Volume 83 — New York Miscellaneous Reports

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of defendant, after a trial by a judge without a jury.

<p>Negligence — contributory — automobiles — pleading.</p> <p>Where plaintiff about to cross a street noticed defendant’s approaching automobile about one hundred feet away, and while standing to allow a street car to pass was struck in the back by the mud guard of the automobile, a judgment dismissing the complaint at the close of plaintiff’s case, on the ground that she was guilty of contributory negligence as matter of law, will be reversed.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of plaintiff, after a trial by a judge without a jury.

Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint after a trial before the court without a jury.

<p>Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint.</p>

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of defendants.

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, rendered in favor of plaintiff.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, rendered in favor of the plaintiff.

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, setting aside a verdict directed for defendant.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of the plaintiff.

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint, with costs, at the close of the plaintiff’s case.</p>

41 in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhattan, fifth district, after a trial by the court without a jury.

<p>Contracts — provision that title shall remain in vendor until full payment of purchase price — fraud—action under section 139 of Municipal Court Act.</p> <p>Where the written contract for the sale of a piano provided that the title should remain in the vendor until full payment of the purchase price, an action is maintainable under section 139 of the Municipal Court Act to foreclose a lien for instalments of the purchase price or rental then due and unpaid, as the statute provides that the written agreement shall be a lien upon the chattel.</p> <p>Where in said action issues of fact were raised as to whether there was fraud in the contract and whether a new contract was made and breached, the exclusion of evidence offered by defendant on such issues, on the ground that defendant’s only remedy was to return the piano, is such error as calls for reversal of a judgment in plaintiff’s favor.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of the defendants, entered upon a trial by the court without a jury.</p>

<p>Contracts — license to produce a certain play — action for royalties — burden of proof to show existence of a custom.</p> <p>A contract by which plaintiff granted to defendant a license to produce a certain play with limitation as to time and place is plain, and a ruling that it is ambiguous for failure to specify whether the right to produce the play was exclusive or not, and that in an action for royalties the burden was on plaintiff to prove that the license was not exclusive was manifest error; and where the case was submitted to the jury on such theory a judgment for defendant will be reversed and a new trial granted.</p> <p>If it were the intention of the parties that a further limitation was to be placed on plaintiff’s rights over the play words expressive of such intention could and should have been embraced in the contract, and the mere assertion of a custom that would impose such a limitation on plaintiff did not render the contract ambiguous.</p> <p>The burden was on defendant to show the existence of such a well-known custom that the parties would have contracted with the intention and expectation that it would apply to their contract.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered upon a dismissal of the complaint at the close of the plaintiff's case, and from, an order denying the plaintiff's motion for a new trial.</p>

Appeal in the above-entitled actions from, two judgments of the City Court of the city of New York, entered upon a non-suit at the close of the plaintiffs’ case.

<p>Labor Law, § 71 — employment of infants between fourteen and sixteen years — action to recover for personal injuries — negligence — evidence.</p> <p>The employment of an infant between the age of fourteen and sixteen years, unless a certificate as required by section 71 of the Labor Law showing his fitness for the work has been duly filed, establishes a prima facie case of negligence in the employer.</p> <p>Where in an action to recover for personal injuries sustained by plaintiff, an infant between the age of fourteen and sixteen years, the testimony for defendant tended to show that both plaintiff and his older brother stated to defendant’s officers at the time plaintiff was employed that he was over the age of sixteen and that plaintiff appeared to be over that age, it was for the jury to determine whether defendant was justified in its alleged belief as to plaintiff’s age, and a refusal to charge on defendant’s request that “if the plaintiff’s brother falsely stated the plaintiff’s age to the defendant or its representative at the time plaintiff was employed and if the plaintiff was present and led him to believe that the plaintiff was over sixteen years of age and if they were justified in their belief, then they were not guilty of negligence in employing him,” is reversible error for which a judgment in favor of plaintiff will be reversed.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, rendered in favor of the plaintiff for seventy-two dollars and costs.

These are cross-appeals from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered in favor of the plaintiff for fifty dollars after a trial without a jury.

Appeal by the plaintiff from a judgment of the City Court of the city of New York entered upon the dismissal of the complaint at the close of plaintiff’s case.

<p>Appeal by the plaintiff from, a judgment and order of the City Court of the city of New York dismissing plaintiff’s complaint and setting aside a verdict of the jury in favor of plaintiff for $250 rendered after a trial.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York dismissing the complaint with leave to plaintiff to bring another action upon additional evidence.

Appeal by plaintiff from a judgment of the City Court of the city of New York entered upon the dismissal of the complaint directed by the court during the course of the trial.

Appeal by the defendant Stappler from a judgment of the City Court of the city of New York entered upon a verdict directed by the court.

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon a verdict rendered in favor of the defendants.

