Volume 74 — New York Supplement

<p>Submitted controversy between Caroline B. Woodruff and others against the Oswego Starch Factory. Decision postponed to allow the city of Oswego a hearing upon questions involving the validity of taxes levied by the.assessors of said city.</p>

Action by Emilie Newman, administratrix of Henry Newman, against George Hunk. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Action by Sidney E. Adams against the Niagara Cycle Fittings Company and others. Judgment for costs was rendered in favor of defendants, and such costs were collected on execution. Motion to direct sheriff to pay costs to defendants’ attorney.

<p>Appeal from trial term, New York county.</p> <p>Action by Guiseppa Scarpati, as administratrix of the estate of Vingenzo Scarpati, deceased, against the Metropolitan Street Railway Company, for negligently causing the death of plaintiff’s intestate. Deceased was a longshoreman and fruit vender, and at the time of his death was keeping a fruit and vegetable stand, in which business his wife was assisting him. There was no showing that this business was; discontinued at intestate’s death. The jury returned a verdict assessing plaintiff’s damages at $27,306.12. From a judgment founded upon this verdict, defendant appeals.</p>

In the matter of the appraisal of the property of Timothy B. Blackstone, deceased. From an order of the surrogate (72 N. Y. Supp. 59) declaring the transfer of certain property exempt from taxation, the comptroller of the city of New York appeals.

Action by Hannah Sternfels, as administratrix of the estate of Morris Sternfels, against the Metropolitan Street Railway Company and another. From an order denying a motion to resettle case on appeal, defendants appeal.

Action by Max Osterberg and another against the Rector, Churchwardens and Vestrymen of Trinity Church in the City of New York. From a judgment in favor of the defendant, plaintiffs appeal.

<p>Action for Services—Counterclaim.</p> <p>Where plaintiff sues for services rendered as a barber to defendant personally during a period of 2% years, and defendant alleges that the services were rendered without intention to charge therefor, but as compensation for free use of the sh.p, and counterclaims for meals furnished plaintiff, and there is evidence that meals were furnished plaintiff in consideration of his rendering the barber services without compensation, and there were no other transactions like a running account between them, the counterclaim should not be dismissed, but there should be submitted to the jury the question whether the services by each to the other were rendered gratuitously, or in consideration of the other.</p>

. Action by Charles F. Droste and another against the Metropolitan Hotel Supply Company. From a judgment in favor of plaintiffs, and an order denying defendant’s motion for a new trial, it appeals.

<p>1. Agency—Sales—Evidence.</p> <p>Where, in an action for the price of goods sold, the issue was whether the one who had purchased them for defendant had such apparent authority to make the purchase as to bind defendant, and there was evidence that he was defendant’s buyer, and had previously purchased similar goods of plaintiff, and received from defendant a delivery order for the goods, and that defendant had subsequently paid for the same, and recognized other purchases made by him from other parties, the question was one for the jury.</p> <p>3. Same—Evidence.</p> <p>Where the issue was whether one who had purchased goods from plaintiff for defendant had authority so to do, and there was evidence from which the jury could infer such authority, it was not error to allow plaintiffs to show a delivery to a truckman hired by the alleged agent, for the purpose of showing delivery.</p>

Action by Charles Cooper against William Trist Bailey. From order denying defendant’s motion to set aside execution, he appeals. The plaintiff has a judgment against the defendant of March 5, 1892, for $4,980, which has not been paid» At the time the judgment was recovered, the property of the defendant was incumbered by mortgages. Foreclosure suits were begun in April, 1892, which are still pending. This plaintiff was made a party thereto.

