Volume 85 — New York Supplement

<p>1. Decedent’s Estate—Distribution—Decree—Modification—Missing Heir.</p> <p>A decree was entered in settlement of a decedent’s estate requiring the administrators to distribute the funds in their hands, one half to a brother of decedent, and the other half to another brother, who had been absent and unheard from for over 30 years, or, in case the absentee was not found “within two years after the entry of the decree,” to pay his share to the city chamberlain to his credit. These two brothers were decedent’s next of kin and only heirs at law. The absentee did not appear in the time limited, and the other brother applied for a modification of the decree, claiming that the absentee had died without leaving issue, and that he was the only next of kin of decedent and the absentee. There was some evidence that the absentee was alive from letters received in response to advertisements and letters of the attorney, but nothing further was done than the attorney requesting identification of the party claiming to be the missing brother. Held, that the modification of the decree requested was properly refused, but leave to renew the application on additional proof would be granted.</p>

<p>Appeal from Special Term, New York County.</p> <p>Bill by Israel W. Schenker and others against Samuel Awerbach. Prom an order denying complainants’ motion for an order restraining defendant from imitating and infringing complainants’ cigarette package and package label before trial, complainants appeal.</p>

<p>1. Costs—Payment—Right op Appeal.</p> <p>Under the express provisions of Code Civ. Proc. § 779, the payment of costs imposed by certain orders is not a prerequisite to appeals from such orders.</p> <p>2. Same—Waives.</p> <p>A party entitled to a stay of proceedings for the nonpayment of costs waives the stay by receiving and retaining from the opposite party the notices of appeal, printed papers, and notice of argument.</p>

<p>1, Carriers—Contracts Limiting Liability—Nondisclosure op Value.</p> <p>A carrier can claim the benefit of a contract of carriage limiting its liability to a certain sum, unless the true value of the goods is stated, where it showed that, where the value of the goods was stated or known to be in excess of that sum, it took special care of them, and made special arrangements for their delivery, and made an additional charge, and the shippers failed to show any affirmative act of wrongdoing on the carrier’s part.</p>

<p>t. Wager—Stakeholder—Liability—Statute—Assignment ok Claims.</p> <p>A claim under 1 Rev. St. (1st Ed.) p. 662, pt. 1, c. 20, tit. 8, § 8 (Birdseye’s Rev. St. [3d Ed.] pp. 299, 300, § 5), providing for the recovery of wagers in the hands of a stakeholder, is assignable.</p> <p>2. Sam:e.</p> <p>A parol assignment of a claim under 1 Rev. St. (1st Ed.) p. 662, pt. 1, c. 20, tit. 8, § 8 (Birdseye’s Rev. St. [3d Ed.] pp. 299, 300, § 5), providing for the recovery of wagers in the hands of a stakeholder, is valid.</p> <p>S Same—Capacity to Sue—Evidence—Sufficiency.</p> <p>Plaintiff’s capacity to sue and recover as assignee of a claim by a losing better against the stakeholder, under 1 Rev. St. (1st Ed.) p. 662, pt. 1, c. 20, tit. 8, § 8 (Birdseye’s Rev. St. [3d Ed.] pp. 299, 300, § 5), is not established where the plaintiff did not testify, and the only evidence of Ms existence or of the assignment was the assignor’s testimony that plaintiff “is a gentleman. He lives at 85 B. street. I don’t know his business. He is not a relative of mine. I gave him no memorandum in writing when I assigned the claim to him.”</p> <p>][ 1. See Assignments, vol. 4, Cent. Dig. § 51.</p>

<p>1. Contracts—Assignment—Proof—Sufficiency.</p> <p>In an action on a contract by an alleged assignee thereof, In which both plaintiff and his assignor testified, and the plaintiff offered in evidence a written assignment, there was sufficient proof of the assignment.</p>

<p>Proceedings for the probate of the will of Agnes Livingston Jones, deceased, in which Edward P. Jones appears as contestant. Will' admitted to probate.</p>

<p>1. Building Contracts—Architect’s Certificate—Failure of Proof.</p> <p>Where a contractor sued for work, labor, and services performed under a contract requiring the certificate of a supervising architect, but plaintiff failed to prove the execution of such a certificate, or its refusal, he was not entitled to recover.</p> <p>2. Same—Notice to Complete—Pleading—Proof.</p> <p>Where plaintiff in an action for work, labor, and materials under a building contract failed to allege a notice of election by the defendant to complete the building, evidence of such notice introduced as proof of extra services was inadmissible to excuse failure to produce the architect’s certificate required by the contract. ,</p> <p>Y1. See Contracts, vol. 11, Cent. Dig. § 1308.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh* District.</p> <p>Action by William M. Purey against John D. O’Connor. From a judgment for defendant, plaintiff appeals.</p>

Action by Dennis Bullman against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals.

