Volume 82 — New York Appellate Division Reports

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by the plaintiff, John Beattie, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of October, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the plaintiff, Matthew Carena, by Domenico Carena, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 21st day of October, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of April, 1902* upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 26th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, David Proskey, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the defendant’s answer in a replevin action.

<p> Registration and certificate of competency required of each master plumber in New York city—the act is constitutional—a firm, one of whose members is not a registered master plumber, cannot recover for work done by a member who is. </p> <p>Chapter 803 of the Laws of 1896, which provides, “ after the passage of this act it shall not .be lawful for any person or copartnership to engage in, or carry on the trade, business or calling of employing or master plumber in the city of New York, unless the name and address of such person and of each and every member of such copartnership shall have been registered,” and which requires each master plumber to hold a certificate of competency from the examining board of plumbers of the city, is in the nature of g police regulation for the' protection of the public health and is constitutional.</p> <p>The provisions of the statute apply to each and every tiiember of a copartnership engaged in the business of master plumbers, and if ode of the members of the copartnership is not a registered master plumber, the copartnership is not entitled to carry on business nor to recover for work done by it, even though the unregistered member did none of the plumbing work of the copartnership, but devoted his entire attention to keeping its books and conducting its financial affairs.</p> <p>Ingbaham, J., dissented.</p>

<p>Appeal by the plaintiff, Rudolph Kraft, fr'om a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 26th day of March, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.</p>

Appeal by the plaintiff, Frank J. Martin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of December, 1902, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

<p>Suspension from the Ooffee Exchange of New York city—action to recover damages resulting therefrom — exemption from liability of the board, of managers acting in a quasi judicial capacity.</p> <p>The Coffee Exchange of the city of New York is a corporation composed of coffee merchants, and one of the principal objects thereof is the adjustment of controversies between its members without recourse to the courts.</p> <p>One Lurman, who was a member of the exchange, agreed to purchase a quantity of coffee from the firm of W. H.-Crossman & Bro., the members of which were also members of the exchange. Lurman refused to accept the coffee on the ground that it was adulterated and, therefore, could not be lawfully sold as an article of commerce under the laws of the State of New York.</p> <p>The graders mentioned in the contract decided against this contention. Lurman refused to abide by this decision and Grossman & Bro. thereupon made complaint to the Coffee Exchange. The complaint was referred to the adjudication committee of the exchange, which refused to hear or determine the controversy as to the adulteration of the coffee, holding that the decision of the graders was conclusive. They accordingly reported to the board of managers of the exchange that it was Lurman’s duty to accept the coffee.</p> <p>When the report of the adjudication committee was presented to the board of managers that body also refused, over the objection of Lurman, to consider the merits of the controversy, and after giving Lurman notice and' an opportunity to accept the coffee, suspended him for a period of one year.</p> <p>Lurman then instituted a proceeding to compel his reinstatement, which resulted in a determination that he could not be lawfully suspended until his claim that the coffee was adulterated had been investigated and decided against him.</p> <p>After procuring his reinstatement Lurman brought an action against the board of managers of the exchange to recover as damages for his unlawful suspension compensation for the inj ury done to his business reputation and reimbursement for counsel fees and other incidental disbursements in securing his reinstatement and for the dues paid by him to the exchange for the year during which he was suspended.</p> <p>Held, that the complaint was properly dismissed;</p> <p>That the case fell fairly within the rule that, in the absence of malice, persons acting in a quasi judicial capacity are not liable for errors of judgment in erroneously determining matters within their jurisdiction affecting the personal or property rights of others.</p>

<p>Appeal by the defendant, Norman O. Raff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, setting aside as void and fraudulent certain transfers and payments made to the defendant.</p>

<p>Policeman charged, with an assault—summing up by the district attorney —a statement as to the New York police force “ It out Bevery's Bevery ” held to be a mere figure of speech—expression by the court as to the credibility of witnesses.</p> <p>Upon the trial of an indictment charging the defendant, a policeman in the city of New York, with having, while in citizen’s clothes, committed the crime of assault in the first degree by shooting a man on the street, the People offered evidence tending to show that the defendant was arrested immediately after the shooting, and that before the police learned that he was a policeman they treated him very unceremoniously; that upon learning that fact their attitude towards him changed; that he was taken to a station house and placed in a waiting room thereof instead of in a cell; that no charge was made against him, and that after he had remained in the waiting room three-quarters of an hour he was taken to the desk where he preferred a charge of assault against the man whom he had shot.</p> <p>The district attorney, in commenting upon the changed attitude of the police towards the defendant on discovering that he was an officer, said, “ Gentlemen, I tell you that that is a scene for comic opera, not for the great city of New York. It out Devery’s Devery.”</p> <p>The court, upon the defendant objecting to this remark, stated that perhaps Devery had nothing to do with it and that it was highly improper for the dis- . trict’attorney to inject Devery into the case, and instructed the latter to refrain from any such comments:</p> <p>Held, that the remark of the district attorney was a mere figure of speech and did not constitute prejudicial error.</p> <p>Where, upon such a trial, it appears that the testimony of the witnesses for the People and that of the defendant’s witnesses is conflicting and no theory consistent with the honesty and truthfulness of all the witnesses is suggested or apparent upon which the conflicting testimony can be reconciled, it is not improper for the court to charge, “The two stories in some respects are diametrically opposite, and I do not think that I would be uncharitable when I say that somebody has willfully falsified in the case. All the witnesses have not told the truth, for they differ too much for that, and it seems to me that it would be more than charitable to say that some have not willfully prevaricated.” Semlle, that it is ordinarily improper for the trial judge to give expression to his views as to the credibility of witnesses.</p>

<p>Appeal by the plaintiff, Kate Treat Goodsell, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 8th day of October, 1902, granting the defendant’s motion to extend the scope of an order of reference theretofore granted in the action upon the defendant’s previous application for a modification of the alimony allowed to the plaintiff by a decree of divorce.</p>

Appeal by the defendants, the Mapes-Reeve Construction Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of September, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Violation of an injunction order —punishment by fine and imprisonment — advice of counsel is not a justification —when it goes in mitigation of the offense — servants and agents not s&rved may be punished—punishment of the attorney</p> <p>A defendant in an action, who deliberately and intentionally violates an injunction order granted therein, may properly be fined the amount of the plaintiff’s provable damages and expenses, and also be imprisoned until he manifests a willingness to comply with the injunction order.</p> <p>The fact that in violating the injunction order the defendant acted under the advice of counsel does not constitute a justification, but merely goes in mitigation of his act, to the extent that the court is satisfied that the advice was sought, obtained and acted upon in good faith.</p> <p>Servants and agents of a party enjoined by án injunction order, who, with knowledge of the existence of the injunction, aid in its violation, and attorneys who advise such violation, are liable for contempt, even though the order has not been served upon them.</p> <p>In such a case the attorney should be visited with a more severe punishment than the client.</p>

