Volume 84 — New York Supplement

<p>1. Appeal—Findings on Conflicting Evidence—Review.</p> <p>A finding by the court, in an action tried without a jury on conflicting evidence, will" not be disturbed on appeal, unless it has been improperly affected by the errors assigned by appellant.</p> <p>3. Same—Evidence—Copies—Harmless Error.</p> <p>In an action on a contract, error in the reception in evidence of a carbon copy of the contract, over defendant’s objection, was harmless, where the original contract, signed by both parties, was subsequently placed in evidence by "defendant, and it appeared on inspection that plaintiff’s exhibit was a faithful reproduction of defendant’s. '</p> <p>3.' Same—Experts.</p> <p>Where, in an action to recover on a written contract for a tombstone, there was no controversy as to what had been done or left undone, but only as to whether óne item of work which had not been done should have been done, error, if any, in the court’s permitting- an expert to testify that the' work as finished was in all respects in accordance with the contract and design, was harmless.</p> <p>A Same—Contracts—Findings.</p> <p>Where a contract for the construction of a monument did not call for a monument similar in pattern and drawing to any other, but for a monument of a particular design, a finding in an action for the price that plaintiff was not bound "to furnish a monument in size and design similar to another in the cemetery, to which defendant called plaintiff’s attention before the contract was signed, was proper.</p>

<p>Appeal from Municipal Court, Borough of Queens, First District.</p> <p>Action by Edward H. Moran against Walter L. Kent. From a judgment for plaintiff, defendant appeals. Reversed.</p>

In the matter of the estate of William Stanton, deceased. Proceedings on the settlement of the accounts of the administrator. Decree rendered.

Action by Philip E. Altman against the Western Union Telegraph Company for error in sending a message. Judgment for plaintiff for $40.80, and defendant appeals. Reversed.

<p>Appeal from Trial Term, New York County.</p> <p>Action by Carmelo Sciurba, as administrator of the estate of Antonio Sciurba, deceased, against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>1. Executors and Administrators—Recovery for Services Rendered— Complaint—Alleg ati ons.</p> <p>The allegations o£ the complaint in an action to recover for services rendered *a decedent, which alleged a promise to pay for the services and their value, and which averred that decedent agreed to make compensa-* tion therefor by will or otherwise, and that decedent made provision for the payment by a deposit of certain bonds, did not show an election to proceed as if on a performance made by the act of deposit.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District. •</p> <p>Action by Robert S. King against James Hammond. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Sales—Suit for Purchase Price—Nature of Transaction—Sufficiency of Evidence.</p> <p>Evidence held insufficient to show that a consignment of furs by a Jewish teacher traveling in Europe to fur merchants in New York was an absolute sale, rather than made under an option in the merchants to elect what furs they would keep, and dispose of the others on commission, holding any remainder to the teacher’s account.</p> <p>2. Same—Burden of Proof</p> <p>The burden is on a seller suing for the price of goods, under what he claims was an absolute sale, to substantiate his version of the character of the transaction.</p> <p>3. Same—Amount of Verdict</p> <p>Evidence in a seller’s suit for the purchase price of goods held insufficient to sustain a finding as to market value.</p>

<p>1. Replevin—Description of Articles in Judgment.</p> <p>In replevin for “220 boys’ coats”'it appeared on the trial that the articles .were pieces of cloth cut in the shape of coats, but not yet made up. Held, that the judgment for possession of “the property mentioned in the affidavit and complaint” was so substantially correct as to require the marshal to take the cut goods tendered to him.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Isaac Horwitz against Ferdinand Reinert. From an order setting aside a stay of execution and an order denying defendant’s motion to resettle the same in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Theaters—Construction op Passageway—Penalty.</p> <p>Where a theater has a front and a side entrance, both of which are permitted to be used, and people are permitted to stand in a space necessary for a passageway in the use of the side entrance alone, the manager is liable to the penalty imposed by Laws 1897, pp. 263, 272, c. 378 (Charter, §§ 762, 773), forbidding the manager to cause or permit any person to occupy a passageway during a performance.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Max Levy and another against Louis Zasuly. From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

<p>1. Dismissal—New Action—Costs of Previous Suit.</p> <p>Where a new suit for the" same cause of action is instituted against the same parties after the dismissal of a former action, a motion to stay the action until the costs in the former are paid will he granted.</p> <p>¶ 1. See Costs, vol. 13, Cent. Dig. § 1049.</p>

<p>1. Bills and Notes—Contemporaneous Oral Agreement—Evidence.</p> <p>Evidence of what was said between the parties to a promissory note at the time of its execution cannot be received to contradict or vary its terms.</p> <p>2. Trial bv Court—Reception oe Evidence.</p> <p>Where, in an action tried to the court, no proper objection was made to the admission of incompetent evidence, the court could enter a judgment based on a holding that the evidence was incompetent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Joshua Fonseca and another against Clarence Hartman. From" a judgment for plaintiffs, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Henry B. Morton against Adele R. Lederer and others. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Edward Carter against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Charles H. Haight against Le Fonder De France et Des Colonies. From an order denying a motion to vacate an order of publication, defendant appeals. Reversed.</p>

<p>1. Appeal—Findings of Fact—Review.</p> <p>Plaintiff having, on a second trial, testified to a different date for the agreement from that given by him on the first trial, and his testimony being contradicted, the finding against him will not be disturbed on appeal.</p>

City Court of New York. Action by Justus E. Ewing against Arthur W. Barnard. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals. Reversed.

<p>1. Contracts—Several Accounts—Payment—Application—Presumption.</p> <p>Where, in four separate contracts, plaintiff undertook to do work on four separate buildings, and payments were made to plaintiff from time to time, and plaintiff sued for work on the third building, after the first three were finished, in the absence of evidence that the payments were to apply to any particular contract it would be presumed that they were intended to extinguish the earlier rather than the later debts, and to have extinguished the claims for the first three buildings.</p> <p>¶ 1. See Payment, vol. 39, Cent. Dig. § 123.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Ida Koehler Bronner against William Hirsch. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan.</p> <p>Action by Leo Polacselc against the Manhattan Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Lewis Publishing Company against William H. Palmer. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Landlord and Tenant—Summary Proceedings—Evidence.</p> <p>Where, in a summary proceeding by a landlord against his tenant, the allegation of the petition that a certain amount of rent was due was denied by a verified answer, judgment for plaintiff, without any evidence that any rent was due, was erroneous.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by John R. Ross against William W. Niles and another. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eirst District.</p> <p>Action by Peter R. Wilson and others against Thomas C. Platt, as president of the United States Express Company. From a judgment in favor of plaintiffs, both parties appeal. Appeals dismissed.</p>

<p>1. Dispossess Proceedings—Right to Jury Trial—Waiver—Retrial.</p> <p>Under Code, § 2247, providing that in a dispossess case the issues must be tried by the judge or justice, unless either party shall, within the time designated in the precept for showing cause, demand a jury trial, and section 3065, providing that where a new trial is directed before a justice the parties must appear at the time and place specified in the order of the appellate court, and like proceedings be had as upon the return of a summons personally served, a defendant who has failed to demand a jury trial in dispossess proceedings does not thereby waive his right to demand a jury upon a retrial pursuant to an order of the appellate court.</p>

Action by Emily M. Blum against De Witt C. Flanagan and others. From a judgment for plaintiff, and from an order substituting defendants as executors of William L. Flanagan, deceased, defendants appeal. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Ernest Egnstfeld against the Central Crosstown Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from' Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by George Backer against the United States Gas Fixture Company of the City of New York. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Josephine W. Wuppermann against Ferdinand Valentine. From an order granting a motion to dismiss the complaint unless plaintiff placed the cause on the calendar within three days, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Bessie Salsberg against Sam Tobias. From the judgment, plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Joseph A. Ryan against Frank G. Swartwout. From a judgment for plaintiff, defendant appeals. Modified.</p>

<p>1. Administration—Gifts Causa Mortis—Reference.</p> <p>In the case of an alleged gift causa mortis, the subject of the gift is an apparent asset in the administrator’s hands, and, though there is no other property, a reference may he had under Code Civ. Proc. § 2718, authorizing a reference to determine disputed claims against a decedent’s estate.</p> <p>2. Same—Necessity of Administration—Sole Distributee.</p> <p>A sole distributee of an estate against which no debts exist may appropriate it without administration.</p> <p>3. Gifts Causa Mortis—Delivery.</p> <p>A gift causa mortis of money on deposit was perfected by delivery by the donor to the donee of a receipt for the money executed by the depositary.</p> <p>4. Same—Subject-Matter—Residuary Gift.</p> <p>A gift causa mortis of the residue of certain funds left after; the donee should pay for the burial of the donor was valid.</p> <p>5. Same—Possession by Donor.</p> <p>Where an administrator was entitled, as distributee, to certain funds of the estate which were deposited under an agreement that he might draw a certain amount each month by his check, countersigned by the surety on his bond as administrator, he could make a valid gift causa mortis of said fund.</p> <p>¶ 2. See Executors and Administrators, vol. 22, Cent. Dig. § 10.</p>

<p>I. Sale—Executory Contract — Stipulation—Consideration—Revocation.</p> <p>Defendant ordered certain goods from plaintiff by a writing in which it was stipulated that the order should not be countermanded, but, before the order was accepted, plaintiff received a notice from defendant countermanding it. Held, that defendant was not liable on the order, there being no consideration for the stipulation that it should not be countermanded.</p>

<p>1. New Trial—Altercation between Parties—Destruction op Papers.</p> <p>On reopening court after a recess, defendant stated that, while examining his papers, plaintiff had seized them, torn them up, and called defendant a thief. Plaintiff stated that he had found exhibits he wanted among defendant’s papers, and taken them. Defendant interposed that plaintiff was then handling his papers, and asked that he be prevented from doing so. Defendant refused to proceed, and the court directed a verdict for plaintiff. Held, that a motion for a new trial by defendant on the ground that he had not been protected in his rights was untenable.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Reddington J. Stowe against James M. White and others. From an order denying defendants’ motion to dismiss the complaint, they appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Henrietta Gubner, as executrix, against Edward J. Farrell and others. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>Appeal from City Court of New York.</p> <p>Action by William Hennessey against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. Affirmed.</p>

Action by Herman Scherzer against William Muirhead. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

<p>1. Account Stated—Complaint—Amendment.</p> <p>Under Municipal Court Act, § 166 (Laws 1902, p. 1542, c. 580), requiring the Municipal Court of New York City to permit the amendment of pleadings at any time, if substantial justice will be promoted thereby, the court can grant leave at the beginning of a trial to amend a complaint on an account stated to an action to recover on a check indorsed by defendant and returned for nonpayment</p> <p>2. Same—Trial—Cross-Examination—Error.</p> <p>Where, at the beginning of a trial, a plaintiff was permitted to amend his complaint so as to change his action from one on an account stated to one on an indorsement of a check returned for nonpayment, it was error to refuse defendant the right to test plaintiff’s credibility by exposing his inconsistency on cross-examination.</p>

<p>1. Carriers—Injury to Passenger—Opinion Evidence.</p> <p>Where, in an action against a street railway for injuries sustained by a passenger owing to defendant’s motorman having struck him in .the chest, a physician testified that he found plaintiff’s heart affected, and that his trouble could have been caused by the accident, but that it might have come from other causes, it was proper to refuse to strike the evidence as too uncertain.</p> <p>2. Same—Evidence—Cause of Injury.</p> <p>In an action against a street railway, plaintiff testified that while standing on the platform of a car the motorman struck him on the chest violently,' that he felt faint and had pains in his chest for two or three hours afterwards, and that he had dreams at night of being struck and falling from a car, which sensations apparently continued from the time of the accident. A physician testified that he found plaintiff’s heart weak, and that such blows might have caused the injuries. .Held, that the evidence warranted a finding that the blows caused the injuries.</p> <p>3. Same—Pleading—Variance.</p> <p>In an action against a street railway the complaint detailed the striking of plaintiff by defendant’s motorman, and alleged a cause of action founded not only on negligence, but upon violence, on the part of defendant’s servant. The evidence showed that, as plaintiff stepped on the car, the motorman, without cause, struck plaintiff violently, saying, “You get off.” Held that, though the proofs showed a willful assault, the variance was immaterial, as it could not have misled defendant.</p> <p>4. Same—Tort of Motorman—Willful Assault.</p> <p>Where, as a passenger stepped on the front step of a street car, the motorman said, “You get off,” and, without cause, struck him, the carrier was liable for injuries sustained by the passenger.</p> <p>¶ 4. See Carriers, vol. 9, Cent. Dig. § 1123.</p>

Proceedings by the city of New York against Elsworth Childs to recover penalties for violation of the Revised Ordinances, §§ 330, 331, in maintaining steps and railings projecting on the street. Judgment for plaintiff, and defendant appeals. Reversed.

<p>1. Security for Costs—Order after Answer—Setting Aside—Discretion.</p> <p>It rests within the discretion of the trial court to set aside an order requiring plaintiff to give security for costs, made after defendants had answered.</p> <p>3. Same—Abuse of Discretion.</p> <p>Where a satisfactory excuse was given for defendants’ failure to ask for an order requiring plaintiff to give security for costs till after answer, and it appeared that plaintiff was financially irresponsible, and that the cause of action arose outside of the state, the trial court did not abuse its discretion in afterwards refusing to set aside the order.</p>

<p>Appeal from City Court of New York.</p> <p>Action by William Call against Elizabeth Gertrude Case. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by the National Cash Register Company against Frederic C. Caillias. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by Irving H. Lee and James M. Gale, doing business under the firm name of the West End Delivery Company, against William H. Callahan and Frank McDermott, doing business under the firm name of the O. K. Bottling Company. From a judgment for plaintiffs, defendants appeal. Reversed.

<p>1. Insurance—Advancing Premiums—Secondary Evidence.</p> <p>Where, in an action by an insurance agent to recover premiums advanced on insurance policies, defendant was served with due notice to produce thé policies, it was competent, on his failure so to do, for the agent of plaintiff, who testified to having delivered the policies, to state their contents.</p> <p>¶ 1. See Evidence, vol. 20, Cent. Dig. § 596.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Jacob Siff against Eber Forbes, as treasurer of the Socialist Labor Party. From a judgment for plaintiff, defendant appeals. Modified.</p>

<p>1. Plate-Glass Insurance—Nonexistence of Subject-Matter—Evidence—</p> <p>Sufficiency.</p> <p>In an action on a plate-glass insurance policy, evidence that defendant’s inspector viewed the glass on the day when it issued the policy, and discovered a hole near its center, does not show that the glass was not in existence at the time of the issuance of the policy.</p> <p>2. Same—Broken Glass—Insurability.</p> <p>Where a plate-glass insurance policy contains no provision that the glass must he without hole or perforation w-hen insured, a hole through a pane of glass does not render it uninsurable under such policy.</p> <p>3. Same—Destruction of Glass—Cause.</p> <p>The fact that a pane of glass had a hole in its center at the time of the issuance of insurance thereon does not show that a break in the glass from top to bottom one week thereafter was in consequence of, or connected with, such hole.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Adolph Rosenberg against Adolph Hyman and another. From a judgment for plaintiff on the pleadings, defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Philip Eipps and another against Bernard Markowitz and another. From a judgment for defendants, plaintiffs appeal. Affirmed.</p>

<p>1. Appeal—Objections.</p> <p>Where no exception was taken to any admission or exclusion of evidence, objection cannot be raised on appeal.</p> <p>2. Sales— Warranty—Breach—Waiver.</p> <p>Where the purchaser of a warranted machine retained it after discovery of defects, and made payments on the price because the seller promised to make good the defects, which promise was not fulfilled, there was no waiver of the breach of warranty.</p> <p>¶ 1. See Appeal and Error, vol. 2, Cent Dig. § 1503,</p>

<p>Action by Henry Druss and another against Max Rosen. From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

Action by Lillian M. Thyll against the New York & Long Branch Railroad Company and another. From a judgment for plaintiff, and an order denying defendants’ motion for a new trial, they appeal. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Henry B. Hess and others against Ada Liebmann. From a judgment for defendant, plaintiffs appeal. ■ Reversed.</p>

<p>1. Appeal—Questions op Fact.</p> <p>Where, in an action on a note, the question to be determined is whether plaintiff's assignor had performed certain conditions entitling him to recover, a finding for him, being on a question of fact, will not be disturbed.</p>

Action by the Albany Brass & Iron Company against Edmund Alton. From an order denying a motion to vacate an order of reference, and the order directing the reference, defendant appeals. Affirmed.