Appeal by the tenant from a final order of the Municipal Court of the city of New York, in summary proceedings, awarding the possession of the premises in question to the landlord.

Appeal by the defendant from' a judgment of the City Court of the city of New York, entered upon a verdict rendered in favor of the plaintiffs, and from an order denying a motion for a new trial.

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of the plaintiff.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, rendered in favor of the plaintiff, and from an order denying the defendant’s motion to dismiss the complaint at the end of the case.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of the Bronx, second district, entered upon a verdict rendered in favor of the plaintiff, and from an order denying a motion for a new trial.

Appeal by the defendant from a judgment of the City Court of the city of New York, entered upon a verdict rendered in favor of the plaintiff, and from an order denying a motion for a new trial.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, in favor of plaintiff after a trial by a judge without a jury..

Appeal by plaintiffs from an order of the City Court of the city of New York, denying their motion for judgment upon the pleadings.

<p>Contracts— for delivery of goods with warranty of quality — deposit of money “ for faithful performance of conditions ” — delivery of goods when not in conformity with warranty — pleading — Sales Act, § 150(1, 2).</p> <p>There is nothing in the Sales Act (Laws of 1911, chap. 571, § 150, subds. 1, 2) which changes previously existing rules that in a contract for the delivery of goods with warranty of quality a purchaser may, as to goods already delivered and accepted by him, sue for damages for breach of the warranty, and where the seller refuses to deliver goods in the future according to the contract recover also from the seller, as in every case of breach of an executory contract, the damages resulting from such a breach.</p> <p>Plaintiff agreed to furnish defendant with ice “ satisfactorily frozen so as to be merchantable ” at an agreed price, the same to be delivered daily and paid for bi-monthly. Defendant deposited with plaintiff $3,000 "for the faithful performance of the conditions under this agreement ” which, if defendant “ faithfully carries out the terms and covenants in this agreement up to and including December 31, 1913,” plaintiff agreed to return to defendant. In an action to recover for ice delivered for the period September 1 to 13, 1913, defendant alleged as a first counterclaim that the ice delivered by plaintiff up to the time of their disagreement did not conform to the warranty to defendant’s damage of over $6,000, and that on September 15, 1913, when the parties disagreed, defendant notified plaintiff that it would not receive such unsatisfactory ice in the future and that plaintiff informed defendant that it would make no deliveries of other quality, that the next deliveries offered by plaintiff were not in conformity with the warranty and were rejected by defendant which then “terminated the agreement.” A second counterclaim asked damages for plaintiff's failure to perform the agreement for the remainder of the term and a third counterclaim sought the return of the $3,000' deposit.</p> <p>On appeal from an order sustaining a demurrer to each of the counterclaims, held, reversing said order, that there had been no rescission of the contract pursuant to paragraph d of subdivision 1 of section 150 of the Sales Act, and that the demurrer as to the first and second counterclaims should be overruled.</p> <p>That whether the contract be regarded as terminated and, therefore, the $3,000 in the hands of plaintiff as having become immediately the property of defendant entitling him to sue therefor as for money had and received, or as containing an implied covenant on the part of plaintiff to return the money forthwith if by its own act it prevented defendant’s performance of the agreement to secure which plaintiff was entitled to retain possession of the money until December 31, 1913, the demurrer to the third counterclaim should have been overruled.</p>

Appear by plaintiff from an order of the City Court of the city of New York striking out as irrevelant certain allegations contained in the complaint.

Appeal by plaintiff from an order of the City Court of the city of New York overruling plaintiff’s reply as frivolous and directing judgment for the defendant if plaintiff failed to serve a reply within a specified time.

Appeal by the tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, awarding possession of the premises to the landlord.

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff for $2,158.24, after a trial before the court without a jury.</p>

Appeal by the defendants from an order of the Special Term of the City Court of the city of New York, denying a motion to vacate an order previously made, declaring defendants’ appeal from the judgment in the above-entitled action abandoned and also from said order declaring defendants’ appeal abandoned.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, rendered in favor of the plaintiff.

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, rendered in favor of the plaintiff.</p>

<p>Motion .for a temporary injunction.</p>

<p>Action for an injunction.</p>

Motion by plaintiff to retax costs, and to insert three items heretofore stricken out by the clerk on motion of defendant.

Taxpayer’s action to set aside a contract between the town of Campbell and the Buffalo Steam Roller Company, made on the 21st day of February, 1910, and to recover back moneys paid thereunder.