<p>Appeal by the defendant, Orlando J. Hackett, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 29th day of May, 1901, convicting the defendant of grand larceny in the first degree, and also from the orders denying the defendant’s motions for a new trial and in arrest of judgment.</p> <p>The indictment charges, in the first count, a common-law larceny in obtaining possession of three $1,000 bonds of the Chesapeake and Ohio ¡Railroad Company, owned by Mrs. Emma Butler; and the second count charges the defendant with having misappropriated the proceeds of these bonds as agent or bailee. There is no dispute in the evidence as to the fact of the defendant receiving and selling these bonds, the sole question being whether his disposition of the proceeds was in accordance with the directions of Mrs. Butler or not. The bonds were sold on three different dates by the defendant for Mrs. Butler, the aggregate amount received for them apparently being about $2,560, from which different sums amounting to $200 were received by Mrs. Butler, leaving a balance of $2,360 in the hands of the defendant.</p> <p>Mrs. Butler testified that she and her husband first became acquainted with the defendant in the summer of 1898 at Atlantic Highlands; that her husband often met him on the boat going to and from the city; that this acquaintance grew into friendly social relations, and in the fall the defendant frequently called on them in the city, and in the latter part of Hovember or first of ¡December took Mr. Butler as a partner in a firm with himself, formed for the purpose of engaging in the real estate business. About the middle •of December the Butlers moved, and a few days later the defendant took apartments in the'same house with them and visited their rooms almost every evening. Mrs. Butler- says the defendant told her he had $22,000 invested in real estate, talked to her about the business very often and told her it was a good thing to put money in; that about the middle of December she, desiring to sell one of ¡her bonds, asked the defendant to sell it for her, which he did, and to invest the proceeds; that shortly after this defendant handed her $50, which he said was a bonus which he had obtained by loaning the money to a man who wanted to borrow it very badly; that ■during the latter part of December the defendant told her that he had inside information from Mr. Cuyler, a Wall street broker, that the Chesapeake and Ohio railway was going to “ smash,” and that if she desired to get her money back she had better sell her bonds at once, and that she thereupon gave him another bond to sell and invest the proceeds in the same way; that éarly in January the defendant made more emphatic representations to her concerning the breaking up of the Chesapeake and Ohio Company, and she gave him the third bond to sell on January’ 3, 1899. Her testimony clearly indicated that she intrusted the money to the defendant to invest in real estate, and not in business. Mrs. Butler further testified that she went to the defendant and told him that she wanted to use $50 more, and that he advised her not to take the money, as it was doing well and that her husband would support her, evidently meaning that it was unnecessary ; that she asked him several times, with the same result, and finally on the afternoon of March twenty-sixth she said to him that while she trusted him thoroughly, she wanted to have some ready money and wanted to have her money in the bank, and asked him .how he had invested it; that he told her he had invested it with some of his own in an $8,000 mortgage, and that he would make it satisfactory to her if she would call at his office, but instead of doing this she went do her attorney; that on March twenty-eighth the defendant came to her and stated that he had had a communication from the lawyer she had been to, and told her that if she did not stop going to' a lawyer she would never get a cent of her money back, and if she would come to him he would make things satisfactory; that she promised to come to him on the following morning, but went to her lawyer, Thomas W. Bowie fcte, again instead, and that the defendant came to the lawyer’s office in response to a telephone call. Her attorney testifies concerning the interview which then took place, that he asked the defendant what he had done with her money;. that the defendant declined to tell him ; that he then turned to the complainant and asked her if she authorized him to make this inquiry and, after she said that she did, the defendant said that he had invested it with some of his own in real estate but declined to tell where, and that, upon being threatened with arrest, he jumped up and left the office, saying that he would .get the securities. This is substantially corroborated by Mrs. Butler. The attorney further testifies that five or six minutes after - this the defendant called him np on the telephone and said, “For God’s sake, don’t have me arrested. It will ruin me. I spent that money. I got in a close place and I spent her money; but I have influential friends, and I can get the money, and by eleven o’clock to-morrow morning you shall have the money at your office for Mrs. Butler.” The complainant further states that on the evening of the day following this last interview she received by mail a certificate for twenty-four shares of stock of the Metropolitan Trading Company — a corporation recently formed, with her husband as treasurer and the defendant as president; that nothing had been said to her about this company by the defendant. Cornelius C. Cuvier, called as a witness by the People, testified that he never mentioned anything about the Chesapeake and Ohio to the defendant.</p> <p>The defendant testified in his own behalf that Mrs. Butler gave Mm the money to use as he saw fit to further the interests of the firm business, and he is corroborated by his mother, who testifies that the complainant told her that she intended giving her money to the defendant to help the business along; but this is controverted by the testimony of Mrs. Butler. The defendant further testifies that the complainant sold the second bond against his advice, and insisted upon putting the money in the business the same way; that she placed this confidence in him because he had helped her husband to the means of earning a living which, he says, she stated was more than their relatives had done. It appears from defendant’s testimony that the principal efforts of this firm had been expended in endeavoring to get before the public, and that they were not then trying to do much business, and the only actual transaction of the firm that he is able to recall is that of obtaining a $1,900 mortgage for a woman whose name and address he is not sure of and does not give. This firm had no bank account and only earned a few hundred dollars in the three or four months that it existed. The defendant used all the firm’s money in payment for advertising, clerk hire and the general expenses of running the firm’s business, including payment of $400 or $500 to Mr. Butler, and had purchased no land, mortgages or other securities with it. He claims that the complainant had great faith in the Metropolitan Trading Company’s stock and wanted her money transferred to that; and, as the money was tied up in the real estate business and cash must be paid for the only stock of the company left, he agreed, because she had. been very kind to him and to the business, to give her sufficient of the stock held by him to equal the amount that she had put in the business and adjust it later with the business when it was in funds. Defendant denies having had a telephone conversation to the effect, as testified to by Bowlette ; or that he told complainant that the Chesapeake and Ohio was going to smash, or that Cuyler told him so, or that he had invested her money in an $8,000 mortgage. He states that he did talk with Bowlette over the telephone and told him that complainant could get her securities or he would deliver them ; and he says that Bowlette did not ask him about securities but only about money. He further states that it was about the first of March when complainant told him to make this transfer to the stock of the Metropolitan Trading Company; but when asked why he did not mention this definite arrangement in his letter sent with the certificate -of stock on March thirtieth, in which he states that he has put her money in this stock, he says that he was flustered and could not bring his mind down to what he wanted to say in a letter and that she had promised to give him some of the money. It appears from the defendant’s testimony that this Metropolitan Trading Company was organized with a -capital stock of $25,000, of which only $1,000, at most, had been paid in in money; that he had no financial basis. He does not give any clear explanation of the purpose of its organization, and his testimony is • inconsistent on this subject and not reconcilable with that of the attorney who acted in incorporating the company and with the proceedings of the corporation as shown by the minutes of the directors’ meetings.</p>

Appeal by the defendants, Michael Levenson, individually and as executor, etc., of Sarah Levenson, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 10th day of December, 1901, upon the report of a referee, decreeing,- among other things, the foreclosure of a mechanic’s lien and the sale of certain premises, with notice of an intention to…

Appeal by Frederic D. Philips, a legatee and beneficiary under the will of Stephen C. Dimon, deceased, from a decree of the Surrogate’s Court of the county, of New York, entered in said Surrogate’s Court on the 14th day of May, . 1902, affirming an order entered in said court on the 16th day of January, 1902, assessing and determining a tax upon the interest of the said Frederic D. Philips in the estate of the said testator.

Appeal by Cortlandt F. Bishop from so much of a decree of the Surrogate’s Court of the county of FTew York, .entered in said Surrogate’s Court on the 19th day of February, 1903, as directs him to answer certain questions relating to the property of David Wolfe Bishop, deceased.

Appeal by the defendant, Latimer A. Wallace, from an inters locutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of Hovember, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to certain defenses contained in the said defendant’s answer. '

<p>Appeal by-the plaintiff, Stuart W. MacKenzie, from a judgment of the Supreme Court in favor of the- defendant, entered in the-office.of the clerk of - the county of New York on the 10th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p> <p>•The action .was originally brought against Frederick Weber and the Union Railway Company of New York city, the complaint being dismissed as to both defendants. No appeal is taken from the dismissal of the complaint as to Frederick Weber.</p>

Appeal by the defendant, The Security Trust and Life Insurance Company, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county 'of Kew York on the 22d day of August, 1902, upon the report of a. referee.

Appeal by the defendants, Abner T. Bowen and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, decreeing that the plaintiff is entitled to an interest in fee in certain real property in the county of New York, and directing a reconveyance of said property to the…

Appeal by the plaintiff, Ignatz Gnttentag, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the .clerk of the county of New York on the 3d day of March, 1903, granting the defendants’ motion to serve amended answers.