<p>1. Contracts—Condition Precedent—Performance.</p> <p>Where the delivery of certain mushrooms at the defendants! attorneys’ request was a condition precedent to an obligation to pay a certain sum, entered into on the settlement of a pending suit, plaintiff has no cause of action to recover the sum when he has not performed the condition.</p>

<p>1. Conversion—Transfer of Title—Evidence.</p> <p>In an action for conversion of property, a receipt given to plaintiff’s assignor, acknowledging the payment of a certain sum for the property, in which the assignor’s name is not mentioned, is not sufficient evidence of the transfer of title.</p> <p>2. Same—Expert Evidence.</p> <p>An expert on the value of property cannot properly state what he offered- for the property.</p>

<p>1. Appellate Term—Jurisdiction—Appeals prom Orders.</p> <p>The jurisdiction of the Appellate Term over' appeals from orders exists solely by force of statute.</p> <p>2. Municipal Courts—Practice—Setting Aside Judgments—Time op Motion</p> <p>Municipal Court Act, § 254 (Laws 1902, p. 1563, c. 580), provides that a motion to vacate or modify a judgment rendered upon a trial by the court may be made on exceptions taken at the trial, or because the verdict is excessive, etc. Section 253, p. 1562, provides for the opening of a default. Section 255, p. 1563, provides for a new trial on the grounds of fraud or newly discovered evidence. Section 310, p. 1578, provides for an appeal to the Supreme Court from judgments rendered, or from final orders in summary proceedings, or from other orders theretofore provided. No other sections provide for appeals from orders of the Municipal Court. Held, that orders denying a motion to set aside a judgment of dismissal, and for costs to defendant, if embraced in any of the sections above set out, are within section 254, and hence the motion must have been made, as provided in said section, either at the time of trial, or within five days from the time the judgment was rendered.</p>

<p>1. Attorney and Client—Fraud—Evidence—Sufficiency.</p> <p>In an action against attorneys for fraudulently representing to plaintiff that they had collected §200, instead of §300, on a claim placed in their hands, the defendants introduced in evidence the contract, by which plaintiff agreed to pay defendants 50 per cent, of any amount received by them on the claim, and also a receipt, signed by plaintiff, acknowledging payment by the debtor of §300 in full for his claim, and proved a payment of one-half thereof to plaintiff. Plaintiff testified that he could not read English, and that the contract was not read to him, and that he did not know its contents when he signed it. Defendants testified that the plaintiff was informed of its contents and of the payment to them of §300, and this latter testimony was not denied by plaintiff. It appeared that plaintiff could write many English words and understood figures in English, and the receipt contained the words “three hundred,” both in writing and figures. Held, that a judgment for plaintiff, inasmuch as it involved moral turpitude and criminal responsibility, should be reversed MacLEAN, J., dissenting.</p>

<p>1. Counterclaim—Failure of Proof—Dismissal—Res Judicata.</p> <p>Where defendant failed to prove any damage under its counterclaim, and the court directed a verdict dismissing the counterclaim, there was merely a dismissal for failure of proof, not barring an action by defendant to recover for the cause of action stated in the counterclaim.</p> <p>2. Same—Reopening Case.</p> <p>Where defendant failed to prove any damage under its counterclaim, the denial of a motion to reopen a case to present proof of damage after the testimony was closed was not an abuse of discretion.</p>

<p>1. Sale—Warranty Surviving Acceptance.</p> <p>Where plaintiff agreed to manufacture for defendant castings made in a good and workmanlike manner, without defect, and suitable for certain use, such warranty survives defendant’s acceptance and payment a reasonable time for discovery in the stipulated use of a latent defect, discoverable only by test of actual use.</p> <p>2. Same—Breach—Evidence.</p> <p>Where plaintiff manufactured a casting for defendant with warranty that it should be without defect, its history after it was cleaned at plaintiff’s foundry is not necessary as foundation for testimony based solely on the appearance of the metal as carrying with it its own history of the defect, and showing that it was a shrinkage crack, coming through manufacture in an unworkmanlike way.</p> <p>8. Evidence—Hearsay.</p> <p>The question when shrinkage cracks in castings appear, asked of a witness who had said he was not a practical molder, and knew nothing about shrinkage cracks except as he had come across them in his business, calls for hearsay.</p>

<p>1. Negligence—Sufficiency of Evidence.</p> <p>Mere proof of defendant’s negligence, without any evidence showing freedom from contributory negligence, will not sustain a recovery.</p>

<p>1. Manufacture of Olothins—Workmanlike Manner—Evidence—Judgment—-Reversal.</p> <p>Where, in an action by an assignee to recover on a claim for work done by his assignor in the manufacture of certain coats for defendants, the defense was .that the coats were not made in a workmanlike manner and according to instructions, and plaintiff's testimony was contradictory as to the directions regarding the manner in which the work was to be done, and his assignor and an expert both admitted that a coat exhibited at the trial was not made in a workmanlike manner, a judgment for plaintiff in the full amount will be reversed.</p>

Action by Adolph ICapner and others against Lester W. Samuels. From an order granting defendant’s motion to open his default, plaintiffs appeal. Dismissed.

<p>Appeal from City Court of New York.</p> <p>Action by Jessie Gribben against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Taube Engberman against the North German Lloyd Steamship Company. Appeal by defendant from an order denying defendant’s motion for a retaxation of costs. Reversed.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Taube Engberman against the North German Lloyd Steamship Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Replevin—Undertaking—Liability oe Surety.</p> <p>Where, in replevin, plaintiff gives an undertaking tor a return to defendant of the property if the action is discontinued before the property is returned, and, retaining the property, fails to appear at the trial, whereupon the justice indorses the summons, “Judgment for defendant,” but no judgment is entered adjudging defendant entitled to a return of the property, or for its value in case of no return, the action is discontinued, and the surety is bound on the undertaking, though defendant did not obtain the judgment to which he was entitled.</p> <p>2. Same—Defenses.</p> <p>Municipal Court Act, Laws 1902, p. 1531, c. 580, § 126, and Code Civ. Proc. § 1733, providing that, when a final judgment has been rendered, no action can be instituted on the undertaking until after the return of an execution, does not aid the surety in the action on the undertaking, where no judgment at all was rendered.</p> <p>8. Same—Witnesses—Refreshing Memory.</p> <p>In an action on an undertaking in replevin, a witness may refresh his memory by reference to a memorandum containing a list made by him of the goods, and then state from memory what was taken.</p> <p>4 Same—Testimony as to Value.</p> <p>Where a witness qualified to testify as to value has stated that the cost price of goods as calculated by him was the fair value of the goods, defendant cannot complain that he was allowed to give the cost of the goods in several instances, when by his objection he subsequently excluded the testimony as to market value.</p> <p>MacLean, J., dissenting.</p>

Action by A. Blum, Jr., Sons against Bartholomew O’Connor. Plaintiff voluntarily discontinued the action before trial, and from a judgment failing to award costs to defendant he appeals. Modified.

Action by Elias David Goldberg against the Metropolitan Street Railway Company. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed.

<p>1. Dismissal—Costs—Taxation.</p> <p>Under Municipal Court Act (Laws 1902. p. 1561, c. 580) § 248, providing that judgment that the action he dismissed, with costs, without prejudice to a new action, shall be rendered, where plaintiff voluntarily discontinues the action before it is finally submitted on discontinuance before final judgment jthe justice must render judgment of dismissal, with costs, leaving the question of taxation and review to be determined pursuant to sections 341, 342 (page 1589).</p>

<p>1. Replevin—Suit on Bond— Necessity op Return op Execution.</p> <p>Where, in replevin, the property is seized, but tife plaintiff suffers the action to abate, suit may be maintained on the replevin bond, notwithstanding Municipal Court Act, § 126 (Laws 1902, p. 1581, c. 580), provides that a defendant “who has recovered final judgment” cannot sue on the bond until return of execution.</p> <p>2. Same.</p> <p>Defendant is' not required on the return day to present the papers to the trial justice, and have the case marked dismissed, under Municipal Court Act, § 248 (Laws 1902, p. 1561, c. 580), authorizing judgment dismissing an action without prejudice where the plaintiff fails to appear, as such judgment would not he a final one.</p>

<p>1. Default Judgment—Vacation—Appearance—Subsequent Trial—Issue as to Service.</p> <p>After suffering default judgment, defendant moved to "vacate it on the ground that service of summons had not been made.- The court treated this .application as one to open a default, and, vacated -the judgment to the extent of permitting defendant to come in and plead. An appeal from the judgment and order was dismissed. Defendant answered that she had never been served with summons, and, on a trial, offered proof on that issue, which was excluded. Held- that, as there had at no time been a voluntary appearance and submission to the jurisdiction of the court by defendant, the exclusion of this evidence was error.</p> <p>¶ 1. See Appearance, vol.. 3, Cent. Dig. §§ 41, 52</p>

<p>Appeal from Municipal - Court, Borough of Manhattan, First District.</p> <p>Summary proceedings by George W. Loft against Demetrius Kaziz. From a final order awarding possession to petitioner, defendant appeals. Reversed. See 80 N. Y. Supp. 1015.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Eugenio Pompilj against the Manhattan Delivery Company. From a judgment "for plaintiff and an order denying its motion for a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Ignatz Steinman against the Interurban Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Louis H. Steinhardt and another against David Eisen and others. From a judgment for plaintiffs, defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Abraham Meyerowitz against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Christian Muller against the Interurban Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. .</p> <p>Action by Arnold Adler and another against Charles Schaumberger. From a. judgment for plaintiffs for a nominal sum, they appeal. Affirmed.</p>

<p>1. Counterclaim—Conversion op Goods—Bailee.</p> <p>A bailee of goods has a right to maintain a counterclaim for conversion thereof.</p>

<p>Appeals from City Court of New York, Special Term.</p> <p>Three actions by Ella Forgotston against Isaac Brafman and another. From judgments in favor of plaintiff in each case, and orders denying new trials, defendants appeal. Affirmed.</p> <p>On March 24, 1900, plaintiff demised to defendants certain premises for five years, from April 1, 1900, at the yearly rent of $3,600, to be paid in equal monthly payments of $300 each in advance on the first day of each and every month during said term. The lease contained the following clause: “The last two months’ rent of said premises, viz., $600, is paid in advance on the execution of this lease, as follows: $300 cash, and $300 by two notes of the parties of the second part of $150 each, payable in sixty and ninety days. In case this lease is terminated by a sale of said premises before five years from the 1st day of April, 1900, and said parties of the second part have paid in full all rent and surrendered possession of said premises, and otherwise performed all the covenants and agreements therein contained, the said $600 to be refunded to them.” About May 22, 1900, defendants were dispossessed for nonpayment of the monthly installment due May 1st. Thereupon one of the above actions was brought for the rent due, and the other two on the notes, one for each note. In the action for rent the defendants set up the $300 paid plaintiff on account of the last two months’ rent as a counterclaim, and in the other two actions the defendants claimed that by reason of the fact that they were dispossessed of the premises that the notes never became payable.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Charles J. Smith against Frederick Schneider and wife. From a.judgment for plaintiff, defendants appeal. Affirmed.</p>

Action by Charles J. Stahl against John Schoonmaker and another, the Christian name “John” -being fictitious. From a judgment for plaintiff, defendants appeal. Reversed.

<p>1. Referee—Services—Right to She.</p> <p>Where referee’s services are not paid by the parties to a suit, he is entitled to maintain an action therefor.</p> <p>3. Same—Statutes—Construction.</p> <p>Under Code Civ. Proc. § 3296, fixing the compensation of referees at $10 per day for each day spent in the business of the reference, the referee is entitled to count each day on which he is occupied by the business of the reference, without regard to the number of hours in the day so consumed by him.</p> <p>3. Same—Time Unnecessarily Spent.</p> <p>Under Code Civ. Proc. § 3296, authorizing a referee to charge $-10 a day for each day spent in the business of the reference, the referee is not entitled to charge for time unnecessarily so spent.</p> <p>¶ 1. See Reference, vol. 42, Cent. Dig. § 113.</p> <p>4. Same—Evidence.</p> <p>In an action for referee’s services, the referee’s sworn assertion as to the time necessarily spent by him is not conclusive, and hence evidence as to what questions wore involved was admissible, as bearing on the length of time necessary to be spent in determining them.</p>

<p>1. Insurance—Agents to Procure—Agreement to Give Rebate—Termination.</p> <p>Where agents to procure Insurance under oral agreement to give certain rehates inform the insured that they will give rebates no longer, after which insured accepts policies, his right to the rebate is terminated.</p> <p>2. Same—Sufficiency of Evidence.</p> <p>Evidence held sufficient to show termination of an agreement by insurance agents to give rebatés to insured.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Samuel Krintzman against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan.</p> <p>Action by David Greenberg against Albert M. Angerman. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>1. Street Railroads—Traveler on the Street—Injuries—Contributory Negligence.</p> <p>A traveler crossing a street car track % eld guilty oí contributory negligence precluding a recovery .for injuries sustained to Ms horse and wagon by being struck by a car.</p>

<p>1. Appeal—Orders Appealable.</p> <p>Under Laws 1902, pp. 1562, 1563, 1578, c. 580, §§ 253-256, 310, regulating appeals from the Municipal Court, an order making a party defendant is not appealable, as it is not mentioned in such sections.</p> <p>¶ 1. See Appeal and Error, vol. 2, Cent. Dig. § 651.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Richard A. Irving against the Pullman Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Practice—Striking Case from Calendar—Moving Papers—Sufficiency.</p> <p>A motion to strike a case from the calendar was properly denied where it did not appear from the moving papers that the attorney for the defendant who appeared and answered was attorney for the codefendants, or that he knew that the latter had not been served, or that the case was not at issue by default.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Park & Tilford against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Action by Samuel Holzman against John Katzman, impleaded -with others. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>1. Trial—Admission of Evidence—Objection—Error.</p> <p>Where no grounds are given for an objection to a question calling for material evidence, though improper in form, it is error to sustain such objection.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Hulbert Peck against Clara H. Antes. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.</p>

Action by William A. Wallace against the Metropolitan Street Railway Company. From an order denying defendant’s motion for an order resettling the case on appeal, defendant appeals. Affirmed.

<p>1. Municipal Court—Judgment—Authority to Vacate.</p> <p>Municipal Court Act (Laws 1902, p. 1563, c. 580, § 251), authorizing the court to. vacate a judgment and grant a new trial in specified cases, does not empower the court to vacate a judgment in favor of one party and give a judgment in favor of the other party.</p>

<p>1. Appeal—Default Judgment—New Trial.</p> <p>Code Civ. Proc. § 3064, providing, if appeal is taken by defendant, who failed to appear before the justice, and he shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default, a new trial may be ordered, does not apply where defendant was in the trial court when the case was called, took part all through the trial, and cross-examined plaintiff’s witnesses.</p> <p>2. Jury—Examination.</p> <p>Defendant is not deprived of an opportunity to examine the jury, he having one attorney in court, merely because the court will not wait for his associate counsel.</p> <p>3: Change‘of Venue—Time for Demanding Transfer.</p> <p>Under the Municipal Court act (Laws 1902, p. 1497, c. 580, § 25, subd. 4), providing, if the district in which the action is brought is not the proper one, the action may be tried there, unless it is transferred on demand of defendant made on or before joinder of issue, in writing, or in open court, such demand before joinder of issue is essential to right of transfer.</p> <p>4. Same—Provision of Demand.</p> <p>Under the Municipal Court act (Laws 1902, p. 1497, c. 580, § 25, subd. 4), providing for trial in the district in which an action is brought, though it is not the proper one, unless defendant transfer, specifying the district to which he requires the action to be transferred, a demand for transfer “to some other district,” is insufficient.</p> <p>6. Appeal—Review.</p> <p>An affidavit that demand for transfer of place of trial was made at a certain time will not prevail on appeal, there being nothing in the record to show such a demand, and the trial judge having decided that it was not made.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second Dis- ■ trict.</p> <p>Action by Isaac Horwitz against Ferdinand Reinert. From a judg-. ment for plaintiff, defendant appeals. Affirmed.</p>

Action by the people of the state of New York against John Dunston and others. From a judgment in favor of defendants dismissing plaintiff’s complaint, plaintiff appeals. Affirmed.