<p>1. Landlord and Tenant—Summary Dispossession—Question Involved— Amount Found Due.</p> <p>Under Code Civ. Proc. § 2254, providing that, where the final order in a summary proceeding for dispossession establishes that the tenant holds over after default in rent, he may effect a stay by payment of, or by an undertaking for, the rent due, where a tenant, after a final order of dispossession, made no offer to pay, and gave no undertaking, his legal rights were not invaded by the order, although the court made an erroneous finding against him as to the amount of rent due.</p> <p>3. Same—Jurisdiction—Judgment for Recovery of Rent.</p> <p>In a proceeding for summary dispossession, the court has no power to render any judgment for the recovery of rent; the only question involved being whether any rent has become due, the payment of which has been refused after demand.</p> <p>3. Same—Final Order—Conclusiveness—Lease—Occupation—Rent Due-Amount.</p> <p>The final order in a proceeding for summary dispossession is conclusive as to the existence and validity of the lease, the occupation by the tenant, and that some rent is due and unpaid, but not as to the amount of rent due, although the amount is alleged in the petition.</p> <p>A Same—Final Order—Amount of Rent Due—Erroneous Finding—Amendment.</p> <p>Under Code Civ. Proc. § 723, providing that after judgment, in furtherance of justice, the judgment may be amended by conforming the proceedings to the facts proved, provided such amendment does not substantially change the defense, a final order in a proceeding for summary dispossession, containing an erroneous finding as to the amount of rent due, should be amended so as to make the amount recited in the order conform to the amount shown by the evidence.</p>

Action by William D. Stratton, as substituted receiver of the firm of Smith & Hanfield, against the City Trust, Safe Deposit & Surety Company of Philadelphia. From an order allowing the plaintiff to serve an amended complaint, defendant appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Frederick Reisert against the city of New York. From a judgment awarding nominal damages to the plaintiff (71 N. Y. Supp. 965), plaintiff appeals.</p>

<p>Action by Obadiah Losee against Michael Dolan. Motion to vacate order setting aside default judgment and permitting defendant to come in and answer on payment of $12 costs and on condition that defendant accept short notice of trial.</p>

<p>Appeal from special term, New York county.</p> <p>' Injunction by John H. Maugham and Samuel F. Cohalan against the Parkes Sewing Machine Company, William N. Parkes, and others. From an order continuing a temporary injunction, defendants appeal.</p>

Action by Frances M. Vandewater against the town of Wappinger. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by one Willsen against the Metropolitan Street Railway. Verdict for defendant. Because of the inadequacy of the verdict she moved for a new trial.

<p>Appeal from special term, Kings county.</p> <p>Suit by Thomas McGrath against Edward M. Grout, as comptroller of the city of New York, and others, to enjoin defendant Grout from paying the salaries of certain officers of the county of Kings. From an order denying a motion to continue a temporary injunction (74 N. Y. Supp. 770), plaintiff appeals.</p>

<p>1. Elevated Railroads—Action for Injury—Telegraph Lineman—Right to Go upon Elevated Structure.</p> <p>Plaintiff, an experienced lineman of the New York police department, was injured while in discharge of his duty in repairing a police telegraph wire which was carried upon the structure of defendant elevated railroad company, which charged the city rent for the privilege of stringing such wires upon its structure. Plaintiff alleged that the injury was caused by a shock from a current of electricity escaping from defendant’s trolley feed wire by reason of defendant’s negligence in allowing such wire to become uninsulated and defective. Eeld1 that, in the absence of any provision of restraint in the contract giving the city a right to string its police wires on defendant’s structure, such privilege would contemplate the right of reasonable access by the city to its wires for repairing and maintaining them, and hence plaintiff was not a trespasser or a bare licensee, but one lawfully upon the structure, engaged in the business of his employer.</p> <p>3. Same—Obligation of Railroad Company to Those Rightfully upon Its</p> <p>Structure—Electric Feed Wires.</p> <p>The obligation of defendant was that of ordinary care, which required the exercise of such care both in stringing and in maintaining its electric wires, regardful of any inherent danger in them when highly-charged, and mindful that from time to time the workmen of the city, in discharge of their duties, might be brought in proximity to or contact with them.</p> <p>"8. Same—Insulation and Repair.</p> <p>The care which defendant was bound to exercise included ordinary and reasonable insulation of its wires, and also such ordinary and reasonable inspection as would preserve such insulation from such impairment as would render the wires dangerous to those whose business might bring them in contact with them.</p> <p>4. Same—Presumption from Insulation.</p> <p>The fact that the wire, the defect in which was alleged to have caused the injury, was insulated, was a recognition of its inherent danger.</p> <p>-6. Same—Evidence—Ordinary Care—Jury Question.</p> <p>There being evidence which warranted a finding that the shock was due to the contact of defendant’s insulated feed wire with an iron brace of the structure at a point where the insulation of the wire had been completely worn away, so that when plaintiff’s hand came in contact with the iron brace the current from the wire was conducted through the brace into his body, and also evidence warranting a finding that the defective insulation was due to the attrition of the feed wire with the iron brace, and that a year or more of such attrition might elapse before the insulation would be worn entirely away, and that defendant might have discovered the defect by reasonable, practical, and available tests, by use of instruments commonly employed for the purpose, the question whether defendant had used ordinary care in the premises was properly submitted to the jury.</p> <p>4$. Same—Contract against Negligence—Pass.</p> <p>The fact that plaintiff held a pass issued to him by defendant, entitling him to free passage through its stations and upon its structure, but not to free transit upon its trains, upon condition that he would assume all risk and liability of accident while using it, did not debar plaintiff from recovery, since, there being no relation of passenger and carrier between the parties, the rule as to contracting against negligence when such relation did exist was not applicable, especially in view of the fact that he gained access to the structure by climbing, and not by-availing himself of the permission conferred by his pass.</p> <p>Woodward, J., dissenting.</p>

