Volume 75 — New York Supplement

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles F. Frothingham against Frank Le Roy Satterlee. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Lyman G. Bloomingdale against August Luchow and others. From an order permitting plaintiff to discontinue action, plaintiff and defendants appeal.</p>

<p>Appeal from trial term, New York county.</p> <p>Action to foreclose a mortgage by Clark W. Dunlop against Frederick T. James and Marietta Wilsey. From so much of the judgment rendered as adjudged that he was not entitled to recover</p> <p>a deficiency judgment against Tames, plaintiff appeals.</p>

Action by Charles Yunkeich, an infant, by Karol Yunkeich, his guardian ad litem, against the Brooklyn Heights Railroad Company. From judgment on a verdict for defendant, plaintiff appeals.

<p>Mandamus—School Trustee—Money Order—Issuing,</p> <p>Mandamus is the proper remedy to compel a school trustee to issue an order for the payment of a bill which has been duly audited and allowed in the manner provided by law, and for which a tax has been levied and collected, and is in the hands of the treasurer.</p>

Application by Edward F. Brush for mandamus to compel a recount of the ballots cast for the office of mayor of the city of Mt. Vernon. From an order denying a recanvass of certain districts, and from an order denying a recanvass and ordering a recount of other districts, petitioner appeals; Edwin W. Fiske, an intervener, also appealing from the second order.