Action by Isidore Schatzberg against Ludwig Groswirth. From a judgment of the City Court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>1. Restaurant Keeper—Property op Guests—Theft—Liability.</p> <p>The proprietor of a quick-lunch restaurant, having provided nails in the walls on which hats and overcoats could be hung, also posted placards containing the words: “Numerous Thieves. Watch your Overcoat and Hat.” At the bottom of the bills of fare on the tables was printed: “Not responsible for personal property unless checked by the manager.” A manager was in attendance and on the watch to protect the property of patrons, and the checking system provided ample protection for overcoats. Held, that the proprietor was not negligent in respect to the protection of a patron’s overcoat hung by its owner on a nail and stolen therefrom.</p>

<p>1. Carriers—Street Railways—Personal Injuries.</p> <p>Where, in an action against a street railway company for personal injuries received by a passenger in alighting, alleged to have resulted from a premature starting of the car, there was no evidence that he had signaled the conductor or motorman to stop, or that either of them had notice of his intention to alight, or that the car had been started again with a knowledge on their part that he was in the act of alighting, the complaint should have been dismissed.</p> <p>2. Same—Evidence—Competency.</p> <p>In an action against a street railway company by a passenger for personal injuries received in alighting, plaintiff having testified on his own behalf in rebuttal, it was error to refuse to permit him on cross-examination to answer a question as to whether he knew that, if he got off the car while it was in motion, he could not recover in the action.</p>

Action by John Rooney against William S. Thomson. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by George A. Richards against Louis McAllister Young. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eigh'th District.</p> <p>Action by Louis Finkelstein against Samuel Kessler. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by the Terry & Tench Construction Company against William G. Leeson. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>1. Appeal—Verdict—Review.</p> <p>Whether certain items in a counterclaim in an action for attorney’s services should have been allowed will not be reviewed where it does not affirmatively appear that the verdict included such items.</p>

<p>1. Trial—Documents—Construction—Question for Jury.</p> <p>Where parol evidence was introduced without objection to explain the terms of a letter, and such evidence was conflicting, the construction of the letter was for the jury.</p>

<p>1. Appeal—Order—ITotice—SuppicrsNCY.</p> <p>A sufficient notice of appeal from an order was not rendered ineffectual because it contained a notice that appellant, intended to bring up for review another order piade in the action.</p> <p>2. Orders—Appealable.</p> <p>An order of the Special Term of the' City Court denying a motion by appellant to compel respondent to accept service of a notice of appeal is appealable under Code Civ. Proc. § 3189, allowing appeals from interlocutory judgments and orders at Special Term of the City Court.</p>

Action by Samuel Hayes against the Metropolitan Street Railway Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

<p>1. Contracts—Construction.</p> <p>Defendant, being engaged in the construction of a work for a railway company, W. contracted to do the pile driving and timber work, and to furnish ironwork therefor at a certain price per bolt, rod, etc., the work to be subject to the approval of defendant and the engineer of the railway company; payment to be 85 per cent, on work done each previous month, and balance on final completion. Defendant accepted the following order drawn by W.: “Pay plaintiff on my account for iron delivered to me by him, to be used on my contract with you, plan # 179. Payments to be made as iron is used, as per my contract, on monthly bills furnished by plaintiff.” Held, that the order and contract were to be construed together, and plaintiff could only recover for iron used, and not for all iron delivered.</p> <p>3. Same—Burden of Proof.</p> <p>The burden was on plaintiff to show delivery and progress of the work to a point where payment became due.</p> <p>3. Same.</p> <p>Iron used in a temporary work of scaffolding, etc., necessary to construction of the permanent work, was within the contract.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Replevin by the Wagner Typewriter Company against Joseph Robinson, sued as John C. Robinson. From a judgment for defendant, plaintiff appeals. Modified and affirmed.</p>

Action by H. E. Taylor & Co. against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Appeal from City Court of New York.</p> <p>Action by Barnet Soltz against Morris Newmark and others. From a judgment in favor of defendants, plaintiff appeals. Modified.</p>

<p>1. Brokers—Real Estate—Sale or Exchange—Commissions.</p> <p>Where a broker sold or exchanged property belonging to a wife under a written authorization by the husband, in which he declared himself to be “the owner, or holder of a contract from the owner,” though the agent became aware' of the ownership before completion of the. work, and there was some evidence of an oral authority from the wife to the husband, of which the broker had knowledge, he could not recover commissions under Laws 1901, p. 312, c. 128, declaring that “in cities of the first and second class, any person who shall offer for sale any real property without the written authority of the owner of such property, or of his attorney in fact, appointed in writing, or of a person who has made a written contract for the purchase of such property with the owner thereof, shall be guilty of a misdemeanor.”</p> <p>2. Same—Constitutional Law.</p> <p>The act is not unconstitutional.</p> <p>8. Supreme Court—Precedents.</p> <p>Where the Appellate Division of one department of the Supreme Court has decided a law constitutional, that decision will be followed by the Appellate Term .of that department, though the Appellate Division of another department may have decided the law unconstitutional.</p>

Action by Edgar F. Stiner against the Metropolitan Street Railway Company and another. From a judgment in favor of plaintiff, and from an order denying defendants’ motion for a new trial, defendants prosecute separate appeals. Affirmed.

Action by Langdon Greenwood and others against Henry C. Wetterau and others. From a judgment in favor of plaintiffs and dismissing defendants’ counterclaim, defendants appeal. Affirmed.

<p>Appeal from City Court of New York.</p> <p>Action by Blanche Leslie against Louis Robie. From a City Court judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Charles Rosenthal and another against Estelle Hashberg From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

<p>1. Highways—Automobiles—Collision—Evidence.</p> <p>Where there was evidence that defendant’s automobile was started by the willful act of two boys who were playing 'about it while it was standing in the street while the chaffeur was delivering mineral water, a finding of the trial judge that he did not believe the latter’s evidence that before leaving the automobile he threw off the current, pulling back the lever, and applied the brake, and that if he had done such things, the damage could not have been inflicted, was not supported by the evidence.</p> <p>2. Same—Duty of Chaffeuk.</p> <p>It is not the duty of a chaffeur, before leaving an automobile in the street, while temporarily absent, delivering goods in an adjoining house, to chain the machine to a post, or in some other manner fasten it so that it would be impossible for it to be started by the act of a third person.</p> <p>3. Same—Pkoximate Cause.</p> <p>Where an automobile left in a street by the chaffeur after .having-turned off the power and applied the brake was started by the willful act of two small boys, and thereupon collided with plaintiff’s wagon, the act of the boys was the proximate cause of the injury, and the owner was therefore not liable.</p>

<p>Appeal from Special Term, New York County.</p> <p>In the matter of Frank E. 'Randall. From an order directing him to produce and deliver books to a commissioner to take testimony, he appeals. Modified.</p>

<p>1. Master and Servant—Negligence—Respondeat Superior.</p> <p>Defendant, while driving his own horse and a wagon borrowed from his codefendant, negligently collided with plaintiff's horse and wagon. At the time, defendant was not in the employment of the codefendant, but was driving on his own account. Melé not to show the relation of master and servant, and therefore the codefendant was not responsible for the accident, notwithstanding the evidence that the codefendant was defendant’s son-in-law; that, after the collision, defendant stated that the horse or wagon, or both, belonged to the codefendant; and that the codefendant, the day after the accident, said he was sorry that it had happened, and that he would settle it in a decent way.</p>

<p>1. Order Dismissing Complaint—Appealable.</p> <p>No appeal lies from an order of the trial court dismissing a complaint; the appeal must be from the judgment entered thereon.</p>

<p>1. Carrier of Passengers — Revocation of Contract — Lien for Unpaid Passage Money.</p> <p>Where a passenger has obtained a ticket in regular course upon a prepaid certificate procured for her by her husband from the carrier, the fact that without notice to her the carrier has refunded the money to the husband, though without requiring him to deliver up the certificate, will not give the carrier a lien on her baggage for unpaid passage money.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Emil Greeff and others against Bernard Levison and another. From a judgment for plaintiffs, defendants appeal. Reversed.</p>

<p>1. Municipal Corporations—Police Officers—Authority to Direct Movements of Teams and Vehicles in Streets.</p> <p>Greater New York Charter, § 315 (Laws 1897, p. 113, c. 378), directing the members of the police force to “regulate the movement of teams and vehicles in streets,” does not authorize a police officer to direct a street car motorman to use his car to push a coal truck blocking street car traffic, and thus render the street car company liable for injuries sustained by the officer because of the motorman’s negligence in operating the car while pushing the coal truck.</p>

<p>1. Appeal—Theory of Case Below.</p> <p>Judgment for defendant in an action for fraudulent representations in procuring discount of a note will not be reversed, though a representation made by him when a prior note was discounted was a continuing one, so that, had plaintiff sued on this theory, he might have recovered; the complaint having alleged that, when the second note was discounted, defendant represented that the prior statement continued to truly state the financial condition of the maker of the note, and that there had been no change in such condition, and that by reason of his representation the note was discounted, and conflicting evidence as to such second representations having been introduced, and the court, with the acquiescence of plaintiff, having charged that verdict could be for plaintiff only if defendant made the second representation.</p>

<p>. 1. Municipal Corporations—Street Improvements—Commencing Work— Nones.</p> <p>Where a contract for constructive work for a city requires the work to commence on the day designated by the commissioner of highways, a notice to commence work on May 9th, which is received on May 10th, is sufficient to require the contractor to commence in a reasonable time after its receipt.</p> <p>2. Same—Damages for Delay—Certificate of Overtime—Fraud—Que stions for Jury.</p> <p>Where a contract for a street improvement, imposing liquidated damages for failure to complete the work by a specified time, allows a deduction for delay caused by the city, to be determined and certified by the commissioner of highways, that the commissioner allowed no deduction on account of a sewer which the city permitted to be constructed in the street, or because of a retaining wall which had to be rebuilt, or for failure of the engineer to furnish grades, which delays arose through no fault of the contractor, is sufficient, in an action to recover a sum deducted by the city from the contract price for delay, to require a determination by the jury as to whether the commissioner, in making the certificate as to overtime, was not actuated by bad faith.</p>

Action by Axel W. Hallenborg against William C. Greene and others. From an order granting to stay trial and to strike case from calendar, plaintiff appeals. Reversed. See 73 N. Y. Supp. 403.

In the matter of the estate of Patrick Mahoney, deceased. From an order or decree of the surrogate directing Mary Mahoney, administratrix of deceased, to pay Charles H. Stage, attorney for William Jones, $135.60, she appeals. Affirmed. See 75 N. Y. Supp. 1056.

<p>Appeal from Special Term, Chemung County.</p> <p>Action by Mary Doherty Kelly and another, as administratrices of the estate of Maggie Doherty, deceased, against Nora Madigan, From an order denying defendant’s motion to require plaintiffs to give security for costs, defendant appeals. Affirmed.</p> <p>The action was brought to recover possession of three certificates of deposit," alleged to have been the property of plaintiffs’ intestate, which had come into the possession of the defendant, and which she refused to surrender upon demand, or to recover the face value of such certificates, with interest. Before answering, this motion was made by the defendant under the provisions of section 8271 of the Code of Civil Procedure, which provides, in part: “In an action brought by or against an administrator in his representative capacity * * * the court may, in its discretion, require the plaintiff to give security for costs.” The affidavit of the appellant’s attorney, used upon the motion, alleged that both plaintiffs.were nonresidents of the state; that all of the next of kin of the decedent were nonresidents; “that said decedent left no real property, as far as deponent has been able to ascertain; and that the plaintiffs, as far as deponent has been able to ascertain, are not the owners of any property located within the state of New York.” The answering affidavit of the plaintiffs’ counsel alleged that, at the time of the decedent’s death, her estate consisted of about $1,400, deposited in the Che-mung Canal Bank of Elmira, N. Y., represented by the certificates of deposit sought to be recovered. The affidavit further set forth the circumstances by which defendant came into possession of the certificates, and her refusal to surrender them. The motion was denied by the Special Term, and from the order entered thereupon this appeal is taken.</p>

Action by E. C. Inderlied against James R. Honeywell, receiver. From a judgment for plaintiff, defendant appeals. Reversed. In the complaint in the action it is alleged that the defendant is the receiver of the Delaware Loan & Trust Company, a domestic corporation which was formerly doing business in the village of Walton, N. Y.; that the said trust company was the owner of two mortgages upon the property of one Grant, situate at Rock Rift, Delaware county.

Exceptions from Trial Term. Action by Frank Foy against Thomas Barry and others. Motion by plaintiff for a new trial on exceptions ordered to be heard by the Appellate Division in the first instance. Motion granted.

Action by Mary Powell against the Hudson Valley Railway Company. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals. Affirmed. The defendant is a surface street railroad corporation organized by the consolidation of other lines, of which the Greenwich & Schuylerville Electric Railroad Company was one, and the Stillwater & Mechanicville Street Railroad Company was another.

<p>1. Tbusts—Action to Enforce—Evidence.</p> <p>Plaintiff, an individual judgment creditor of a president of a corporation, intimated that he intended taking steps to reach the debtor’s interest in the corporation, whereupon, in pursuance of an agreement with the debtor’s attorney, an instrument was drawn up, by its terms including plaintiff, the corporation, and the stockholders of the corporation, by which the corporation was to assign to the debtor’s attorney a lease owned by it, which he was to sell, and hold the proceeds in trust for the parties to the agreement, and to pay, in full or pro rata, their claims. The agreement was signed by said attorney and by the debtor individually and for the corporation, but not by the stockholders or by plaintiff. Held that, on the attorneys receiving the proceeds from a sale of the lease, an action against him on the ground that he held trust funds which should be paid to plaintiff could not be maintained, as the trust was not constituted.</p>

<p>1. Street Railroads—Injuries to Travelers at Crossings—Contributory Negligence.</p> <p>A traveler who crossed street car tracks at a crossing in such close proximity to a south-bound car that the motdrman on "the north-bound car could not stop the car before injuring him, and who had opportunity to see the north-bound car approaching, was precluded, by contributory negligence, from recovering for the injuries sustained.</p>

Action by Albon F. McGrath and another against the Home Insurance Company of the City of New York. From a judgment for plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Reversed. The plaintiffs were the owners of a certain stock of goods, fixtures, etc., in a building at Bloomingdale, N. Y., used as a meat market.

Action by Nancy Goodspeed against the Ithaca Street Railway Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. This action was brought against the defendant under section 39 of the general railroad law (Laws 1890, p. 1096, c. 565). Upon the trial before the court without a jury the court determined that the defendant was not liable for the penalty, and directed a dismissal of the complaint, with costs.

<p>1. Wills—Use of Property—Action against Devisee—Evidence—Sufficiency.</p> <p>Where a testator, in devising premises to his sons, directs that each shall have the right to a reasonable use of the water through pipes as constructed on the premises, in the absence of any evidence showing any interference by a devisee affecting the supply, or any unreasonable use of the water by him other than his refusal to permit a ditch on another portion of his premises after the obstruction of an existing ditch by a railroad through the premises, a grantee of the other cannot sustain a suit against him for diverting the overflow water from defendant’s premises to plaintiff’s pasture and obstructing the pipes.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Cora Morris against Harold C. Dayton. From a judgment on a verdict for plaintiff for less than asked, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.</p>

Action by Wallace M. Adsit and another, as administrators, etc., of Lewis G. Adsit, deceased, against the Catskill Electric Railway Company. From, a judgment for plaintiffs and an order denying its motion dor a new trial on the.minutes, defendant appeals. Affirmed.

Action by the Chazy Marble Lime Company against Martine Deely and others. From an order denying a motion to vacate an attachment, defendants appeal. Reversed. The action is brought to recover damages for a breach of contract.

Appeal'from Trial Term, Saratoga County. Action by Samuel Vykess against the Duncan Company. From a judgment dismissing the complaint and rendering judgment for defendant for costs, and from an order dismissing the complaint, with costs, plaintiff appeals. Affirmed. Plaintiff was employed as an extra man in the mills of the defendant company, which is engaged in the manufacture of paper.