<p>Appeal from special term, Westchester county.</p> <p>Action by John S. Williams against George Whittell and others. From a judgment for defendants, plaintiff appeals.</p>

Landers against William H. Forbes, as executor of the estate of Nancy Landers, deceased. From a judgment on the report of a referee in favor of plaintiff, defendant appeals.

<p>Gifts—Inter Vivos—Chosbs in Action—Requisites.</p> <p>A gift inter vivas of shares of capital stock is invalid unless accompanied by actual or constructive delivery or evidenced by an assignment in writing.</p>

<p>Beneficial Associations—Condition Precedent to Relief—By-Laws.</p> <p>Where the by-laws of a beneficial association provided that the certificate of the attending physician, stating the nature of the member’s illness, should be approved by the association’s physician before sick benefits would be paid, benefits were properly rejected on a certificate not so approved, the refusal to approve the same not being unreasonable.</p>

Summary proceeding for nonpayment of rent by Charles H. C. Beakes against Abraham Haas. From an order in favor of plaintiff for part of the. rent claimed, he appeals.

<p>Street Railways—Collisions—Travelers—Contributory Negligence.</p> <p>A traveler In an unliglited wagon drove onto the downtown track of a street railway, when both the downtown and uptown cars were each about half a block away, and waited until the uptown car passed him, but before he could cross the uptown track, and as he was starting to do so, the rapidly running downtown car struck his wagon. HeldI, that he was guilty of contributory negligence in waiting on the track, warranting the granting of a nonsuit.</p>

<p>1. Pleading—Cause of Action—Form of Relief—Dismissal.</p> <p>Where a complaint states a cause of action, it will not be dismissed because praying inappropriate relief.</p> <p>2. Jurisdiction—Objection—Summons.</p> <p>Where the jurisdiction is objected to because of the issuance of a short, instead of a long, summons, or on other similar grounds, the basis of the objection should be made to appear clearly.</p>

<p>Appeal from municipal court, borough of Manhattan, Second district.</p> <p>Action by John Simpson against John Smith. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Defaults—Vacating—Reciting Grounds in Order.</p> <p>Under the statute requiring the order of a justice setting aside a default to recite the grounds therefor, an order reciting its grounds as “being that the defendants have a trial and a day in court” is defective.</p> <p>2. Same—Effect of Going to Trial.</p> <p>Where the parties stipulate that going to trial shall be without prejudice to plaintiff’s pending appeal from an order opening a default. and such order is reversed, a judgment in defendants’ favor entered on the trial must be reversed also.</p>

<p>Brokers—Right to Commissions—Time op Accrual.</p> <p>A real estate broker’s right to commissions is established when he brings to his employer a responsible person willing to buy on the prescribed terms, and a contract of sale is entered into between the parties, and does not depend on performance of the contract by the purchaser.</p>

<p>Appeal from municipal court, borough of Manhattan, Sixth district.</p> <p>Action by Reland H. Rangley against the Metropolitan Street Raihvay Company. From a judgment in favor of defendant, plaintiff appeals.</p>

Appeals from municipal court, borough of Manhattan, Fourth district. Actions by Elizabeth and Louis Maas, respectively, against Bern-hard Fauser for personal injuries. From judgments for defendant in both cases, plaintiffs appeal.

