, with leave to plaintiff to plead over.</p>

<p>Deceit — Materiality of representations or matters concealed.</p> <p>In an action on a lease it is no defense that representations of the landlord that he himself was paying a certain rent for the premises induced the execution of the lease to plaintiff; but a representation that there was no restriction in plaintiff’s lease other than that the premises should not be used as a restaurant or saloon was of a material fact and, if false, was material to the defense of fraud in inducing the execution of the lease; and the exclusion of testimony thereof was error.</p>

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York in favor of the defendant for seventy dollars and eighty-three cents, and from an order denying the motion for a new trial.</p>

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

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

<p>Damages — Particular contracts and relations — Contracts for sale or purchase of land — Breach by vendor.</p> <p>Frauds, Statute of — Requisites and sufficiency of writing — Writings constituting memorandum — Sale of land.</p> <p>The memorandum required by the Statute of Frauds of the sale of real property must contain all the substantial and material terms of the contract between the parties.</p> <p>When the memorandum is complete as to the amount to be paid and no other terms are expressed the amount will be presumed to be payable in cash.</p> <p>In an action by the vendee upon the vendor’s breach of an agreement for the sale of real property where no special damages are pleaded, in the absence of fraud, the damages, if any, must' be limited to the return of the deposit with interest, and the expenses to which the plaintiff lias been put.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, sustaining the defendant’s demurrer to the amended complaint of the plaintiff and dismissing the said complaint with costs.</p>

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

<p>Landlord and tenant — Eights, duties and liabilities in regard to premises—■ Injuries from defective condition — Injuries to tenant’s property — Failure to repair — Notice of defect when required — Waiver of notice.</p> <p>Principal and agent — The relation between the parties — Creation and existence — Servant as agent.</p> <p>Where, in a lease of a loft in a building, the lessor agrees to make all repairs to the roof, but it is provided that he shall not be liable for damage caused by leakage unless he neglects to repair within a reasonable time after a written notice of such leakage; and where the tenant sues the landlord for damage to his goods from leakage, and it does not appear that any written notice was given as required by the lease, a waiver by the landlord is not established by proof that his bookkeeper and collector waived notice and promised to repair the roof, in the absence of express authority from the landlord to the bookkeeper to waive the provision of the lease requiring written notice to be given.</p>

<p>Landlord and tenant: Creation and existence of relation — Lease or license: Extensions, renewals and options to purchase or sell—■ Extension or renewal by holding over — Leaving property on premises.</p> <p>An agreement by which the right is given to erect and maintain a sign and change said sign, or the equipment thereof, from time to time upon the roof of a building, and granting access to the roof for that purpose during business hours, and providing that the lessee shall keep the roof in repair, so far as rendered necessary by the maintenance of the sign, and reserving to the owner the right to enter upon the roof and make improvements and for other purposes, under which the defendant entered upon the premises and occupied the same in accordance with the agreement and erected a sign, is a lease and not a license.</p> <p>And where, after the term prescribed by the lease has expired, the property of the lessee continues to remain upon the demised premises, there is a holding over by the tenant so as to eifeet a renewal of the lease. -</p>

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

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

<p>Evidence — Opinion evidence — Expert evidence — Subjects of expert evidence — Mechanical operations and questions.</p> <p>Although one who is familiar with the construction and operation of certain machinery is competent to testify as to facts derived from his observation, he is not competent to state his opinion upon the question as to whether the form of construction is prudent or the question whether the casualty or injury which is the subject of litigation could have been averted by the use of such a guard as the witness describes.</p>

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

<p>Appeal by the plaintiff from a judgment in favor of the defendants rendered in the Municipal Court of the city of Few York, second district, borough of Manhattan, awarding costs to the defendants upon the dismissal of the summons and from an order denying motion to amend same.</p>

<p>¡Municipal Courts — Review — Record and return — Stipulation as substitute for case.</p> <p>Upon an appeal from a judgment of the Municipal Court of the city of New York, a stipulation by the attorneys for the respective parties that the annexed transcript of the stenographer’s minutes is correct and that the case on appeal “be settled by consent as filed herewith ” cannot be substituted for a ease settled and allowed by the trial justice as required by section 317 of the Municipal Court Act.</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, third district, borough of Manhattan.</p>

<p>Plumbing — Licenses — Statute requiring license applicable to corporations.</p> <p>A corporation engaged in the plumbing business in the city of New York is subject to the provisions of chapter 803 of the Laws of 1896 requiring registration by plumbers and cannot recover for work, labor and services performed by it in violation of the provisions of the statute.</p>

Appeal hy the defendant, Ghilde H. Childs, individually, and as a member of the firm of Howard & Childs, from a judgment of the Municipal Court of the city of ¡New York, sixth-district, borough of -Manhattan, rendered in favor of the plaintiffs. The suit was discontinued as against the other defendant sued as “ Howard & Childs.”