<p>Appeal from Trial Term, Fulton County.</p> <p>Ward Robertson was convicted of rape,'and he appeals. Reversed. Argued before PARKER, P. J„ and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.</p>

Certiorari by the people, on the relation of Peter Seery against Thomas Sturgis, as fire commissioner, to review the determination of the fire commissioner in summarily removing the relator from the position of fire marshal in the boroughs of Manhattan, the Bronx, and Richmond. Relator reinstated.

In the matter of the application of Jesse L. Perry for a recount of the void and protested ballots cast for the office of school commissioner of the First District of Sullivan county. From a judgment directing a peremptory writ of mandamus to issue to the board of canvassers, James Hall appeals. Reversed.

Action by Nathan Fanger against Waldemar Caspary. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Submitted controversy between Cora Gebhard and John Addison. Judgment for plaintiff.

Action by Marguerite Barranco, as general guardian of Caesar Augustus Barranco and others, infants, against Alfred W. Law and others. From a judgment for plaintiff, defendant Law appeals. Reversed.

Action by the United Press and others against the A. S. Abell Company and others. From an order vacating an attachment, plaintiffs appeal. Reversed.

Action by Lucius H. Townsend against the Oneonta, Cooperstown & Richfield Springs Railway Company. From an order authorizing the receiver of the company to issue certificates for the payment of interest of the mortgage bonds of the company, the Attorney General of the state and the Knickerbocker Trust Company, the trustee in the mortgage, appeal. Reversed. See 83 N. Y. Supp. 1034, 1117; 84 N. Y. Supp. 117,119.

Certiorari by the people, on the relation of Godfrey Weiss, against the city of Buffalo, to review a local assessment for paving. Assessment set aside.

Action by Helena Sommer against Frederick W. Sommer and another. From judgments for costs entered in favor of each defendant on a decision of the court, plaintiff appealed. After the appeal, plaintiff died, and the appeal was thereupon revived in favor of Elizabeth Monday, as executrix of plaintiff’s last will and testament. Affirmed in part, and reversed in part.

<p>1. Railroads—Injuries to Licensees—Active Negligence.</p> <p>A licensee on the tracks of a railroad may recover for a personal injury caused by an act of commission or active negligence on the part of the railroad’s servants.</p> <p>2. Same—Actions for Injuries—Evidence—Sufficiency.</p> <p>In an action for personal injuries by a licensee against a railroad, evidence from which the jury could find that the car which struck plaintiff while he was crossing defendant’s track was suddenly and swiftly kicked back, pursuant to a signal given by a yardmaster at the time he saw plaintiff and others in the act of crossing, supports a verdict for plaintiff on the theory of active negligence.</p> <p>¶ 1. See Railroads, vol. 41, Cent. Dig. § 1236.</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by Horace C. Phinney and another against Denison P. Chesebro and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Max Tishman against Edward A. Kline. From a judgment on a verdict for plaintiff, defendant appeals. Reversed.</p>

Action by Aelig Dumowith against Cristania Marks. From order entered therein, and from a judgment for Charles Rosenthal, plaintiff’s attorney, against defendant, for his fees, defendant appeals. Reversed.

<p>1. Street Railways—Negligence—Question for Jury.</p> <p>Where, in an action against a street railway for injuries sustained by one who, having alighted from a car, while it was still standing passed behind it, and was struck by a car coming from the opposite direction on.the other track, plaintiff testified that he listened for a bell, but did not hear one, while defendant’s evidence was that the bell was ringing, and that plaintiff ran into the car, the question of negligence on the part of defendant was for the jury.</p> <p>2. Same—Care Required of Street Railway.</p> <p>A street railway is chargeable with notice that passengers, when they alight from cars, are liable to cross to the opposite side of the street, and over the adjoining track, and the obligation is imposed upon the railway to exercise reasonable care in the operation of its cars, having regard to such condition.</p> <p>3. Same—Contributory Negligence.</p> <p>Where one who has alighted from a street car passes behind the same, and, before stepping on to the other track, looks and listens to see if a car is approaching from an opposite direction, but does not see or hear one, he Is not, as a matter of law, guilty of contributory negligence in going-on the other track.</p> <p>Van Brunt, P. J., and Ingraham, J., dissenting.</p>

<p>Appeal from City Court of New York.</p> <p>Action by William B. McKean against Xenophon C. Scott. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. '</p>

<p>1. Appeal from Nonsuit—Favorable Inferences.</p> <p>Where a nonsuit is granted at the close of plaintiff’s case, plaintiff on appeal is entitled to every fact that the jury could have found from her evidence, and to all the favorable inferences therefrom; and, if two inferences arise, one favorable and the other unfavorable, only the favorable one can be considered.</p> <p>2. Street Railway—Passenger—Attempt to Board Car—Injury—Case for</p> <p>Jury.</p> <p>Evidence in a suit by a passenger against a street car company for injuries received while attempting" to board a car held, sufficient to take plaintiff’s case to the jury on the issues of negligence and contributory negligence.</p> <p>3. Same—Contributory Negligence—Question for Jury.</p> <p>Contributory negligence is generally a question of fact, and it is only where it clearly appears from the circumstances,-or is proved by uncontroverted evidence, that the court can determine the question.</p> <p>¶ 3. See Negligence, vol. 37, Cent. Dig. §§ 291, 333.</p>

Action by Eugene I. Yuells against Carl Hyman and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.

<p>Appeal from Special Term, New York County.</p> <p>Application of the people, on the relation of William Dickinson, for a writ of habeas corpus to John E. Van De Carr, warden of the City Prison. From an order dismissing the writ and remanding him to the custody of the warden, he appeals. Affirmed.</p>

Action by Frederick Kindorf against Phillip J. Hoellerer. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>1. Execution—Supplementary Proceedings — Examination of Debtor— Affidavit—Sufficiency.</p> <p>Under Code Civ. Proc. § 2458, subd. 2, providing that, to entitle a judgment creditor to maintain supplementary proceedings, the execution must have issued to the sheriff of the county where the judgment debtor resides, if he is then a resident of the state, the affidavit for an order for the examination of the judgment debtor must state the residence of the judgment debtor at the time of the commencement of the proceedings, in order to give the court jurisdiction.</p> <p>¶ 1. See Execution, vol. 21, Cent. Dig. § 1109.</p>

Action by Morris Marsh against Samuel Bergman. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>1. Landlord and Tenant—Lease under Seal—Effect—Variance by Parol.</p> <p>The legal effect of a written lease under seal cannot be destroyed by testimony of an oral agreement that the tenant might occupy the building rent free until it was torn down.</p> <p>3. Same—Agreement fob Free Occupancy—Want of Consideration — Uncertainty.</p> <p>An agreement that a tenant in possession of premises under a written lease, binding him to pay a fixed rent, “might occupy the building rent free until it was torn down,” was void for uncertainty and want of consideration.</p>

Action by Edward Voss against George Moore Smith, receiver of the Bell Manufacturing Company. From a judgment for defendant entered on a verdict directed by the court, plaintiff appeals. Reversed.

Action by Max Vogel against Henry G. Hemming. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Action by Moses Marjulies against Max Goldstein and others. From an order denying a motion for resettlement of the case on appeal, plaintiff appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh .District.</p> <p>Action by Nora Kavanagh against Gertrude Vollmer. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Dismissal of Action—Opening Default—Costs.</p> <p>Though plaintiff’s attorney is negligent in permitting the case to be dismissed, plaintiff may have the default opened on payment of costs and defendant’s taxable fees for witnesses for attendance in court.</p> <p>¶ 1. See Dismissal and Nonsuit, vol. 17, Cent. Dig. § 189.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Actions for negligence by Bridget McGill and Bernard McGill against the Central Crosstown Railroad Company. From judgments for plaintiffs, defendant appeals. Affirmed.</p>

<p>1. Appeal from City Court—Review.</p> <p>On appeal from an order of affirmance by the General Term of the City Court, only questions of law can be reviewed; the facts found in the City Court being conclusive.</p>

Action by the Bush Company, Limited, against Richard Gibbons and others, in the nature of a bill of interpleader. From a judgment in favor of defendant National City Bank and others, defendants Audley Clarke and others appeal. Affirmed.

<p>Appeal from Municipal Court of New York.</p> <p>Action by Benjamin Elinsky against Samuel Berger. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Municipal Corporations—Police Force—Appointment as Detective— Temporary Appointment.</p> <p>3 Laws 1901, p. 122, c. 466, § 290, provided that those acting as detective sergeants on April 1,1901, should not be reduced in rank or salary, except in case of removal as provided by law for officers of the police force. A patrolman was assigned to duty in the detective bureau for five days, and continued in that position by respective assignments at the expiration of each five-day period. Held, that he was not within the statute, since his appointment was merely temporary, and he ceased to become entitled to such position at the expiration of each five-day period.</p> <p>2. Same—Effect of Statute—Time.</p> <p>3 Laws 1901, p. 122, c. 466, § 290, providing that those acting as detective sergeants on April 1, 1901, should not be reduced in rank or salary, save in case of removal as provided by law for members of the police force, applied only to those who continued in that position until the act took effect in January, 1902.</p>

Certiorari by the people, on the relation of Thomas F. Callan, to John N. Partridge, police commissioner, to review the dismissal of the relator from his position as patrolman of the police force. Order affirmed.

<p>Appeal from Special Term, Kings County.</p> <p>Action by Benoit Wasserman against Joseph Benjamin. From an order vacating an order of arrest, plaintiff appeals. Reversed.</p>

<p>1 Abatement—Another Action Pending—Defect of Pleadings—Waiver.</p> <p>In an action against a railroad for negligent death caused in the state of Connecticut, defendant pleaded another action pending. Plaintiff contended that the complaint in the other action was radically defective, in that it failed to allege notice of claim given to defendant as required by a Connecticut statute. Defendant, however, had not demurred to the complaint, but had pleaded to the merits. Weld, that defendant had waived the right to demur, and hence the defective complaint did not affect the validity of the defense.</p> <p>3. Same—Evidence— Copy of Pleadings.</p> <p>Under the defense of another action pending, it is not error to admit in place of the original a copy of the complaint in such other action, proved by testimony of defendant’s attorney to be the paper served upon defendant.</p>

<p>1. Judicial Sale—Purchaser—Easement—Adverse Possession.</p> <p>Where real estate sold at partition sale'.has a right of way over the lands of a third person, which has been used with the knowledge of the third person, and without any objection by him, for more than 50 years, and the way is one of necessity, manifest to the third person, the purchaser is compelled to take the title, the proof establishing the easement by adverse possession being clear and strong.</p>

Action by Michael Lynch against the Metropolitan Street Railway Company. From an order granting a new trial after setting aside a verdict for defendant, defendant appeals. Affirmed.

<p>1. Fraud—Advance of Purchase Price—Sale of Goods to Third Person.</p> <p>One who obtains money on a promise made with fraudulent intent, to deliver certain goods in his stock, and then sells his entire stock to another, is liable for the fraud.</p> <p>3. Witness—Denial of Facts—Propriety of Further Questions.</p> <p>Questions relating to matters the existence of which the witness denies, and proof of which is essential as a basis for further inquiry, are properly excluded.</p>

<p>1. Agency—Ratification.</p> <p>Where a subagent of a lessor received from a tenant a deposit to be applied on rent, the fact that the lessor subsequently accepted the tenant did not import a ratification of the subagent’s act in receiving the deposit.</p> <p>2. Same—Implied Authority.</p> <p>A subagent of a lessor, authorized to procure prospective tenants and submit their names to the landlord’s agent, who had the leases in charge, had no implied power to collect rent for the landlord’s account.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>- Action by Domenico Calandra against the Life Association, of America. From a judgment for plaintiff, defendant appeals. Modified.</p>

<p>1. Street Railways—Collision with Team Crossing Track—Contributory Negligence.</p> <p>A finding that plaintiff, injured by the wagon on which he was riding being struck by a street car, was not guilty of contributory negligence, is authorized, there being evidence that the car had stopped half a block away, when the wagon approached the track, by a diagonal path, to cross it, though plaintiff did' not look for the car; the place not being one of obvious danger, and there being evidence that, if he had looked, the position of the car was such that danger in attempting to cross would not have been apparent.</p>

<p>1. Pleading—Municipal Courts—Denial.</p> <p>Under Municipal Court Act, g 150 (Laws 1902, p. 1538), providing that in a Municipal Court the answer must contain a general or specific denial of each material allegation, or of any knowledge or information thereof sufficient to form a belief, an answer that defendant has no knowledge or information sufficient to form a belief as to any of the allegations in the complaint, and therefore denies the same, constitutes a denial.</p> <p>¶ 1. See Pleading, vol. 39, Cent. Dig. § 245</p>

<p>1. Consolidation of Actions—Removal Bonds.</p> <p>Where the consolidation of actions at the instance of defendants affects the condition of. bonds given upon removal from the Municipal to the City Court, and will prejudice the plaintiff in an attempt to enforce the obligation of those bonds, consolidation should not be ordered.</p>

<p>Appeal from City Court of New York.</p> <p>Action by William' Miller against Liubomir R. Mestaniz. From a judgment of the City Court in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals. Reversed.</p>

<p>1. Real Estate Agent—Commissions—Evidence.</p> <p>In an action by a real estate agent for commissions, statements made by defendant’s husband to plaintiff’s agent, recognizing plaintiff’s right to commissions, were incompetent, in the absence of any proof that the husband was defendant’s agent.</p> <p>2. Trial—Objections to Evidence.</p> <p>Where a certain line of incompetent evidence was objected to continuously throughout the trial, and motions made at intervals to strike it out, which were renewed before the case was submitted to the jury, the fact that no objection was made to a portion thereof which was highly prejudicial did not prevent the objecting party from taking advantage of the error in its admission.</p> <p>¶ 1. See Evidence, vol. 20, Cent. Dig. §§ 953, 954.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Rose Ann O’Neill against the Interurban Street Railway Company. From an order denying its motion for a bill of particulars, defendant appeals. Reversed.</p>

Action by Henry Parish, individually and as executor, against Susan D. Parish and others. Appeal by Henry Parish and Susan D. Parish from so much of an order as directed that title in a partition sale should be made as of the date named in a certain judgment. Reversed.

<p>1. Examination before Trial—Eight of Plaintiff.</p> <p>In an action by a principal against its agents to recover insurance money received by them for the destruction of its goods, shipped when in their control, plaintiff is entitled to an examination of one of them before trial as to the manner in which the goods were shipped, and the companies insuring; the necessity and materiality of the evidence and the agent’s peculiar knowledge being shown.</p>

Action by Theodore Haebler and others against the New York Central & Hudson River Railroad Company. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals. Affirmed.

- Action by R. E. Dietz & Co. against Miller, Sears & Walling Company. From a judgment for plaintiffs, and from an order denying a motion to amend the judgment, defendant appeals. Reversed.

Action by Julius Leaux against the city of New York and James Jacobs. From a judgment dismissing the complaint as against said James Jacobs, plaintiff appeals. Reversed.

Action by Julius Leaux against the city of New York, impleaded with James Jacobs. From a judgment against the city of New York and from an order denying a motion for a new trial, it appeals. Reversed.

Action by Catherine Moore against Joseph Taylor. From the part of a judgment reversing a judgment for plaintiff which denied costs to defendant, he appeals. Reversed.

<p>1. Appeals from City Court—Costs—Disbursements.</p> <p>Under Code Civ. Proc. § 3251, subd. 4, as amended (Laws 1902, p. 1233), providing that, in all appeals taken under section 3189, the costs awarded to the successful party shall not exceed $10, in addition to taxable disbursements, where an order of the Special Term of the New York City Court was reversed on appeal to the Supreme Court, “with costs,” without reference to disbursements, the appellant was not entitled to tax disbursements.</p>

Action by Marie J. E. Morel and others against John N. Stearns and others. From a judgment entered on a directed verdict in favor of plaintiffs, defendants appeal. Reversed.