<p>Accord and Satisfaction—Liquidated Debt—Partial Payment.</p> <p>Acceptance of an amount tendered in full payment of a liquidated demand greater than the sum tendered does not operate as a satisfaction of the entire debt.</p>

<p>Appeal from municipal court, borough of Manhattan, Tenth district.</p> <p>Action by Louis Bowsky against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from municipal court, borough of Manhattan, Eleventh district.</p> <p>Action by Samuel J. Kirkman against the Carlstadt Chemical Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Sales—Contract—Breach—Market Value—Nominal Damages.</p> <p>Where a seller brings action for the purchaser’s refusal to accept the article sold, and proves a valid contract at a certain price, but does not prove the market value, nor the absence of such value, so as to let in another standard for the measure of damages, he is nevertheless entitled to nominal damages.</p> <p>2. Same—Costs—Appeal—Conditional Reversal.</p> <p>A judgment for defendant in such case will not ordinarily be reversed, unless necessary in order to give plaintiff the costs, accompanying, judgment f.or nominal damages, and therefore the judgment for reversal will be entered to take effect unless defendant pay costs.</p>

Action by Arlington R. Tupper against the Metropolitan Street Railway Company. From a judgment of the general term of the city court of the city of New York affirming a judgment dismissing the complaint, plaintiff appeals.

<p>Witnesses — Impeachment — Former Testimony — Exclusion — Harmless Error.</p> <p>Where questions as to whether a witness had not given contradictory testimony in a former and different action were excluded as immaterial, but it previously appeared that counsel was not prepared to contradict whatever statements witness might make with reference to his testimony in such former action, the exclusion of the questions as to the former testimony was not prejudicial.</p>

<p>Appeal from municipal court, borough of Manhattan, Tenth district.</p> <p>Action by James Thomson and others against Grace D. Ludlum. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from municipal court, borough of Manhattan, Seventh district.</p> <p>Action by Isador Levison against the Metropolitan Street Railway Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>1. Sales—Breach of Contract—Measure of Damages.</p> <p>In an action for the breach of a contract for the sale of goods, the measure of damages is the difference between the contract price and the market value at the place and time of delivery.</p> <p>8. Same—Remedies of the Seller—Resale—Election.</p> <p>Though, on a purchaser’s refusal to accept goods, the seller may resell, and recover the difference between the contract price and the price obtained, he is under no obligation to do so.</p>

<p>Appeal from municipal court, borough of Manhattan, Second district.</p> <p>__ Action by Robert Mentz against Charles A. Schieren and others. From a judgment in favor of the plaintiff, the defendants appeal.</p>

<p>Appeal from municipal court, borough of Manhattan, Second district.</p> <p>Action by Louis Baldinger and another against Fred Turkowsky. Judgment for defendant, and plaintiffs appeal.</p>

Action by Charles H. Hernandez against the Metropolitan Street Railway Company. From a judgment and order of the general term of the city court of New York (72 N. Y. Supp. 1107) reversing a judgment in favor of the plaintiff, the plaintiff appeals.

<p>Appeal from special term, Kings county.</p> <p>Consolidated actions by George E. Kerrigan against Phebe S. Backus and others, and by the same plaintiff against John S. Vanderveer and another. From two several judgments in favor of plaintiff, defendants appeal.</p>

<p>Master and Servant—Overtime—Compensation—Assistant Clerk of Court.</p> <p>Where one employed as an assistant equity clerk of Kings county performed services required by the duties of his office before 9 a. m. and after 4 p. m., and was told by the clerk he would pay him for overtime, he could not recover for work done before 9 a. m. and after 4 p. m.; County Law, § 165, requiring the office to be open from 9 to 4, referring only to the hours when the office shall be open to the public, and the clerk’s promise being a nudum pactum, inasmuch as the duties were required by the employment</p>

<p>Fraudulent Representations—Time oe Making.</p> <p>In an action for fraudulent representations inducing a purchase of corporate stock, plaintiffs testimony that after he bought and paid for the stock, and after he entered the employment of the company, he was furnished with pamphlets relating to the company, and that he relied on the representations contained therein, was insufficient to support a judgment in his favor, because not showing fraudulent representations inducing the purchase.</p>

