Volume 64 — New York Supplement

<p>Municipal Court—Jurisdiction—Record.</p> <p>In an action in municipal court of New York City, the jurisdictional fact that the defendant is a resident of the city must appear in the record.</p>

Action by George Eobinson, Sr., against Amanda J. Young for conversion. From an order granting a new trial after verdict for plaintiff, he appeals.

Action by Quee Drug Company against Albert Plant and another to cancel and annul a chattel mortgage. From a judgment in favor of plaintiff, defendants appeal.

<p>1. Appeal—Jurisdictional Facts—Record. •</p> <p>Where the record does not show that defendant is a domestic corporation having its principal place of business within the jurisdiction, and there is no evidence tending to show jurisdiction over the defendant, a judgment against such defendant must be reversed.</p> <p>2. Same—Objections to Jurisdiction.</p> <p>An objection that it nowhere appears in the record that the court had jurisdiction over the defendant may be taken for the first time on appeal. 8. Costs on Appeal—Objections to Jurisdiction.</p> <p>Where an objection that the record does not show jurisdiction over the defendant is taken for the first time on appeal, the court will reverse a judgment against such defendant, and order a new trial, without awarding costs.</p>

<p>Appeal from special term, Suffolk county.</p> <p>Action by the town of Huntington against Andrus L. Titus and another. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Georgiana Zeiner against the Mutual Reserve Fund Life Association. From an order denying defendant’s motion to require plaintiff to reply to certain averments of new matter by way of avoidance, defendant appeals.</p>

Action by Mary Kelly against the Brooklyn Heights Railroad Company for injuries. From a judgment in favor of plaintiff and from an order denying a motion for a new trial, defendant appeals.

<p>1. Railroad Crossing—Accident—Evidence—Conflict.</p> <p>Evidence of one stationed and alert for the purpose of looking and listening for the approach of trains and giving warning thereof, that he neither heard nor saw an approaching train, is not mere negative evidence that no warning of approach was given, and, where corroborated and contradicted, and the conflict is passed on by the jury, the judgment rendered on the verdict will not be reversed on appeal.</p> <p>2. Same—Contributory Negligence—Finding.</p> <p>Where a railroad company has created such conditions by the interposition of cars on a siding, though for plaintiff’s convenience in unloading, as to prevent a view of its tracks, and the driver of plaintiff’s wagon, seeking to cross the tracks, obeys the instructions of a fellow workman stationed to look and listen for approaching trains, the jury’s finding that no negligence of the driver contributed to an accident in which the horses and wagon were struck by a passing train is sustained by the evidence.</p>

Action by William H. Granbery against William Gardner and another. Prom a judgment in favor of the defendants, and from an order denying a new trial, plaintiff appeals.

Action by Estella A. Thurber against the Commercial Travelers’ Mutual Accident Association of America. From a judgment dismissing the complaint at the close of plaintiff’s case, she appeals.

Suit by Alexander G. ¡Nicholson against Theresa Cinque to foreclose a mortgage. From a judgment for defendant, plaintiff appeals. Judgment modified and complaint dismissed without prejudice.

<p>Appeal from trial term, Dutchess county.</p> <p>Action by Gaius C. Bolin, receiver, against James A. Thompson •and others. From a judgment in favor of plaintiff, certain defendants appeal.</p>

Action by Frank C. G-men against the Trustees of the Peabody Education Fund, impleaded with J. Pierpont Morgan. From an interlocutory judgment overruling a demurrer to the complaint (60 N. Y. Supp. 896), the trustees appeal.

Action by Alfred D. Whittal against the city of Hew York for an injury occasioned by the plaintiff falling over a rope which a .grocer had tied along the curb from one awning post to another to support Christmas trees exhibited for sale. Verdict for plaintiff. Motion by defendant for a new trial on the minutes.