<p>Appeal from special term, Chemung county.</p> <p>Application by the Porter Screen Manufacturing Company for the examination of Edward M. Sayre as a party to an action to be instituted by the applicant. From an order denying a motion to vacate an order for the examination, said Edward M. Sayre and others appeal.</p> <p>The Porter Screen Manufacturing Company is a foreign corporation. The Sayre Manufacturing Company, a domestic corporation, was incorporated on or about the ISth day of November, 1891, and has its principal' place of business at Horseheads, N. Y. Between the 20th day of January, 1899, and the 5th day of July, 1899, the Porter Screen Manufacturing Company sold and delivered to the Sayre Manufacturing Company goods and merchandise to an amount exceeding $2,000 in value. The Sayre Manufacturing Company did not pay for said goods and merchandise, and on the 18th day of January, 1900, an action was commenced in the supreme court of this state by the Porter Screen Manufacturing Company against it for the value of such goods and merchandise. An answer was interposed, and the issues so joined were referred to a referee for trial, and he subsequently reported in favor of the plaintiff, and judgment was entered in favor of the plaintiff and against the defendant for the sum of $2,764.70, damages and costs, on the 6th day of August, 1901. Thereafter execution was Issued against said Sayre Manufacturing Company, and on or before the 1st day of September, 1901, the same was returned wholly unsatisfied, and the said judgment still remains unpaid. In January, 1899, and again in January, 1900, the Sayre Manufacturing Company filed its annual report as provided by law, but failed to make a report in January, 1901. The Sayre-Hatfield Company, a domestic corporation, was duly incorporated on or about the 12th day of January, 1900, and has its principal place of business at Horseheads. On the 7th day of August, 1900, an order was duly granted by the supreme court authorizing the Sayre-Hatfield Company to assume the name of Sayre Bros. Manufacturing Company. At the time of the commencement of said action by the Porter Screen Manufacturing Company against the said Sayre Manufacturing Company, said Sayre Manufacturing Company was the owner in fee of two parcels of land at Horseheads, N. Y., on one of which parcels of land was situated the mill and machinery of said Sayre Manufacturing Company, and such real estate, mill, and machinery constituted nearly the entire property and assets of said Sayre Manufacturing Company, and was of the value of at least $5,000. On the 13th day of February, 1900, there was recorded in the office of the clerk of Chemung county a deed dated the 1st day of January, 1900, conveying the said mill premises to the SayreHatfield Company for the stated consideration of $1, and the Sayre-Hatfield Company and said Sayre Bros. Manufacturing Company, its successor, have ever since continued in the possession and enjoyment of the said real estate and personal property formerly belonging to said Sayre Manufacturing Company. On or about the 16th day of October, 1901, the Porter Screen Manufacturing Company presented to the county judge of Chemung county an affidavit upon which it asked for, and obtained, an order that Edward M. Sayre individually, and as an officer of the Sayre Manufacturing Company, and of the Sayre Bros. Manufacturing Company, appear before a referee named in said order, at a time and place therein named, to be examined in an action about to be brought in the supreme court by the Porter Screen Manufacturing Company against the Sayre Manufacturing Company, the Sayre Bros. Manufacturing Company, Edward M. Sayre, and others named, and also directing that said Edward M. Sayre produce upon such examination the books and records of said defendant corporations. Said affidavit also states: “That the nature of the controversy which is expected to be the subject of said action will be the dissolution of the said corporation Sayre Manufacturing Company, and the sequestration of its property, and the enforcement of the liability of said individual defendants, as officers and directors of said corporation, to the creditors of the said corporation, and especially to the Porter Screen Company, for their failure to make and file an annual report as of the 1st day of January, 1800, and compelling them to pay to the creditors of said Sayre Manufacturing Company the value of the property which they have acquired, transferred to others, lost, or wasted by violation of their duties.” The said Edward M. Sayre is and has been, during the times mentioned, secretary of the Sayre Manufacturing Company, and has possession of the books and records of said corporation, and is fully informed as to the transfers by said corporation and disposition made of its assets. The affidavit further states that the examination of Edward M. Sayre individually, and as an officer of the Sayre Manufacturing Company, and the Sayre Bros. Manufacturing Company, is necessary to enable the Porter Screen Manufacturing Company to frame its complaint in the action so to be brought. A motion was made in the supreme court by Edward M. Sayrb, Sayre Manufacturing Company, and Sayre Bros. Manufacturing Company to set aside the order of said county judge, and in the affidavits read by them on said motion it appears that at a meeting of the stockholders oí the Sayre Manufacturing Company held on the 1st day of February, 1900, a resolution was adopted as follows: “Resolved, that the president and secretary of the Sayre Manufacturing Company be authorized to enter into negotiations for the sale and transfer of land, buildings, and machinery of said corporation unto the Sayre-Hatfield Company for the sum of at least $13,000, and that the said president and secretary be, and they are hereby, authorized and empowered to make, execute, and deliver to the said purchaser a good and sufficient deed of said land, buildings, and machinery on receiving the consideration therefor.” By the' affidavit of Edward M. Sayre, it appears that he had the charge and control of the Sayre Manufacturing Company, and that, although but five shares of the stock of such company stood in his name, nevertheless, at the time it ceased to do business, he owned, and for a long time had owned, all of the capital stock of said corporation. He also states in his affidavit that the deed of the property of the Sayre Manufacturing Company was executed to the Sayre-Hatfield Company pursuant to the resolution of the stockholders, and $13,000 of the stock of the Sayre-Hatfield Company was thereupon issued to him (Edward M. Sayre) individually. It also appears hy said affidavit that the said Edward M. Sayre is now advised that he should have taken said stock in the name of Sayre Manufacturing Company, and that he, in law, now holds the same in trust for the Sayre Manufacturing Company and its creditors. The motion to set aside said order of the county judge was denied, from which order this appeal is taken.</p>

<p>Habeas corpus by the people, on the relation of one Joyce, against Charles Guden, as sheriff of Kings county, to procure the discharge of one Lizzie Behan. Prisoner discharged.</p>

<p>Action by Richard F. Leake against John G. Carlisle. Motion to set aside verdict and for new trial. Granted.</p>

Action by Herbert L. Handy and others against the J. B. Orcutt Company and others. From an order requiring plaintiffs to deliver a bill of particulars to defendants, the latter appeal.

Action by the American Casualty Insurance Company of Oneonta, N. Y., against George E. Green. From a judgment in favor of defendant, plaintiff appeals.

Application by the people, on the relation of Dayton T. Eastman, for a writ of mandamus against Michael Scott and others, commissioners of highways. From a judgment granting the writ, defendants appeal. In August, 1896, an order made by the commissioners of highways of the town of Callicoon was filed in the clerk’s office of the town, laying out a highway over certain lands therein specified.