<p>Counterclaim—Bill op Particulars.</p> <p>Under Code Civ. Proc.'§ 531, providing for the delivery of a further account furnishing particulars of a counterclaim in case one previously delivered is defective, a plaintiff is not entitled to a bill of items of a counterclaim for the purpose of preparing for trial, where a bill of particulars has already been rendered for the purpose of replying to the counterclaim, and no objection has been taken thereto.</p>

<p>3. Brokers—Action by Principal—Examination before Trial—Confiden tial Relationship.</p> <p>In an action by a principal against his agent or broker, who had discretionary power to buy and sell, plaintiff is entitled to full knowledge of anything in defendant’s business that would benefit him, and is entitled to an examination of defendant before trial.</p> <p>2. Same—Laches.</p> <p>The plaintiff’s right to an examination of defendant before trial is not lost by loches if the motion for an examination is made a reasonable time before trial.</p>

<p>Appeal from special term.</p> <p>Action by the William Skinner Manufacturing Company against David J. Fagenson and others. From an order vacating an order for the arrest of defendant on the original papers, the plaintiff appeals '</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Arthur C. Kimber against the Metropolitan Street Railway Company. From an order setting aside a verdict in favor of plaintiff and granting a new trial, plaintiff appeals.</p>

<p>Appeal from special term, Kings county.</p> <p>Petition by Norman H. Pollock to compel Henry G. Atwater and another, attorneys at law, to pay over moneys collected for petitioner. From an order overruling objections to the proceedings, and directing the payment of money to the petitioner, respondents appeal.</p>

<p>1. Railroads—Accident at Crossing—Negligence—Evidence.</p> <p>In an action against a railroad company for killing plaintiff’s husband at a grade crossing, plaintiff’s witnesses (for the most part disinterested) testified positively that no whistle was sounded or bell rung on approaching the .crossing. Defendant’s witnesses, equally entitled to be believed, testified positively to the contrary. Held, that judgment for plaintiff would not be disturbed.</p> <p>2. Damages—Amount.</p> <p>Deceased at the time of his death was 21 years old, in good health, and engaged in operating a milk wagon. He was sober and industrious, and had a wife and infant son. Held, that a verdict for $6,000 was not excessive.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by John J. Sullivan, trustee, against George Ringler & Co. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Divobce—Supplemental Complaint.</p> <p>In a suit for absolute divorce, plaintiff cannot set up in a supplemental complaint acts of adultery alleged to have been committed by defendant after the joinder of issue upon the original complaint.</p>

<p>L Brokers—Completion of Contract—Evidence—Sufficiency.</p> <p>In an action to recover a commission promised to plaintiff by defendant if he could induce his employer to sell a piece of land for a certain lower price than he originálly asked therefor, evidence that plaintiff; in conversation with his employer, suggested to him that the lower price offered was a fair price, and that the employer accepted such price the following day, is not sufficient to sustain a finding that plaintiff was the efficient cause of the acceptance of the lower price, especially where the plaintiff failed to call his employer to testify to what influence plaintiff exerted on his determination.</p> <p>2. Contracts—Validity—Employer and Employe—Influence—Exertion— Morality.</p> <p>A contract whereby, for a consideration moving from a third person, a clerk agrees to influence his employer to accept a lower price for property about to be sold than was first asked, cannot be enforced in the absence of a showing that the employer knew that his clerk was serving the interest of the purchaser; such a contract being against good morals.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Hugh F. Dolan against Jeremiah Leary and wife. Judgment for defendants on the merits (68 N. Y. Supp. 91), and plaintiff appeals.</p>

Action by Constantine Gilewicz against David Goldberg, one of the city marshals of the city of New York. Judgment dismissing complaint, and plaintiff appeals.