<p>1. Discovery—Books op Adverse Party—Inspection.</p> <p>Where, in an action by a stockholder in a street-railway company against the corporation and another company, based on a violation of a contract entered into between the companies, an order is asked to examine defendants and inspect books, for the purpose of framing the complaint, and the affidavit therefor shows that the plaintiff is in possession of facts sufficient to enable him to frame his complaint, it is not error to refuse to make the order.</p> <p>2. Same—Order to Inspect Books.</p> <p>An application for an examination of books and papers in the possession of an adverse party may be made after issue is joined.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Holland Emslie and another against Edward Livingston. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Building Contracts—Evidence—Specifications.</p> <p>. Where, in an action for extra work in performance of a building contract, defendant introduced plans, etc., which were not the same as those defendant had had, but defendant testified they were the same plans on which plaintiff figured, a motion to strike the plans from the record on the ground that defendant must show the actual plans that went into plaintiff’s possession was erroneously granted, since those produced were sufficiently established.</p> <p>2. Same.</p> <p>Where, in an action for extra work in connection with a building contract, evidence that plans introduced by defendant were the same as those figured on by plaintiff was not controverted, but such plans were erroneously stricken out, the court erred in disregarding evidence that, changes made in the work were not due to plaintiff’s failure to follow the plans introduced, but that the work was done in accordance with them, where the evidence that the plans were the same was not stricken.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Philip A. Campbell against the Wayne Building, Loan & Accumulating Fund Association for the collection of certain certificates issued by defendant. From a judgment for plaintiff, defendant appeals.</p>

<p>FntE Insurance—Earned Premiums—Parties.</p> <p>The agent of a fire insurance company, who insured certain property, and afterwards canceled the policies because the owner refused to pay the premiums, could not maintain an action for the premiums earned while the policies were in force, when such claim was not assigned to him by the company, as he was not the real party in interest.</p>

Action by Anthony Fluhr against the Manhattan Railway Company. From a judgment in favor of the plaintiff, and an order denying a new trial, defendant appeals.

<p>Action by Henry A. Skinner against the New York, Ontario & Western Railroad Company.</p>

Action by Flora S. Rich and others against James A. Conley to recover damages and a penalty tor a wrongful delivery of property replevied.

. Action by John B. Thompson against the Chatham Waterworks Company to recover the price of certain windmills and pumps. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.

<p>Instruction—Exception—Appeal.</p> <p>A mere exception to an instruction, with no request to charge that there was no evidence pro or con on the facts concerning which the jury wished to be instructed, is not sufficient to raise the question on appeal.</p>

Action by D. B. Smith and Mary A. Smith against Wesley O. Rowe- and others. Demurrer to answer of defendant Rowe sustained, and he appeals. The action was commenced on the 10th day of August, 1898, to recover-the purchase price of certain goods sold and delivered to the defendants Wanamakers and Ogden under and pursuant to an agreement alleged to have been: made between the defendants Spring and Rowe and the plaintiffs.

Action by Charles Gerding, Jy., against Isaac K. Funk to recover as assignee of an account stated. From a judgment in favor of plaintiff entered in a referee’s report, defendant appeals.

John Doneburg was convicted of arson in the second degree. From a judgment of conviction, and from an order denying a motion for a new trial, he appeals.' The defendant was indicted by the grand jury of Jefferson county, at a trial term of the supreme court held in and for said county in October, 1898, for the crime of arson, second degree, for having, at the town of Worth, in said county, on the 23d day of April, 1896, at about 11:30 p. m. of that day, willfully and…

Action by John B. Hoyer against William T. Reade. Judgment was directed for defendant. Motion for new trial ordered heard by appellate division in the first instance.

<p>Appeal from municipal court, borough of Manhattan, Fifth district.</p> <p>Action by Lena Langman, by her guardian ad litem, George Sanders, against L. A. Wilmot Milbury, doing business as the Milbury Atlantic Supply Company. From a judgment for plaintiff, defendant appeals.</p>

Mandamus by the people, on relation of William Eggleston, against the board of town canvassers and boards of election inspectors of the town of Dayton, Cattaraugus county, to compel them to reject all votes cast on the question of local option at an election in such town. From an order denying a peremptory writ, relator appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by William Allison, by Belle Allison, his guardian ad litem, against Jeanie Stevenson. From a judgment in favor" of plaintiff, defendant appeals.</p>

Judicial settlement of J. Melvin Adams as administrator, and Mary A. Cossey as administratrix, of the estate of William Cossey, deceased. Ftom a decree of the surrogate’s court charging certain items to the administrator alone (61 N. Y. Supp. 751), the sureties on his bond appeal. Modified.

