Volume 65 — New York Supplement

<p>Action by the New York Bank-Note Company against the Hamilton Bank-Note Engraving & Printing Company and others.</p>

Action for damages for breach of a sealed contract by Robert C. Rudd, as assignor of John E. Gowen, against John Magee and others, as executors of the last will of George J. Magee, impleaded with Edgar Munson and another. From a judgment in favor of plaintiff entered on report of referee, defendants appeal.

<p>Appeal from municipal court, borough of Manhattan, Tenth district.</p> <p>Action by William A. Meuthen against John H. Eyelis. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from special term, New York county.</p>

<p>Three actions on account by Morris Finn against Jeanette Mehrbach. Motions by defendant to vacate attachments.</p>

<p>Appeal—Inferior Court—Record—Residence of Defendant.</p> <p>Where the record on appeal from a judgment of an inferior court against defendant fails to show the residence of defendant, such judgment will be reversed.</p>

<p>Action by Arthur B. Cowles against Constantine D. Kiehel for the recovery of certain shares of stock.</p>

Actions by Samuel Bank, by his guardian, and by Louis Klinger, by his guardian, against Herman Markowitz. There were a verdict . and a judgment in each case in favor of plaintiffs, and defendant moves for a new trial.

Action by the town of Schaghticoke against the Fitchburg Railroad Company. From a judgment in favor of plaintiff, rendered by the board of railroad commissioners, requiring highway, to be carried under tracks, defendant appeals. Affirmed.

<p>Certiorari—Cancellation or Contract—Review.</p> <p>The determination by the board of contract and apportionment of the existence of certain facts in regard to the manner in which one with whom it has entered into a contract for a public improvement is performing his contract is not binding on the other party to the contract. Hence certiorari will not lie, on the relation of the contractor, to review the action of the board in canceling the contract pursuant to such findings made by it.</p>

<p>Habeas corpus by the people, on the relation of Peter Buckel, against William F. G-rell, sheriff of the county of New York, for the discharge of relator, who was committed for nonpayment of alimony.</p>

<p>1. Action on Note—Parties.</p> <p>In an action on a note, the plaintiff cannot recover where the note Is not payable to him, has not been indorsed, and there is no evidence to show that he is the owner thereof.</p> <p>2. Same—Condition oe Payment.</p> <p>Where it appears in an action on a note that it was not to be paid till certain claims were paid,.and that they have not been paid, a recovery cannot be had thereon.</p>

<p>Appeal t'rom special term, Kings county.</p> <p>Action by James A. Whyte, as receiver of the property of Charles W. Denike, against Mary A. Denike" and another, to set aside a conveyance for fraud. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Vendor—Lien—Sale by Vendee—Insolvency.</p> <p>Where plaintiff deeded a number of lots to S., who conveyed an undivided one-half interest in them to the defendant, and afterwards, when S. became insolvent, the full title was conveyed to defendant on agreement with plaintiff that he should sell the lots and pay the balance of the purchase money out of the proceeds, and defendant sold one-half the lots without making any such payments, plaintiff was entitled to a vendor’s lien on the remaining one-half for the balance due on the purchase money, with interest, and to a personal judgment against defendant for any deficiency.</p>

Action by William D. Griffiths against Jane Potter. From a judgment in favor of defendant, and from an order denying a new trial, plaintiff appeals.

Action by Martin Dooley against Margaret Holden, James Devine, and Daniel Fitzpatrick, to set aside a deed. From a judgment dismissing the complaint, entered on report of a referee, plaintiff appeals.

<p>Seduction—Complaint—Corroboratory Evidence.</p> <p>Pen. Code, § 286, which provides that there can be no conviction for seduction under promise of marriage on the unsupported testimony of the female seduced, does not require the formal complaint which initiates the prosecution to be supported by evidence other than that of the complaining witness, since the statute refers only to a rule of evidence in the trial and conviction of such offenders.</p>

Application of Phillips Phoenix, trustee, and the Metropolitan Trust Company, for a reduction of the amount of a special assessment for a street improvement. From an order reducing the same, the city of New York appeals.