<p>1. Former Judgment—Authentication—Admissibility—Matter op Ascertaining Jurisdiction op Court.</p> <p>Where a landlord sues his tenant’s surety for rent, the judgment roll in a former action against the surety, brought in a court of limited jurisdiction, is admissible in evidence when authenticated, as required by Code Civ. Proe. §’ 933, and Laws 1892, c. 182, §§ 100, 107, relating to such court, though a copy of the complaint in the former action was not served on the defendant; for the court will resort to the complaint in the record in order to determine the question of the jurisdiction of the court in the former action.</p> <p>3. Same—Res Judicata.</p> <p>Where a landlord sued his tenant’s surety for rent, a judgment obtained against the surety in a former action for rent then due and unpaid, though rendered by default, is res judicata upon any defense which the surety might have interposed in the former action, and the surety cannot defeat the second action by showing that before the former action the tenant had been evicted, and had abandoned the premises.</p>

<p>Employes—Personal Injuries—Evidence—Dismissal op Complaint.</p> <p>Plaintiff’s intestate was a man of allwork in defendant’s power house. He was called one day to take the place of another employé in operating a coal conveyor or idler, and, after working there for 8 or 10 hours, was caught in the endless chain of the conveyor, and drawn under a filler, receiving injuries resulting in his death. There was no evidence as to how the accident happened, nor what caused it. The case was equally devoid of evidence of lack of contributory negligence. Sold not error to dismiss the complaint.</p>

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

Action for injuries by Mary E. Sidmonds against the Brooklyn Heights Railroad Company. Judgment in favor of plaintiff, and from an order granting defendant a new trial, plaintiff appeals.

Action by Charles N. Pracht, as one of the marshals of the city of New York, against Thomas F. Gunn personally and as one of. the marshals of said city. Judgment for defendant, and plaintiff appeals.

Action by George D. Patten against Francis D. Carley and others, in which Francis D. Carley & Co. was impleaded, and in which Ferdinand H. Wismer, the trustee in bankruptcy of Francis D. Carley, was substituted as plaintiff. From an order substituting Ferdinand H. Wismer as plaintiff, the impleaded defendant appeals.

Action by Charles Sturmwald against Henry W. Schreiber and George J. Schreiber. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

Action by Charles W. Knight against James F. D. Lanier. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

John J. Burnell presented the will of Jotham S. Tompkins for probate. The probate was contested by Harriet V. Tompkins and others. From a decree denying probate of the alleged will, proponent appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by George A. Hawkins against Frederick A. M. Burrell, impleaded with others. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Sylvester L. Malone, as administrator, against Saints Peter and Paul’s Church of Brooldyn, E. D. From a compulsory order of reference, plaintiff appeals.</p>

Action by Samuel B. Behr against the Erie Railroad Company.. Brom a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term, Westchester county,</p> <p>Action by James E. J. Murphy against George H. Callan. From an order changing the place of trial, plaintiff appeals.</p>

Action by John Cox, administrator, against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff and an order denying defendant’s motion for a new trial, defendant appeals. Plaintiff’s intestate, a girl 14 years old, was killed by one of defendant’s engines while she was attempting to cross' defendant’s tracks at a public crossing.

<p>•Street ■ Railway — Passengers — Personal Injuries — Dismissal oe Complaint.</p> <p>In an action by a passenger against a street railway company for injuries received while alighting from a car, due to its starting forward suddenly, plaintiff testified that he signaled the conductor to stop, and that the car slowed up, and was practically at a stop; that he did not hear the bell ring; that the car was rattling; that he saw the conductor’s hand go up as though to ring. Heló) error to dismiss the complaint</p>

<p>Executors—Accounting—Allowance of Credits.</p> <p>Where a son, who was executor of his father’s will, claimed that he should be credited upon his account as executor with one-quarter of the profits under a contract between the testator and his three sons in reference to a purchase of tobacco, but it appeared that the contract provided that the testator should have absolute control of any profit that might accrue, and that testator’s ledger showed a credit of 25 per cent, to each of two other sons, but no credit to the executor, he was not entitled, under the terms of the contract, to be credited with any portion of the profits.</p>

<p>1. Street Railway—Personal Injuries — Instructions—Applicability to-Evidence.</p> <p>In an action for injuries sustained in a collision of two street cars, plaintiff testified that a policeman asked if he did not want to go to a hospital; that he said, “No,” he preferred to go to G.’s house; that “they took a cab for us, and put us in the cab, and I went up to my friend' Mr. G.’s house.” On cross-examination he stated that when he first came to, after the accident, he “was in a cab. That was the first time I knew anything about it, when my friend G. and the other fellow started to push me around in the cab.” Held to sustain a charge that plaintiff testified that a policeman took him to G.’s house, and that the jury could consider why the policeman was not called as a witness.</p> <p>2. Same—Harmless Error.</p> <p>Even though there was no policeman in the cab with plaintiff, there clearly was some other person there, who was not called to testify, se that there was no prejudice, since the jury must have understood that that was the person referred to by the judge.</p>