<p>Sales — Conditional sales — Recovery of price after re-taking — What ■ constitutes re-taking — Custodia legis—Lien Law, § 116.</p> <p>The taking of property which is the subject of a conditional sale by a city marshal in replevin at the suit of the vendor is not such a taking as is contemplated by the provisions of section 116 of the Lien Law, but the property thus taken is in custodia legis and not in the custody of the plaintiff.</p>

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

<p>Damages — Particular contracts and relations — Contracts for sale or purchase of goods — Breach by seller — Where no market exists.</p> <p>The rule that the measure of damages, in an action by the vendee against the vendor for breach of a contract to sell and deliver goods, is the difference between the contract price and the market price of the goods at the time and place of delivery is not applicable to a sale of merchandise as to which there is no market; and, when there is a conflict of testimony as to the fact of the existence of a market for the merchandise in question, it is error for the trial court to refuse to submit that question to the jury.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, third district, borough of Manhattan, dismissing the complaint after a trial before a jury.

<p>Fraudulent conveyance — Who may attack and conditions precedent — Conveyance to defeat unliquidated claim for tort.</p> <p>Parties — Intervention — Persons entitled — One not yet a judgment creditor.</p> <p>One who has a claim against a corporation for damages for personal injuries, upon which she has once recovered a judgment that was afterwards reversed upon appeal, has no interest in the corporate property which entitles her to be made a defendant in an action brought for the foreclosure of a mortgage thereon given to secure the payment of corporate bonds.</p> <p>Nor has such claimant any such interest by reason of interlocutory orders made in the progress of the litigation awarding to her costs that have not been paid.</p> <p>The claimant has no standing to attack the acts of the plaintiff in the foreclosure suit as a fraud upon her rights until she has actually recovered judgment and an execution thereon has been returned unsatisfied.</p>

<p>Certiorari proceedings. The opinion states the case,</p>

<p>Application for confirmation of commissioners of appraisal.</p>

<p>Municipal Courts — Procedure — Judgments — When plaintiff must provq his case; Entry on- consent or stipulation — Necessity for filing offer or consent.</p> <p>Except in an action commenced in the Municipal Court of the city of New York to foreclose a mechanic’s lien, or an action founded upon contract in which a copy of a verified complaint is served, where defendant fails to appear on the return day of the summons, plaintiff must prove his case.</p> <p>That plaintiff's attorney had a stipulation signed by defendant’s attorneys consenting to the entry of judgment against the1 defendant was insufficient to justify such entry, as an offer of judgment must, under section 148 of the Municipal Court Act, be filed with the court; and an application for a mandamus directing a justice of the court to enter judgment by default in plaintiff’s favor will be denied.</p>

<p>Motion for a writ of mandamus.</p>

<p>Application for a peremptory writ of mandamus.</p>

<p>Supplementary proceedings: Property which may be reached — Salary of officer — Fees as juror: Proceedings to examine judgment debtor — Order for examination—Vacating — Judgment debtor engaged in jury duty.</p> <p>An order in proceedings supplementary to execution served upon the clerk of the board of supervisors forbidding him to pay to the judgment debtor fees earned or to be earned as a juror while in attendance at a term of court then in session is unauthorized.</p> <p>An order in supplementary proceedings for the examination of a judgment debtor may be served, on Mm while attending court as a juror; and, if such service interferes with his duties as a juror, the matter may be brought to the attention of the court by motion.</p>

<p>Parties—Amendments — Change of name of defendant — Party designated by fictitious name.</p> <p>Process: Issuance and formal requisites — Designation of parties — Unknown parties; Misnomer: Defects and amendments—Amendment — Name of party.</p> <p>Supplementary proceedings: Judgments or orders on which proceedings may he based — Void judgment: Parties — Who may be proceeded against — Party designated by fictitious name.</p> <p>If a defendant appear and submit himself to the jurisdiction of the court, any mistake in his name can be corrected as a matter of course.</p> <p>Where a summons is issued against a defendant by a wrong name and he does not appear, the judgment against him is void; and the defendant may raise the question of jurisdiction in supplementary proceedings, though he has not appealed from the judgment; and he cannot be punished for contempt in -failing to obey an order for his examination in supplementary proceedings based upon such void judgment.</p> <p>Where a person uses two names, he may be sued by either, and a record containing either name will be regular.</p> <p>Where a person has been sued by a fictitious name or by a name part of which is designated as fictitious, the real name being unknown, and the person fails to- appear, a judgment predicated thereon is irregular unless the summons and the judgment contain a description sufficient for the identification of the defendant for the purpose of having execution against the property of the debtor thus described.</p> <p>Such a judgment is not void, but irregular, and no execution ■may be issued thereon, nor may an order for examination in supplementary proceedings be granted upon such a judgment.</p> <p>Where the proper name of the defendant or judgment debtor is known, the judgment proceedings must be amended by inserting the proper names before any further proceedings can be had if objection be made.</p> <p>A plaintiff is not allowed to use a fietitidus name at his discretion, but only where he is ignorant of the true name of the defendant.</p> <p>An examination in proceedings supplementary to execution may be had where the name of the defendant is given as fictitious, provided there is added to the fictitious name a description of the person sufficient to identify the person intended, but, where the true name is known, the proceedings must be amended.</p>