<p>Appeal from trial term, Jefferson county.</p> <p>Action by one Keegan against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by James D. Conklin against the John H. Woodbury Dermatological Institute to recover on a contract. From a judgment in favor of the plaintiff, and from an order denying a motion for new trial, defendant appeals.

Action by Frederick W. Reddin against Andrew J. Dam and another. From a judgment in favor of plaintiff, and an order denying a motion for a new trial, defendants appeal.

Action by Edward Scott against John King and another, receivers, etc., of the New York, Lake Erie & Western Railroad Company. From a judgment in favor of the plaintiff, and from an order denying a new trial, defendants appeal.

<p>Contempt—Willful Disobedience—Refusal by Party to Obey an Order of Court.</p> <p>Where there is no evidence to show that the refusal by a party to obey an order of court is willful, he will not he punished for contempt.</p>

<p>Note—Payment—Evid ence.</p> <p>There is evidence for the jury on the issue of payment of a note of §1,000 given by defendants’ testator, F., to plaintiff, dated January 2, 1893, payable six months after date, defendants having introduced a note of §1,000, dated July 1, 1895, claimed to be a renewal of the note of July 2, 1893, and other notes admitted to be in renewal of the note of July 1, 1895, the last of which, dated May 11, 1897, was paid, and there being evidence that in 1896 and subsequently plaintiff made a positive statement that the amount of F.’s then indebtedness to him was §1,000, though plaintiff in testimony which contained contradictions swore that he made more than one loan of §1,000 to F.</p> <p>Ingraham, J., dissenting.</p>

Action by Charles H. Reynolds against Alfred Van Beuren and others for injuries received by a falling sign. From a judgment in favor •of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>Action by George Bock against the city of New York. Complaint dismissed, and motion for new trial denied.</p>

Action by Robert Scott against the Yonkers Railroad Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by Morgan E. Morgan and others against the Metropolitan Street-Railway Company. From a judgment of the appellate term (59 N. Y. Supp. 1110) affirming a judgment of the municipal court in favor of defendant, plaintiffs appeal.

Action by Alice B. Eagan against Peter Eagan. From an order confirming the report of a referee as to the compensation of defendant’s ■counsel, defendant appeals. Modified.

<p>Alternative writ of prohibition, on the relation of Edward H. Spain, against Mark J. Coyle, as commissioner of public safety, and o-thers.</p>

Proceeding for the assessment of transfer tax on the estate of Simon Wormser, deceased. From an order of the surrogate’s court reversing the assessment fixed by the appraiser, and fixing the tax, and from an order denying a motion to reduce the penalty for nonpayment thereof (59 N. Y. Supp. 1088), the comptroller and the next of kin appeal. Modified.

Application by Elizabeth M. Hoagland to compel Henry P. Robinson and others, executors of the estate of Isaac E. Hoagland, deceased, to deposit the funds of the estate with the Colonial Trust Company. From an order requiring such deposit to the joint.credit of the executors, Henry P. Robinson appeals.

Action in trover for conversion by Abraham Rathowsky against Thomas J. Dunn, sheriff of the county of Few York. After dismissal of plaintiff’s complaint, he made a motion for a new trial. Few trial ordered.

Petition by Emma J. Richardson for the probate of the last will and testament of Joseph Richardson, deceased. From a decree admitting the will to probate, Dellaripha G. Richardson and other contestants appeal.