<p>Action by John F. Byrne against John Van Dolsen and others. On motion to vacate an order for examination of defendants before trial. Granted.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Walter A. Lesser against the Gilbert Manufacturing Company. From an order denying a motion for leave to amend the answer the defendant appeals.</p>

<p>Action by Mellville H. Westcott, as president, etc., against Michael Reiff. Demurrer to a certain defense sustained.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Chalmers Dale, as trustee of Carrie R. Dale, against the ■city of New York. From a judgment overruling a demurrer to the complaint, defendant appeals.</p>

<p>Justices—Communication with Jury—Effect.</p> <p>Communication by justice with jury after their retirement, and without the consent of parties, though merely to instruct them in answer to their inquiry that the costs must follow the judgment, necessitates reversal of the judgment rendered.</p>

Judicial accounting of Bridget Goetz and others, executors and trustees of the estate of Ignace Goetz, deceased. From a decree interpreting certain portions of the will, Bridget Goetz, as, one of the beneficiaries, appeals. The appeal is taken from the whole account as filed, but the appellants, state that the, question they wish determined is the interpretation of the will, which has been determined adversely to the widow in the court below.

<p>In the matter of the probate of the last will of William A. Rintelen. Application for probate denied.</p>

<p>On rehearing. Modified, and order of surrogate affirmed.</p> <p>For former opinion, see 74 N. Y. Supp. 450.</p>

<p>1. Witnesses—Impeaching Credibility.</p> <p>Testimony that defendant was living apart from his wife was not admissible as affecting his credibility as a witness.</p> <p>2. Assault with Intent to Rape—Evidence—Admissibility.</p> <p>Testimony that defendant was living apart from his wife was not admissible, in an action for an assault with intent to rape, as tending to establish the offense.</p> <p>8. Erroneous Admission op Evidence—Presumption op Prejudice.</p> <p>Admission of such testimony was presumably prejudicial, and ground for reversal.</p> <p>4. Assault with Intent to Rape—Exemplary Damages.</p> <p>Exemplary damages may be awarded in a civil action for assault with intent to ra,pe committed on a young married woman, and continued after she had resisted, declared herself, and cried out for help, the assault being accompanied by profane and lewd language.</p> <p>Hirschberg, J., dissenting.</p>

<p>Appeal from trial term, Suffolk county.</p> <p>Action by Benjamin W. Brady against Andrew D. Foster. Judgment for defendant, and plaintiff appeals.</p>

<p>Partnership—Accounting—Findings to Support.</p> <p>Where plaintiff alleges a partnership and asks for an accounting, it is error to adjudge an accounting without determining the issue of partnership, or the nature of the relations of the parties.</p>

<p>Appeal from special term, Richmond county.</p> <p>Action by Franklin Burt against Abraham Quackenbush and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Action by the Berger Manufacturing Company against Andrew J. Zabrislcie and others. Judgment in favor of defendant Zabrislcie, and against the other defendants</p>

<p>Action by Charles R. Dunlap against David J. Stewart and others. Demurrer to answer overruled.</p>

<p>Proceedings by the people, on relation of Henry Edward Dreier and others, against Thomas E. Feitner and others, tax commissioners, to review tax assessments. Assessment corrected.</p>

<p>1. Criminal Prosecution—Misleading Instructions.</p> <p>In a prosecution for a misdemeanor, it was error for the court, after having charged that the jury had nothing to do with the punishment, and “should never interfere to determine what punishment should be inflicted by hesitating to convict,” to further remark that the crime charged, “being a misdemeanor, is, of course, not of the character of those trials which you have heard here, which have involved charges of crime far different and far more severe in their punishment than the crime charged here”; the latter charge tending to authorize a conviction on slighter evidence than in other cases.</p> <p>2. Same.</p> <p>A charge in a criminal case that, “When you have determined who it is that tells the truth, you have determined the guilt or innocence of these parties,” was misleading, as witnesses might be entirely truthful, and yet their evidence be insufficient to remove a reasonable doubt.</p> <p>8. Erroneous Instructions—Presumption op Prejudice.</p> <p>It is not incumbent on defendants to show prejudice from an erroneous charge, but the prosecution must show want of prejudice.</p> <p>4 Appeal—Right to Set Aside Verdict.</p> <p>Even if remarks of the court laid down no erroneous rule of law, the court, on appeal, has discretion to set aside the verdict if they improperly influenced the jury.</p> <p>5. Same—Necessity for Exceptions.</p> <p>Under the express provisions of Code Or. Proc. § 527, the court, on appeal in a misdemeanor prosecution, has power to award a new trial, though the error in question is not presented by an exception.</p>

•Habeas corpus by the people, on the relation of Edwards, against the warden of the workhouse, and certiorari by the same plaintiff against Crane. Habeas corpus by the people, on the relation of Arlington, against the warden of the workhouse, and certiorari by the same plaintiff against Crane. Writs dismissed.