<p>Motion for a new trial in an action in ejectment.</p>

<p>Costs — when plaintiff entitled to appeal to Appellate Division — on appeal from judgment — appeal.</p> <p>A judgment in favor of plaintiff was reversed by the Appellate Division “ with costs to abide the event.” On appeal from a judgment in favor of defendant on a new trial the Appellate Division directed judgment in favor of plaintiff for fifty dollars and as so modified affirmed the judgment for defendant, with costs to appellant. Held, that plaintiff was entitled to tax the costs of both trials and of both appeals.</p>

<p>Action for arrears of alimony awarded by judgment of divorce.</p>

Proceeding under Laws 1900, chapter 190, as amended, to acquire for the people of the state certain lands as a part of the proposed Palisades Interstate Park.

<p>Action for a mandatory injunction.</p>

<p>Motion by defendant for an order directing that this action be removed to the District Court of the United States for the Southern District of New York.</p>

<p>Actions — to recover commissions on orders — motion to set aside verdict— damages for wrongful discharge.</p> <p>Where on April 12, 1911, defendant by letter notified plaintiff, who prior thereto had been employed as agent on commissions for the sale of coal, that it did not care to accept any</p> <p>new customers subsequent to April 3, 1911, and would discontinue paying plaintiff any commissions on any customers after July 1, 1911, and in an action to recover commissions on orders which plaintiff admits she did not procure personally she concedes that she was paid in full for all commissions claimed down to July 1, 1911, but bases her right to recover on the fact that she originally brought the customers in and that said orders were renewal ones, and the only question on a motion to set aside a verdict in favor of defendant is whether there was sufficient evidence for the jury to base their verdict upon the fact that there had been a discharge, either rightfully or wrongfully, of plaintiff, the motion will be denied.</p> <p>Semble, that plaintiff’s remedy, if any, was an action for damages for a wrongful discharge.</p>

<p>Appeal — justice’s judgment by default — relief in County Court — judgment in action on note affirmed — judgment in action for conversion reversed and new trial ordered.</p> <p>The only method of obtaining a review of a judgment rendered by a justice of the peace is by notice of appeal under section 3044 of the Code of Civil Procedure, and if the appellant has not asked or is not entitled to a new trial he has the right to have his appeal disposed of upon the record of the justice supplemented by such proof as he may present.</p> <p>In two actions brought before a justice of the peace upon verified complaints, one on a promissory note and the other for conversion of personal property, judgment was entered against defendant by default. On appeal from both judgments and for a new trial simply on the theory of said default it appeared from the papers presented that defendant was in the presence of the justice on the return of the summons, that he was informed by the justice that he would have to file a verified written answer or judgment would be entered for the amounts claimed in the respective complaints, and defendant explained to the justice that he expected that one with whom he had consulted would procure for him an attorney, but none was forthcoming, and after the lapse of some time the justice, who made no statement which misled the defendant, entered judgment in each case against him. Held, that the record showed that defendant had “ failed to appear before the justice,” within the meaning of section 3064 of the Code of Civil Procedure, and had in his endeavor to have his day in court “rendered a satisfactory excuse for his default.”</p> <p>The complaint in the action on the note demanded judgment for thirty-two dollars but judgment was taken for but twenty-five dollars. Held, that from the statements in defendant’s affidavits he had failed to show “that manifest injustice had ben done” and that the judgment should be affirmed, with costs.</p> <p>That the judgment in conversion having been rendered without any proof and defendant in his affidavit denying with some particularity the alleged conversion, said judgment would be reversed and a new trial ordered before the justice at a time and place specified in the order to be entered.</p>

<p>Application for a writ of certiorari to review certain acts, etc., of a justice of the peace, magistrate of Special Sessions.</p>

<p>Jurisdiction — against a city to recover for personal injuries — determination as to who is city attorney.</p> <p>Upon a motion to open defendant’s default in an action against a city to recover for personal injuries, the court is without jurisdiction to determine who is city attorney, as between one who is in actual possession of the office under color of right and in possession of all papers and other property belonging to said office, including the summons and complaint in said action, and one who is out of possession of the office of city attorney.</p>

<p>Motion for a writ of prohibition directed to the Peacemakers’ Court of the Cattaraugus Reservation.</p>

<p>City of Elmira — charter of — corporation counsel entitled to recover • by action compensation agreed to he paid — Laws of 1906, chap. 477.</p> <p>The charter of the city of Elmira (Laws of 1906, chap. 477) is a public act of which judicial notice will be taken.</p> <p>Though said charter provides for a corporation counsel, an attorney employed by the mayor under section 31 thereof to prosecute within the city a violation of the criminal law is entitled to recover by action compensation agreed to be paid, where the common council more than ninety days prior to the commencement of the action rejected plaintiff’s claim therefor.</p>

<p>Motion to confirm the report of commissioners appointed to appraise the value of toll bridge and franchise of Mechanicville Bridge Company.</p>

<p>Action by lienor to recover money alleged to be due under a contract which had been abandoned.</p>

<p>Action in behalf of stockholders against directors to compel an accounting.</p>