1 Appeal by Arthur Astor Carey from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 2d day of February, 1903, denying his motion to dismiss the above-entitled proceeding, in so far as the same relates to the appellant and the property appointed to him.

Appeal by the defendant, Henry Rosener, from a judgment of the Appellate Term of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27th day of June, 1902, reversing a judgment of the Municipal Court of the city of New York, borough.of Manhattan, in favor of the defendant, entered on the 7th day of February, 1902, which dismissed the complaint upon the merits, and also reversing an order of said Municipal Court,…

Appeal by Theodore A. Knapp, individually and as sole surviving executor, etc., of Peter K. Knapp, deceased, arid others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of August, 1902, denying the appellants’ motion that- the report of the commissioners of appraisal theretofore appointed in the proceeding he referred, so far as the same affects certain parcels of land, to…

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of June, 1902, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 19th day of June, "1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by "The Democratic General Committee óf New-York County, sometimes known as the • Democratic-Republican -General Committee of New York County, and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of -New York on the 28th day of .January, 1903,- granting the relator’s motion-, for a peremptory writ of mandamus.. ‘</p>

<p> Power of a surrogate to approve a settlement of a controversy between administrators and' a person claiming to have been a partner of their decedent. • </p> <p>After the death of George F. Gilman a controversy arose between his administrators and one George H. Hartford as to whether the decedent was the sole. owner of an extensive business or whether he and Hartford were partners therein.</p> <p>The administrators thereupon, brought an action against Hartford, who was in possession of the business, alleging that the decedent was the exclusive owner thereof.- Hartford brought a counter-action against the,administrators alleging that he was a copartner of the decedent, and obtained an injunction restraining the administrators from interfering with the business.</p> <p>For the purpose of compromising the litigation, an agreement was entered into between Hartford and Gilman’s administrators and next of kin, by which all the property of the alleged copartnership was to be transferred to a New Jersey corporation and the stock thereof was to be divided between Hartford and Gil-man’s administrators in certain specified proportions. The only party objecting to the arrangement was a creditor whose claim was being contested before a referee.</p> <p>Held, that under section 2719 of the Code of Civil Procedure, giving the surrogate power to “ authorize the executor or administrator to compromise or compound a debt or claim, on application, and for good and sufficient cause shown,” the surrogate had power, in his discretion, to approve of the proposed settlement of the controversy. (Per Ingraham and O’Brien, JJ.)</p> <p>Van Brunt, P. J., Patterson and Hatch, JJ., concurred in result.</p>

Appeal by the defendant, Robert J. Wright, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of March, 1902, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 27th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Walter D. Williams, from an interlocutory judgment of the Supreme Court in favor of the defendant, Mary E. Clarke, entered in the office of the clerk of the county of New York on the 20th day of January, 1903, upon the decision of the court, rendered after a-trial at the New York Special Term, overruling the plaintiff’s demurrers to the counterclaims set up in the second and third separate defenses of the said defendant’s answer.</p>

Appeal by the- plaintiff, Mary Madigan, as administratrix, etc., of Patrick Madigan, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York' on the 7th day of May, 1902, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Wilhelmine Fuhr, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of September, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits and directing the specific performance of a contract’upon the counterclaim set forth in defendants’ answer.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of October, 1902, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s, office on the 16th .day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of July, 1902, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 30th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of May, 1902, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the 6th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Pettier & Stymus Manufacturing and Improvement Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of July, 1902, granting the plaintiff’s motion for a new trial made upon the minutes.</p>

Cross-appeals by the plaintiff, Schmitt Brothers, and the defendant, the Boston Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of November, 1902, upon the decision of the court rendered after a trial at the New York Special Term..

<p>Appeal by W. J. Morgan & Company, a.creditor of the Quo Vadis Amusement Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of February, 1903, permitting the amendment nunc produne of an order to show cause theretofore granted in the action, and also from an order entered in said clerk’s office on the 19th day of February, 1903, appointing a referee.</p>

Appeal by the defendant, The Security Trust and Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of August, 1902, upon the report of a referee. The action was brought to recover $42,749.10, alleged to have been loaned by the plaintiff to the defendant on or about July 11, 1900, and by consent a reference was ordered.

<p>Master and servant — when the- former is not liable because of the fall of a derrick.</p> <p>A master, who furnishes for use in connection with the work a derrick so constructed and placed that it may be operated in safety, fully performs the duty imposed upon him by section. 18 of the Labor Law, and is not liable thereunder to a workman injured by the falling of the derrick in consequence of the negligent operation thereof by a fellow-servant.</p>

Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of October, 1902, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 23d day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, George C. D’Arey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the loth day of July, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

<p>Appeal by the defendant, Harris Bernstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1902 upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Harrison B. Moore, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the… Held: and gave to the plaintiff the following paper: “ New York, Jam/y. 19th, 1892.' “ Mr. Otto F. Von Arnim, New York : “ Dear Sir.— I hold the mortgage of B. H. Onderdonk to W illiam Onderdonk for $3,000 as security for loan of $1,000, and will surrender said mortgage to you on payment of said $1,000, and I hereby agree to hold the…

Appeal by Peter .Doelger from an. order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1900, denying his motion to set aside a jiidgment in favor of the plaintiff theretofore entered in the action, and for leave to intervene and defend said action.

<p>Liability, of a director created by the special charter of a loan and trust company — it is contractual—it is for the benefit of all creditors— an action for its enfenxement lies in equity—who a/re proper parties thereto—effect of a failure to serve some of the directors with the summons — release of one of them — a defect of peer-ties must be pleaded.</p> <p>The liability imposed by the following provision of an act incorporating a loan and trust company, “ every director shall be personally liable for debts incurred by the corporation during his administration to an amount not exceeding five thousand dollars,” is contractual in its nature and is for the benefit of all the creditors of the corporation and not for that of any particular creditor.</p> <p>A creditor of the corporation may, therefore, maintain an action in equity to enforce, on behalf of himself and all other creditors of the corporation, the statutory liability imposed upon the directors.</p> <p>In such an action it appeared that, the plaintiff’s debt accrued in 1890, and that the corporation was dissolved in 1891 and a permanent receiver of its. property was appointed. The only defendants in the action were the directors of the corporation .for the year 1890.</p> <p>Upon the trial it appeared that three of the defendants were not served with the summons and complaint, and, upon the plaintiff contending that these three ■ defendants were non-residents, and that it had been impossible to effect service upon them, the action was severed as to those defendants. No effort was made to serve such defendants by publication.</p> <p>It further appeared that after the commencement of the action, the plaintiff had, upon the receipt of $1,500 from one of the defendants, released such defendant from all liability and discontinued the action as against him.</p> <p>Held, that the receiver of the corporation was a necessary party to the action;</p> <p>That, as the extent of the corporation’s indebtedness did not appear, each defendant was entitled to have all the directors that were liable made parties to the action;</p> <p>That the evidence was not sufficient to show that the three defendants not served could not have been served in the State of New York;</p> <p>That, in any event, it was the duty of the plaintiff to serve such defendants by publication;</p> <p>That the plaintiff, in releasing one of the defendants and in discontinuing the action as to him, violated the rights of the other defendants;</p> <p>That, consequently, the parties necessary to a complete determination of the action were not before the court, and, as this objection had been pleaded by the defendants who were before the court, a judgment against them could not be sustained;</p> <p>That the objection that persons who had been directors of the corporation for the years 1888 and 1889 were necessary parties to the action, was not available to the defendants because it had not been pleaded.</p> <p>O’Brien, J., dissented.</p>

Appeal by the plaintiff, Frederick A. Lyons, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of October, 1902, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1902, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 26th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeals by the plaintiff, Theodore L. Sehultze, and by the defendant, Jacob Deng, from a judgment of the Supreme Court in favor of the defendant, Isaac Goodstein, entered in the office of the clerk of the county of New York on the 10th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint..