<p>Action by Sarah J. Aikens against the city of Rome.</p>

<p>Action by Antonio Bazuro, as administrator of Rosa Bazuro, deceased, against Solomon W. Johnson, president of the American News Company. From an order denying defendant’s motion to vacate an order of preference, defendant appeals. Reversed. Henry B. Pogson, for appellant Gilbert Ray Hawes, for respondent.</p>

<p>Action by the Country Club Land Association against Frederick Lohbauer and another.</p>

Action by Chalmers Dale, as trustee of Carrie R. Dale, against the city of New York. Judgment overruling defendant’s demurrer to the complaint, and defendant appeals. Affirmed. David Rumsey, for appellant. Truman H. Baldwin, for respondent.

<p>Action by Joseph P. Easterbrook against the Elmira Industrial Association of Elmira, N. Y.</p>

<p>Action by John George Eberhardt against the Metropolitan Street Railway Company.</p>

<p>In the matter of the estate of Louise T. Doolittle, deceased.</p>

<p>Action by Asa E. Dye against Ashton M. Parks.</p>

Action by Johanna ICalish and others, as executrices and executors of the last will and testament of Joseph Kalish, deceased, against Luke Higgins and another, to set aside a fraudulent conveyance. From a judgment in favor of the plaintiffs, the defendants appeal. Reversed. M. J. Horan, for appellants. Edward W. S. Johnston, for respondents.

Action by Edward Kelly, an infant, by Mary Kelly, his guardian ad litem, against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and from an order denying a motion for a new trial on the ground of newly discovered evidence, defendant appeals. Reversed. I. R. Oeland, for appellant. Henry Escher, Jr., for respondent.

<p>Action for libel by Willis Sharpe Kilmer against the Evening Herald Company. From an order denying plaintiff’s application for leave to discontinue, except on condition of a payment of an additional allowance, and a stipulation by plaintiff not to bring another action for the same cause, the plaintiff appeals. Reversed. Carver, Deyo & Hitchcock, for appellant. Roberts, Tuthill & Rogers, for respondent.</p>

Suit by Julius Levine against Gustavus A. Goldsmith and others. On motion for new trial at appellate division upon exceptions after interlocutory judgment in favor of plaintiff, pursuant to Code Civ. Proc. § 1001. Motion granted. See 69 N. Y. Supp. 446. Edmond A. Wise, for appellants. Elek John Ludvigh, for respondent.

<p>Action by Lizzie Levine against the Brooklyn Union Elevated Railroad Company and the Brooklyn Heights Railroad Company.</p>

<p>Action by Meyer Lichtenstein against Harry Rabolinski.</p>

<p>Action by Minnie Morrison against the city of Syracuse.</p>

<p>Action by James Maum against the Metropolitan Street Railway Company.</p>

<p>Action by Charles F. Rivoir against the Metropolitan Street Railway Company. O. F. Brown, for appellant. J. I. Green, for re-</p>

<p>Action by George Rudd against John King and others, as receivers of Union Steamboat Company.</p>

<p>Action by John Scanlon against the village of Weedsport.</p>

<p>Action by Mary Shelderberg against the village of Tonawanda.</p>

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

<p>Action by John J. Walsh and another against the Brooklyn Union Elevated Railroad Company and the Brooklyn. Heights Railroad Company.</p>

<p>In the matter of the estate of Lucinda A. Watson, deceased.</p>

<p>Action by Arthur Van Suetendael against Marcus Paschkes.</p>

<p>Action by Walter L. Wilhelm, by guardian ad litem, against Byron J. Tillman:</p>