<p>1. Agency—General Agent—Implied Authority—Renting Telephone.</p> <p>The “general manager” of a retail drug store has authority to bind his principal by a contract for the renting of a telephone for the store.</p> <p>9. Same—Agent—Authority—Contract—Construction.</p> <p>The proprietor of a retail drug store made another general manager of the business, and thereafter they made a contract whereby the latter agreed that all merchandise ordered and delivered to the store after a certain date should be paid for by him and no liability incurred by the former, but that all prior indebtedness should be paid by the former, and that the former party should have the right to discharge the latter and cancel the agreement. Held not to affect the authority of the latter party as “general manager” to bind the former by a contract renting a telephone for the store.</p>

<p>1. Appeal—Modification of Judgment—Conversion—Damages for Detention—Unauthorized Recovery.</p> <p>Where, in trover for certain chattels, the court awards possession to plaintiff and also $50 damages, though recovery for a detention is not warranted by the pleadings, the court on appeal cannot modify the judgment by eliminating the provision for possession, and affirm the pecuniary recovery as representing the value of the goods, since, in view of its cumulative instead of alternative character, the latter recovery cannot be taken to represent such value; but the judgment must be reversed.</p>

<p>1. Appeal—Objections not Made Below—Assumption of Proof of Fact-Effect.</p> <p>Where, on the trial of a case, the parties assume that a fact is proven, it will be regarded as proven or admitted, in order that substantial justice may result on appeal.</p>

<p>Appeal from'Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by the American Wire & Steel Bed Company against Samuel Goldman. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Agency—Attorney and Client—Services—Employment by Agent—Accepting Benefits of Employment—Effect.</p> <p>After plaintiff, an attorney, who was retained in a foreclosure suit by defendant’s mother, a defendant to that record, had successfully interposed a counterclaim in her behalf, he consented to a discontinuance of the action in aid of a settlement whereby the mortgage debt was reduced by the amount of the counterclaim, and a new loan substituted; the mother promising that his fees should be paid out of the proceeds of the loan, in order to induce him to forego a lien for his services. Defendant then came forward for the first time when her signature to the new mortgage became necessary to conclude the transaction, the benefit of which she accepted. Eeld, that she was prima facie liable for plaintiff’s services, apart from any question as to her mother’s agency to retain plaintiff in the first instance.</p>

<p>1. Appeal—Counterclaim—Question not Raised at Trial.</p> <p>Where it was not suggested at the trial that a counterclaim was not allowable, that question cannot be raised on appeal.</p> <p>2. Same—Review—Weight op Evidence.</p> <p>After affirmance of a judgment by the General Term of the City Court of New York, the Supreme Court cannot pass on the weight of evidence.</p> <p>8. Same—Sufficiency of Evidence,</p> <p>In the absence of an appropriate motion and exception at the trial, the Supreme Court will not consider the sufficiency of the evidence to support the verdict.</p> <p>4. Same—Conduct of Trial.</p> <p>Where an appeal is first taken to the General Term of the City Court of New York, the Supreme Court can exercise no discretionary power as to the conduct of the trial, but may only pass on questions of law raised by exception in the trial court.</p> <p>6. Same—Reargument—Recitals i"n Orders and Judgment.</p> <p>In reviewing the action of the General Term of the City Court of New York on a motion for a reargument of an appeal, the recitals contained in the orders and judgment set out in the record must be accepted as true.</p>

<p>Appeal from Trial Term.</p> <p>Action by Selma Sonneborn against Charles J. Steinan. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>1. Landlord and Tenant—Subtenants—Dispossession—Evidence.</p> <p>In summary proceedings to dispossess subtenants, facts held insufficient to establish the relation of landlord and tenant between the owners and the defendants, as required by Code Civ. Proc. § 2231, and that a judgment of ouster was therefore error.</p> <p>2. Same— Conspiracy—Evidence.</p> <p>In an action to recover possession from a subtenant, evidence of different transactions between the parties in the furtherance of an alleged conspiracy to eject defendants was admissible to establish the defense of the absence- of the relation of landlord and tenant between defendants and the owner of the property.</p> <p>3. Municipal Court—Jurisdiction—Equitable Defenses.</p> <p>While the Municipal Court has no jurisdiction to grant affirmative relief in the form of a judgment based on an equitable defense interposed in a summary proceeding to dispossess tenants, it may entertain an equitable defense in such a proceeding in support of defendants’ denial of the petitioner’s claim of the right to possession.</p>