<p>Parading—Amended Answer—Filing for Delay—Striking Out.</p> <p>Under Code Civ. Proc. § 542, allowing amendments to pleadings, but providing that if made for delay, so that the adverse party will thereby lose the benefit of the term for which the cause was noticed, the amended pleading may be stricken out an amended answer filed 16 days before expiration of the time therefor, and setting up as its material fact the appointment of an administratrix, which occurred only two' days previously, was not filed for delay, and should not be stricken out</p>

<p>Appeal from special term, New York county.</p> <p>Action by the Manhattan Savings Institution against the New York National Exchange Bank. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>1. Corporate Note—Execution—Authority—Evidence.</p> <p>Evidence that defendant’s board of directors had given their consent to . the execution of a note by an officer in the corporation’s name was sufficient proof of the officer’s authority to execute the note.</p> <p>2. Findings op Fact—Appeal.</p> <p>Findings of fact will not be disturbed where the evidence was conflicting and authorized the findings.</p> <p>3. Note—Consideration.</p> <p>The receiver of an insolvent company borrowed money from plaintiff, and executed his note therefor, secured by a receiver’s certificate as collateral. Defendant corporation was afterwards organized under an agreement by which it assumed the obligations of the defunct company, and executed new notes in lieu of the old. Held, that the surrender of the receiver’s note and certificate by plaintiff constituted a sufficient consideration for the execution of the new note by defendant.</p> <p>Van Brunt, P. J., and Rumsey, J., dissenting.</p>

Certiorari by the people, on the relation oí George T. Jones, against Conrad Diehl and others, composing the police board of the city of Buffalo, to review the action of the board in removing relator from the position of clerk of the bureau of identification and information.

Scannell, as fire commissioner of the city of New York, to compel relator’s reinstatement in office. Prom an order denying the writ, relator appeals.

<p>Appeal from special term.</p> <p>Action by James Baker Smith against Mary L. Vail to foreclose mechanic’s lien. From a judgment for plaintiff entered on decision of special term, defendant appeals.</p>

<p>Parties—Suit for Damages to Insured Property.</p> <p>Under Code, § 446, permitting all persons having interest in the subject-matter of an action and in obtaining a judgment to be joined as plaintiffs,' where one whose property had been destroyed by the negligence of a railroad company sued the company for the injury sustained, insurance companies which had paid plaintiff’s loss, in whole or in part, should be made parties to the action, since it is for a single wrongful act, in which plaintiff and the insurance companies have a joint interest, and the insurance companies are necessary parties in order to avoid another suit. ,</p>

<p>Natural Gas Company—Refusal to Supply Gas—Penalty.</p> <p>Laws 1890, c. 566, §§ 60, 65, 66, authorizing the formation of corporations for manufacturing and supplying gas for lighting streets and buildings, and providing a penalty for such company’s refusal to supply gas to consumers on application, does not apply to a natural gas company.</p>

Judicial settlement of the accounts of John Von Glahn as temporary administrator of the estate of Agnes Livingston Jones, deceased, in which Catherine E. Pierce, as guardian of Charles Livingston Jones, a legatee, petitioned for leave to file objections to the account. From an order refusing such leave, the guardian appeals.

Suit by Robert Clarence Dorsett against Thomas S. Ormiston and others to set aside a partnership settlement, for an accounting, and to dissolve the partnership. Judgment for defendants (55 N. Y. Supp. 1037), and plaintiff appeals.

<p>1. Master and Servant—Death of Servant—Uncovered Flume—Contributory Negligence—Evidence.</p> <p>A servant, while going to clear ice from a flume rack, fell into an open space between two platforms over the flume, and was drowned. On the same night the servant had assisted his brother in clearing away the ice, and had assisted in performing such, duty as occasion required for three years. He was familiar with the flume and its dangerous character, knew the method of clearing away ice, and had full opportunity to know the exact situation. He was provided with a lantern, and it was a bright, moonlight night. While the evidence tended to show that such open space had been habitually covered until within a week or ten days before the accident, there was no proof that it had been covered within such time, or that such servant did not know the exact situation, or that he took any precaution to prevent the accident. Held, that freedom from contributory negligence was not established.</p> <p>3. Same—Actionable Negligence—Risks of Employment—Knowledge of Defect.</p> <p>Evidence showed that such open space had been covered by unsecured planks until within a week or ten days of the accident, but did not show when or how they were removed, or that the master knew, or should have known, of their removal. Held, that no recovery could be had, since the obvious risks of the employment were assumed by the servant, and actionable negligence of the master was not shown.</p>

<p>Associations—Free and Accepted Masons—Members—Expulsion—Rights-in Equity.</p> <p>Where plaintiff, a member of the order of Free and Accepted Masons, wrote a letter accusing the grand master of the state of incompetency and mismanagement of his office for political purposes, for which plaintiff was-regularly expelled from the lodge, in accordance with the rules of procedure provided hy the order, a court of equity will not interfere to prevent his expulsion.</p>

<p>Appeal from municipal court of New York City.</p> <p>Action by Francesco Vitelli and others, partners as L. Balbi & Co., against the Nassau Electric Railroad Company. From a judgment dismissing the complaint at the close of plaintiffs’ case, plaintiffs appeal.</p>