<p>Appeal from City Court of New York.</p> <p>Action by Paul Steinberg and another against John B. Schleshinger. From a judgment for plaintiffs, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Dena Reichenberg against the Inter urban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Fannie S. Wheeler against William F. Norton and others. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>1. Landlord and Tenant—Surrender and Acceptance.</p> <p>Where the lessee of a building surrendered the keys to the lessor’s janitor, who gave them to the lessor nearly a month before the lessee was to begin the payment of rent, and the lessor leased the premises to another party 15 days before that time, there was a surrender and acceptance, relieving the lessee of liability for rent.</p>

Action by Peter F. McLaurin against the Cuba Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Reversed.

Action by Abram Brothers against Henry Krakower. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

<p>1. Sales—Representations to Obtain Credit—Reliance—Evidence.</p> <p>In replevin to recover goods on the ground that the buyer had made fraudulent representations to secure credit, testimony by the plaintiff that he had previously limited the buyer to a credit of a certain amount, and that when the order for the goods was brought in the plaintiff saw the buyer, and told him that he would not deliver any goods except O. O. D., to which the buyer replied to send the goods C. 0. D., was sufficient to show that any representations made by the buyer were not relied on by the plaintiff in making the sale.</p> <p>2. Same—Passage of Title.</p> <p>Where the seller of goods notified the buyer that they would be delivered only C. O. D., but the goods were delivered and not paid for at the time, and there was nothing further to show that the seller intended that delivery should not be complete until payment was made, the buyer obtained a perfect title.</p> <p>3. Replevin—Identification of Property.</p> <p>In replevin to recover a quantity of paint on the ground that title had not passed to the buyer because of his failure to make payment on delivery as agreed, it appeared that the person in possession of the paint taken under the writ had purchased the same from a third person, who testified that he did not know the person to whom the plaintiff sold the paint, and had never seen him. It did not appear where this third person obtained the paint. Plaintiff had many customers to whom he sold the same brand of paint marked in the same way, and the paint seized differed in no respect from that sold to other persons. Held, that there was no sufficient identification of the property.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, First District.</p> <p>Action by Sol Berg against Samuel Spitz. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.</p>

Motion by Jasper W. Travis for a writ of mandamus to the clerk of the village of Ossining. From an order denying the motion, the applicant appeals. Affirmed.

<p>1. Municipal Court—Appeal—Retuen—Requisites—Review op Judgment.</p> <p>Where, on appeal from a judgment of the Municipal Court, the return did not contain the complaint, nor any of the testimony taken on the trial, if one was had, whether the judgment was correct on the merits could not be reviewed.</p> <p>2. Same—Continuance—Engagement of Counsel—Discretion.</p> <p>Where, after a cause pending in a Municipal Court had been several times continued at defendant’s request because his counsel were otherwise engaged in the trial of causes in the Supreme Court, the case, with defendant’s consent, was peremptorily set for a particular date, it was not an abuse of the trial court’s discretion to refuse to grant a further-continuance on such date on the same ground.</p> <p>3. Same—Gekeral Rules of Practice.</p> <p>Sup. Gt. Gen. Prac. Rule 9, providing that a cause on the day calendar shall be passed for the day when counsel is actually engaged in the trial of a cause, which, by Municipal Court Act, § 20, is made to apply to the Municipal Court only, “as far as the same can be made applicable,” does not authorize continued applications for the postponement of a trial in a Municipal Court on the ground that counsel was otherwise engaged in the trial of causes.</p>

Action by Thomas J. Outerbridge against Royer Campbell and another. From an order vacating an attachment against defendants’ property, plaintiff appeals. Affirmed.

Action by Mary Eagan against James W. Hyde, as executor, etc. From an order setting aside a verdict for plaintiff and dismissing the complaint, she appeals. Reversed.

<p>Appeal from City Court of New York.</p> <p>Action by Adolph Prince against the Third Avenue Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by Antonio Venuta against the New York, Westchester & Connecticut Traction Company and another. From a judgment for defendants and from an order denying a new trial, plaintiff appeals. Reversed.

<p>1. Appeal from Municipal Court—Absolute Reversal—Allowance of Costs.</p> <p>Where a judgment of the Municipal Court has been rendered without jurisdiction, so that on appeal it must be absolutely reversed, costs must be allowed appellant, under Municipal Court Act, § 345 (Laws 1902, p. 1590, c. 580), so providing, though respondent by written stipulation offered in the court below to allow a reversal without costs.</p>

<p>1. Evidence—Objection—Waiver.</p> <p>Though evidence of an agreement relieving defendant from liability might have been objected to as varying a written instrument, it having been admitted without objection, is in the record for all purposes.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Three actions by the Union Bank of Brooklyn against David K.. Case individually and as trustee. From an order in each action affirming a taxation of costs, plaintiff appeals. Reversed.</p>

Application to the surrogate for instructions by Margaret F. Bodkin, one of the executors of the estate of Dominick G. Bodkin, deceased. From certain orders in favor of petitioner, the other executors appeal. Affirmed.

<p>Appeal from Surrogate’s Court, Westchester County.</p> <p>Application for probate of the last will and testament of James Burns, deceased, to which Edward Burns filed objections. From a decree admitting the will to probate, objector appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action for rent by Isaac Isaacson against Nathan Wolfensohn. Judgment for plaintiff, and defendant appeals. Modified.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Catherine Watson against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by George A. Treadwell against William C. Greene. From an order granting a motion to vacate an ex parte order directing the examination of James Shirley as a witness on behalf of defendant before trial, defendant appeals. Reversed. See 84 N. Y. Supp. 354.

<p>Appeal from, Trial Term, Kings County.</p> <p>Action by Margaret Travers, an infant, by her guardian ad litem, Thomas Travers, against Ambrose S. Murray, Jr. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Street Railroads—Passengers Alighting—Duty to Stop Car—Instructions.</p> <p>An instruction that it was the duty of defendant to bring its car to a stop, and allow it to so remain for a length of time “sufficient” to allow plaintiff and her children to alight therefrom, was not erroneous, though the law only required the Car to stop a reasonable time, where other instructions stated that only ordinary care was required.</p>

<p>Appeal from Queens County Court.</p> <p>Action by Clarence Hubbs against Frederick Schwaneflugel and another. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Gustave Reimer against the Green Room Club. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Special Term, Nassau County.</p> <p>Action by Elizabeth Dunleavey against William H. Dunleavey and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

Action by Louis F. Boyes and another, as executors of the will of August Bossard, deceased, against Julie Bossard and others, impleaded with others. From an order denying a motion for the issuance of a commission to a proper person in Switzerland for the purpose of the examination of certain witnesses in that country, defendants appeal Reversed.

<p>1. Contracts—Construction—Want or Mutuality—Revocation.</p> <p>A contract for the purchase of certain books, to be paid for in installments, and providing that “I [the purchaser] understand that this order is not subject to countermand or cancellation. You are at liberty to consult as to my reputation for keeping business promises”—is a mere order, revocable at any time before acceptance, and, considered as a contract, -is unilateral, without consideration, void for want of mutuality, and not enforceable after revocation.</p> <p>3. Same—Acceptance—Acts of Agent—Absence of Authority.</p> <p>The fact that a book agent affixed his name after the word “Salesman” on an order for the purchase of books, and also wrote the words “10 per cent, off” upon the margin of .the order, does not show an acceptance of the order by the publisher, where there is no evidence of the salesman’s authority to accept the order or reduce the price.</p> <p>3. Same—Orders—Liability before Acceptance.</p> <p>The fact that a publisher incurs a liability to a book agent for his commission, for every order obtained, without regard to the outcome of the sale, does not fender the maker of -the order liable thereon before acceptance by the publisher, in the absence of any showing that he knew of that fact.</p> <p>4. Same—Stipulations for. Payment—Effect.</p> <p>A statement in an order for the purchase of books, “first payment may he made to the agent,” does not show an acceptance of the order by the publishers, where no such payment was made, and there was no showing who the agent was to whom payment might he made.</p> <p>5. Same—Promise in Order—Want of Consideration.</p> <p>A statement in an order tor the purchase of books that the purchaser understood “that this order is not to be countermanded,” even if considered as a promise, is without consideration.</p>

<p>1. Insurance—Loss—Liability of Third Person—Subrogation of Insurer— Effect of Release.</p> <p>Insured’s violation of a condition of his policy that he shall not release a carrier from its liability for a loss, and thereby prevent the insurer’s subrogation to the insured’s rights against the carrier, avoids the policy, though the loss was claimed to have been occasioned by an incendiary fire, for which the carrier was not liable; the insurer having a right to litigate the question of liability with the carrier.</p>

<p>1. Leave to Sue as Poor Person—Petition—Sufficiency.</p> <p>Under Code Civ. Proc. §§ 458, 459, providing that a petition for leave to sue as a poor person must be made by the poor person, except that in case of an infant, it may be verified by the guardian, a petition made by the father of an infant, and verified by him as the petitioner, is insufficient.</p> <p>2. Same—Contradictory Allegations.</p> <p>A petition by an infant for leave to sue as a poor person was verified by his father, who swore that he was not worth the sum of $100, except his wearing apparel and the subject-matter of the action, while upon application for appointment as guardian at litem, 11 days prior thereto, he had sworn that he was worth the sum of $250 over all débts and liabilities. There was no explanation as to this change in circumstances. Held, that the petition was insufficient.</p>

<p>1. Conversion—Mortgaged Chattels.</p> <p>One who sells mortgaged chattels on execution against the mortgagor after he is in default, so that the mortgagee’s right of possession is complete, is liable to the mortgagee for conversion.</p> <p>2. Same—Measure of Damages,</p> <p>The measure of damages for conversion by a third person of mortgaged chattels after the mortgagee’s right of possession is complete is the value of the chattels, the difference between it and the mortgage debt being the subject of accounting between the parties to the mortgage.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Morris W. Brinkman against Manuel A. Kursheedt for services rendered as a physician. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Appeal from City Court ,of New York.</p> <p>Action by Joseph J. Cowan against George De Hart. From a judgment on a verdict directed for plaintiff, defendant appeals. Affirmed.</p>

Action by the tenement house department of the city of New York against Katie Moeschen. From a judgment for plaintiff, defendant appeals. Affirmed.

<p>1. Suit against Partnership—Membership of Defendant—Sufficiency of Evidence.</p> <p>Where plaintiff, suing a partnership, admits that he does not know who composed it, and the only contesting defendant testifies, as plaintiff’s witness, that he was not a member, the complaint is properly dismissed, though plaintiff testifies to having received directions in his work from such defendant.</p>

<p>1. Street Railways — Injury to Person Boarding Car — Contributory Negligence.</p> <p>Plaintiff, in an action for injury received in attempting to board a street car, testified that the gate of the car was not fully opened for reception of passengers, that it was open a little bit, and that if he had seen the position it was in he never would- have put his hand there to get hurt. Held, that there was evidence for the jury that he did not use reasonable care in attempting to board the car, under the circumstances.</p>

Summary proceedings by Henry Heuser against Johann H. Antonius, in which Edith Antonius and others sought leave to answer and defend. From a final order awarding possession of the premises to the landlord, interveners appeal. Dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Leone Pecararo against Peter Pecararo. Judgment for defendant, and plaintiff appeals. Affirmed.</p>

<p>1. Composition with Creditors — Leaving Amount Blank —Effect on "Creditor’s Claim.</p> <p>The fact that a creditor, who assents to and signs a composition agreement, leaves a blank opposite his name, where the amount of his claims should appear, and does not intend to include in the agreement a note of the debtor’s which he has indorsed and “discounted”—that is, deposited as collateral security'—at a bank, does not permit him to afterwards sue on the note, nor do its transfer and discount make any difference.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Samuel Epstein against J. Charles Hankinson. From a City Court judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals. Reversed.</p>

<p>1. Contracts—Substantial Performance—Defects Chargeable to Defendant.</p> <p>Where, in an action to recover for cards furnished, it appeared that no more than 1 per cent, of the cards cut had rough edges, and a portion of them were somewhat different in size, and that both of these defects necessarily resulted from the use of the die used in cutting, which was furnished by defendant for the work, plaintiff was not liable for such defects.</p> <p>8. Same—Counterclaim—Breach of Contract—Inspection—Waiver.</p> <p>Where, in an action on a contract for the manufacture and sale of cards, the answer set up a counterclaim for breach of contract in the manufacture of the cards, and not for breach of warranty by reason of certain defects in the cards, such counterclaim was waived by an acceptance of the goods after a reasonable opportunity for inspection.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Julius Mendelson and others against Joseph Frankel. From an order of the New York City Court requiring defendant to file a further bill of particulars, he appeals. Reversed.</p>

<p>1. Street Railways—Negligence—Collision with Pedestrian— Evidence.</p> <p>Plaintiff endeavored to push his cart across the street while defendant’s street car was within a distance estimated by witnesses at from 15 feet to the “width of 8 or 9 houses,” and, observing the car, signaled the driver to slacken speed or stop, in spite of which the car proceeded, striking and injuring plaintiff. The driver admitted that he saw plaintiff and endeavored to stop the car, but also testified that he could stop within 20 feet, and it appeared that, though he applied the brake when 12 or 15 feet from plaintiff, it did not stop until 20 feet beyond the point of collision. Held, that defendant was guilty of negligence.</p> <p>3. Same—Contributory Negligence.</p> <p>In an action for injuries by collision with street car, evidence held to show plaintiff free from contributory negligence.</p> <p>3. Same—Speed op Car.</p> <p>In an action against a street car company for personal injuries, caused by defendant’s car striking plaintiff as he was crossing the street, evidence of bruises to the plaintiff’s head was admissible as showing the violence of. the collision, and thereby bearing on the speed of the car, although such injuries were not specified in the bill of particulars.</p>

Action by Barnet Masor against William Jacobus and another. From an order setting aside the verdict -for plaintiff as inadequate and directing a new trial, defendants appeal. Reversed. See 84 N. Y. Supp. 270.

<p>1. Corporations — Written Contracts — Acts of Officers — Authority— Proof.</p> <p>An action could not be maintained against a corporation on a contract reciting that the corporation agreed to pay a certain sum as its share of the commission in leasing a hotel, in which transaction plaintiffs were the brokers, and signed in the corporate name by J. 0. M., secretary and treasurer, without proof of the secretary’s authority to sign the instrument and bind the corporation, or subsequent ratification of his acts, in addition to the mere fact that he was the secretary and treasurer of the corporation.</p>

Action by John E. Corscadden against Isaac M. Haswell and others, as commissioners of the Albany Penitentiary, and another. From a final judgment for plaintiff, made in pursuance of an interlocutory judgment overruling a demurrer to the complaint, and from an order denying a motion for a resettlement of said interlocutory judgment, defendants appeal. Modified.

<p>Appeal from Special Term, Albany County.</p> <p>Action by John E. Corscadden against Isaac M. Haswell and others, as commissioners of the Albany penitentiary,' and another. From an order continuing a temporary injunction, and from an order denying a resettlement of said order, defendants appeal. Order of continuance affirmed. Order refusing a resettlement reversed, and injunction modified.</p>

Action by the department of health of the city of New York against Samuel Babcock. From an order vacating a judgment for plaintiff, it appeals. Reversed.

Mandamus by the people, on the relation of John E. Corscadden, against John A. Howe, as county treasurer. From an order directing a peremptory writ of mandamus requiring defendant to pay relator his salary as superintendent of the Albany penitentiary, defendant appeals. Affirmed. See 82 N. Y. Supp. 347.

<p>1. Railroad’s Negligence—Evidence—Sufficiency.</p> <p>Where, in an action against a railroad for injuries to plaintiff by a train at a crossing, the evidence of plaintiff’s witness tended to show that the train ran by the crossing at a high rate of speed, in violation of a city ordinance, and that the customary signals were not given, and that no gates were provided, the jury were justified in finding the defendant negligent.</p> <p>3. Same—Contributory Negligence.</p> <p>Where, in an action against a railway for injuries to plaintiff at a crossing, it appeared that the headlight of the approaching train must have been in plain view of plaintiff at the time he went upon the track, and less than 200 feet from him, though the train did not give the customary signals, and though plaintiff looked in the direction of the train, but testified he did not see it, he was guilty of contributory negligence.</p>

Action by James B. Laroe and John G. Laroe against the Sugar Loaf Dairy Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Affirmed.