<p>1. Action for Ralance Due on Contract—Deduction for Value of Unfinished Work—Instructions.</p> <p>Where a contractor assigned a part of the money due under the contract, and his assignee recovered judgment for that amount, without any deduction for the value of unfinished work, and thereafter the contractor sued for the balance due, and admitted that the unfinished work was of the value of a specified sum, an instruction that the jury should not deduct any sum from plaintiff’s claim for such work was erroneous.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Tobias Kralcower against Abraham Tauber From an order granting a motion for discontinuance, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First DIsTict.</p> <p>Separate actions tried as one—the first by John Fagan, by Peter Fagan, his guardian ad litem, to recover damages for personal injuries sustained by said minor; and the second by Peter Fagan, to recover for loss of services and expenses incurred by reason of such, injuries—against the Interurban Street Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Carriers—Correcting—Bill of Lading—Liability</p> <p>An initial carrier issuing a bill of lading stipulating for the carriage of goods to their destination if on its road, otherwise to deliver the same to another carrier on the route to said destination, and providing that no carrier shall be liable for loss not occurring on its own road, nor after the property is ready for delivery to the next carrier or consignee, is not liable for the failure of the connecting carrier to deliver the goods.</p> <p>y 1. See Carriers, vol; 9, Cent. Dig. § 822.</p>

Action by Albert Van Doren against the Holbrook, Cabot & Daly Contracting Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Liens—Storage Charges—Retention of Possession.</p> <p>Under section 74 of the Lien Law, Laws 1897, p. 533, c. 418, persons performing storage services are entitled to retain the chattel stored until the lien for storage is satisfied.</p> <p>2. Same—Subjects of Lien.</p> <p>Services performed in cleaning an article in storage are not the subject of a lien for storage charges.</p> <p>3. Same—Storage Charges.</p> <p>In replevin for a chattel in storage, the amount of defendant’s claim for storage should be determined by the period of storage up to the date of the award of possession by judgment, or at least to the time of trial.</p>

<p>1. Weights and Measures—Ordinances—Violation—Evidence.</p> <p>Where an ordinance provided that if any person should use in the city, “when weighing or measuring as aforesaid,” any weight, etc., which shall not conform to a certain standard, or shall use in weighing as aforesaid any scale-beam, etc., which shall be out of order, or incorrect, or which shall not balance, he shall forfeit a certain penalty, mere proof that certain scale weights found in defendant’s grocery store were short, and that they were used there, without evidence as to how and for what purpose they were used, was insufficient.</p>

Proceedings by Solomon Weinhaner, landlord, against the Eastern Brewing Company and others. From a final order for the landlord, the tenants appeal.

Action by Thoman H. Patterson against the White Star Towing Company. From a judgment of the City Court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals

<p>1. Highways—Rights op Drivers—Injuries—Negligence.</p> <p>Plaintiff’s wagon was being driven north along the right-hand car track laid on a street when a light wagon was approaching it on the left track, and defendant’s heavy truck was approaching slightly in front of the light wagon, but to the left and clear of the left-hand track. Plaintiff’s wagon came opposite the light wagon as the latter came abreast of the truck, when the driver of the truck attempted to swing across over the tracks, and collided with the light wagon, throwing it against plaintiff’s wagon and injuring plaintiff’s horse; the driver of the truck simply giving a signal with his hand that he intended to take the right of way before attempting to cross. Held, that the truckman was guilty of negligence entitling plaintiff to recover.</p> <p>2- Same—Contributory Negligence.</p> <p>Such facts were insufficient to charge the driver of plaintiff’s wagon with negligence in failing to anticipate the collision.</p>

Action by Mary H. Austen against the Columbia Lubricants Company. From a judgment rendered on defendant’s default, it appeals. Appellant granted leave to renotice appeals on payment of $io, imposed as terms; otherwise judgment to be affirmed.