• Appeal by the plaintiffs, Francis P. Burke and another, as general managers and attorneys in fact for all the underwriters at the New York and Boston Lloyds, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of Hovember, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiffs’ demurrer to two defenses…

Appeal by the defendant, Jose Oonte, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8tli day of November, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, annulling the marriage between the parties.

<p>Appeal by the defendants, Lena Price‘and another, from a judgment of the Suprem'fe Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of January, 1902, upon the decision of the court, rendered after a trial, at the New York Special Term, adjudging a conveyance theretofore made by the defendant Lena Price to the defendant Moses Price to be fraudiilent and -null and void as against the plaintiff.</p>

Appeal by the defendant, George William Weymann, from so much of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 31st day of December, 1902, upon the report of a referee, directing a sale in partition, as decrees that the defendant Fred William Stopenliagen has. a lien upon the share of the appellant in the premises sought to be partitioned.

<p>Blection hy-an administrator to eaiercise the right of renewal given in a lease to his intestate — when an action for rent lies against him in his individual capacity.</p> <p>A decedent was in his lifetime the lessee of a lot of land and'the owner of the building erected thereon. The lease was for a term of twenty-one years and . provided for perpetual renewals at the option of the lessee at rentals to be estimated upon the value of the land as a. vacant lot at the expiration of'each term.' Nb provision was made whereby compensation should be made to the lessee for the value of the building at the end of any term, in case he failed to exercise .' his option to take'a renewal. . ■</p> <p>At the time when an administrator with the will annexed of the decedent' was appointed, the original lease had Over a year to run. At"the- expiration of th ■ lease, the administrator with the will annexed elected to renew it and" the renewal lease was executed to him “ as administrator with the will annexed of ■ the estate of Lippman Toplitz, deceased.”</p> <p>Meld, that an action to recover rent due under the renewal lease was properly brought against the administrator with the .will annexed in his individual capacity. ■ .</p>

<p>Acceptance of an offer of judgment—failure to annex-an affidavit of the attorney'» authority —insufficiency of the statement not available to fraudulent grantees of the debtors — the judgment may be for a claim not due — an execution returned; unsatisfied upon one of two judgments gives the court jurisdiction.</p> <p>The failure to annex to the acceptance of an offer of judgment an affidavit of ' the authority of the attorney signing such acceptance^ is a mere irregularity of which third parties cannot take advantage.</p> <p>The objection, that the statement upon which a judgment was entered- by confession was insufficient, is not available to fraudulent grantees of property belonging to the judgment debtor. .</p> <p>Judgment may be confessed upon a claim which is not yet due.</p> <p>The complaint in an action brought by a judgment creditor to set aside a fraudulent conveyance made by the judgment debtor will not be dismissed because it appears that the judgment creditor had obtained two judgments against the judgment debtor and that, at the time of the commencement of the action, an execution had been returned unsatisfied on only, one of such judgments.</p> <p>In such a case, the return unsatisfied of an execution issued on one ;of the judgments gives the court jurisdiction over the subject-matter of the action,</p> <p>. and, having obtained jurisdiction, the court will proceed to grant the judgment creditor such relief as he may be entitled to within the scope of the issues.</p> <p>Van Brunt, P. J., and McLaughlin, J., dissented.</p>

Appeal by the defendants, Abraham C. Brown and others, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 5th day of June, 1902.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Orange on the 10th day of June, 1902, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 8th day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Physician—his testimony as to a decedent who neither employed him nor desired, his services, is incompetent—what “ tends to disgrace the memory of the patient ”— waiver of the statutory provision.</p> <p>Sections 834 an^ 836 of the Code of Civil Procedure, forbidding a physician “ to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity,” apply to cases where physicians attend, in a professional capacity, a patient who does not employ them or desire their .services.</p> <p>Declarations by a patient to his attending physicians that he had attempted to commit suicide “tend to disgrace the memory of the patient” within the meaning of section 836 of the Code of Civil Procedure.</p> <p>A clause in the application for a policy of life insurance, by which the insured waives the provisions of sections 834 and 836 of the Code of Civil Procedure, is ineffective.</p>

<p>Appeal by the plaintiffs, Hamilton H. Salmon and another, from that portion of a judgment of the Supreme Court in part in favor of the plaintiffs and in part in favor of the defendant Charles J. Norris, bearing date the 14th day of March, 1902, and. entered in the office of the clerk of the county of Kings, upon the decision of the court rendered after a trial at the Kings County Special Term, adjudging that as to the defendant Charles J. Norris the plaintiffs are not entitled to the injunction asked for and dismissing the complaint as to said defendant.</p>

Appeal by the relator, The Brooklyn Union Gas Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in-the office of the clerk of the county of Kings on the 29th day of January, 1902,. dismissing the above-entitled proceeding. '

Appeal by Mary E. Reilly from so much of a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 23d day of September,. 1902, settling the accounts of the executor of the will of Ellen O’Reilly, deceased, as construes the 3d clause of said will.

Appeal by the plaintiff, Amelia Grosjean, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 13th day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial at' the Richmond Trial Term.

<p>Appeal by the defendant, Frank M. Buck, as sole acting executor, etc., of William H. Van Arsdale, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of September, 1902, upon the report of a referee.</p>

<p>Will—a gift of a..share of an estate to a son, on the sorts death to the sorts daughter §5,000 thereof, and the balance “at his own (the sorts) entire disposal” — where the daughter dies before the son the §5,000 is at his disposal— disposition of the entire share by the sorts will — equity will carry out the purpose of the sorts will.</p> <p>In 1856 Caroline M. Stanard executed a will in her own handwriting, by which she divided her entire estate, which consisted wholly of personal property within the State of Few York, in which State the will was admitted to probate, among her three children, Ann E. Grinnell, John B. Stanard and Maria L. Swords. The provisión in favor of John was as follows: “ To my beloved son John Beverly Stanard I give and bequeath one-third óf my estate, real and personal, bonds, stocks and funds invested, for his use, benefit and profit, for the term of his natural life; at his death I leave to his first daughter; Caroline Chew Stanard, five thousand dollars, the balance of his portion of my estate at his own entire disposal.” The provision in favor of Maria was practically identical.</p> <p>Ann died without issue in 1858, and the testatrix, in the same year, made a codicil to her will dividing Ann’s share of the estate between John and Maria. Caroline M. Stanard died in 1865 subsequent to the death of Caroline Chew Stanard.</p> <p>John Beverly Stanard, who was a resident of Virginia, died, after his mother, without issue, leaving an unwitnessed holographic will which was valid under the laws of the State of Virginia, providing as follows: “ I, John B. Stanard, of the Town of Berryville and State of Virginia, do make this will and testament, and in the exercise of the power of appointment conferred upon me by the last will and testament of my late mother, Mrs. Caroline M. Stanard, over that portion of her estate devised and bequeathed to me for my natural life, I hereby appoint and give to my wife, for her own absolute use after my death, the whole of the property, both real and personal, given to me by the will of my mother for the term of my natural life, with power of appointment as aforesaid.”</p> <p>Held, that upon the death of Caroline Chew Stanard prior to that of her father, John B. Stanard, the. legacy of $5,000 bequeathed to her at her father’s death fell back into the fund from which it was taken, and not into the residuum of the estate;</p> <p>That, under the will and the codicil of Caroline M. Stanard, John B. Stanard had the absolute ownership of one-half of 'the testatrix’s estate, or else the power to-dispose of such one-half of the estate;</p> <p>That, by his will, he executed such power either by appointment' or by disposal, according to the laws of his domicile;</p> <p>That, even if his will was not effective as a valid execution of the power of appointment, because it was not executed in the presence of witnesses according to the laws of the State'of New York, equity should and would intervene with its remedial powers to carry out his intention to give tiis wife his portion of the estate.</p> <p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Receipt of an express company — it binds the shipper — when a delivery to another company fulfills its obligation.</p> <p>An express company, upon accepting a trunk for transportation, delivered to.the shipper a receipt stating that the trunk was to be “forwarded to our Agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation; ” that the express company -might intrust the trunk to the possession of other carriers, and that, if it did so, such other carrier was to be regarded as thé agent of the shipper or owner, and that the express company should not be responsible'for any negligence or dereliction of duty on the part of such other carrier. The shipper did not testify that he did not read the receipt. -</p> <p>Held, that the terms of the receipt were binding upon the Shipper and constituted the measure of the express company’s obligation to him;</p> <p>That, when the express company forwarded the trunk to the agency nearest or most convenient to its destination, and delivered it to another carrier to complete-the contract of transportation, it had performed the obligation resting upon it and was not liable to the shipper in the event- of the loss of the trunk while in the possession of such other carrier.</p>