<p>1. Elevated Railroads—Abutter’s Action for Damages — Injunction — Misjoinder—Costs.</p> <p>In an action for rental and fee damages to abutting property from the building of an elevated railroad, instituted by executors and decedent’s widow and children, wherein it appeared that the damages belonged solely to the widow and children, in the absence of any harm resulting to defendant from the misjoinder the complaint should be dismissed as to the executors, without costs.</p> <p>2. Same—Infant Plaintiff—Injunction.</p> <p>In an abutter’s action for rental and fee damages from the building of an elevated railroad, wherein one plaintiff was an infant suing by guardian ad litem, an injunction was granted not to become operative for 30 days, and providing that, if during that period defendants should pay or tender to plaintiffs the fee damages, they should be entitled to operate their railroad, and receive from plaintiffs a proper grant of such right, “to be executed by the person having any title to or lien upon” the abutting premises. Held, that defendants were not aggrieved by the judgment because one plaintiff was an infant, since the judgment did not pass upon the' title to be granted, and defendants, after making tender, could continue to operate their road, and could withhold payment until a proper grant was made to them, whether it was procured by proceedings under Code Civ. Proc. § 2348, to sell the infant’s interest in the premises, or by waiting until the infant became of age.</p> <p>3. Same — Infant Plaintiffs — Failure to Plead Infancy in Answer—</p> <p>Appeal.</p> <p>Defendants having failed to raise in their answer the defense that one plaintiff was an infant, such defense could not be relied on in the appellate court.</p> <p>4. Same—Injunction—Lessor and Lessee of Railroad.</p> <p>Although one of the defendants was lessor and the other lessee of the railroad in question, and the claim for damages covered both the period during which the lessor operated the road and that during which the lessee operated it, the judgment was correct in enjoining them both, unless the total fee damages assessed were paid.</p>

Action by Emma Leiser against Alice Sutcliffe McDowell and another, as executrices of the will of Albert McDowell, deceased. From .a judgment in favor of plaintiff, defendants appeal.

Action by the Woodhaven Bank against the Brooklyn Hills Improvement Company. Prom a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

> Action by Alfred Mussinan against the Willner Wood Company. Erom an order failing to direct defendant to furnish a bill of particulars of damages set up in a counterclaim, plaintiff appeals.

Proceedings for appraisal under the transfer tax acts of the property devised and bequeathed by the will of Bernard Peters, deceased. From an order regarding the estate held by James A. Sperry, one of the devisees, he appeals.

Action by William Isaacsen against Benjamin Andrews, doing business as B. Andrews & Co. From a judgment of the municipal court of the city of New York in favor of plaintiff, defendant appeals.

In the matter of the probate of the will of Patrick Kearney, deceased. From a decree sustaining the will and admitting it to probate, contestant, Kearney, appeals.

Action by Gertrude S. Kramer against Edwin G. Kramer. From an order vacating an order for the examination' of plaintiff before trial, defendant appeals.

Action by the Ulster & Delaware Bluestone Company against Thomas G. Carlin and others. From a judgment enforcing a mechanic’s lien in favor of defendants James W. Lane and Frederick B. Warner, composing the firm of J. W. Lane & Co., defendant Thomas G. Carlin appeals.

Judicial settlement of the estate of Elizabeth M. Bronson, deceased. From an order - directing the payment of a certain sum in satisfaction of a judgment obtained against the testatrix in her lifetime, Wilbur F. Tredwell, individually and as executor, appeals.

Summary proceeding on the application of Annie McGuinness to compel William Patrick Burr and another, attorneys, to pay over moneys wrongfully detained by them. From an order granting in part her application, petitioner appeals. This is a summary proceeding to compel attorneys to pay over moneys retained in excess of the fees to which they were entitled.

<p>Landlord and Tenant—Lease—Parol Evidence to Vary Same.</p> <p>In an action on a written lease containing covenants by both parties in relation to repairs, and a covenant by the lessee not to underlet any part of the premises without the lessor’s written consent, paroi evidence of an oral agreement between the parties before the execution of the lease, and as an inducement to the letting, for the repairs of the premises, and subletting of a certain part, was properly excluded.</p>

Homer Lockwood Sarvis was indicted for murder in the first degree, and from an order denying motion to change the place of trial, he appeals.