<p>1. Carrier—Duty of Conductor—Right of Passenger.</p> <p>Where it was a street car conductors duty under the railroad law (Laws 1890, c. 565, p. 1082, and amendments) to have given a certain transfer, a passenger had a right to assume, without examination, that he would receive the prdper transfer.</p> <p>3. Same—Ejection of Passenger—Damages.</p> <p>Where, in an.action for ejection from a street car, it appeared that the plaintiff had returned to the same car and paid his fare, and his counsel on the trial stated that he limited his claim to recover for breach of contract, he is not entitled to recover exemplary damages.</p> <p>V1. See Carriers, vol. 9, Cent. Dig. §§ 1060, 1427.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Replevin by Milched Shearman against the Iroquois Hotel & Apartment Company. From a judgment for defendant, plaintiff appeals</p>

Action on a contract for services by Samuel H. Speck against Birdie Berliner. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from City Court of New York, General Term.</p> <p>Action by Adam P. Dienst and another against John B. Gustaveson and another.; From an order in supplementary proceedings directing payment to receiver of moneys in hands of a third party, alleged to be due and payable to judgment debtors, defendants appeal.</p>

<p>1. Carriers—Delivery or Freight</p> <p>Where a carrier delivered certain merchandise directed to M. at a certain casino to a barkeeper at the casino, who was not M.’s agent, or authorized by her to receive the package, there was no delivery to the consignee, and the carrier was therefore liable.</p> <p>11. See Carriers, vol. 9, Cent. Dig. §§ 299, 356.</p>

<p>1. Landlord and Tenant—Eviction—Evidence—Question eor Jury</p> <p>In an action for rent, the defense of constructive eviction, caused by the landlord’s failure to supply heat as agreed, supported by evidence that during October the apartment was insufficiently heated, or not heated at all, that defendant repeatedly complained of that fact, but without effect, and that he was obliged to remove therefrom on October 29th, should have been submitted to the jury.</p> <p>2. Same—Constructive Eviction—What Constitutes.</p> <p>Eviction and abandonment of an apartment, caused by an insufficient supply of heat, rendering the premises uninhabitable, is a good defense to an action for rent.</p> <p>12. See Landlord and Tenant, vol. 32, Cent. Dig. § 773.</p>

<p>1. Money Received—Evidence—Verdict.</p> <p>In an action to recover money alleged to have been collected by defendant for plaintiff, evidence reviewed, and held to sustain a verdict for plaintiff.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Alfredo Pisani and another against Joseph V. Jordan. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Ferdinand Marx and others against Lilla B. Marvin. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Henry Villaume against Albin Kirchner and another. From a judgment establishing and enforcing a mechanic’s lien, defendants appeal.</p>

<p>1. Sales—Action for Price—Payment—Evidence.</p> <p>Where, in an action for the price of goods sold, defendant pleaded payment, evidence tending to show that defendant had at other times, and with other persons, “been short’’ in the payment of his bills, was incompetent.</p> <p>3. Appeal—Review—Necessity of Objections.</p> <p>On an appeal from a judgment of a Municipal Court of the city of New York to the Appellate Term of the Supreme Court it is the duty of the latter to examine the facts as well as the law, and to reverse the judgment for errors in the admission of testimony, when such reversal is in the interest of justice, without regard to whether objections or exceptions were taken to the offered testimony at the trial.</p> <p>3. Payment.</p> <p>In an action for a balance due on the price of gpods sold, in which defendant pleaded payment, a judgment in favor of plaintiff held contrary to the weight of evidence.</p> <p>Bischoff, J., dissenting.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Isidore Hochberger against Joseph Baum and others. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.</p>

<p>1. Contracts—Evidence.</p> <p>In an action on a contract for work to be done and materials furnished, plaintiff testified that he presented a written estimate to one of the defendants, who said it was too high, but that they came to an agreement for a similar amount. It appeared that the written estimate was returned to plaintiff by defendant, who had written on it, “If written contract satisfactory, agree to take at $750.” Held, that there was no contract.</p> <p>2. Same—Breach—Measure op Damage.</p> <p>In an action on an executory contract for the furnishing of labor and material for the construction of a building, evidence that plaintiff had made a subcontract, whereby the subcontractor agreed to erect the structure for a smaller sum than it was alleged defendant had agreed to pay plaintiff, was inadmissible upon the measure of damage to show plaintiff’s loss of profits.</p> <p>H 1. See Contracts, vol. 11, Cent. Dig. § 96.</p>

Action by the Singer Manufacturing Company against Mary A. Becket. From a judgment determining plaintiff’s lien on a chattel after submission on stated facts, defendant appeals.