<p>1. Appeal—Taxation oe Costs—Objection.</p> <p>On appeal from an order denying a motion for retaxation of costs, the record must show what items were objected to, and the grounds of objection.</p>

<p>1. Written Contract—Parol Evidence.</p> <p>A written agreement to purchase a person’s tobacco crop for a certain year, providing that the tobacco should be free from “hail, frost, pole burn, stem rot, fats, wet buts, wet tobacco and free from trashy stuff,” and should “be delivered free from any damage,” was a complete contract, and could not be varied by parol evidence to the effect that damaged tobacco, denominated “grasshopper eaten tobacco,” was to be taken with the rest.</p>

Action by Russell & Co. against Frank McSwegan and another. From a judgment in favor of defendants, and from an order denying plaintiffs’ motion for a new trial, they appeal. Reversed. See 79 N. Y. Supp. 440.

<p>1. Malicious Prosecution—Probable Cause—Evidence—Prejudicial Error.</p> <p>On the issue of want of probable cause in an action for malicious prosecution, the fact of the termination of the criminal case in favor of the accused therein being conceded by the pleadings, the admission of parol evidence of the testimony of witnesses at the trial of the criminal case was prejudicial error, the- question of want of probable cause being a matter to be determined from the circumstances of the ease at the time defendant instituted the prosecution of plaintiff.</p>

Action by Reinhard Fuelling against the Roderick Lean Manufacturing Company. The action was commenced on the 19th day of March, 1903, to recover damages for bodily injuries sustained by the plaintiff on the 3d day of September, 1902, by being run over by a land roller manufactured by the defendant, which injuries are alleged to have been caused solely through the defendant’s negligence'. Judgment for plaintiff. Defendant appeals. Reversed.

Action by Joseph Geleta against the Buffalo & Niagara Falls Electric Railway. From a judgment for plaintiff, and an order denying its motion for a new trial, defendant appeals. Reversed.

Appraisal under the act in relation to taxable transfers of property of the property of John Garland, deceased. Appeal from a final decree (82 N. Y. Supp. 989) determining that a legacy is not subject to a transfer tax. Reversed.

<p>1. Trial—Remarks in Presence op Jury.</p> <p>In an action for personal injuries plaintiff’s counsel inquired of one of the talesmen if be was connected with a certain insurance company, and on objection to the question stated that he understood that the case was being defended by a certain insurance company. On objection by defendant’s counsel that the statement made by plaintiff’s counsel was prejudicial to defendant, the court overruled the objection, and stated that, assuming that an insurance company was interested, plaintiff had a right to find it out. Held, that the statements made by plaintiff’s counsel and the court in the presence of the jury constituted prejudicial error.</p>

Action by Veylon H. Lewis and another against Helen J. Snook. From an order directing a compulsory reference, defendant appeals. Affirmed. The action was commenced on the 20th day of December, 1902, to recover the value of services alleged to have been rendered for the defendant, and for moneys paid out for and on her behalf.

Action by Alice McManus against the city of Watertown. From a judgment for plaintiff, and an order denying defendant’s motion for a new trial, it appeals. Reversed.

Judicial proceedings on the settlement of the estate of John Hyland, deceased. From a decree of the surrogate in the matter of the claim of Margaret E. Clark against the estate, the claimant appeals. Reversed.

<p>1. Savings Banks—By-Laws—Payment of Deposits.</p> <p>Where the by-laws of a savings bank provided that the secretary would endeavor to prevent frauds, but that all payments made to persons presenting the deposit books should be valid payments to the depositors, respectively, payments made by the bank to relatives of a deceased depositor, who had been in possession of the depositor’s pass book for some time, who had' occasionally made deposits to the credit of the account, and had had interest credited in the book from time to time, and whose signature resembled that of the depositor so closely that the bank was not guilty of negligence in failing to observe the difference, relieved the bank from further liability.</p> <p>2. Same—Signatures—Evidence.</p> <p>In an action against a savings bank to recover deposits, in which defendant alleged that it had paid the deposits after the depositor’s death to her mother and sister, who had possession of the pass book and signed orders for the money, evidence considered, and held to show that the bank was not negligent in failing to observe the difference between the signature of the depositor and that of the person drawing the money.</p>

Action by Anna B. Shannon, as administratrix of Spencer Shannon, against the New York Central & Hudson River Railroad Company. From a judgment for defendant, and from orders denying plaintiff’s motions for the direction of a verdict and for a new trial, plaintiff appeals. Affirmed.

Action by William Van Derhoff against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and an order denying defendant’s motion for a new trial, it appeals. Reversed. See 81 N. Y. Supp. 1145.

Action by Margaret E. Huff, as administratrix of James D. Huff, deceased, against the American Fire Engine Company. There was a judgment for plaintiff, and from an order denying a motion for a new trial defendant appeals. Reversed.

<p>Appeal from Trial Term, Erie County.</p> <p>Action by Eleanor Strickland, by guardian ad litem, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Ralph C. Farnsworth against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed. The action was commenced to recover damages sustained by the plaintiff because of the alleged failure of the defendant to properly transmit a quantity of cabbage from Holley, N. Y., to Pittsburg, Pa., on account of which the cabbage was destroyed, and was a total loss to the plaintiff.

<p>Appeal from Trial Term, Allegany County.</p> <p>Action by Brigham N. Thrall against the village of Cuba. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Nathan J. Packard and another against Louis Windholz. From a judgment of the County Court reversing a judgment of the Municipal Court of the City of Syracuse (82 N. Y. Supp. 392) in favor of plaintiffs, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Mary Cunningham against Eric Nilson. From a judgment dismissing the complaint, plaintiff appeals. Reversed.</p>

Action by Josephine Dumar, administratrix of Moses Dumar, deceased, against Witherbee, Sherman & Co. From an order requiring amendment of the complaint, plaintiff appeals. Reversed. Appeal by the plaintiff from an order of the Montgomery Special Term dated the 27th day of June, 1903, and entered in the office of the clerk of said county on the 29th day of June, 1903, directing the plaintiff to serve an amended complaint setting forth the particulars in said order stated.

<p>L Appeal—New Tbial—Law op Case.</p> <p>Where, on a former appeal, it was held on reversal that the evidence presented a question of fact for the jury, and on the retrial the judge, sitting in place of a jury, decided in favor of defendant on substantially the same state of facts, his decision will not be disturbed on appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Adolph Landau against the O. J. Gude Company. From a judgment for defendant, plaintiff appeals. Reversed.</p>

Mandamus, on the relation of Samuel Hardy, against Francis Vinton Greene, police commissioner of the city of New York. From an order granting a writ of peremptory mandamus requiring the commissioner to place relator on the police pension roll, the commissioner appeals. Reversed.

<p>1. Railroads—Change of Route—Grade Crossing—Application to Commission—Necessity.</p> <p>Section 60 of the railroad law (Laws 1890, p. 1082, c. 565, as amended by Laws 1897, p. 794, c. 754) provides that railroads must be so constructed as to avoid grade crossings, if practicable. It also provides for proceedings before the Railroad Commissioners to determine the grade where an application is made under section 59 (Heydecker’s Gen. Laws, p. 3287, c. 39) for a certificate permitting a corporation to build a road, and further provides for application “under this section’’ to determine the manner of crossing. Held that, while the provision as to proceedings under the clause relative to section 59 refers only to new roads, the latter clause refers to roads already constructed, and necessitates a determination by the Railroad Commissioners that a crossing above or below grade is impracticable, before a road already constructed can change its route so as to cross a village street at grade.</p> <p>2. Same — Approval by Commission — Necessity — Approval by Village</p> <p>Trustees or by Court—Effect.</p> <p>Under section 60 of the railroad law (Laws 1890, p. 1082, c. 565, as amended by Laws 1897, p. 794, c. 754), necessitating a determination by the Railroad Commissioners íhat a crossing above or below grade is impracticable, before a crossing at grade can be made, such a determination must be made by the commission, and cannot be made, or such a crossing consented to or ordered, by the trustees of a village or the court.</p> <p>3. Same—Estoppel—Action of Village Trustees.</p> <p>A village cannot be estopped, by the action of its trustees in approving of the change of route of a railroad within the village, from objecting to the construction of the road over the village street at grade without the authority of the Railroad Commissioners, required to be given by section 60 of the railroad law (Laws 1890, p. 1082, c. 565, as amended by Laws 1897, p. 794, c. 754).</p> <p>4. Injunction—Adequate Remedy at Law.</p> <p>A village has no adequate remedy at law for the construction of a railroad over its main street at grade without approval of the Railroad Commissioners, when one-fourth of the expense of a subsequent change of the route, on its application to the railroad commissioners for such a change, would fall on it.</p>

<p>1 Sales—Rescission by Buyer—Return of Goods—Sufficiency of Evidence.</p> <p>In an action by a buyer for a breach of a contract of sale in that a part of the goods did not conform thereto, plaintiff’s evidence that he declined to receipt for them, and told defendant’s bookkeeper, who brought the goods, that he would not receive them, at the same time signing a receipt for other goods which were acceptable, and that he wrote several letters of rejection, shortly after the alleged delivery, with the statement that the goods were held at defendant’s risk and subject to his order, warrants a finding that plaintiff offered to return the goods.</p> <p>2. Same—Partial Acceptance—Effect.</p> <p>The fact that a buyer accepts that portion of the goods sold which conforms to the contract does not preclude him from claiming damages for the failure of the rest of the goods to conform thereto.</p>

<p>In the matter of the estate of Lucy C. Daniels, deceased. Decree on settlement of administrator’s account.</p> <p>The thirty-first and thirty-second subdivisions of the will of the testatrix read as follows:</p> <p>“I bequeath Fifteen Hundred Dollars to the First Methodist Episcopal Church of Hamilton in the Village of Earlville, in trust, to be kept invested and the income thereof to be applied in repairing its Church edifice and parsonage.</p> <p>“I bequeath Six Hundred Dollars to the First Baptist Church of Sherburne, commonly known as the Earlville Baptist Church, in trust, to be kept in-" vested and the income thereof to be applied in keeping the Church edifice and grounds in repair.”</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by George M. Auten against James Gordon Bennett. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Trial Term.</p> <p>Action by Butler Bros, against Charles E. Hirzel and another. Erom a judgment for defendants, plaintiffs appeal. Reversed.</p>

<p>1, Sidewalks—Removal by Municipality—Right of Lot Owner.</p> <p>Where a village lays stones in the soil in front of a lot, for the purpose of using them as a permanent sidewalk; they become a part of the lot owner’s real property, and having been removed by the village, merely because he would not pay an assessment therefor, it is liable to him therefor.</p>

Action by the people against John P. Welsh and others. Prom a judgment dismissing the complaint, the people appeal. Affirmed.

Action by Sarah Dearman, as executrix of and under the last will and testament of David C. Dearman, deceased, against Stephen S. Marshall. From a judgment for plaintiff, defendant appeals. Affirmed.

<p>Appeal from Surrogate’s Court, New York County.</p> <p>In the matter of the compulsory accounting of Mary M. Irvin, surviving executrix of Richard Irvin, Jr., of his proceedings as executor of Alexander P. Irvin, deceased. From a decree of the Surrogate’s Court confirming the report of a referee dismissing objections and awarding costs, Mary I. Smith, contestant, appeals. Modified.</p>

Action by William D. Martin against the New Trinidad Lake Asphalt Company. From an order denying a motion to vacate order for discovery and inspection of defendant’s books and accounts and modifying such order for discovery, defendant appeals. Reversed.

Application by Edmund C. Viemeister for a peremptory writ of mandamus against Patrick J. White, president of the board of education, and another. From an order denying the writ, relator appeals. Affirmed.

In the matter of. the judicial settlement of the account of proceedings of John A. Stewart and others as trustees under the will of John B. Trevor, deceased. From a decree of the surrogate entered on an intermediate accounting of trustees, they, with certain other parties, appeal. Modified.

Action by Frances M. Smith against the city of Auburn. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action by Nora D. Quinn against Mary A. Fitzgerald. From an order denying a motion for dismissal of the complaint, or that the case be stricken from the calendar, for plaintiff’s failure to comply with an order for a bill of particulars, defendant appeals. Modified.

<p>Appeal from Trial Term, New York County.</p> <p>Action by Robert E. Westcott against the Fidelity & Deposit Company of Maryland. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Carlotta Herrmann against George Herrmann. From two orders, one granting plaintiff additional counsel fee, and the other denying defendant’s motion to vacate an order granting plaintiff alimony and counsel fee, defendant appeals. Modified See 77 N. Y. Supp. 1129; 81 N. Y. Supp. 811.

<p>Appeal from Municipal Court, Borough of Brooklyn, Third District.</p> <p>Consolidated actions by Sarah Schall and Rudolph Schall against the city of New York. From a judgment for plaintiffs, and an order denying defendant’s motion for a new trial, it appeals. Reversed.</p>

<p>1. Venue—Order Granting Change—Recitals—Appeal—Consideration on-Other Grounds.</p> <p>Where an order for a change of venue recites that it was granted on the ground of convenience of witnesses, on appeal from that order questions as to plaintiff’s removal to the county in which action was brought, solely for the purpose of bringing the action there, are immaterial.</p> <p>2. Same—Grounds for Change—Convenience op Witnesses.</p> <p>The place of trial will'not be changed from a rural county to either New York or Kings merely to subserve the convenience of witnesses. There must be other circumstances tending to indicate that justice will be promoted by the change.</p> <p>3. Same.</p> <p>A motion for a change of venue on the ground of convenience of witnesses is not justified where, excluding the applicant’s employes .and experts, presumably specially paid for their time, the application is not based on a larger number of witnesses than those residing in the county of the original venue.</p> <p>Goodrich, P. J., dissenting.</p>

<p>1. Landlord and Tenant—Mortgage Foreclosure of Premises—Effect.</p> <p>A landlord can recover from his tenant rent for the full period preceding a foreclosure sale of the premises.</p> <p>2. Same—Covenant for Quiet Enjoyment—Breach.</p> <p>A mere foreclosure sale of leased premises does not constitute a breach of the landlord’s covenant for quiet enjoyment, but the tenant’s possession must be actually disturbed.</p> <p>3. Same—Estimate of Damages.</p> <p>Where it does not appear at what time the referee’s deed under a foreclosure sale was delivered to the purchaser, damages claimed by a tenant for breach of covenant of quiet enjoyment thereby occasioned cannot be computed.</p> <p>¶ 2. See Covenants, vol. 14, Cent. Dig. § 136; Landlord and Tenant, vol. 32, Cent. Dig. § 473.</p> <p>4. Foreclosure Judgment—Conformity to Rules of Practice—Presumption.</p> <p>On appeal the Supreme Court will assume that a judgment of foreclosure and sale of leased premises, alleged to have constituted a breach of covenant for quiet enjoyment, contained the direction required by rule 61 of the general rules of practice—that the purchaser be let into possession on production of the deed.</p>

Suit by Charles Weston against the Citizens’ .National Bank of Corry, Pa. From a judgment for plaintiff, defendant appeals. Reversed. This is an action in equity, and was commenced on the 10th day of September, 1900, to perpetually restrain the prosecution of an action at law pending in the Supreme Court, originally brought by the defendant against the plaintiff’s testator and others. The judgment granted the relief asked for, and from it this appeal is taken.

Action by Peter B. Hackett against William H. Masterson. From an order setting aside the verdict of a jury, and from a judgment in favor of defendant, plaintiff appeals. Affirmed.

<p>1. Street Railways—Fee in Street—Condemnation.</p> <p>Laws 1895, p. 791, c. 933, amending section 90 of the railroad law (Laws 1890, p. 1108, c. 565), assumes that a street surface railroad corporation can state in its certificate of incorporation the streets in which its road is to be constructed, and the private property over which it is proposed to construct and operate it; provides for filing a map of the proposed route, and that all provisions of section 6 (page 1084) of the railroad law shall apply to the route so located; and then states, “Nothing in this section shall be deemed to authorize a street railroad corporation to acquire real property within a city by condemnation.” Held, that such prohibition was intended to relate only to private property, and not to an abutting owner’s property rights in the bed of a street.</p>

Action by the people, on the relation of Henry H. Brewster, against the Old Guard of the City of New York and others. From a final order directing the issuance of a peremptory writ of mandamus, respondents appeal. Reversed. See 82 N. Y. Supp. 1110.

Action by Arthur W. Hart against the L. D. Garrett Company. From an order striking the cause from the jury calendar, plaintiff appeals. Reversed.