<p>Action by Bartholomew Byder against the city of New York. Judgment for defendant.</p>

<p>1. Assignment—Validity.</p> <p>Where an intestate, who died in 1898, in 1888 made an assignment to his wife in writing, for a valuable consideration, of all interests, present or prospective, that such intestate might have in the estate of a brother, such assignment was not void because made 10 years before death of the intestate.</p> <p>2. Accounting by Administrator—Surrogate’s Courts—Jurisdiction—Par ties—Receiver—Objection.</p> <p>Where an intestate made an assignment to his wife in writing of all interests in the estate of a brother, a receiver of property of such assignor on behalf of his creditors has no standing, in a proceeding in the surrogate’s court on accounting’by the administrator of the estate of the assign- or’s brother, to object to such assignment, the court being without jurisdiction in the matter.</p>

<p>Action by Minnie M. Allen against the town of Allen.</p>

<p>Action by Calvin G. Branch against the New York Central & Hudson River Railroad Company.</p>

<p>Action by William II. Bundick against Julius H. Strauss.</p>

Action to compel specific performance of contract for sale of certain premises made by defendant Marriott with plaintiff.

<p>Action by one Clark against one Conklin. From the judgment rendered, defendant appeals.</p>

<p>Action by one. De Youngs against Charles E. Brown. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Action by Mary D. Deming against the Terminal Railway of Buffalo and others.</p>

<p>Action by Apoionia Fedjowski, as administratrix of Wincenty Fedjowski. deceased, against the president, managers, and company of the Delaware & Hudson Canal Company.</p>

<p>Action by the Ft. Stanwix Canning Company against the William McKinley Canning Company.</p>

<p>Action by Charles Gerding, Jr., against Isaac K. Funk.</p>

<p>Action by Charles Gardiner against John King and others, as receivers.</p>

<p>Action by Thomas O. Higgins against Gertrude S. Sharp, otherwise called Gertrude S. Higgins.</p>

Action by Henry H. Isham, trustee, against Mary A. Post and Alfred E. Austin, as administrators of Augustus T. Post, deceased. From a judgment of the supreme court on the report of a referee,, and from an order granting plaintiff an extra allowance, defendants appeal.

Action by De Mere Lamphere against Alice D. Lamphere, as administratrix with the will annexed of the estate of Burr W. Lamphere, deceased. From a retaxation of costs in defendant’s favor, plaintiff appeals.

<p>Action by Aaron Lloyd against Lemon Thompson, Jr., and John A. Dix, as survivors, etc., and the Ne-ha-se-ne Park Association.</p>

<p>Action by one Biendel against one Dart. From a judgment in favor .of the plaintiff, defendant appeals.</p>

<p>Action by Francis D. Blaguire against the Brooklyn Heights Railroad Company.</p>

<p>Action by Catherine Morrow, as administratrix, etc., against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Thomas Mullen against Jules Dawaris. Judgment for plaintiff. Defendant appeals.</p>

<p>Action by David F. O’Connor against Sewannee M. Stevenson and others.</p>

<p>From an order admitting his will to probate, certain heirs appeal.</p>

<p>Action by Lewis N. Northam against the Dutchess County Mutual Insurance Company of Poughkeepsie, N. Y.</p>

<p>Action by Lizzie Olivella against the New York & Harlem Railroad Company and others.</p>

Action by Alexander M. Powell against F. C. Linde Company. From a judgment on a verdict directed for plaintiff, and from an order denying motion for new trial, defendant appeals.

<p>Action by Michael Podjeski, as administrator, etc., against the Ellieott Square Company of Buffalo.</p>

<p>Action by one Rich against one Schendel. From a judgment in favor of the plaintiff, defendant appeals.</p>

<p>Action by Maggie Romanoski, by her guardian, against the Union Railway Company. From an order granting plaintiff leave to amend the summons and complaint, and to serve a supplemental summons ana complaint (61 N. Y. Supp. 1097), defendant appeals.</p>

<p>Action by Andrew Spencer against Charles Hall, as administrator.</p>

<p>Action by Philipp A. Stuber against Bird S. Coler as comptroller of the city of New York, and others.</p>

<p>Action by Mary E. Wait against Jacob W. Butler. From an order denying defendant leave to amend his answer, he appeals.</p>

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

<p>Action by Eveline B. Abel against the Phoenix Insurance Company.</p>

<p>Action by Edward J. Wittleder, an infant, by Edward G. Wittleder, his guardian ad litem, against the Citizens’ Electric Illuminating Company of Brooklyn.</p>