<p>•Í. Use and Occupation—Contract.</p> <p>One owning a piece of land unfenced, and having no features distinguishing it from the public street, could not recover for the use and occupation thereof by a contractor using it for depositing materials, etc., thereon, in the absence of any circumstances tending to show that defendant understood that he was occupying private property.</p> <p>& Same —Evidence—Photograph.</p> <p>In an action for use and occupation of land by keeping thereon certain materials and a portable tool shed, photographs showing the presence of a structure and some materials on the land five months after defendant stated that he had discontinued the occupation could not serve to discredit his testimony.</p>

<p>1. Municipal Corporations—Health Department—Records op Births— Failure to Report—Actions for Penalty—Evidence.</p> <p>In an action by the department oí health against a physician for failure to report a birth, as required by New York City Charter, § 1237 (Laws 1901, p. 522, c. 466), where the physician testified that he had mailed the report, inclosed in a properly addressed, postage-paid envelope, to plaintiff, testimony by the assistant register of record in the health department, who had charge of the records of birth, that he made a search of the records for the certificate in question, and that there was no such certificate there, did not constitute evidence that the report was not received there.</p> <p>2. Same—Notice Required—Manner of Service—Mailing.</p> <p>New York City Charter, §§ 1237, 1239 (Laws 1901, pp. 522, 523, c. 466) imposing on physicians the duty of reporting within 10 days, to the department of health, births in which they have professionally assisted, and declaring the person failing to make such report guilty of a misdemeanor, besides rendering him liable to a fine of $100, to be recovered in the name of the department of health, does not require notice to be personally brought to the office of the health department, but the statute is sufficiently complied with by mailing such notice.</p> <p>3. Statutes—Penal Sections—Construction.</p> <p>New York City Charter, § 1239 (Laws 1901, p. 523, c. 466), declaring certain persons, failing to make and keep a register of marriages and births, and omitting to report a written copy of the- same to the department of health within 10 days after any birth or marriage, guilty of a misdemeanor, and also liable to a fine of $100, is penal in its nature, and its terms should not be enlarged by judicial construction, while the legislative intent expressed therein can be effectively accomplished without interference by the court.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Samuel L. Frey, as administrator, against Thomas R. Horton and another. From a judgment for defendant Horton, plaintiff appeals.</p>

Action by Silas I. Atwater and others against the Orford Copper Company. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Giachi Marrotto against William, S. McCotter. Judgment for defendant, and plaintiff appeals.</p> <p>Action by the lessee upon a lease in writing to recover a sum alleged to have been agreed to be paid upon a surrender of the demised premises.</p>

<p>3. Divobcb—Alimony Pendente Lite—Counsel Fees.</p> <p>Where it appears that a married woman suing for a judicial separation from her husband is entitled to a trial on the merits, and is without means, and has three infant children requiring her care and attention, she is entitled to alimony pendente lite covering the cost of the children’s maintenance and a reasonable attorney’s fee.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Julia Clemons against Morris Wortman. From an order denying plaintiff’s motion to compel defendant to separately state and number his causes of action, and in part denying her motion for a bill of particulars, she appeals.</p> <p>Plaintiff sued, among other things, for damages for the wrongful discharge of her assignor by the defendant, constituting a violation of a contract of employment as bookkeeper. In his answer, defendant alleged that plaintiff’s assignor, during his employment, had collected large sums of money belonging to defendant, and had failed to account for them, and “that, furthermore, the said C. [plaintiff’s assignor], in violation and breach of his said employment and agreement, and for the improper purpose of covering up, keeping, and concealing such deficit from the said defendant, knowingly permitted and caused numerous false and misleading entries, omissions, errors, erasures, and falsifications to be made and to exist in the said books of account.”</p>

Action by Alfred Hayes, Jr., as assignee for creditors, etc., against Winifred Ammon and others. From a judgment for plaintiff, defendant Ammon appeals.

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by James L. Neefus against Alfred L. Eccles. From an order denying a motion for a new trial after verdict for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Lillian H. Mendell against Elmer G. Willyoung. Judgment for plaintiff, and defendant appeals.</p>

Action by Mary Sweeny and others, as administrators of the estate of Denis Sweeny, deceased, against D. Laflin Kellogg. From a judgment in favor of defendant, plaintiffs appeal.