Action by James H. Hoag against Edward Wright and another, as executors of the will of Hester Hoag, deceased. From a judgment in- favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Injunction by Demie W. Hildreth and Henry Segelken against Joseph M. McCaul. From an order adjudging defendant guilty of contempt in having violated an injunction order granted pending the action, and imposing a fine of $250, he appeals.

<p>Appeal from municipal court, borough of Queens, First district.</p> <p>Action by Ellen Trudden, administratrix of George Hayes, de-ceased, against the Metropolitan Life Insurance Company. From judgment for plaintiff, defendant appeals.</p>

Proceeding against Lena Vogel, a defendant in an action by Henry S. Moore as executor and trustee under the will of Theron R. Butler, deceased, against Tillie E. Smith and others, for contempt of court in disobeying an order directing her to pay certain moneys to the receiver. From an order adjudging her guilty, she appeals.

<p>1. Appeal—Review.</p> <p>Plaintiff, having merely excepted to the granting of nonsuit, and not having at any time requested submission of any question to the jury, cannot, on appeal, insist the court erred in not submitting a question.</p> <p>2. Oral Evidence—Varying Contract.</p> <p>Notes executed by defendants, as administrators of S., to plaintiff, are not altered or varied by oral evidence that, plaintiff being indorser on notes of S. held by a bank at death of S., it was agreed by all that defendants should execute the notes, plaintiff would indorse them, and the bank would accept them, and carry the original notes till a dividend from the estate could be paid, plaintiff to pay the balance, and that the arrangement should involve no liability of defendants to plaintiff or the bank.</p>

<p>Action by Frank E. Boshart against Frederick S. Easton, impleaded, etc.</p>

<p>Action by Stephen Goodrich, as ancillary administrator, etc., of Ralph L. Goodrich, deceased, against Fred O. Hill and another.</p>

<p>Action by the Gordon Battery Company against the American Watchman’s Time Detector Company. From a judgment in favor of the plaintiff, the defendant appeals.</p>

<p>Action by Joseph Greenwald and others against Augustus G. Wales, as sheriff of Broome county.</p>

<p>Action by Joseph Greenwald and others against Augustus G. Wales, as sheriff of Broome county.</p>

<p>Action by Mary R. Hammond against Charles Nelson and others.</p>

<p>Action by H. D. Thatcher & Co. against George Stickles.</p>

<p>Action by Alfred A. Hevia against Charles A. Bacot and another to recover broker’s commissions. From a judgment in favor of plaintiff, and an order denying a new trial, the defendants appeal.</p>

Action by George F. Hunt, administrator of the estate of Ella W. Hunt, deceased, against Dora Sullivan. From an order refusing to vacate an order for examination of defendant before trial, the defendant appeals.

<p>Action by Jeremiah Kiley against the Metropolitan Street Railway Company.</p>

<p>Action by Arthur M. La Du against the Fraternal Accident Association of America.</p>

<p>Action by William H. Ma-honey against James O’Neil.</p>

<p>Action by William A. C. Matthie against Charles R. Arents, as general manager, etc., for John Gibb and others.</p>

Action by Augustus Meyers against Lawson C. Rich and others. From a judgment in favor of plaintiff and of defendant D. K. Martin Roofing & Manufacturing Company, Charles N. Talbot, as assignee for the benefit of creditors of Andrew J. Robinson, appeals.

<p>Action by Michael O’Leary against the Erie Railroad Company.</p>

<p>Proceeding by the people of the state of New York on the relation of the board of commissioners for the erection of a new court house in Oneida county, against the board of supervisors of Oneida county.</p>

<p>Action by Anton Ragette and others against Adam Zimmer and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Action by Frank S. Streep against John McLoughlin and others.</p>

<p>Action by Emanuel Teron against Theresa A. S. Sheridan.</p>

<p>Action by Gustave W. Volkmann against Henry F. Coleman.</p>

<p>Action by James Walsh against John Stich.</p>

<p>Action by James E. March against the city of New York and others. Judgment for defendants.</p>