<p>Principal and Surety—Bond to Secure Material Men—When Surety Liable.</p> <p>The firm of S. & Go., as principals, and defendants H. and D., constituting the parties of the first part, contracted with the government to do certain work; the parties of the first part to furnish within a given time all necessary materials. At the same time the firm, as principals, and defendants H. and D., as sureties, executed a bond to the government, conditioned for faithful performance by the firm, and for prompt payment to all persons supplying them materials. Relators were material men who had not been paid for materials furnished, and brought suit under 28 Stat. 278, c. 280, permitting a material man to sue, in the name of the government, for his own benefit, both contractors and sureties, for materials furnished for public works. The work was not finished under the contract until long beyond the agreed time, but was accepted and paid for .by the government. The materials whose price was sued for were furnished after the time stipulated in the contract. Held, that H. and D. were not discharged by the fact that the work was permitted to be completed after the contract time, since having bound themselves in the contract to do the work for which the bond was given, they cannot take advantage of their own default, to the injury of relators, though as between themselves and S. & Oo. they might be only sureties.</p>

<p>Appeal from surrogate’s court, Orange county.</p> <p>Accounting by Sarah Welling, as executrix and testamentary trustee, and others, as executors of her co-trustee, of the estate of William R. Welling, deceased. From a decree giving allowances to the executors of her co-trustee and to their attorneys, the executrix appeals. On motion for reargument.</p> <p>For former opinion, see 64 R. Y. Supp. 1025.</p>

Action by William I. Bodd, an infant, by Adeline E. Rodd, his guardian ad litem, against William N. Sleicher and others. From an order denying a change of venue, defendants appeal.

Action by Lydia W. Underhill, as executrix of the estate of Augusta U. Patón, deceased, against James Wood and others, as executors of the estate of Edward B. Underhill, deceased, and Edward Burdsall and others, as trustees of the Chappaqua Mountain Institute, for the construction of a will. From a judgment in favor of Edward Burdsall and others, as trustees, etc., plaintiff appeals.

<p>Appeal from municipal court, borough of Queens, Third district.</p> <p>Action by Levi O. Brown against Henry Grassman for commissions. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Allie Bruid against Henry W. McVickar and . another. Judgment for plaintiff, and defendants appeal. Reversed. Kellogg, Rose & Smith, for appellants. Noah & Seeley, for respondent.

<p>Action by Isaac B. Canfield against Andrew X. Fallon and another, executors, etc., and Catharine E. Gulbrandsen and others.</p>

<p>Action by John P. Everett against William K. Peyton, impleaded with others.</p>

<p>In the matter of John Feehan, deceased.</p>

<p>Action by Amelia S. Grimm against Paul Grimm.</p>

<p>Action by Benjamin Kramer against William S. Hofstatter.</p>

<p>Action by John N. Lockwood. against the city of Buffalo.</p>

<p>Action''by ’ Clareñcé S. McClellan atidi Tintinas :-R.' Hodge- against Naomi Duticombe.n</p>

<p>Action for damages by Philip Lendle against Francis' H.’ Robinson and others. From a-judgment in, favor of the plaintiff, and an order denying: a .-¡new; trial, defendants appeal. Affirmed. ^William ‘ Blailde, for appellants. Clarence Lexow,,-for, respondent.</p>

<p>Action by Jane McFadden against Jacob Bloch and Meyer Bloch.</p>

<p>Action by William J. Morgan, as comptroller, etc., against William J. Cowle and another.</p>

<p>Action by Fred J. Pinsker and George J. Pinsker against Adolph Pinsker and Julius A. Pinsker.</p>

<p>Action by Mary E. Spencer against the Grand Lodge of the Ancient Order of United Workmen of the State of New York, Elton T. Ransom, and Daniel V. Cothran.</p>

<p>Action by the Socialistic Co-operative Publishing Association against Henry Kuhn and others.</p>

<p>Action by Libbie Van Wagner against John Thompson, as executor, etc., of Betsey Eldridge, -deceased.</p>

<p>In the matter of the compulsory judicial settlement of the account of Josiah J. White as former administrator of the goods, ■ chattels, and credits which were of Eliza T. White, deceased.</p>

<p>Action by John G. Wendel against the mayor, aldermen, and commonalty of the city of New York. After the direction of a verdict for defendant, plaintiff's motion for a new trial was ordered to be heard in the first instance in the appellate division. Motion denied. P. A. Hargous, for the motion. George L. Sterling, opposed.</p>