Action by Thomas G. McCaffrey against John R. Butler. From an order granting an application for a preference of the trial of the issues as a short cause, defendant appeals.

<p>Appeal from Trial Term, Westchester County.</p> <p>Action by Luigia Carideo against Cornelia J. Austin and another, as executors, etc., of Daniel Horton, deceased. From a judgment for plaintiff, defendants appeal. Modified.</p>

<p>Certiorari on the relation of Patrick Doherty against John N. Partridge, police commissioner of the city of New York, to review his proceedings in dismissing relator from the office of patrolman of police in said city. Affirmed.</p>

<p>Appeal from Trial Term, New York County.</p> <p>Thomas F. Sharkey was convicted of manslaughter in the second degree, and appeals. Affirmed.</p>

<p>1. Attorney and Client—Transactions—Fairness—Burden of Proof.</p> <p>In an action by an assignee of an attorney against one who had been the assignor’s client on a contract entered into while the relation of attorney and client existed, the burden of proving the complete fairness of the contract, and that the defendant fully understood the nature of the transaction, and that no undue advantage was taken of him, rests upon the plaintiff.</p> <p>2. Amendment—Laches.</p> <p>In an action by an assignee of a contract made while the relation of attorney and client existed between plaintiff’s assignor and defendant the case was on the calendar several times and postponed at the instance of defendant, on account of his counsel being engaged in other trials. A motion to amend was made by defendant at a time subsequent to the date for which the case had been peremptorily set. Held that, owing to the nature of the case, defendant’s right to amend was not lost by laches.</p> <p>Van Brunt, P. J., dissenting.</p>

Action by Eliza M. Kellegher against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Affirmed.

Action by Sarah F. Beers against the Metropolitan Street Railway Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

Action by Maria Clancy against the Yonkers Railroad Company. From a judgment for plaintiff and from an order denying a motion for a new trial, defendant appeals. Reversed.

In the matter of the judicial settlement of the account of Richard L. Hunt as sole executor of William L. Hunt, deceased. From a decree of the Surrogate’s Court (78 N. Y. Supp. 105) confirming the report of the referee, Franklin B. Hunt appeals. Reversed.

<p>Appeal from Trial Term, New York County.</p> <p>Action by James R. Whaples against Joseph Fahys and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.</p>

Mandamus by the people, on the relation of Walter Milsom, to compel the East Buffalo Live Stock Association to reinstate relator as a member. This is an appeal from an order directing, in substance, that a writ of peremptory mandamus issue to the defendant, commanding it to restore and reinstate the relator to all rights, benefits, and privileges as a member thereof, and to annul and revoke a certain notice or order of suspension made by it of said relator as a member.

<p>1. Master and Servant—Foreman—Fellow Servants — Appliances — Instructions.</p> <p>Where plaintiff’s theory is that his fellow servants, thinking the rope whose breaking afterwards caused an injury was too weak, asked the foreman for a stronger one, which he refused, and the defendant’s theory is that none of these things happened, but that an abundance of rope was accessible to the men, a charge that if the defendant company furnished an abundance of safe rope, and a competent foreman, it is not liable for an error in his judgment in the selection of the rope, is not pertinent, and should be refused.</p> <p>2. Same—Act op Foreman—Liability op Corporation.</p> <p>Where a foreman for a corporation is “boss of the job,” and sole superintendent thereof, with' power to employ and to discharge, his selection of a rope for men under him is an act of the corporation, for which it is liable.</p> <p>Woodward, J., dissenting.</p> <p>¶ 2. See Master and Servant, vol. 34, Cent. Dig. §§ 437, 448, 456.</p>

Action by the Flour City National Bank of Rochester against Moses Shire, as administrator of the estate of John Hamilton, deceased. From a judgment in favor of plaintiff, defendant appeals. Affirmed. This is an appeal by the defendant from a judgment entered upon the decision of a referee in the Erie county clerk’s office December 23, 1902, against him and in favor of the plaintiff for $11,048.96 damages and costs.

Robert L. Martin and another were indicted for perjury. From an order denying a motion to quash the indictment, defendants appeal. Affirmed. See 79 N. Y. Supp. 340, 1141.

<p>Appeal from Special Term, New York County.</p> <p>Action by Thomas Barry against the Third Avenue Railroad Company. From an order denying a motion to set off judgments, defendant appeals. Affirmed.</p> <p>See 64 N. Y. Supp. 615.</p>

<p>1. Written Contract—Parol Evidence—Admissibility.</p> <p>Where a lease in writing fixed the rent “for the first three years” from October 1, 1902, till October 1, 1905, at $3,000, parol evidence in an action for rent was inadmissible to show that the parties intended that the rent was to be $3,000 each year, instead of $3,000 for the three years.</p>

Action by the Deane Steam Pump Company against Nathan E. Clark and another. From an order allowing defendant Hobart D. Betts, as assignee for the benefit of creditors of the Armstrong & Bolton Company, defendant, to amend his answer, defendant Clark appeals Reversed

Alfred Childs was convicted of murder, and from an order denying a motion to resettle the case on appeal he appeals. Affirmed.

<p>1. Appeal—Want op Prejudice.</p> <p>Where defendant asserted that he had overpaid' plaintiff, and, on appeal by plaintiff from a judgment in his favor, it appeared that a finding for defendant might have been proper, a contention on the part of plaintiff that the judgment was improper, in that he should have had judgment for a larger sum, or judgment should have been rendered for defendant, was untenable.</p>

<p>1. Accord and Satisfaction—Tender in Full—Acceptance—Effect.</p> <p>Where a creditor accepts a check tendered as payment in full, and retains the proceeds, there is an accord and satisfaction, notwithstanding his protest that he does not accept it in full.</p> <p>¶ 1. See Accord and Satisfaction, vol. 1, Cent. Dig. §§ 76, 78.</p>

<p>1. Landlord and Tenant—Tenancy—Evidence.</p> <p>Evidence in an action for rent held insufficient to support the finding that the tenant held over without a new contract of tenancy.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Emil Schwarz and others against Morris Hirshfield and another. From a judgment for plaintiffs, defendants appeal. Affirmed.</p>

<p>1. Malicious Prosecution—Evidence—Admissibility.</p> <p>Evidence offered, in an action for malicious prosecution, concerning occurrences in court on the trial of the prosecution complained of, to establish the defense that the accused was discharged by reason of a settlement, and not otherwise, was admissible.</p>

<p>1. Landlord and Tenant—Defective Premises—Notice of Defect.</p> <p>Where a lease provided that written notice should be given to the landlord of any defect in the premises, the tenant was not entitled to recover for injuries to his goods resulting from water coming through the roof of the building, in the absence of such notice.</p> <p>¶ 1. See Landlord and Tenant, vol. 32, Cent. Dig. § 660.</p>

<p>1. Execution—Evidence—Ownership op Property.</p> <p>On an issue as to the ownership of liquor taken under execution, it was proper to admit in evidence mortgages given thereon by one claimed to be the owner, his affidavit attached to one of them, and his application on a liquor tax certificate.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Nissim M. Jouda against Morris Kaplan. From, a Municipal Court judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Landlord and Tenant—Dispossession—Execution op Judgment—Acts of Officer—Question for Jury.</p> <p>Where a warrant for the removal of the property of a tenant directed the officer to remove the tenant’s property “from the store floor in the house and premises known as 512 West 42nd Street,” and, in an action against the officer for the loss of plaintiff’s property so removed, plaintiff’s evidence tended to show that defendant entered and removed such property from a part of the building other than the “store floor," whether the property lost was so wrongfully removed was a question for the jury.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by John D unford -against the Inter urban Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court of City of New York.</p> <p>Action by Charles C. Marshall against the Industrial Federation of America. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Second District.</p> <p>Action by Archibald Charles against Henry A. Cook and another. From a judgment for defendants, plaintiff appeals. Reversed.</p>

<p>1. Sales—Representations—Continuing Effect.</p> <p>Where a statement was made by a purchaser of goods for the purpose of obtaining credit at the time the representation was made, the seller had a right to rely upon the statement in giving credit on future sales.</p> <p>¶ 1. See Sales, vol. 43, Cent. Dig. § 95.</p>

<p>1. Interest—Failure to Demand—Effect.</p> <p>The failure to demand interest in the oral complaint and the failure to state the item of interest in the bill of particulars do not prevent the court from allowing interest as a matter of substantial justice.</p> <p>¶ 1. See Interest, vol. 29, Cent. Dig. § 147.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Abraham Oshinsky against Louis Gottlieb. From an order denying a motion to vacate as on a rehearing an order adjudging defendant in contempt, he appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Raymond C. Moulton against the Westchester Racing Association and William J. Torpie. From judgments for defendants, plaintiff appeals. Affirmed as to the first defendant, and reversed as to the second.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District. ,</p> <p>Action by Benjamin F. Rouiaine against Isador H. Simpson. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Appeal from City Court of New York, General Term.</p> <p>Action by Mark Murray against the Metropolitan Street Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.</p>

<p>1. Imputed Negligence—Fellow Servants.</p> <p>It cannot be said as matter of law that negligence of the driver of an insurance patrol wagon in colliding with a street car is not imputable' to an employé of the insurance patrol riding to a fire on "the wagon, on the seat with the driver, and ringing the bell.</p>

Action by the B. P. Ducas Company against the American Silk Dyeing & Finishing Company and Wm. J. O’Brien, sheriff, etc. From an order taxing the sheriff’s poundage against defendant dyeing and finishing company, it appeals. Affirmed.

<p>1. Building and Loan Association—Dues—Withdrawal—Action—Proof.</p> <p>Where the certificate of a member of a building association, together with the by-laws thereof, provide that a member may withdraw dues paid thereon, but that not more than one-half of the dues received in any month shall be applied to the demands of withdrawing members without the directors’ consent, a "member seeking to recover dues must chow that the fund exists out of which the dues are payable, as provided by the certificate and by-laws.</p>

<p>Appeal from Municipal Court, Borough of Queens, Second District.</p> <p>Action by Louis Reis and Christian Reis, doing business as Reis Bros., against the Long Island Railroad Company. From a judgment for plaintiffs, defendant appeals. Modified.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action of replevin by Bernard Gruber against Joseph J. Janns and others. From a judgment for defendants, plaintiff appeals. Affirmed.</p>

<p>1. Evidence—Conclusion of Witness.</p> <p>On the issue whether a foreign corporation was doing business in the state during a specified period, the conclusion of an agent of the corporation that it was, was not evidence of that fact.</p> <p>3. Appeal—Presumptions.</p> <p>Where a judgment may have been rendered on either of two issues, one of which was insufficiently established, the court on appeal will not assume that it was based on the other issue.</p>

<p>1. Landlord and Tenant—Failure to Give Possession—Damages.</p> <p>In an action for breach of a lessor’s agreement to give possession, the measure of the plaintiff’s general damage is the difference between the rent reserved and the rental value of the premises.</p> <p>2. Same—Damages—Evidence.</p> <p>In an action for breach of a lessor’s agreement to give possession, evidence of the rent paid by the lessee for other premises claimed to be of a similar character is incompetent.</p> <p>¶ 1. See Landlord and Tenant, vol. 32, Cent. Dig. § 453.</p>

<p>1. Street Railways—Injury to Teams—Contributory Negligence—Failure to Look.</p> <p>One driving a milk wagon at a jog trot, the horse being under perfect control, was guilty of contributory negligence in crossing a street car track, when be had seen the car standing some 30 feet from where it struck his horse, without again looking before attempting to cross.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Adelaide V. Wright against Mitchell A. C. Levy to recover money deposited as earnest for the performance of a contract. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Payment—Evidence.</p> <p>The inference, from repayment by plaintiff of loans made by defendant without any deduction of plaintiff’s claim, that such claim had been paid, is not cogent, where the repayment was in work.</p>

Action by Annie Deutschmann against the Third Avenue Railroads Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. See 79 N. Y. Supp. 1043.

Summary proceedings by Albert M. Schuck, landlord, to recover possession of premises from Henry E. Schwab, tenant. From a final order in favor of the tenant, the landlord appeals. Affirmed.

Suit by Phillips Phœnix and another, executors and trustees of the last will and testament of Stephen Whitney Phœnix, deceased, against the trustees of Columbia College, George H. Warren, and others. From a judgment for the college entered on the report of a referee, George H. Warren and others appeal. Affirmed.

<p>Appeal from Municipal'Court, Borough of Manhattan, Third District.</p> <p>Action by the Stumpp & Walker Company against John D. Lynber. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Negligence—Evidence—Instructions—Degree of Care Required.</p> <p>To unload bricks ordered by defendant, plaintiff’s wagon was backed to the edge of an excavation maintained by defendant, and, coming in contact with a piece of timber placed to guard the rear wheels of wagons, the timber gave way and the wagon and horses fell into the excavation. The driver was controlled by orders given by defendant’s servant. The court, in an action for the injuries, eliminated any question of the servant’s negligence, and instructed that it was defendant’s duty to maintain the timber in a sufficiently secure condition to prevent the trucks from falling into the excavation. Held, on appeal from a judgment for plaintiff, that the instruction was prejudicially erroneous as imposing an absolute duty of having the timber continuously safe, irrespective of the use of ordinary care.</p>

<p>1. Street Railroads — Personal Injuries —Trial—Jurors—Misconduct-Evidence.</p> <p>An affidavit on which is based an application to set aside a verdict, because of alleged misconduct of two jurors, to the effect that after ver-, diet was rendered the jurors stated to affiant, who was a clerk in the office of plaintiff’s attorney, that -during the progress of the trial they had inspected a gate on one of the defendant’s street cars, to ascertain whether the plaintiff’s hand could have been injured in the manner testified to by him, and that such information influenced them in arriving at a verdict against plaintiff, is hearsay.</p> <p>2. Same—Harmless Error.</p> <p>The misconduct of two jurors, in inspecting a gate on one of defendant’s cars, to ascertain whether plaintiff’s hand could have been injured in the manner testified to by Mm, is harmless, where the evidence indicates that the jury were justified in finding for defendant, and there is nothing to show that a different conclusion would have been' reached, had the inspection not been made.</p>

<p>1. Broker's—Commissions—Services.</p> <p>Where, though defendant employed plaintiff to find a tenant for the first loft of his building, defendant availed himself of plaintiff’s services in finding a tenant for the upper loft, and plaintiff consented, at defendant’s request, to permit defendant to negotiate personally with the tenant, on his promise to protect plaintiff’s interest as a broker, plaintiff was entitled to compensation for his services in finding a tenant for such loft.</p>

Supplementary proceedings by Albert W. Cobb and another against David O. Edson. From an order denying a motion to vacate an order for the examination of defendant in supplementary proceedings, he appeals. Reversed.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Theodore B. Starr against Adele Ritchie. From an order of the City Court granting plaintiff’s motion for a new trial on the minutes after verdict, for inadequacy of damages, defendant appeals. Affirmed.</p>

Action by Antonis Ciuffi against the Metropolitan Street Railway Company. From a judgment for plaintiff and the denial of a new trial, defendant appeals. Affirmed.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Antonio Cebrelli against the Church Construction Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by the Consolidated Car Heating Company against Leopold Kahn. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Alexander Martin against the Interurban Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Abraham Schwartzman against Joshua L. Post and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the Bronx Metal Bed Company against Samuel Wallerstein and one Warshansky. From a judgment for defendant Warshanslcy, plaintiff appeals. Reversed.</p>

Action by Charles Pache to recover the reasonable cost of his deceased wife’s sepulture, paid by him before administration was assumed, against Bertha Oppenheim, as executrix, etc., of Eliza Pache, deceased. From a judgment sustaining a demurrer to and dismissing the complaint, plaintiff appeals. Affirmed.

<p>1. Appeal—Contracts—Terms.</p> <p>A verdict as to the terms of a contract, on conflicting evidence) will not be disturbed.</p> <p>MacLean, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Lena Greenberg against Joseph Laeov. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by David Schreiber against Magnus Ash. From a judgment in favor of defendant, plaintiff appeals. Reversed.</p>

Mandamus by the people, on the relation of John S. Sprague, against William H. Maxwell, as superintendent of schools in the city of New York. From an order granting a peremptory writ of mandamus directing defendant to place relator’s name on the list of persons eligible to be appointed as principals of public schools in the city of New York, defendant appeals. Reversed.