<p>Taxpayers’ action to compel restitution of a sum of money paid pursuant to a resolution of the- board of supervisors of Suffolk county.</p>

<p>Application to amend complaint.</p>

<p>Actions — to recover for personal injuries — notice describing place where accident happened insufficient and defective — evidence.</p> <p>Where plaintiff in an action against a city to recover for personal injuries admits on cross-examination that the cause of her fall was not a hole or depression in the sidewalk, as she testified on her direct examination, but that she slipped upon a piece of ice some distance from the hole and that in falling her foot went into it, her complaint was properly dismissed, as if the injury occurred during the slipping defendant would not be liable, but if the injury occurred after plaintiff’s foot went into the hole or by reason of entering" it defendant in either ease might be liable, and a jury should not be permitted to guess or speculate as to which of said causes the accident to plaintiff might be attributed.</p> <p>A notice describing the place where the accident happened as “ on the left-hand side of Euclid avenue ” was clearly insufficient and defective.</p>

The relator was charged with asking and receiving $150 from a pensioner of the department in order to have his annual pension increased. He was accused of this act on August 25, 1913, charges were immediately preferred against him upon which he was tried forthwith before the police commissioner and removed from his position on the same day.

<p>Motion to amend complaint.</p>

<p>Savings banks — circumstances attending making of savings bank account — intention to make an incompetent joint owner of account.</p> <p>Where, from all the circumstances attending the making of a savings bank account by plaintiff’s testatrix with defendant in the name of “ Frederick or Karolina Beier,” it is clear that testatrix intended to make Frederick, who was her only child and an incompetent, joint owner of the account, the moneys due thereon should be directed to be paid to his committee.</p>

<p>Wills — construction of — intent of testator — to be gathered from whole will.</p> <p>By the first paragraph o£ the will of a testator, whose estate consisted entirely of personal property of the approximate value of $150,000, his wife was given one-third of the income thereof during her life. By the second paragraph he gave all his property to his son except the portion given to his widow. By the third paragraph testator appointed guardians to administer the estate during the minority of the son and constituted said guardians trustees to carry into effect the provisions of the will until the son attained the age of twenty-eight years. The fourth paragraph provided: “ On my son attaining the age of twenty-one he shall receive out of my estate $10,000 as a start in business life and shall receive two-thirds of the income of my estate, and so soon after attaining the age of twenty-eight years as he shall assure by adequate security to my wife her one-third of the income of my estate my son shall receive all the rest of my property and its increase.” In an action for the construction of the will, held:</p> <p>That it was the intention of testator to secure to his wife one-third of the income on all his property during her life and that the direction in the fourth paragraph whereby his son was to receive the amount therein specified on attaining majority and also to receive two-thirds of the income did not reduce the income to be paid to the widow, which was a variable quantity only in so far as the earning power of the estate increased or decreased.</p> <p>Neither the rule that when two clauses of a will are so irreconcilable that they cannot stand together the one that is posterior in position shall be considered as indicating a subsequent intention and prevail unless the general scope of the will leads to a contrary conclusion, nor the other rule that if there is no doubt as to the meaning of the earlier clause, while there is doubt as to the meaning of the later, so that either of two constructions is possible, that construction will be adopted which will give effect to both, is applicable, and even if they were they would be subservient to the general rule that the intent of testator is to be gathered from the whole will.</p>

<p>Corporations— creditors of — action to recover sum of money claimed to be due — attachment — action to enforce equitable assignment.</p> <p>A corporation, one of the defendants, before shipping a cargo of stone blocks which it had contracted to sell to defendant L. requested him by letter to inform B. & Co. acting as agent for plaintiff that upon receipt of the cargo he, L., would pay to said agent the proceeds of the shipment to be applied on a chattel mortgage made by said corporation and held by plaintiff, which, as the letter stated, wished to have such a letter before it would release the blocks from the wharf to the vessel, and accordingly L. wrote said agent stating the conditions of the purchase and that he was willing to make payment as requested. Subsequently plaintiff released the blocks from the chattel mortgage and they were shipped to and received by L. Held, that the letter of the corporation to L. constituted an equitable assignment of such part of the purchase price of the stone as would discharge the balance due under the chattel mortgage.</p> <p>Where a creditor of the corporation which sold the stone upon learning that moneys would shortly become due to it from L. commenced an action against it to recover a sum of money claimed to be due for coal sold and caused such moneys to be attached, plaintiff in an action to enforce the equitable assignment theretofore made is entitled to judgment.</p>