<p>Contempt: What constitutes — Misconduct — Interposing false affidavits — On motion to vacate judgment: Punishment—Amount of fine — Counsel fee.</p> <p>Former adjudication—Adjudications operative as har or as conclusive evidence — In general — Interlocutory decrees or orders as res adjudicata — Denial of motion to set aside judgment.</p> <p>Where, on motion to vacate a judgment by default upon the ground that defendant had never been served with the summons and complaint, the matter is sent to a referee whose report that defendant had been properly served was confirmed, and it appears that there were twelve full hearings at which over five hundred pages of testimony were taken and that the referee took twelve days in reading the same and preparing his report, a charge of $500 for referee’s fees, $420 for stenographer’s fees and $10 motion costs is not excessive.</p> <p>The attorney for the plaintiff, for services rendered before the referee and upon a motion to punish the defendant for contempt in procuring by perjury and deceit orders from the court impairing, impeding and prejudicing plaintiff’s rights and remedies and in causing him actual injury and expenses incurred to resist said orders, may be allowed $1,000 asked for, it appearing upon an examination of the papers used upon the motion that for the services performed the charge was fair and reasonable.</p> <p>Where no appeal was taken from the order of confirmation of the referee’s report which found as a fact that when the defendant made affidavit he was not served with the summons and complaint he swore falsely and acted deceitfully, the court, for the purposes of a motion to punish defendant for contempt, must assume that defendant had been served.</p> <p>Where, upon a motion to vacate a judgment by default, defendant swears in his moving affidavit that he was not served with the summons and complaint and obtains the evidence of others in corroboration and thereon obtains a stay of all proceedings upon the judgment, and upon a reference it is found as a fact that he was properly served with the summons and complaint, he is guilty of practicing “ deceit ” upon the court within the meaning of section 14 of the Code of Civil Procedure and is punishable as for a civil contempt.</p>

<p>Supplementary proceedings. The opinion states the case.</p>

<p>Constitutional law — Privileges and immunities of citizens and equal protection of laws — Discrimination against particular classes ot persons — Power to license arbitrarily.</p> <p>Highways — Control of highway — Power of town hoard to restrict use and issue license.</p> <p>Towns — Town officers and agents — Power to regulate use of highways; Licenses to use highways.</p> <p>By virtue of the powers conferred upon town boards by chapter 306 of the Laws of 1906, a town board is vested with authority to properly regulate the transportation over its highways of wagons conveying garbage and to impose penalties for the violation of such regulations.</p> <p>Under the provisions of said act of 1906, giving town boards and other town officials power to grant licenses in certain specified matters, a town board has no authority to exact any license for the privilege of using the highways of the town for any purpose.</p> <p>An ordinance of a town board regulating the transportation of garbage along and over its highways which provides that “No person or corporation shall carry or convey or cause to be carried or, conveyed any house, table or kitchen refuse, or any offal, garbage, dead animal, decaying vegetable matter or organic waste substances of any kind through any street or alley * * * in any vehicle unless the written consent of the commissioner of -highways shall have theretofore been obtained by such person or corporation ” is illegal and void, as it leaves the matter of regulation to the option and arbitrary power of the highway commissioner to grant or refuse his consent and thereby violates the constitutional provisions guaranteeing to all citizens the equal -protection of the laws.</p>