Cross-Appeals from Special Term. Action by Albert J. Barnes against the Long Island Real Estate Exchange & Investment Company and the People’s Trust Company. From the judgment rendered, plaintiff and defendant People’s Trust Company prosecute cross-appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Maurice Muschel against Carl Austern. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Charles R. Barkley against Joseph A. Holt. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Appeal from Trial Term.</p> <p>Action by Joseph R. Kinney against D. H. McBride & Co. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed.</p>

Action by the people, on the relation of Edward C. Stearns and others, against William Marr, as president of the Iron Holders Union, and others, for criminal contempt of an order of injunction. From the injunction order, the order of reference, and a judgment of conviction (84 N. Y. Supp. 36) defendants appeal. Affirmed.

<p>Appeal from Special Term.</p> <p>Action by Jonas P. Varnum, as receiver, against the Bolton Shoe Company, impleaded with others. From an order in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan.</p> <p>Action by Alfred E. Cullingworth against Albert G. Wilson and another. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Henry De Zavala against Maurice Royaliner. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Max Marcus against Adolph Stein. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.</p>

Action by James C. Daly against Eliza Bruen. From a judgment for defendant, entered on a nonsuit, dismissing the complaint, directed by the court, plaintiff appeals. Reversed.

<p>1. Landlord and Tenant—Counterclaim—Evidence.</p> <p>Where a tenant paid full rent for the leased property each month for four years without making a deduction for the storage of machinery for plaintiff under an alleged contract to allow the tenant $5 per month for such storage, and such agreement was not supported by clear and explicit evidence, a judgment disallowing a counterclaim for such storage was proper.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District</p> <p>Action by Charles H. Simmons against Michael E. Pope and others. From a Municipal Court judgment in favor of plaintiff, defendant Sbarrie appeals. Reversed.</p>

<p>3. Street Railways—Collision with Wagon—Evidence—Exclamation of Motorman.</p> <p>The statement of a motorman, after colliding with a delivery wagon, that he “could not help it,” is not admissible against the railroad.</p> <p>2. Same—Harmless Error.</p> <p>The statement of a motorman, after colliding with a delivery wagon, that he “could not help it,” does not tend to show negligence, and its erroneous admission was not prejudicial error.</p> <p>3. Same—Damages—Injury to Wagon.</p> <p>The sum expended by the owner of a delivery wagon for the hiring of another wagon yvhile Ms own is being repaired is a proper element of damages for injury done to his wagon by colliding with a street car.</p> <p>4. Same —Reasonableness—Evidence—Sufficiency.</p> <p>Testimony that plaintiff paid out $84 for the use of a delivery wagon during the 28 days that his own was being repaired, but that he thought that the usual rate was less than that, though he did not know what it was, did not warrant a finding that $84 was a reasonable charge, so as to establish a basis for damages for injury to plaintiff’s own wagon.</p> <p>¶ 1. See Evidence, vol. 20, Cent. Dig. §§ 365, 910, 912, 932.</p>

<p>Appeal from City Court of New York.</p> <p>Action by the State Bank against Sam Soloman. From a judgment in favor of the defendant and an order denying a new trial, plaintiff appeals. Reversed.</p>

<p>Appeal from Trial Term, Chenango County.</p> <p>Action by Frank Drachler against Ezra N. Foote. From a judgment for defendant, plaintiff appeals. Reversed.</p>

Action by Edward Wagner against Katherine C. Welling. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by William E. McReynolds against William Manger and others. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Moses L. Braunstein against the American Bonding Trust Company on an undertaking in attachment. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Evidence—Self-Serving Declarations.</p> <p>In an action on a contract by which defendant agreed to manufacture varnish a certain number of years according to a formula furnished by plaintiff, letters and statements written by defendant to plaintiff, tending to show that the varnish could not be made from plaintiff’s formula, were inadmissible to prove this fact, because declarations in defendant’s own interest.</p> <p>2. Same—Admissions in Pleading.</p> <p>In an action for breach of contract, in which the answer admitted the breach, evidence to show that the breach had not been committed was inadmissible.</p> <p>3. Contracts—Waiver—Question for Jury.</p> <p>Plaintiff contracted with defendant to furnish a formula for the manufacture of varnish and instruct defendant’s employés how to make it, the contract contemplating that payment should be made for the' surrender of the formula and performance of other acts of the plaintiff in two separate methods; one being dependent upon the manufacture and sale of the varnish, and the other to be paid at all events so long as the plaintiff fulfilled his contract, whether or not any varnish .was manufactured. Held, that whether acceptance by plaintiff of payments provided for in„case varnish should not be manufactured was a waiver of plaintiff’s rights under the part of the contract requiring defendants to manufacture varnish was for the jury.</p> <p>4. Same—Pleading.</p> <p>Under Code Qiv. Proc. § 500, providing that any new matter by way of excuse and avoidance must be pleaded, the defense of waiver is not available in an action on a contract unless pleaded.</p>

Action by James J. Sangunitto, Sr., as administrator of the estate of James J. Sangunitto, Jr., deceased, against the New York Life Insurance Company and Anna Howell Goldey, impleaded. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

<p>1. Agency—Evidence—Commissions.</p> <p>A servant is not entitled to commissions for using Ms influence with Ms employer to induce the latter to enter into a contract with defendant, unless the fact that the servant has a personal interest in the contract is disclosed to the employer.</p>

Action by Esther Perras, as administratrix of Isaac Perras, deceased, against the United Traction Company. Judgment for plaintiff, and from an order denying a motion for a new trial defendant appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the Café Union against John R. Reordan. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Affirmed.</p>

Action by Elliott C. Brown, by Charles W. Floyd, his guardian ad litem, against John Spohr and others. From a judgment dismissing the complaint on the merits, plaintiff appeals. Affirmed.

Action by Willard S. Allen against Mary A. Becket, doing business under the name of Haeger Storage Warehouses. From a judgment dismissing his complaint and an order denying a new trial, plaintiff appeals. Reversed.

Action by Willard S. Allen against Mary A. Becket, doing business under the name of Haeger Storage Warehouses. From three orders made in favor of defendant, plaintiff appeals. First and third orders reversed, and second order affirmed.

Action by Willard S. Allen against Mary A. Becket, doing business under the name of Haeger Storage Warehouses, for conversion. From an order granting defendant’s motion for a resettlement of a previous order, plaintiff appeals. Reversed.

Action by Willard S. Allen against Mary A. Becket, doing business under the name of Haeger Storage Warehouses. From an order denying plaintiff’s motion to set aside a duplicate order in the trial court, he appeals. Reversed.

<p>1. Proposed Lease—Deposit—Recovery.</p> <p>Where a sum is deposited by one as a pledge of good faith in the malting of a lease, he is entitled to recover it when, upon inspection, he refuses to execute the lease.</p>

<p>1. Carriers— Street Railroads—Personal Injuries—Instruction.</p> <p>The complaint in a personal injury action alleged that the accident occurred in C. street at or near the intersection thereof with H. street. Plaintiff testified that at the time she attempted to get on the car by which she was injured it stood waiting for her on the north side of H. street, but was contradicted in this testimony by two of her own witnesses. The court was requested to charge that, if the jury found that the car stopped at the north side of H. street only, they must find for defendant. ZfeM, that the refusal to charge as requested was proper.</p>

Original proceedings for the suspension or disbarment of Theodore H. Silkman, as attorney and counselor at law. On return to an order to show cause. Motion for suspension denied.

Action by Benjamin B. Mitchell and others against Erwin J. Baldwin and another. From a judgment for defendants, dismissing the complaint, entered on decision of the court, plaintiffs appeal. Reversed.

Action by Elia Tanas as administrator of William Dimitri, deceased, against the Municipal Gas Company of the City of Albany. From a judgment dismissing the complaint, entered on a nonsuit, plaintiff appeals: Reversed.

<p>Appeal from City Court of New York.</p> <p>Action by John J. McBride against Samuel F. Adams. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action to obtain a bill of separation by Mary W. Packard against Moses Packard. From an order denying a motion for the submission of the issues and questions of fact to the jury, plaintiff appeals. Affirmed.

Action by Myndert La Grange, as committee of the person and property of Harlan La Grange, an incompetent person, against Magdalene I. Merritt, as executrix. From a judgment in favor of plaintiff, defendant appeals. Reversed.

In the matter of the application for the appointment of an administrator of the estate of Adelia K. Ferguson, deceased. Application granted.

In the matter of the appraisal of the transfer tax on the estate of John Demers, deceased. From an order assessing the tax, the executor appeals. Reversed.

<p>Edwin H. Loveless was prosecuted for a misdemeanor. Guilty. Argued before HOLBROOK, P. J., and MAYER and WYATT, JJ.</p>

Action by Aaron C. Allen against the Home Bank and others. From a judgment for plaintiff, and an order denying a new trial, defendant bank appeals. Reversed.

<p>Action by Harry A. Anderson against George Steinson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by Emil Balderman against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Action by the B. Gortz Manufacturing Company against William A. Parks. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Action by Anna Brady against Mary Brady and others.</p>

<p>In the application of Ferdinand J. Bommer for admission to practice.</p>

<p>Action by the Columbia Realty Company against Louis Seeher. From an order setting aside the verdict of a jury in favor of defendant, he appeals. Affirmed.</p>

<p>Action by R. J. Cooper, on behalf of himself and all other creditors of William C. Cooper, deceased, against Maggie E. Cooper and Frank Cooper, as administrator with the will annexed of William C. Cooper, deceased.</p>

<p>Action by Emma Cooper, as administratrix, against the New York, Ontario & Western Railway Company.</p>

<p>Action by Patrick W. Cullinan against Howai Kemble and others.</p>

<p>Action by Charles Doshe against the village of Batavia.</p>

<p>Action by Patrick W. Cullinan against Angela Sisto and others.</p>

<p>Action by Elmer O. Evans against Francis Larkin, Jr.</p>

<p>Action by Agnes Felska, as administratrix, against the Erie Railway Company.</p>

<p>Action by John T. Evans against the Buffalo Railway Company.</p>

<p>Action by John Finch against Mary Fay. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Action by Margaret J. Fisher against Charles H. Becker. From a judgment for plaintiff, defendant appeals. Reversed, unless voluntarily modified.</p>

<p>Action by Charles B. Frantz against William Marbe and others, from a judgment for defendants, plaintiff appeals. Affirmed.</p>

<p>Action by Morris Fox and another against Louis S. Levi.</p>

<p>Action by Robert M. Fulton against Richard C. Voth and wife. From a judgment in favor of plaintiff, defendants appeal. Affirmed.</p>

<p>Action by Barnard Goldman against Henry H. Davis and others. From a judgment for plaintiff, defendant Davis appeals. Affirmed.</p>

<p>Action by Charles Gmaehle, as administrator, against Morris Rosenberg and others.</p>

<p>Action by the Guaranty Trust Company of New York against Louis B. Jennings.</p>

<p>Action by Loren M. Hewit, as trustee, against Viner J. Hedden and others.</p>

<p>Action by the Hamilton Bank-Note Engraving & Printing Co. against the Twin City Power Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Action by H. Koehler & Co. against James W. Brady and others. From a judgment for plaintiffs, defendants appeal. Modified.</p> <p>See 81 N. Y. Supp. 695.</p>

<p>Action by Herman Horenburger and others against Isaac . Roth. Judgment for defendant dnd plaintiffs appeal. Affirmed.</p>

<p>Action by George A. L. Innis against William P. Frank. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. From so much of the judgment as permitted a reduction to the extent of defendant’s counterclaim, and from an order denying a new trial on the counterclaim, plaintiff appeals. From the judgment, and from an order denying his motion for a new trial, defendant appeals. Reversed.</p>

<p>Action by Nora Kelly, by her guardian, against Elizabeth M. Loft. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Action by Augustus Krischevsky against Salema Battali. From a judgment in favor of defendant, plaintiff appeals. Affirmed.</p>

<p>Action by Konrad ICromer and another against Otto Ozab and others. From a judgment for defendants, plaintiffs appeal. Affirmed.</p>

<p>Action by Adolph Landau against the O. J. Gude Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Action by William S. Leith against Thomas Reese, Jr., and others. From an order sustaining a demurrer to the complaint, and from an interlocutory judgment entered thereon, plaintiff appeals. Affirmed.</p>

<p>Action by Edward D. W. Langley, individually and as administrator with the will annexed of Frances A. Skinner, deceased, against the Westchester Trust Company and others.</p>

<p>Action by Ludviska H. Larsen, as administratrix, etc., against the United States Mortgage & Trust Company.</p>

<p>Action by Victor Lovinsky against Morris Rosenberg. Prom a judgment for plaintiff, defendant appeals. Modified.</p>

<p>Action by Moses L. Manhart and another against Albert T. Prindle and another.</p>

<p>Action by the Maryland Casualty Company against the Cortland Wagon Company.</p>

<p>Action by George W. Murray, as trustee, etc., against Henry Raynor and others.</p>

<p>Action by Patrick Murphy against Edward F. Milliken and Foster Milliken.</p>

<p>Action by Robert C. Morris, trustee in bankruptcy of the American Bread Company, against the Deutz Lithographing Company. From a judgment for defendant on the dismissal of the complaint, plaintiff appeals. Affirmed.</p>

<p>Action by William L. Misner against William H. Strong and others.</p>

<p>Action by Samuel N. Oethout against Emily W. Kerr and another. From an order denying defendant Kerr’s motion to vacate an order for substituted service, she appeals. Affirmed.</p>

<p>Action by George W. Norton against Frederick J. Harter</p>

<p>Action by Charles R. Northrup against Henry H. Healy.</p>

<p>Action by Alfonso Palmieri against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Action by John Path against the Metropolitan Street Railway Company. From a judgment for plaintiff, and the denial of a new trial, defendant appeals. Affirmed.</p>

<p>Certiorari by the people, on the relation of John F. Steeves, against William D. Leonard and others, commissioners, to review a decision of the commissioners. Writ dismissed.</p>

<p>Action by Frank M. Randall against Adolph Finkenberg. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Action by Reed & Carnrick against Fred White and others.</p>

<p>Action by Anna P. Rettagliatta, as administratrix, against Thomas J. Hayward and others.</p>

<p>Action by Caroline Rowley, as executrix, etc., against James B. Nellis and others.</p>

<p>Action by Marcus Robbins against Malcolm L. Bridgman. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Action by the Rogerson Fruit & Cold Storage Company against the New York Central & Hudson River Railroad Company.</p>

<p>Action by the Rochester & Eastern Rapid Railway Company against Joseph H. Weiland and another.</p>

<p>Action by Anna Sehlitt against the Union Railway Company of New York City. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Action by Mendle Silber against Hjalmer Ericson. From a judgment for plaintiff, defendant, appeals. Reversed.</p>

<p>Action by Agnes Silvernail against the Metropolitan Street Railway Company. From an order setting aside a verdict and judgment for defendant, and granting a new trial to plaintiff on the ground of newly discovered evidence, defendant appeals.</p>

<p>Action by George C. Smith, as administrator, against the Utica Knitting Company.</p>

<p>Action by Porter D. Smith, as administrator, against the Lehigh Valley Railroad Company.</p>

<p>Action by Sarah J. Snowden against the town of Somerset.</p>

<p>Action by Ella D. Spencer against the town of Sardinia.</p>

<p>Action by Jacob Strauss against the Brooklyn Heights Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Action by James S. Turner against Jesse Swarthout and another.</p>

<p>Action by Moses Tanenbaum against Gustav Lippmann and others.</p>

<p>Action by Thomas Sturgis, as fire commissioner of the city of New York, against John H. Springer. Judgment for defendant, and plaintiff appeals. Affirmed.</p>

<p>Action by Carrie Sutter, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by the Union Bank of Brooklyn against David K. Case, individually and as trustee. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.</p>

<p>Action by the United Press and others against the A. S. Abell Company and others. From an order vacating an attachment, plaintiffs appeal. Reversed.</p>

<p>Action by Perry A. White, an infant, etc., against the Pennsylvania Railroad Company.</p>

<p>Action by Paul B. Worthington against the Dutch Decorative Art Company. From a judgment for plaintiff, defendant appeals. Modified.</p>