<p>Pledge — transfer by pledgee — title — rights of pledgor and pledgee — recovery of property on payment of debt — conflicting claims.</p> <p>Contract — illegal — fully executed — when not enforceable.</p> <p>Assignment for benefit of creditors — rights of assignee.</p> <p>Where bonds had simply been lodged by the owner with a firm of stockbrokers for safe-keeping, only one who had in good faith loaned money upon them in reliance on the apparent title of the brokers could acquire title thereto as against the real owner.</p> <p>While an assignment by the owner of bonds of his interest therein, made upon the understanding that he would not prosecute the broker who had wrongfully pledged the bonds and in whose interest the assignment was made, was illegal and could not be enforced between the parties, it will not be disturbed after it has been fully executed, but the law will leave the parties where it finds them.</p> <p>Brokers who receive bonds in pledge may not rehypothecate them for a larger sum or mingle them with other collateral to secure a larger loan by them.</p> <p>One who deposits bonds with a stockbrokers’ firm as margin may upon payment of any balance due on account recover the bonds subject to the prior claims of one who in good faith had loaned money to the brokers thereon.</p> <p>A pledgee- is a holder of the pledged property for value only to the extent of the particular loan upon the particular security.</p> <p>An assignee for creditors stands in no better position than does his assignor at the time of the execution of the assignment.</p> <p>Where brokers with whom securities were deposited wrongfully borrowed money thereon pledging them as collateral, claimants thereto cannot have the securities of any other claimant applied in satisfaction of a superior claim against all the securities in exoneration of their own securities.</p> <p>Where securities deposited with a stockbrokers’ firm were pledged by it without authority to S. in good faith so as to give him a claim superior to that of the owners, if the fund available on a sale of the securities would be insufficient after paying S. to pay in full the claims of said owners, the securities should be sold separately, and any surplus after discharging S.’s claim and the costs of the action should be divided among the other claimants in proportion to their respective claims.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, dismissing the complaint.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, entered in favor of the defendant upon a dismissal of the complaint. A jury was sworn, but it was consented that only a question of law was involved which the court should decide.

Reargument of an. appeal by defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiffs for $4,042.15 after a trial by the court without a jury.

Appeal by the defendant Barnett Goldstein from a judgment of the City Court of the city of New York, entered upon a verdict rendered in favor of the plaintiff by direction of the court, and from an order denying a motion for a new trial.

<p>Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough, of Manhattan, first district, entered in favor of the plaintiff upon a trial by the court without a jury.</p>

<p>Corporations — liability for services of bookkeeper employed on salary — Stock Corporation Law, § 57.</p> <p>The stockholders of a corporation, under the provision of section 57 of the Stock Corporation Law making them personally liable for debts owing to employees other than contractors for services performed, are liable for the services of a bookkeeper employed on a salary by the corporation and who at all times was subordinate to and under its direction and control.</p>

The defendant appeals from a judgment of the Municipal Court of the city of New York, boroug’h of Manhattan, fifth district, rendered in favor of the plaintiff after a trial by the court without a jury and from an order denying a motion for a new trial.

The defendant appeals from two judgments of the Municipal Court of the city of New York, borough of Manhattan, third district, rendered in favor' of the plaintiffs.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, rendered in favor of the defendants.

<p>Master and servant — offer of master to re-employ servant wrongfully discharged considered in mitigation of damages — servant’s refusal to accept re-employment no bar to action for damages.</p> <p>While the offer of a master to re-employ a servant wrongfully discharged may be considered in mitigation of damages, it is not a complete defense to an action for damages for breach of the contract; the servant, however, is not bound to accept employment from his former employer in preference to others.</p> <p>The question of the reasonableness and good faith of the offer to re-employ is one of fact for the jury.</p> <p>If deemed to have been submitted to the jury, the verdict in plaintiff’s favor determined all matters of defense, and defendant by failing to' ask that matters of defense be submitted to the' jury waived his right thereto.</p> <p>The servant’s refusal to accept re-employment unless another servant was discharged was no bar to his action for damages, where during such negotiations he retracted such refusal.</p> <p>The servant, as a condition of his re-employment and waiving his right, of action for damages, was entitled to insist that defendant compensate him for lost time and for traveling expenses necessarily incurred in returning to his home after having been discharged.</p>

Appeal by the defendant from a judgment in favor of plaintiff for $841.30, besides costs, entered on a verdict rendered in the City Court of the city of New York.

order of the City Court of the city of New York, denying defendant’s motion for a new trial after the entry of a verdict, by direction of the court, in favor of plaintiff for $2,000.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of plaintiff for $432.80, besides costs.</p>

Appeal by defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff after a trial by the court and a jury.

Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, entered after a trial by the court, a jury having been waived.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of the Bronx, second district, in favor of defendants, entered after a trial by a judge without a jury.

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, setting aside the verdict of a jury in her favor.