<p>Food — Substances in imitation of butter — Violation of section 26 of Agricultural Law, what constitutes.</p> <p>Injunction — Preliminary injunction — Papers on motion for injunction — Necessity for affidavit — Certificate under Agricultural Law as substitute for affidavit.</p> <p>In an action by the People to recover a penalty for alleged violation of the Agricultural Law in the sale of oleomargarine or butterine, the plaintiff is entitled to a .preliminary injunction - to restrain the further sale only where the necessary proof of the alleged violations is supplied by affidavit as required by section 10 of the act; and the court, upon motion for the injunction, may not consider a duly acknowledged certificate signed by a chemist employed by the Commissioner of Agriculture, though section 6 of the act makes every such certificate presumptive evidence of the facts therein stated.</p> <p>Where the moving affidavits upon the motion for the injunction simply state that defendant sold an article marked “ -oleomargarine ” which the assistant commissioner of agriculture s-wore looked and smelled like natural butter, and there is no proof that any foreign or artificial product was added to give it the appearance of dairy butter, and it appears that it was manufactured under the inspection of the United States government officials and was sold for oleomargarine and nothing else, the motion for. the injunction will be denied because of failure to prove a violation of the provisions of section 26 of the Agricultural Law.</p>

<p>Motion to vacate injunction.</p>

<p>Application for an injunction pendente lite.</p>

<p>Application for an injunction pendente lite.</p>

<p>Eminent domain: What constitutes taking of property so as to entitle to compensation — Easement in lands taken: Condemnation proceedings — Filing survey and map of lands — Sufficiency of map to extinguish easement upon taking servient estate.</p> <p>Where the owner of a lot of land in the city of New York made an agreement with the owner of the lot adjoining him on the east by which the owner of the latter lot granted to him the right or easement to insert in the westerly wall of the building then standing upon the east lot the beams of a new building about to be constructed by the owner of the west lot and to maintain such beams in said wall as long as the same should stand; and where under the Rapid Transit Act (L. 1891, ch. 4) the Public Service Commission, in acquiring lands for public use, prepared maps or plans with memoranda showing the premises of the owner of the east lot and filed the same and gave notice thereof, hut such plans or memo randa did not show the easement of the owner of the west to although they declared, in terms, that they included particular &, tates, rights, terms, privileges, franchises or easements to hi acquired or extinguished in relation to each and every piece o parcel of property taken, the city and Public Service Dommissione' have no right to demolish the westerly wall of the building standi, on the east lot; and, in an action by the owner of the domin estate, an injunction should be granted until the defendants ar their proceedings so as to permit the owner of the dominant ■to be compensated for the property which will be destroyed n „ commission desire to acquire his easement.</p>

<p>Motion for judgment on the pleadings.</p>

<p>New trial — Proceedings to procure new trial — Conditions on granting or refusing new trial — Payment of costs as condition to granting new trial.</p> <p>Where a general verdict is rendered against two alleged joint tort feasors and the verdict is set aside because of injustice done to one of them, costs will not be imposed as a condition in the First Judicial Department of the State.</p>

<p>Motion by a person not a party to the action to he brought in and to be made a party plaintiff.</p>

<p>Motion for a compulsory reference.</p>

<p>Action against a stock corporation after voluntary dissolution to recover damages.</p>

<p>Action against a surety company on a bond.</p>

<p>Motioh on behalf of John H. Hicks, as receiver of the American Underwriters Fire Insurance Company of Monroe County, an insolvent co-operative county insurance corporation, for an order confirming the report of George D. Peck, referee appointed to ascertain as to the debts of the said company and the members thereof liable to assessment therefor, in an action brought by the plaintiff as a judgment creditor to sequestrate the property of the defendant.</p>

<p>Motion for new trial, after verdict of jury in favor of plaintiff for $48,482.81.</p>

<p>Deeds: What are deeds — Deed or will: Interpretation generally — Deed construed as whole.</p> <p>Where one executed and delivered to his nephew a deed purporting to convey certain real property but which contained a provision that no title should pass to the grantee until the grantor’s death, and that all of the rents and income of the property should belong to the grantor for and during his lifetime and and that the grantor should have the exclusive control, management and care of the property until his death when the grantee should become under the conveyance the absolute owner thereof in fee simple, subject to any and all incumbrances and taxes that might be then upon or against the same unpaid and also subject to the grantor’s debts and funeral expenses, the payment of which was thereby made a charge and lien upon said property, such deed cannot be construed as a present grant of a future estate.</p> <p>Such provision is not void as being repugnant to the grant but should be read with the other parts of the instrument to ascertain the intention of the parties.</p> <p>Such deed was executed for the purpose of talcing the place of a will and was an attempt at testamentary disposition and, therefore, inoperative as a deed, without effect and void.</p>