<p>1. Appropriation of Land—Raising Grade of Street—Amount of Damages-—Evidence—Sufficiency.</p> <p>Evidence considered, and helé insufficient to show that the amount awarded as damages against the state on account of an appropriation of land and raising the grade of a street was inadequate.</p>

<p>Appeal from Municipal Court, Borough" of Richmond, Second District.</p> <p>Action by Benjamin Brown against George Cuozzo. From a judgment of the Municipal Court for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>1. Taxation—Lands—Assessment.</p> <p>Under a statute requiring that the names of the taxable inhabitants and their lands be set down in the assessment roll in a prescribed manner, and that the lands of nonresidents shall be designated in the same assessment roll, but in a part thereof separate from the other assessments, in another prescribed manner, the assessment of unoccupied land belonging to a nonresident in the resident portion of the roll, with the letters “N. R.” set down between the name of the owner and the entry of the land, to designate that the land was nonresident, did not constitute a compliance with the statute, and was void.</p> <p>'3. Same—Curative Acts—Application.</p> <p>Laws 1855, p. 793, c. 427, as amended by Laws 1885, p. 758, c. 448, » legalizing and confirming taxes assessed on lands of nonresidents in the towns of Kings comity, ^whether such lands were entered in the several assessment rolls separately as the lands of nonresidents or otherwise, operated only to validate taxes which were levied in form on nonresident lands, whether assessed in the resident or nonresident part of the roll, but did not validate taxes not purporting to be assessed on the land, but only against the individual owners. ■</p> <p>3. Same—Conveyances—Effect.</p> <p>Acts 1855, § 65 (Laws 1855, p. 793, c. 427), as amended by Laws 1885, р. 758, c. 448, and made applicable to Kings county by Laws 1891, p. 411, с. 217, providing that all comptroller’s conveyances of lands sold for taxes heretofore executed, after having been recorded for two years in the office of the county clerk where the land is situated, shall, after six months after the act takes effect, be conclusive evidence that the sale and all proceedings thereunder, from and including the assessment of the land, etc., were regular, and all other conveyances or certificates issued by the comptroller shall be conclusive evidence thereof after the expiration of two years from the recording thereof, applies only to conveyances of land assessed as nonresident, and has no application to a sale of land, though owned by a nonresident, which was assessed in the resident list.</p>

<p>1. Evidence—Memoranda—Copies—Book Entries.</p> <p>’ On the issue of the price at which sales of stock were made by a broker he testified that he made them at the regular price named, and immediately made a memorandum of the transaction, including the price and the buyer, which he handed to his clerk on the floor of the exchange. The clerk testified that he always transmitted the contents of the memorandum correctly, over the telephone, to a clerk in the office, and subsequently compared the original memorandum with the entry made in the book at thé office, and that it was always-correct. The clerk at the office testified that he received the contents of the memorandum, and entered it correctly in the book according to the message received, that in every case he subsequently compared the memorandum made by the broker with the entry in'the book, and that it was correct. The memoranda were subsequently destroyed. Seld, that the book entries were competent evidence of the transactions which they represented.</p>

Action by Harriet C. Baynard, an infant over the age of 14 years, by Dinah T. Harris, her guardian ad litem, against the Standard Knitting Mills Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Lawrence Bros, (incorporated) against Henry B. Heylman on a written order for the payment of money, indorsed by defendant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Special Term, Westchester County.</p> <p>Action by Charles Spear and others against Denis Murphy. From .an order denying a motion made by James E. J. Murphy, not a party to the action, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Mary E. Whalen against Francis E. Oswald. From a judgment of the New York City Court in favor of defendant, and from an order denying plaintiff’s motion for a new trial, she appeals.</p>

Action by Morris Honigstein against William S. Hollingsworth and others. From a judgment for plaintiff, and from the denial of a new trial, defendants appeal.

<p>1. Composition Agreements—Effect.</p> <p>Where a creditor entered into a composition agreement with his debtor, the creditor could not thereafter sue on the original debt.</p> <p>2. Same—Harmless Error.</p> <p>Where a creditor erroneously sued his debtor on the original debt after having made a composition agreement with him, the creditor could not object on appeal that the jury rendered a verdict in his favor for only the amount he was entitled to under such agreement</p> <p>1i 1. See Compositions with Creditors, vol. 10, Cent. Dig. § 50.</p>

<p>Appeal from Municipal Court, Borough of Richmond, First District.</p> <p>Action by Mary Vandeskie against the city of New York. From a judgment for plaintiff, and from orders denying motions to set aside the verdict and for a new trial, defendant appeals.</p>