<p>Sail of a tenement in Sew York city—question as to its being lighted, when one for the jury — photographs thereof taken by flashlight,— evidence, in an action for injuries sustained therein in December, that fine print could be read therein in Ma/rch—competency of the United States Weather Bureau records.</p> <p>In an action brought against the owner of a tenement house in the city of New York to recover damages for personal injuries sustained by the plaintiff who fell down a stairway in the hallway of such house, it appeared that the accident occurred on December 13, 1900, between four and four-thirty p. m. At the time of the accident there was no artificial light in the hallway, which had two ground glass windows, together about fifteen inches wide and five feet ■ high, opening upon an air shaft four feet square extending to the roof. At the top of the house over the stairs was a skylight. There was a transom window over the outer door and a glass window in the vestibule door and the door leading into a lighted room at the head of the stairs was open.</p> <p>The only issue litigated was whether the hallway in question came within the purview of section 132 of the charter of the city of Mew York (Laws of 1897, chap. 378) providing, “In every tenement-house in the said city in which there is a hallway or hallways with no windows opening’from such hallway outside of said house, a light shall be maintained by said owner or lessee in each such hallway between the hours of eight A. m. and ten p. m. of each day unless said hallway shall be otherwise sufficiently lighted.”</p> <p>Held, that such issue should have been submitted to the jury for determination and that it was error for the court to dispose of it as a question of law;</p> <p>That photographs of the stairway taken with the aid of a flashlight were admissible in evidence for the purpose of showing the construction of the staircase and its situation in the hallway;</p> <p>That evidence that certain witnesses had been able to read fine newspaper print in the hallway at five p. m., March 18, 1902, was incompetent as it could not aid the jury in determining whether the hallway was sufficiently lighted between four and four-thirty p. m. oh December thirteenth, .the time of the accident;</p> <p>That the plaintiff was entitled to prove the condition of the weather on the afternoon of the day of the accident by introducing in evidence the records of the United States Weather Bureau for that date, which records are, by section 944 of the Code of Civil Procedure, made prima facie evidence of the matters of fact stated therein.</p>

Appeal by the defendant, Abraham Denike, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of the county of Kings on the 26th day of April, 1902, upon the verdict of a jury for $650, and also from an order entered in said clerk’s' office on the 22d day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Charles Harriman and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 24th day of June, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the plaintiffs’ complaint upon the merits.

Appeal by the plaintiff, Thomas Kirkwood, from a judgment of the Supreme Court in favor of the defendant, Henry M. Smith, entered in the office of the clerk of the county of Kings on the 16th day of July, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendants, William H. Kipp and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 13th day of October, 1902, denying said defendants’ motion to require the plaintiff to give security for costs.

<p>Beference — not ordered against the objection of the defendant, who has interposed a counterclaim requiring the examination of a long account.</p> <p>Where the complaint in an action sets out a cause of action on contract, and this is put in issue by the answer, which also sets up a counterclaim requiring the examination of a long account, it is improper to order a reference of all the issues on the motion of the plaintiff, against the objection of the defendant.</p>

<p>Appeal by the plaintiff, Theodore F. Reed, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county , of Rockland on the 1st day of June, 1901, upon the dismissal of the complaint by direction of the court after a trial- at the Rockland Trial Term.</p>

Appeal, by the plaintiff, Mamie Miller, from an interlocutory judgment of the Supreme Court in favor of the defendants, Margaret Maujer and another,, entered in the office of the clerk of the county of Kings on the 18th day of November, 1902, upon the . decision of the court, rendered after a trial at the Kings County Special Term, sustaining said defendants’ demurrers to the plaintiff’s complaint.

Appeal by the defendants, John B. McDonald and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of February, 1902, upon the verdict of a jury for $6,250, and also from an order entered in said clerk’s office on the. 21st day of February, 1902, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Samuel P. Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 4th day of October, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Suffolk Trial Term.

<p>Contract fur the sale of a barber shop — a provision not to work within five blocks “under penalty of a fine of §300” is one for liquidated damages. ' .</p> <p>The use of the word “penalty” in a contract is not necessarily conclusive upon the question whether the provision imposes a penalty or is an agreement for “liquidated damages.” The facts and circumstances of the case may be considered for the purpose of determining what the parties intended by -the use of the word.</p> <p>A provision in a contract for the sale of a barber shop for the sum of §475, by which the vendor agreed, “ under penalty of a fine of §300,” not to start, of work, in any other barber shop within five blocks from the barber shop sold by him, is a provision for liquidated damages and not for a penalty.</p>

Appeal by the defendant, Annie E. Curry, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of October, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings bn the 27th day of October, 1902, upon the verdict of a jury for $1,925, and also from an order entered in said clerk’s office on the 3d day of November, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Carlotta Herrmann, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester, on the 10th day of November, 1902, denying the plaintiff’s motion to punish the defendant and one George Yon Stamwitz for contempt of court.

Appeal by Thomas H. Gordon from portions of a decree of the Surrogate’s Court of Richmond county, entered in said Surrogate’s Court on the 11th day of June, 1902, construing the last will and testament of Anna M. Gordon, deceased.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by Joe Kray from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of November, 1902, revoking and canceling a liquor tax certificate theretofore issued to him.</p>

<p>Appeal by the defendant, Franklin Stone, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of December, 1902, denying the defendant’s motion to vacate an attachment- theretofore granted in the action.</p>

Appeal by. the defendant, the Interurban Street Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 26th day of December, 1902, after a trial before the court without a jury.

<p> Unincorporated subordinate lodge—it may be sued although the pa/rent lodge is incorporated—that the subordinate lodge did not consist of seven people is matter </p> <p>A member of a subordinate lodge of a society which raises, manages and dispenses a sick benefit fund as its own separate property and on its independent volition, may, under the provisions of section 1919 of the Code of Civil Procedure, maintain an action against the treasurer of such lodge to recover sick benefits to which he claims .to be entitled although' the parent lodge of the society is incorporated under the laws of the State of New York.</p> <p>In such a case the subordinate lodge must be deemed to be an unincorporated association consisting of seven or more members within the meaning of section 1919 of the Code of Civil Procedure.</p> <p>The fact that the subordinate lodge does not consist of seven or more members is a matter of defense which must be affirmatively established by. the defendant.</p>

Appeal by the defendant, The Preferred Accident Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of April, 1902, denying the'defendant’s motion for a new trial made upon the minutes.

Appeal by David H. Rosell from a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 27tli day of January, 1902, overruling the report of the referee appointed in the proceeding and judicially settling the accounts of Rebecca A. R. Barefield, as administratrix of Mary E. Rosell, deceased.