<p>Action for a separation.</p>

<p>Adverse possession: Necessity of hostility of claim — What constitutes recognition of superior title ■—• Asking owner not to interfere with claimant: Necessity of color of title — Statute releasing lands escheated.</p> <p>Escheat — Eights of releasees from State.</p> <p>Where a naturalized citizen of the United States died intestate March 6, 1874, owning lands in the State and leaving a wife and heirs at law all of whom were aliens, his lands escheated to the State of New York subject to his wife’s claim of dower therein.</p> <p>By the provisions of chapter 261 of the Laws of 1874, the right of alien heirs was so extended as to vest the title of the State in the lands of the decedent in his heirs at law.</p> <p>Chapter 121 of the Laws of 1875, which was entitled an act to enable the widow of the decedent to take and hold real estate and to release to her the interest and title in lands escheated to the State and which, in terms, authorized her to take, hold and dispose of her dower and any interest in said lands whereof her husband died seized or was the legal or equitable owner at the time of his death, and which also contained the provision that nothing contained in said act should be so construed aa to affect the right of any heir, devisee or purchaser, or of any creditor by mortgage or judgment, or otherwise, relating to said real estate, was insufficient to divest the heirs at law of the decedent of their interest in his lands, but said act was a sufficient foundation upon which to base a claim of title by adverse possession on the part of the widow.</p> <p>The fact that prior to the passage of the act of 1875 the widow asked one of the heirs at law of the decedent not to interfere with her and that he replied he would not so long as she lived is not to he taken as an acknowledgment on her part which would destroy the character of her possession under said act as adverse to the heirs at law of said decedent.</p>

<p>Action upon a policy of title insurance.</p>

<p>Fixtures — Annexation as determining intent: Sufficiency of annexation generally; Effect of annexation as between owner of land and contractor—Fixtures subject of mechanic’s lien.</p> <p>Mechanics’ liens — Nature of claim sufficient to support lien — Furnishing fixtures — l'ce boxes in apartments.</p> <p>Where over forty ice boxes are specially constructed for the purpose and one of them is placed in the kitchen of each apartment in an apartment building over a drain or sieve connected with plumbing to carry off the water, and the boxes were ordered and installed by the owner of the building whose dealings indicated his intention to use them in the building and to dispose of them with it; and where the boxes are used by the tenants of the apartments, though not physically attached to the walls or floors of the building, the circumstances attending their installation amount to their constructive annexation to the realty and they are the proper subject of a mechanic’s lien.</p>

<p>Action for money paid for the use and benefit of the defendant.</p>

<p>Motion to set aside verdict in plaintiff’s favor for $2,000, and for a new trial.</p>

<p>Motion to set aside a verdict and for a new trial.</p>

<p>Former adjudication — Causes of action barred or merged in general —- Identity of subject-matter.</p> <p>The bare fact that two causes of action spring out of the same contract does not'ipso facto render a judgment on one a bar to a suit on the other.</p> <p>A judgment in favor of a saleswoman for salary and expenses to the date of her discharge is not a bar to an action in her favor against her employer for wrongfully discharging heir.</p>

<p>Action to recover statutory fees for publishing election notices.</p>

<p>Action to recover salary.</p>

Action to compel the principal debtor by payment to the creditor to cause the exoneration of the accommodation guarantors1 of certain liens upon the note of the accommodation maker. Motion to restrain the prosecution of the creditor’s actions against the accommodation parties pendente lite.

<p>Receivers — Title and rights in and possession of the property — Rights as between receivers, claimants or lienors — Rights as against assignee in bankruptcy and for benefit of creditors.</p> <p>The proceeds of a sale of a bankrupt’s seat in the Stock Exchange, after the deduction of claims payable under the rides of the Exchange, are payable to his trustee in bankruptcy and not to a receiver in supplementary proceedings appointed prior to the adjudication in bankruptcy, where the receiver instituted no proceedings and took no steps to obtain the fund until after the trustee in bankruptcy had been appointed apd the sale of the membership had taken place.</p>

<p>Demubbee to complaint.</p>

<p>Mistake — Nature and importance of mistake in general.</p> <p>Reformation of instruments — Right to remedy — Mistake — Necessity that mistake should be mutual.</p> <p>Rescission of contracts — Grounds in general — Mistake as to quantity of land.</p> <p>The general rule is that a contract made under mistake or ignorance of a material fact is voidable and relievable in equity and an action lies for its rescission but it cannot be reformed unless the mistake is mutual.</p> <p>Where plaintiffs agreed to convey to the defendant board of education of a school district certain lands for a certain sum payable in two installments, and defendant, upon discovering that there had been a mistake as to the quantity of land to be conveyed, refused to make the final payment, and, in an action to foreclose the contract, defendant asks for its reformation upon the ground of mutual mistake; and it appears that the contract originated in mistake not mutual and about the same thing but different on the part of each party, it would be unjust to grant foreclosure of the contract, neither should the contract be reformed and plaintiffs compelled to deed land not intended and which had already been conveyed to another, but the court, in the exercise of its equity powers, should rescind and cancel the contract and direct repayment to defendant of the money already paid thereon, without interest, and that defendant should have a lien on the premises contracted to be conveyed to secure such repayment.</p>