<p>1. Assignment fob Creditors — Preference — Employes — Who abe — Evidence.</p> <p>Laws 1897, p. "772, c. 624, § 29, enacts that, on a distribution of assets under an assignment for benefit of creditors, the wages of empioyés earned within a year of the assignment shall be preferred. Plaintiff contracted in the name of a corporation with farmers for pickles, which, on delivery to him, were prepared by him and shipped to the corporation; plaintiff’s compensation from the corporation being based on the amount of pickles shipped. There were no persons under him, except a few at intervals. The corporation called him a “superintendent.” Held, that he was an employé, within the statute.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Herman Lehman against Frederick Oschmann. From a judgment dismissing the complaint at the close of the evidence, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Joseph Zieph against Louis Rosenstein. Judgment for plaintiff, and defendant appeals. Case returned to files.</p>

<p>• Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Thomas J. Organ against the Interurban Street Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Special Term, Westchester County.</p> <p>Action by James E. J. Murphy against Catherine T. Kelly. From an order granting a motion made by defendant, plaintiff appeals.</p>

<p>1. Appeal—Findings op Fact—Review.</p> <p>An appellate court will not interfere with findings of fact by a referee amply sustained by evidence.</p> <p>Si. Attorneys—Action por Services—Bill op Particulars in Evidence.</p> <p>In an action by attorneys for services, the admission in evidence of the bill of particulars, a transcript from plaintiff’s books, was not available err,or on appeal, it having been admitted by stipulation in open court without any suggestion that its effect should be limited, or that it was in any rnannér incompetent or irrelevant.</p> <p>3. Same—Character op Action—Equity.</p> <p>An action by attorneys for services tried to a jury cannot be regarded as a suit in equity merely because subsequently tried before a referee.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Georgia L. Everett against Edward Everett. Judgment for plaintiff, and defendant appeals.</p>

Proceedings, under the transfer tax law, relative to the estate of Joseph L. Lowry, deceased. From an order vacating a decree appraising the property and amending the appraiser’s report, the Comptroller of the State of New York appeals.

Action by John Flannigan against Patrick Ryan, individually and as surviving partner of the firm of Shanly & Ryan. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Special Term, Westchester County.</p> <p>Suit by Joseph J. ICittel against Louis E. Schmieder and another. From a judgment for plaintiff granting insufficient relief, he appeals.</p>

<p>Appeal from Municipal Court of New York.</p> <p>Action by George F. McCoy against Fernando W. Fletcher. From a judgment for defendant after a trial without a jury, plaintiff appeals.</p>

Action by Moses Margulies against Max Goldstein and others. From a judgment for defendants and the denial of a new trial, plaintiff appeals.

<p>1. Conversion.</p> <p>Where one takes property from another under an agreement to return it on demand, his failure so to do is a conversion thereof.</p> <p>2. Same—Defense—Theft.</p> <p>Where one takes property from another under agreement to return it on demand, it is no defense to an action for conversion that the property was stolen after a demand for its return.</p>

<p>1 Action on Contract—Allegation of Performance—Variance.</p> <p>Where a plaintiff, suing on a contract, alleges performance, he cannot prove sickness as an excuse for nonperformance.</p>

<p>Appeal from Court of Claims.</p> <p>Claim by Jeremiah Crowley against the state of New York. From a judgment dismissing the claim, claimant appeals.</p>

<p>1. Trial—Motion to Dismiss—Waiver.</p> <p>Failure to renew a motion to dismiss after the evidence was all in was a concession that there were facts for the determination of the court.</p>

<p>1 Appeal—Grounds of Lower Court’s Action—Presumption</p> <p>Where a justice of the City Court denied an application to resettle an order, sending the cause to the foot of the calendar and imposing costs for misconduct of plaintiff’s attorney, so as to make it state that the court’s action was based on the minutes as well as on its own motion, it would be presumed on appeal that the decision of the court was not based on the minutes.</p> <p>2. Trial—Declaring! Mistrial—Powers of Court.</p> <p>The City Court acts within its authority in declaring a mistrial and sending a cause to the foot of the calendar where the behavior of plaintiff’s attorney renders it improper to continue the trial.</p> <p>3. Same—Costs.</p> <p>Costs can only be imposed in cases authorized by statute, and, there being no statute authorizing it, the imposition of costs on plaintiff for a mistrial caused by the misconduct of his attorney was error.</p> <p>If 3. See Costs, vol. 13, Cent. Dig. § 1.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth Dis-' trict.</p> <p>Action by Marie Goss against Alfred C. Rishel. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Neqltqence—Evidence—Sufficiency—Res Ipsa Loquitur.</p> <p>Evidence that defendant’s place of business was flooded by water from defendant’s premises above, the floor of which was found to be wet, though no water was coming from the ceiling above, was sufficient, under the doctrine of res ipsa loquitur, to require submission to the jury of the issue of defendant’s negligence.</p>