<p>Eminent domain — subsequent conveyance of land—when award does not pass to grantee.</p> <p>A conveyance of real estate by metes and bounds, including land previously taken for street purposes as to which the report of commissioners had been confirmed, title vested in the city and the award paid to the grantor four months before said conveyance, does not operate as an assignment of the previously paid award, there being no specific mention thereof or reference thereto in said conveyance.</p>

<p>Contracts — assignment of rights under — mechanics’ lien filed by partnership for work and materials furnished — agreement to pay partnership a certain sum.</p> <p>Where a mechanics’ lien, filed by a partnership for certain work and materials furnished, was satisfied in consideration of defendants’ joint and several agreement to pay the partnership a certain sum for said work and an additional amount for completing it, an assignment to plaintiff on the dissolution of the partnership of its rights under the contract pursuant to which the lien was filed did not cover partnership rights under the subsequent agreement with defendants which was entirely independent of the original contract.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, rendered in favor of the plaintiff after a trial by the court without a jury.

Appeal by defendant Title Guaranty & Surety Company from a judgment of the City Court of the city of New York, rendered against it upon a bond furnished by defendant Cugley to discharge a mechanics ’ lien filed by plaintiff.

Appeal by plaintiffs from an affirmative judgment of the City Court of the city of New York rendered in favor of defendant upon his counterclaim after a trial at Special Term.

Summary proceedings brought by Matthew Walsh against the Fort Schuyler Brewing Company and its sub-tenants. On January 9, 1909, Walsh gave the Fort Schuyler Brewing Company a lease of a hotel property in the city of Utica, which lease was to run for a term of five years, and which term expired, therefore, on the 9th of January, 1914.

<p>Application by relator for a peremptory writ of mandamus.</p>

<p>Wills — provisions of — partition — reference in will to “ death without issue.”</p> <p>A testator who died in 1875 made his will when he was sixty-five years of age and about a month after the death of his only son whose motherless boy and girl] aged respectively three and four years, were testator’s only living descendants. After giving his wife, who died in 1890, a life estate in all his.property consisting 'of certain real estate valued at about $4,000, testator gave his grandson two-thirds thereof in fee and the remaining one-third to his granddaughter, subject to be defeated either by death without issue or refusal to comply with testator’s wish that they should be brought up by their paternal relatives. The will did not provide that the issue, if any, of the grandchildren should take in case of their death leaving issue, nor did it provide for the disposition of the property in case of the refusal of the grandchildren to comply with said wish. Upon the death of the granddaughter, unmarried and without issue, the grandson, who also died without issue, took possession of the estate, received and retained all the rents and profits and by his will, which was duly admitted to probate, gave all his property to his wife absolutely. In an action for partition brought by a cousin of testator claiming an interest as devisee under and by virtue of the provision of the will by which in the event that both grandchildren died without issue all of testator’s property was devised to plaintiff and others, held, that the provision containing testator’s wish as to his grandchildren and the conditions designed to secure a compliance therewith made it clear that he referred to a “ death without issue ” in his lifetime, and that title to the property passed to the wife of testator’s grandson under the terms of her husband’s will.</p>

<p>Motion to set aside a verdict directed by the court.</p>

Action for a judicial construction of the sixteenth and forty-ninth items of the will of Harriet M. Good-sell, deceased.

<p>Process — substitute for personal service — order for service by publication— motion to set aside denied — street number of defendant’s residence not jurisdictional.</p> <p>A substantial compliance with the requirements of the sections o£ the Code of Civil Procedure relating to substituted service of process upon residents of the state is all that is necessary to give validity to proceedings under said sections.</p> <p>The only object of including defendant’s street address among the other statements in the affidavit required by section 438 of the Code of Civil Procedure on a motion for an order for substituted service of a summons is to give the judge such information as will enable him to decide where mail addressed to defendant sought to be served would probably be received and to include in the order a direction accordingly.</p> <p>Where, on motion to set aside an order of publication granted under section 438(3) of the Code of Civil Procedure, it appears that defendant’s residence is 358 Lake avenue, Rochester, N. Y., but that in the affidavits and papers on which the order was obtained her residence was variously stated as being at 81 Lake avenue and 217 Lake avenue in that city, and, further, that the summons, complaint, order for publication and notice under section 442 of said Code were in pursuance of a direction in said order mailed to defendant at 217 Lake avenue, Rochester, N. Y., the motion will be denied, the statement that defendant’s residence was upon said avenue being true and there being no requirement that the street and number nor even the town or city of a defendant’s residence should be stated in the affidavit.</p>

<p>Action to recover from defendant a balance dne for freight.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Motion to continue injunction pendente lite.</p>

<p>Action by an executrix to recover a savings bank deposit.</p>

<p>Motion for an additional allowance in an action to recover damages for alleged negligence.</p>