<p>Wills — Interpretation and construction — Expenses of the" estate’, charges, advancements and payment of debts and legacies — Words relating to advancements — Advancements intended.</p> <p>The fourth clause of a will, directing payment of $500 to a son of the testator upon the death of his wife, provided that any “ advances ” which might be made to the son after the date of the will and during the lifetime of the testator should be deducted from the payment of the $500 as so much paid thereon. After the payment of said legacy the residue of the estate, real and personal, was devised and bequeathed to another son. There being a deficiency of personal assets, in an action to have the legacy of $500 declared a charge upon the real estate and to have it sold to pay the same, it appeared that, when the will was made, in 1889, testator was an indorser upon an overdue note for $500 made in the name of a firm of which his son, the plaintiff, was once a member, but the money on which note had been obtained by plaintiff and put by him into the business of the firm which, at the date of the will, had long been dissolved and up to that time testator had paid nothing on behalf of plaintiff and had given nothing to him. Held, that the payment by testator of the note which he did not destroy but kept among his papers constituted an “ advance ” in its legal sense within the meaning of the fourth clause of the will, and that plaintiff was not entitled to the relief demanded in his complaint.</p>

<p>Bonds — Execution and formal requisites — Discharge of sureties. Guardian and ward — Appointment, qualification and tenure of guardian — Proceedings for appointment — Bonds — Discharge of sureties.</p> <p>Since the amendment of 1900 to section 812 of the Code of Civil Procedure the surety upon the bond of a guardian of an infant is entitled as matter of right to be discharged from liability upon notice to the principal.</p> <p>But the court in such case is without power to impose as a condition of granting the discharge that the premiums paid by the guardian to the surety shall be repaid where no written demand therefor is proved.</p>

<p>Motion for a new trial.</p>

<p>Ti-iree indictments for violation of the Excise Law.</p> <p>Motion to dismiss the same upon the grounds that, when the evidence was presented to the g’rand jury and the indictment found, no court was in session at Oswego, and the acts of the grand jury were .void.</p>

<p>Demurrer to complaint.</p>

<p>Vendor and purchaser — Eights and liabilities between date of sala and delivery of deed — Eemedy on mistake or fraud as to quantity.</p> <p>A vendee under a contract for the purchase of real property may maintain an action for an abatement of the purchase price, where there is a material deficiency in the actual quantity of the land sold, of which the parties were ignorant at the time the contract was made, although the contract contains the words “ about ” and “ more or less ” in referring thereto.</p>

<p>Parties — Plaintiffs — One or more suing for benefit of all — Not applicable to action to determine validity of probate of will.</p> <p>Wills — Actions to annul or to determine validity of will — Procedure: Parties — One or more suing for benefit of all: Pleading — Complaint — Sufficiency.</p> <p>The provisions of section 448 of the Code of Civil Procedure, that, where the question is one of a common or general interest of many persons or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all, are not applicable to an action to determine the validity of the probate of a will; nor do .they authorize the court to dispense with the requirement contained in section 2653a that all the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be made parties to the action.</p> <p>In such a case, there is no practical difficulty in making all the parties interested actual parties to the action, either by joining them as plaintiffs with their consent or by making them defendants;- such of them as can be named may be named, and such of them as are unknown by name to the plaintiff may be brought into court under section 451 by the service of process.</p> <p>In such a case, where the complaint describes one of the defendants as executrix of the estate of the deceased and alleges that she is the sole executrix of the deceased and is named in said alleged will as the sole legatee and devisee, but there is no allegation that the deceased left any last will and testament which had been admitted to probate, nor that the defendant has been appointed and qualified as executrix of such will, the complaint does not state facts sufficient to constitute a cause of action, and a demurrer thereto upon that ground should be sustained.</p>

<p>Appeal by the plaintiff from an order of the City Oourt of the city of New York denying an adjournment of the above entitled action and dismissing the complaint and also from an order denying a motion to open the plaintiff’s default and restore the case to the calendar for trial.</p>