<p>Attorney’s lien—power of the Surrogate's, and of the Supreme Court to determine it — when an agreement Try which he was to receive one-third of a fund will he disregarded and compensation, hosed upon the value of his services, he awarded.'</p> <p>An attorney discovered through a newspaper advertisement, that there was §3,300 in a savings bank to the credit of a woman who died intestate in 1857. He thereupon brought this fact to the attention of the woman’s granddaughter, who was her sole next of kin, and procured from her a written agreement, by which she empowered him to act as her attorney in collecting the deposit, and agreed to pay him one-third of the amount recovered or received.</p> <p>The attorney rendered certain services pursuant to the authority conferred, but did not bring any action or institute any proceedings in the Supreme Court.. He did, however, apply to the Surrogate’s Court for the issuance of letters of administration to his client, which application was granted.</p> <p>The client had then become dissatisfied with the terms of' the agreement and refused to qualify as administratrix through the attorney’s agency or to recognize him further as her attorney. Thereafter the client instituted a proceeding in the Supreme Court to procure an order pursuant to the provisions, of section 66 of the Code of Civil Procedure determining the amount of the. attorney’s lien; ' '</p> <p>Held, that the Supreme Court had jurisdiction to. ascertain and determine the amount of the lien;</p> <p>That, while it was probable that the attorney’s lien, so far as it was dependent-upon the proceedings in the Surrogate’s Court, might be ascertained and determined there, the jurisdiction of that court over the subject-matter was.' not exclusive, particularly as the proceedings in the Surrogate’s Court were, only incidental to the general services which the attorney agreed to render;</p> <p>That, as it appeared that the attorney had refused to disclose to the client the whereabouts of the money which he was employed to recover, or the exact amount thereof, and that he dissuaded her from seeking independent advice upon the advisability of signing the agreement by threatening to take no further steps in the matter if. she did so, the court would discard the agreement so procured as not conclusively binding upon the client, and would limit the attorney’s lien to such an amount as would afford the attorney ample compensation.</p>

Appeal by the plaintiff, Margaret Milliken, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 11th day of November, 1901, denying the plaintiff’s motion, made upon the minutes, to set aside as inadequate the verdict of a jury in her favor.

<p>Appeal by the defendant, The Union Surety and Guaranty Company,. from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of November, 1902, taxing the bill for poundage fees of the sheriff of the county of New York and directing the payment thereof to the sheriff by the defendant.</p>

<p> Jurisdiction of the Supreme Court of New Toi’k, to direct the sale of mortgaged premises in another State and a conveyance thereof by the iñortgagor. </p> <p>TKe Supreme Court of the State of New York has jurisdiction of an .action to foreclose a mortgage upon a parcel of land located partly in the State' of New York and partly in the State of Connecticut, and may, when the mortgagors are residents of the" State of New York and have been personally served with process therein, provide in the decree that the; referee shall sell all the mortgaged land, and that the mortgagors shall convey the Connecticut land to the ■ purchaser, '</p>

Appeal by the plaintiff, Sam Saffier, from a .judgment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 29th day of December, 1902, dismissing the plaintiff’s complaint.

<p>Negligence—liability, of a city for permitting a eelldrway to exist on a sidewalk—■ contributory negligence of one falling into it — the questions should be submitted to the jury.</p> <p>In an action to recover damages for personal injuries, it appeared that the plaintiff, while walking along, a.sidewalk in a street in the defendant city, struck her foot against the coping of a cellar steps and fell over the coping into the cellarway. The cellar way was unguarded in front, hut was protected on the east and west sides by copings built of irregular field" stone. The coping on the east was nearly five feet long and about thirteen inches above the sidewalk. The coping on the west side was seven feet long and from two and one-half to eight inches above thé sidewalk. The easterly coping was within the stoop line, but' the westerly coping projected eleven inches beyond the stoop line. The cellarway projected four feet and eight inches beyond the building line of the street. The cellarway had been in the condition described since 1870.</p> <p>'The plaintiff was unfamiliar with, the locality. The street was, at the time of the accident, lighted by two. electric lights, "each of which was about 125 feet distant.</p> <p>Seld, that the question of negligence and of contributory negligence was properly submitted to the jury, and-that a judgment entered upon a verdict in favor of the plaintiff should be affirmed,</p>

<p>Negligence — injury from the fall of a Burton spar used in unloading a vessel — the principle of res ipsa loquitur held not to apply—under what circumstances the steamship, line is not liable.</p> <p>In an action by a longshoreman employed by a steamship company, to recover damages from the steamship company for personal injuries sustained by him. in consequence of the falling of a temporary appliance called a Burton spar, used in the work of unloading the defendant’s steamship, it appeared that the Burton spar was erected by the servants of the steamship company with materials selected by them from a quantity furnished by the steamship company.</p> <p>Held, that before the maxim of res ipsa loquitur could apply to the accident, the facts and attendant circumstances must be such as to point to some act of omission or commission" in violation of the legal obligation due from master to servant;</p> <p>That if it appeared that there was. no defect in the spar or its attachments, or a defect so slight as to have been unknown to a vigilant master and impossible of detection by due inspection, or that the accident was due to the temporary impairment of the materials used in the erection of the spar caused by their constant use, and that such defect could have been easily remedied by the servants in the line cf their duty out of the materials at hand, or that the accident was due to the manner in which the servants set up the contrivance out of proper materials, or was due to the negligence of the plaintiff’s fellow-servants, the defendant was not liable.</p>

<p> ‘Negligence—proof of freedom from contributory negligence—disregard of a rule requiring street cars to stop at a crossing.. </p> <p>In an action to recover damages resulting from the death of the plaintiff’s intestate; who was struck and killed by one of the defendant’s street cars, it is not enough that the facts proven, permit the inference that the intestate was ' free from contributory negligence, but such inference must be the only one . that can fairly and reasonably be drawn from the facts. .Such an inference cannot be drawn from the presumption that one will exercise care and prudence in regard to his own life and safety.</p> <p>When, in such a case, it appears that the accident occurred at a street intersection where the defendant’s street railroad was crossed at right angles by another street railroad, the fact that the car which struck the intestate did not come to a full stop before crossing the tracks of the other street railroad company, in obedience1 to a rule promulgated by the defendant, is not available to the plaintiff upon the question of the- intestate’s freedom from contributory negligence.</p>

Appeal by the defendant, John M. Duffy, as Treasurer of Court Sympathy, Ho. 83, Foresters of America, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles W. Hogan and another, doing business as partners under the copartnership and firm name of T. Hogan & Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of March, 1902, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 10th day of April, 1902, denying the said defendants’ motion for a new trial made…

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Negligence — injury from, being run down by a horse and wagon while crossing a street — when it presents a question for the jury.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff, who was run down by the defendant’s horse and wagon while crossing from the southeast corner of Fourth avenue and Twenty-second street, in the borough of Brooklyn, to the westerly side of the avenue, it appeared that the plaintiff, a girl sixteen years of hge, before attempting to cross the avenue, looked up and down the avenue, but saw only a truck carting stone, which was then between Twenty-first and Twenty-second streets, approaching slowly; that she traveled across the avenue upon the crosswalk to a point within three or four' feet from the westerly curbstone; that, hearing a shout, she looked up the avenue towards Twenty-first street and, for the first time, saw, about two or three feet away, the defendant’s horse and wagon coming towards her in a direct line; that she tried to escape by running toward the sidewalk, but was struck by the horse.</p> <p>The horse had galloped from a point midway between Twenty-first and Twenty-second streets, but when it came within seventy-five feet of the crosswalk over which the plaintiff was passing, the driver began to tug upon the reins and to saw upon the horse’s mouth. As he did so, the horse left the center of the street and went in toward the curb. When the horse was fourteen feet from the plaintiff he was traveling at the rate of a mile in three or three and a half minutes, and this speed continued up to the time of the accident.</p> <p>Held, that the question whether the defendant was guilty of negligence and whether the plaintiff was free from contributory negligence should have been submitted to the jury and that it was error for the court to nonsuit the plaintiff.</p>