<p>Injunctions — in actions brought under Laws of 1908, chap. 429 — order of discontinuance — costs — restraining defendant from pumping mineral waters in violation of statute.</p> <p>Where in actions brought under chapter 429 of the Laws of 1908, entitled “ An Act for the protection of the natural mineral springs of the State and to prevent waste and impairment of its natural mineral waters,” all parties agree that facts occurring since the commencement of said actions will render the trial thereof futile so far as determining any question affecting the merits of the issues involved, an order may be granted discontinuing said actions without costs to either party as against the other, and without prejudice to any action or proceeding which defendant, in one of said actions, may be advised to take upon an undertaking given by plaintiff therein as a condition of the granting of an injunction to restrain defendant from pumping mineral waters in violation of said statute.</p>

<p>Contracts — distinction between contract or agreement and expression of intention—oral contract of adoption—evidence.</p> <p>There is a very clear distinction between a contract, or agreement, to make a devise or bequest and an expression of an intention so to do.</p> <p>An oral contract alleged to have been entered into with defendants’ father and mother since deceased, whereby it is claimed that they agreed with plaintiff’s mother to adopt and bring him up as one of their own children and that he should share equally in their estate with their own children, cannot be established by the uncorroborated testimony of plaintiff’s mother who, when he was three months old, became a domestic servant in the decedents’ family and served there for over twenty years.</p>

<p>Motion to confirm the report of a referee.</p>

<p>Divorce — alimony — amount — employment of detectives.</p> <p>Where in an action for divorce the wife’s answer presents a prima facie defense she may he allowed temporary alimony, and the court on motion therefor will not prejudge the ease in advance of the trial, nor too carefully scrutinize the merits unless the record on the affidavits submitted is so clear against the wife’s innocence as practically to exclude any probability of her prevailing in her defense.</p> <p>The amount of alimony to be allowed in sueh ease is dependent upon the financial situation of the parties, and the wife must show that she has no means under her control sufficient to maintain herself pending the litigation.</p> <p>Where a husband sues his wife for a divorce upon allegations of knowledge and not upon information and belief, and the amended answer, repeating the denials of the original, alleges as a defense that the false charge of defendant’s infidelity was the result of a fraudulent scheme on the part of plaintiff to manufacture evidence of guilty conduct on defendant’s part by entrapping her in a compromising situation with one employed for sueh purpose by or on behalf of plaintiff, and on motion for alimony pendente lite and for suitable support for the issue of the marriage it appears that plaintiff, who was supported to a large extent by his parents, especially his mother, has sufficient income to support himself and to provide him with means for the consumption of liquor to such an extent that he has been obliged to go to a sanatorium on a number of occasions, and both he and his mother state in their affidavits that the expense of hiring detectives was voluntarily assumed by plaintiff’s mother who objected to his marriage, and she swears that plaintiff was not even aware that she had employed detectives and plaintiff swears that he has no personal knowledge of the offenses charged against his wife and made them on information and belief, the motion will*be granted.</p>

<p>Application for an injunction.</p>

<p>Application for an injunction pendente lite.</p>

<p>Equity — voting trust agreement — provision for penalty or forfeiture — injunction pendente lite.</p> <p>A voting trust agreement under which each of two railway companies delivered to a trust company its one-half of the stock of a new corporation, a terminal company, which they had formed, to secure their mutual protection in the premises and also the fulfillment of the purposes and intent of a joint lease made by them with the new corporation, provided that in the event of a default by either of the railway companies in the payment of the one-half of the guaranteed interest rental, and the continuance of such default for three months after notice by the trustee, “ then as a penalty therefor any such default of either of the railway companies shall operate as a forfeiture of the shares of the capital stock of the Terminal Company originally deposited with the trustee by such defaulting railway company and shall vest the same in the other one of the railway companies, its successors or assigns, not in default, and thereupon the trustee shall and will execute all proper instruments declaring such forfeiture, which shall be conclusive evidence of the facts therein set forth, and shall and will also assign unto that one of the railway companies not in default, or upon its order, all of the shares of the capital stock of the Terminal Company then held by the trustee, and shall and will deliver the certificates of said stock accordingly.” In an action by receivers of one of the railway companies against the' other railway company and the trust company to enjoin them from making or accepting any delivery of certificates for shares of stock of the terminal company deposited by plaintiffs’ company with the trust company under the voting trust agreement, or from declaring any forfeiture in respect thereof, or from executing any assignment or conveyance thereof, held, that the voting trust agreement, while not an instrument to secure payment of a debt which existed at the time it was made, was, nevertheless, an instrument to secure the performance of obligations the breach of which would necessarily create a debt, and that such a debt was within the contemplation of the parties at the time the agreement was made.</p> <p>That the provision therein for forfeiture might be declared void and unenforeible upon a trial where all the facts and circumstances warranted a conclusion which would prevail over the dry words of the agreement.</p> <p>That the term “ default ” as used in the instrument was equivalent to, and identical in significance with, the term “ debt,” since the default related to the payment of interest on a debt' for which both parties were jointly and severally liable.</p> <p>The rule, that agreements for forfeiture of collateral are void where one side alone has parted with value and takes collateral to secure its repayment, does not extend to the case of a mutual agreement wherein both parties undertake performance on equal terms and conditions and mutually agree that in the event of default by one party the other shall acquire all rights and title under the agreement.</p> <p>While a voting trust agreement may suspend control, it has never yet gone so far as to forfeit title with the sanction of a court of equity.</p> <p>A preliminary injunction to preserve the status quo may properly issue where the case requires a more careful consideration than can be given on the hearing of a motion, or where there is no denial of the act charged as contemplated and the injury threatened will not be easily remedied if the injunction is refused, or where the questions of law or fact to be ultimately determined are grave and difficult, and the injury to the moving party will be immediate, certain and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small if it is granted.</p> <p>As to the damages suffered by plaintiffs’ company through the other railway company’s default, there are legal remedies the enforcement of which would secure the plaintiffs’ company such relief as it may be entitled to.</p> <p>The action not being for the redemption of the stock, plaintiffs’ failure to make any tender or any reference thereto. in their complaint was of no importance.</p> <p>Plaintiffs’ motion for an injunction pendente lite granted on condition that they give a sufficient undertaking in an amount to be determined on the settlement of the order on notice.</p>