<p>Carriers — Carriage of goods —Actions against carrier.—Admissibility of evidence — Opinion of expert as to packing of goods injured; Declarations of alleged agent without proof of agency.</p> <p>Evidence — Opinion evidence — Expert evidence — Subject of expert evidence— Manner of packing goods.</p> <p>Principal and agent—Actions by and against third persons — Evidence — Declarations of alleged agent without proof of agency.</p> <p>To justify a recovery against a carrier for breakage of goods while in transit, the plaintiff must prove that the goods when delivered were in good condition and properly packed for transportation.</p> <p>In such case, a witness, who testified that he had been engaged for forty-two years in the machinery business, for ten or fifteen years in the packing of machinery in railroad ears for transportation, and that during that time he had packed and shipped hundreds of car-loads of machinery, is competent to give an opinion ■ as an expert as to whether the bookbinding machinery in suit was properly packed for transportation, although he was not familiar with sueh machinery except in a general way.</p> <p>The declarations and admissions made by alleged agents of the defendant, without competent proof as to their authority to make such statements, are inadmissible.</p>

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

<p>Carriers — Carriage of baggage and passengers’ effects — In general — Limitation of liability — Upon ocean voyage.</p> <p>The sale and purchase of a passage ticket for an ocean voyage is usually conducted with such caution and deliberation as to invest the transaction with the elements of a contract.</p> <p>Where plaintiff purchased a first-class steamship ticket containing a clause providing that the company’s liability for loss or damage to baggage should be limited to $100 unless its full value was insured under a floating policy of the company; and where no such insurance was taken out, although plaintiff’s agent who purchased the ticket testified that he cod'd neither speak nor read the language in which the ticket, was printed, the defendant’s liability is limited to $100.</p>

<p>Contracts — Interpretation of contracts — Inception and duration of contract— Inception of contract.</p> <p>Offer and acceptance — Extinguishment of offer and acceptance — Lapse of offer — Death of offerer,</p> <p>A complaint in an action against administrators which alleges that, at the instance and request of their intestate, plaintiff, three days after the death of the intestate, performed certain work, labor and services and furnished certain materials is demurrable upon the ground that it does not state facts sufficient to constitute a cause of action; as the request of defendants’ intestate was a mere offer which, not having been acted upon or accepted by plaintiff prior to the death of the intestate, was revoked thereby.</p>

<p>Principal and agent — Mutual rights, duties and liabilities — Remedies as between the parties—Actions against agent for property or account— When action for conversion not maintainable.</p> <p>Pleading — Matters relating to pleadings generally — General rules — Pleading matters of evidence.</p> <p>Where an agent owes no duty to pay over specific moneys to his principal when received, a cause of action for a balance due to his principal is one arising upon contract.</p> <p>Where the only allegation of a complaint in an action against an agent for the alleged conversion of money received for his principal bearing upon defendant’s indebtedness or failure to account is “ that the books * * * showed that the defendant had taken from said business and wrongfully converted to his own use ” a specific sum, "the complaint, unless amended, should he dismissed as tendering no issue; such allegation amounting to no more than a statement of the existence of evidence to prove a fact and not an allegation of the fact.</p>

<p>Bailment — Conversion by bailee—When not maintainable.</p> <p>Where the loss of plaintiff’s horse in control of defendants as ■bailees was .due to their omission to place the horse in a barn at night, as agreed, and the horse either escaped or was stolen, an action for conversion will not lie; and, in the absence of defendants’ consent to the determination of plaintiff’s claim upon a theory at variance with the pleadings, a recovery in plaintiff’s favor cannot be upheld.</p>

<p>Appeal from an order of the City Court of the city of ¡New York, denying plaintiff’s motion for a retaxation of the bill of costs herein.</p>

<p>Evidence — Res gestee — Declarations and conduct at time of accident.</p> <p>The subsequent declarations of a plaintiff in a negligence action bearing upon the cause of the accident and made at a time when she was fully conscious are self-serving and, forming no part of the res gestee, are inadmissible.</p>

<p>Evidence — Opinion evidence —Nonexpert evidence — Distinction between direct and opinion evidence and subjects of opinion evidence — Identity — Of parties to conversation by telephone.</p> <p>Where the issue in an action related to the terms of orders given by plaintiff, a customer, to defendants, his brokers, in a conversation over the telephone between defendants’ agent and plaintiff’s wife speaking by his authority, the testimony of a witness who had listened to the conversation by the use of another telephone at defendants’ place of 'business is competent to show 'that the conversation overheard was the same testified to by plaintiff, where the actual connection between the three instruments is shown in such wise as to identify the conversation and the persons holding it are known.</p>

Appeal by the defendant from a judgment of the City Oourt of the city of New York, entered in favor of the plaintiff by direction of the court.