Appeal by the defendant, Howard Phelps, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of June, 1902, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 12th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Press Publishing Company, from a-judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of April, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 29th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court against it, entered in the office of the clerk of the county of Queens on the 25th day of April, 1902, upon the verdict of á jury in favor of the plaintiff for $3,000, and dismissing the complaint as to the defendant Frank Ferris, and also from an order entered in s.aid clerk’s office on the 7th day of May, 1902, denying said -defendant’s motion for a new trial made upon the…

Appeal by the defendant,. The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of October, 1902, upon the verdict of a jury for $1,000, and also, from an order entered in said cleric’s office on the' 22d. day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children, from a judgment of theSupreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 27th day of December, 1901, upon the verdict of a jury rendered by direction of the court after a trial at th.e Queens County Trial .Term, adjudging that‘the. plaintiffs are the owners in fee of an equal undivided one-half part of…

<p>Negligence—right of a servant to rely upon his master’s instruction as to the manner of using a machine—improper instructions by the master — assumption of obvious risk.</p> <p>In an action brought by a .servant against his master to recover damages for personal injuries sustained by the servant, while trying to shift the belt of a machine which he was engaged in operating from the tight to the loose pulley, it appeared that the machine in question-was not supplied with a belt shifter although such a device was in almost universal use upon similar machines throughout the country; that the plaintiff had worked around factories for almost sixteen years, but had never before worked at a machine propelled by a belt.</p> <p>The method by which the servant attempted to shift the belt on the occasion of the accident was clearly dangerous, but the evidence tended .to show that at the time he was put at work upon the machine, two or three weeks prior to the accident, his foreman instructed him to adopt this method.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;</p> <p>That, although the plaintiff must have known of the danger involved in attempting to shift the belt in the method in question, he was entitled to rely upon the instructions given him by the foreman.</p> <p>Where a master instructs a servant in the manner of performing a dangerous duty and such instructions are improper or where he instructs the servant to work in a dangerous manner, although the risk incident thereto is apparent, the servant, especially when of tender years or of the lower grade of intellectual development, may rely upon the master’s presumed superior knowledge in the premises and perform the duty according to such instructions without being . held to be deprived of his right of action against the master under the doctrine of assuming an obvious risk.</p>

<p>Negligence—death of a horse — when the question whether it was occasioned by electric current from a trolley wire is. one for the jury — res ipsa loquitur— electric street railroad — care required with respect to appliances not constructed or owned by it.</p> <p>In an action brought against an electric street railroad company, to recover damages for the killing of a horse owned by the plaintiff, the plaintiff testified that, as he was driving along a street on which the defendant operated an electric street railroad, he pulled out for a passing car and that, as he did so, his horse fell; that he waited a little while and that, as the horse did not move, he alighted from his wagon and went to the horse's head; that adjacent to the horse there was a broken wire hanging from the trolley wire to the trolley pole and that each time it touched the pole, fire would fly from it; that the pole was white with electric light from top to bottom.</p> <p>There was also evidence that the plaintiff was affected in a manner similar to the horse, viz., that he fell down and was unable to rise. The plaintiff ultimately got the home home and it died immediately after arriving there.</p> <p>Held, that the question whether the death of the horse was due to the electric current or to some other cause was for the jury to determine;</p> <p>That the doctrine of res ipsa loquitur was applicable to the occurrence; '</p> <p>That, as the defendant had admitted an allegation of the complaint that it was operating an electric street railroad through the street in question, it thereby . admitted.,that it was fusing the appliances and mechanical devices necessary for the operation of ils street railroad;</p> <p>That it was chargeable with the same degree of care in respect to such appli- ’ anees as if they had been constructed and owned by it, and that consequently the absence of proof, that the defendant had actually erected or owned the wires in question and the poles to which they were attached, was not fatal to the plaintiff’s right to recover.</p>

<p>Appeal by the defendants, Max Lewy and another, from a judgment of the Municipal' Court of the city of New York, in favor of the plaintiff.</p>

<p>Foreclosure of a Men on personal property in the New York Municipal Gourt — an execution against the person cannot issue where no order of arrest has been made.</p> <p>In an action brought in the Municipal Court of the city of New York to foreclose a lien on personal property which the defendant had maliciously and willfully disposed of,, the court, under section 140 of the Municipal Court Act and section 1487 of the Code of Civil Procedure, construed in connection with section 20 of the Municipal Court Act,.has no power to enforce a judgment against the defendant by an execution against the person, unless an order of arrest has been issued in the action.</p>

Appeal by the plaintiff, Mary Mclnerney, from an interlocutory judgment of the Supreme Court in favor of the defendant Thomas F. Main, entered in the office of the clerk of the county of Kings on the 22d day of September, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining said defendant’s demurrer to the plaintiff’s complaint.

<p>Agreement in reference to the settlement of an estate — when an infant is not prevented thereby from applying to the Surrogate’s Court to compel the executor thereof to account.</p> <p>Thomas Kells died leaving a will, of which William E. Kells and Rose Kells were appointed executors. The testator was, in his lifetime, engaged in a manufacturing business and owned the manufacturing plant in which it was conducted. William E. Kells conducted the business after the testator’s death until the manufacturing plant was consumed by fire.</p> <p>After the executors had received §9,500 from several insurance companies on account of the property destroyed by fire, and when there was due from other insurance companies the sum of §8,000, an agreement was entered into between the executors, both individually and in their representative capacity, together with Charles D. Kells, as parties of the first part, and Herbert R. Kells, Mamie E. Gesell and Thomas J. Kells, an infant, by his special guardian, as parties of the second part. These parties included all the executors, devises and legatees under the will, and all of the parties were of full age except Thomas J. Kells.</p> <p>The agreement recited that it was deemed for the best advantage of all parties interested in the estate that the parties of the first part should pay .to the 'parties of the second part their respective shares of the residuary estate, and that the parties of the first part would subordinate their interest in the estate to the parties of the second part. The parties of the first part jointly and severally bound themselves to pay to the parties of the second part certain moneys. These payments were to be made out of the balance of the insurance moneys to be collected and out of the proceeds of the sale of the real property. The parties of the first part agreed that if these sums remained unpaid ten months after the date of the agreement, they themselves would pay the balance.</p> <p>The only undertaking on the part of Gesell and Herbert R. Kells was that, upon the payment to the parties of the second part of the sums mentioned in the agreement, the said Gesell and Herbert R. Kells would release the parties of the ‘first part from further liability. Neither the special guardian for Thomas J. Kells, nor Thomas J. Kells himself, assumed to enter into any covenant whatever affecting the latter’s, interest in the estate, nor did either of them agree to release the executors from liability, either presently or upon payment to the said Thomas J. Kells of the sum mentioned in the agreement.</p> <p>The parties of the second part mentioned in the agreement received two-thirds of the full amount mentioned therein. After the expiration of ten months from the date of the agreement, the general guardian of Thomas J. Kells, having received no further payment on behalf of the latter, instituted a proceeding to compel William E. Kells to render an account as executor. William E. Kells thereupon brought an action to procure an adjudication that the rights of all the parties, including the infant, were merged in the agreement, and that the proceeding for an accounting instituted by the general guardian be perpetually stayed. The complaint in this action affirmatively showed that a large portion of the residuary estate of the deceased was still in the hands of the plaintiff. Held, that a demurrer interposed by the general guardian to the complaint was properly sustained;</p> <p>That, under the circumstances, the Surrogate’s Court was not ousted of jurisdiction to compel an accounting by the plaintiff, and that the latter was not entitled to a judgment decreeing that the rights of all the parties had been merged in the agreement.</p>