<p>Libel — slander—words spoken of one in relation to his business—pleadings — allegations that defendant made certain false and malicious statements of and concerning plaintiff.</p> <p>Penal Law — § 1352 — reference only to libels intended to be published in this state.</p> <p>Words spoken about one in relation to his business, calculated to injure him therein, are actionable per se.</p> <p>A complaint in slander and also in libel, which alleges that defendant made certain false and malicious statements of and concerning plaintiff, a widely known professional social worker and a writer and lecturer on sociological subjects, to a newspaper reporter, which alleged statements with innuendoes were that while the plaintiff was publicly and openly holding himself out as an active opponent of the contract system of prison labor and was making a part of his income in this way, he was in reality planning to make a profit for himself by the identical system which he was pretending to oppose, is good on demurrer.</p> <p>There is no provision of the Penal Law of this state giving a cause of action for damages against one guilty of a violation of section 1352 thereof.</p> <p>Section 1352 of the Penal Law applies to the state of New York only and of necessity refers only to libels intended to be published within this state.</p>

<p>Action for the annulment of a marriage.</p>

<p>Motion for judgment on the pleadings.</p>

<p>Certificate of reasonable doubt — when granted—trial of indictment under section 1202(1) of Penal Law — presenting false claim for payment of loss under policy of fire insurance.</p> <p>Where, upon the trial of an indictment under section 1202(1) of the Penal Law which defines two crimes: 1, the presenting of a false claim, and, 2, the presenting, of proof in support of such claim, defendant was convicted of the crime of presenting a false and fraudulent claim for the payment of a loss under a policy of fire insurance, the indictment charging that he did present a claim but not proofs in support thereof, and the trial judge withdraws from the consideration of the jury the questions whether a claim under the policy was in existence and whether a claim was presented, the question whether such withdrawal from the jury was erroneous is for an appellate court, and defendant’s motion for a certificate of reasonable doubt will be granted.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Motion to require the clerk to tax costs.</p>

<p>Habeas Corpus proceedings.</p>

<p>Negligence — contributory — action for personal injuries—duty of landlord or owner of building to light hallways.</p> <p>A person coming into an unfamiliar situation where a condition of darkness renders the use of his eyesight ineffective to define his surroundings is not justified, in the absence of any special circumstances, in proceeding farther without first finding out where he is going and what may be the obstructions to his safe progress.</p> <p>Plaintiff, after delivering a couch and mattress at a room in defendant’s apartment house in the city of New York, on the order of the superintendent of the premises, walked slowly through a dark hall to reach the office to have the superintendent sign the receipt for the goods, but before reaching the office plaintiff fell down a stairway into an opening into the hall within five and one-half inches of the flooring. The evidence, in an action for damages for the injuries sustained from such fall, considered, and held that defendant’s motion to set aside the verdict in plaintiff’s favor and for a new trial should he granted.</p> <p>Plaintiff in failing to awake defendant’s employee to lead him out with the lantern which was used when he carried in the couch and mattress assumed the obvious risk of attempting to go through the dark hallway, and in the circumstances was guilty of contributory negligence as matter of law.</p> <p>It is well settled that in the absence of a statutory requirement no duty devolves on the landlord, or the owner, of a building to light the hallways even though he retains control over the same.</p>

<p>Proceeding upon the probate of a will.</p>