<p>Instructions — Power of court and necessity—Allusion to failure of party to testify or to produce obtainable testimony.</p> <p>Where a witness for defendant was permitted to testify, over objection, that plaintiff had repeatedly subpoenaed him and had him in .court and that he had talked with the plaintiff and the plaintiff’s architect, and it is not shown that the witness, who was asked no questions as to his knowledge of ¡the merits of the case, was in the employment or under the control of the plaintiff or in any way related or more friendly to plaintiff than to defendant, a judgment entered upon a verdict for plaintiff will be reversed where the judge charged the jury: “ You may take into consideration the fact, that if one side has subpoenaed a witness and has failed to call that witness, you can, if he is a witness to a material fact, from that presume that the testimony of that witness would be against the party failing to call or produce that witness.”</p>

<p>Insurance: Construction and operation of contract—Accident insurance: Extent of loss — Life and accident insurance—Effect of recovery of damages upon person liable for injuries: Actions on policies — Weight and sufficiency of evidence — Judgment against assured as proof of liability.</p> <p>A policy of insurance against loss by reason of the liability imposed by law for damages for bodily injuries accidentally suffered by means of a team belonging to the insured is an insurance against liability; and proof of a recovery of a judgment against the insured for such a liability is sufficient to establish a right of action against the insurer on the part of the person insured without loss actually sustained and paid in money by him in satisfaction of a judgment after trial.</p> <p>In such an action, where the policy was not offered in evidence, the defendant is in no position to object that a clause alleged to be contained in the policy was not complied with by the plaintiff.</p>

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

Appeal by the defendant from four judgments in favor of the plaintiff, rendered in the Municipal Court of the city cf ¡New York, sixth district, borough of Manhattan.

<p>Appeal by the defendant from an order of the Municipal Court of the city of New York, first district, borough of Manhattan,</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, rendered in favor of the defendant, upon a counterclaim contained in his answer, after a trial by the court without a jury.

<p>Landlord and tenant — Rent and advances — Rights and liabilities — Deposits and other security — When not subject of counterclaim before end of term though tenant dispossessed.</p> <p>Where tenants make a deposit under a lease which provides that in the event of their default the usual deposit shall be retained by the landlord until the expiration of the lease to cover any breach of its condition, and, if the landlord in the meantime commence summary proceedings for enforcing its rights, such provision shall survive any such proceedings and no action shall be brought by •the tenants or their assignees for the recovery of the deposit until tire expiration of the lease, the tenants may not counterclaim such deposit in an action by the landlord for rent after the recovery of possession by the landlord under summary proceedings prior to the expiration of the lease.</p>

<p>Master and servant—■ Master’s liability for injuries to servant—Actions— Weight and sufficiency of evidence — Defects in tools or appliances.</p> <p>Where, in an action by a servant to recover damages for personal injuries, it appears that the injuries were occasioned by the falling of a piece of lumber caused by the breaking of a rope passed under it with which the lumber was tied while being lowered by steam power into the hold of a vessel, and where it does not appear that the rope in question was not amply sufficient to sustain any reasonable burden that a person of ordinary prudence would place upon it, or that was intended to. he placed upon it, and that its breaking was not caused by an unusual and extraordinary load placed upon it by a fellow servant for whose acts the defendant could in no way be made responsible, nor what amount of strain the rope was expected to be subjected to in the use to which it was being put, nor even what the size of the rope was, nor that the load bearing upon it when it broke was placed there by the direction of the foreman, or that he had the slightest knowledge of its weight, the mere fact that the rope was old is immaterial, unless accompanied by proof of its unfitness for the purpose for which it was intended to be used; and the fact that it broke while being used, unaccompanied by proof of any other circumstance showing negligence on the part of the defendant, is insufficient to sustain the plaintiff’s cause of action.</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, b'orough of The Bronx.</p>

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

Appeal by the defendant from a judgment in .favor of the plaintiff, entered in the City Court of the city of New York, upon the verdict of a jury.

<p>Damages—Particular contracts and relations — Contracts for sale or purchase of goods — Where no market exists — Special damages.</p> <p>Where, in a contract for the sale of goods, the seller knows that the buyer has an agreement to sell them to a third party at certain prices shown to be fair and reasonable, and the seller fails to deliver the goods, the rule that the damsges are to be measured by the difference between the contract price and the market price at the time and place of delivery does not apply, where it appears there is no market for the goods and the buyer was- unable to procure them elsewhere.</p> <p>In such a case, the buyer may recover the special damages he has sustained by reason of his inability to carry out his agreement with such third party.</p>

Appeal hy the defendant from an interlocutory judgment of the City Court óf the city of New York, overruling its demurrer to the complaint.

Reargument of an appeal by the tenant from a final order in favor of the landlord, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.