<p>Ex parte order obtained by a guardian of am, infants person directing the guardian of his property to pay over money to an attorney foi' services —when the attorney will not be compelled to make restitution although the order has been reversed,</p> <p>Josiah J. White, the guardian of an infant's person, obtained an ex parte order directing the guardian of the infant's property .to pay §100 to one Page, an attorney, for services to be rendered by the attorney in settling estates in which the infant was interested.</p> <p>The guardian of the infant’s property .made a motion to vacate the ex parte order, and took an appeal from the order denying its motion. During the pendency of the appeal it paid the $100 to Page. On the appeal the Appellate Division vacated the order directing the payment to Page, with leave to the guardian of the person to renew the motion upon proper papers and notice.</p> <p>Page, who had rendered the services which he was employed to render, then requested the guardian of the infant’s person to renew the motion1, but the latter refused to do so.</p> <p>The guardian of the infant’s property thereupon made a motion to compel Page to make restitution of the $100.</p> <p>Held, that the motion was properly denied.</p>

Appeal by the defendant, James Speyer, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 21st day of July, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, restraining the defendant from so intercepting the flow of water in a certain stream as to diminish the flow thereof prior to the construction of a certain dam, and from continuing the dam so…

Appeal by The Long Island Railroad Company from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of November, 1902, as denies the motion of the said company to vacate and set aside an order entered in said clerk’s office on the 17th day of September, 1902, bringing in the appellant as a party defendant to this action and allowing the plaintiff to serve a supplemental…

Appeals by the plaintiffs, Kate- Clancy and William A. Clancy, respectively, from a judgment of the Supreme Court in favor of the . defendant in each of the above-entitled actions, entered in the office of the clerk of the county of Queens on the 16th day of December, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term. •

Appeal by the plaintiff, Rudolph Thieme, from a judgment of the Municipal Court of the city of New York, borough of the Bronx, in favor of the defendant, entered on the 7th day of October, 1902.

Appeal by the petitioner, The Brooklyn Union Elevated Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of July, 1902, adjusting the costs to be taxed by the respondent, a property owner.

Appeal by the defendant, Charles E. Adams, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of May, 1902, upon the verdict of a jury, and also from an order bearing date the 19th day of May, 1902, and entered in said clerk’s, office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, William Nelson, from a final order of the Supreme Court, made at the Richmond Special Term arid entered as a judgment against the relator, pursuant to section 2082 of the Code of Civil Procedure, in the office of the clerk of the county of Richmond on the 25th day of October,. 1900, after the verdict of a jury in favor of the defendants, rendered by direction of the court upon a trial at the Richmond Trial Term, dismissing the proceedings on the merits…

Appeal by the defendant, William Cranstoun, as executor, etc.,, of Nicholas H. Chesebrough, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and of the defendants Amos S. Chesebrough and others, entered in the office of the clerk of the county of Richmond on the 24th day of October, ■ 1902, upon the decision of the court rendered after a trial at the-Richmond Special Term.

Appeal by the defendant, Thomas J. Sturgis, fire commissioner of the city of New York, from a final order of the Supreme Oourt, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of February, 1902, granting a peremptory writ of mandamus directing the reinstatement of the relator as an active member of the uniformed force of the fire department of the city of New York, and also from an order entered in said…

Reargument of an appeal by the plaintiff, Theodore Wenk, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 20th'day of December, 1901, rendered after a trial at Special Term, in so far as said judgment overrules the demurrer of the plaintiff to the first, second and fourth defenses set up in the answer of the Co-operative Society of New Jersey, and the first, second and fourth defenses in the answer of…

Appeal by the defendants, Garret L. Hardy and others, from a judgment of the County Court of Suffolk county in favor of the defendant George E. Brewer, entered in the office of the clerk of the county of Suffolk on the 25th day of. April, 1902, upon the report of a referee in a mechanic’s lien foreclosure suit. •

<p>Appeal by Peter B. Olney and another, copartners, composing the firm of Olney & Comstock, from an order of the Supreme Court, made at the Westchester Special Term, and entered in the office of the clerk of the county of Westchester on the 3d day of February,. 1903, denying a motion to resettle an order dated January 6, 1903, which vacated an order entered in said clerk’s office on the 2oth day of October, 1902, directing the payment of certain moneys to them by the permanent receiver of said corporation.</p>

<p>Appeal by the defendants, Louis von Bernuth, individually and as executor and trustee of and under the last will of George A. Steinway, deceased, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, .entered in the office of the clerk of the county of Kings on the 24th day of June, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging that three certain claims, asserted by the executors of the estate of William Steinway, deceased, against the executor and trustee of the estate of George A. Steinway, deceased, have no foundation or validity.</p>

<p> Buie that agreements as “ to the proceedings in a cause" be in writing~it does not apply to an agreement of settlement—scope of a supplemental complaint. </p> <p>Rule 11 of the General Rules of Practice, which requires agreements or com sents “ in respect to the proceedings in a cause ” to be in writing, does not apply to an agreement in settlement of an action.</p> <p>A party is not entitled to set up by a supplemental complaint a new and different cause of action which did not exist at the time of the commencement of the action.</p>

<p>Appeal by the defendant, William W. Penfield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8th day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Daniel E. Lynch, from a judgment of "the Supreme Court in favor of the defendants, entered in the office •of the clerk of the county of Westchester on the 10th day of December, 1902, upon the report of a referee dismissing the plaintiff’s complaint upon the merits.</p>

Appeal by the defendant, Supreme Council, American Legion of Honor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of May, 19Ó2, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

<p>.Recovery on proof of an express contrast under a complaint based, on a quantum meruit — counterclaim in the New York Municipal Court, how far limited — in an action for work done, a counterclaim for jewel/ry stolen by the plaintiff’s wch'kman cannot</p> <p>Where the complaint in an action brought in the Municipal Court of the city of New York to recover for work done and materials furnished is framed upon a quantum meruit, while the proof establishes the existence of an express contract, the court may, under section 2943 of the Code of Civil Procedure, which is applicable to the Municipal Court of the city of New York, disregard the variance, unless it is satisfied that the defendant has been misled to his prejudice thereby.</p> <p>Section 2938 of the Code of Civil Procedure, which provides that the answer interposed in an action in a Justice’s Court may set forth “ one or more defenses or counterclaims,” must be construed in connection with section 2945 of the Code of Civil Procedure which makes sections 501 and 502 of such Code applicable to counterclaims interposed in actions commenced in. Justices’ Courts.</p> <p>It was not the intention of the Legislature, when making section 2938.of the Code of Civil Procedure applicable to the Municipal Court of the city of Mew York and omitting to make section 2945 applicable thereto, to allow any new matter constituting a counterclaim to be set up in an answer interposed therein^ but only new matter constituting a counterclaim as that term is defined in sections 501 and 502.</p> <p>In an action to recover for work done and materials fiirnished by the plaintiff to the defendant, the defendant alleged that one of the plaintiff’s workmen, while engaged in the performance of the work for which the plaintiff sought to recover, stole a piece of jewelry belonging to the defendant’s sister; that such-workman bore a bad reputation and that the defendant negligently employed! him without investigating his character; that prior to the commencement of the action the defendant’s sister had assigned to him her claim against the plaintiff arising out of the loss of the jewelry.</p> <p>Held, that the counterclaim did not arise out of the transaction set forth in the complaint■ and was not connected with the subject of the action within the meaning of section 501 of the Code of Civil Procedure. '</p>

<p>Party— the fact that the cause of action belongs to the plaintiff and a third person must be set up by plea in abatement — otherwise it is waived.</p> <p>In an action to recover for money had and received the objection that the fund is owned by the plaintiff and a third party must be taken by a plea in abatement.</p> <p>If not so taken the defendant will be deemed to have waived the point, and testimony tending to establish that a third person was a part owner of the fund is not admissible.</p>