<p>1 New Trial—When Granted—Verdict against Evidence.</p> <p>A new trial can only be granted where the weight of evidence against the verdict is so great that the court can see that it must have been the result of passion, prejudice, mistake, ignorance, or corruption.</p> <p>2. Same—Conflicting Evidence—Discretion of Court. .</p> <p>Where the evidence, though conflicting on material points, supports the verdict, the court has no discretion, but must refuse a new trial, even though the conclusion of the jury is one which the court itself would not have reached on the same testimony.</p> <p>3. Same—Street Railways—Injuries to Persons Driving on Track—Contributory Negligence—Evidence—Sufficiency of.</p> <p>In an action against a street railway for personal injuries resulting to plaintiff from being struck by a car while driving on defendant’s tracks, evidence held sufficient to warrant jury in concluding that plaintiff was free from contributory negligence.</p> <p>IF 2. gee New Trial, vol. 37, Cent. Dig. §§ 137, 144.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Georgia Pine Turpentine Company against Edgar B. Newman. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by William Anker against Hyman Smith. From a judgment for plaintiff, defendant appeals. Appeal stricken from calendar.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Owen L. Lynch against Newton B. Eustis. From an order denying defendant’s motion to set aside an order for substituted service of the summons and complaint, defendant appeals.</p>

<p>1. Contracts—Performance—Reasonable Time.</p> <p>Where a contract for the sale of a business was made on August 28, 1902, and obligated defendant to procure for plaintiff a lease of the premises for two years from May 1, 1903, but no time was specified within which the lease was to be procured, defendant was entitled to a reasonable time to procure the lease, which did not begin to run until the date from which the new lease was to be given.</p> <p>2. Same—Demand.</p> <p>Where a contract required defendant to procure a lease of certain premises for plaintiff for two years from May 1, 1903, but did not specify any time within which the lease was to be delivered, a complaint in an action for breach of such contract, failing to allege a demand for the lease after such date, was demurrable.</p> <p>3. Same—Premature Suit.</p> <p>Where defendant contracted to procure a lease of certain premises for plaintiff from May 1, 1903, as a part of the consideration for the sale of a business conducted on such premises, an action brought for breach of such agreement before the date when the new lease was to begin was prima facie premature.</p>

<p>1. Municipal Court—Judgment—Default—Application to Set Aside-Appeal.</p> <p>Under Municipal Court Act (Laws 1902, p. 1486, c. 580), providing that an appeal shall lie from an order granting or denying a motion to modify a judgment, except from an order opening a default and vacating a judgment entered thereon, an order denying a motion to open a default is appealable.</p> <p>2. Same—Affidavits.</p> <p>Where, on an application to open a default, counter affidavits tended to show that the defense sought to he availed of by defendants in their answer would be unavailing, an order denying the motion was proper.</p> <p>8. Same—Action for Rent—Judgment—Dispossession—Res Adjudicata.</p> <p>Where defendants had defaulted in payment of rent sued for, and summary proceedings had been instituted in which a final order had been rendered dispossessing defendants prior to the trial of the action for rent, such order was res judicata in the action for rent, and estopped defendants from claiming that they were not in possession at the time the rent accrued.</p>

<p>1. Contract to Tow Canal Boat—Proof—Sufficiency.</p> <p>In an action for breach of contract to furnish a tug to tow a canal boat from S. to W., there was evidence that the captain of the canal boat telephoned to the office of the defendant for that purpose, and received a reply, “We will attend to you; we will have you out of there.” The next day plaintiff, the owner of the canal boat, went to defendant’s office and asked to have his boat “got out from there as quick as they could,” and was told that defendants would get her out “as soon as they could.” Plaintiff further testified that he went “the second time, and the young man told me there was a boat up the river, and she would go in and get him out of there; so I went the third time, and he would not talk to me at all about the matter; then I went out and hired a special tug, and went up after the boat myself.” Held sufficient to sustain a finding that defendant agreed to tow the plaintiff’s canal boat from S. to W. within a reasonable time.</p> <p>2. Same—Reasonable Time—Question of Fact.</p> <p>Where defendant agreed to tow plaintiff’s canal boat from S. to W. within a reasonable time, what will constitute a reasonable time is a question of fact to be determined from all the circumstances as shown by the evidence and the legitimate inferences that may be drawn therefrom.</p> <p>3. Same—Breach—Proof—Sufficiency.</p> <p>In an action for breach of contract, made on or about December 29th, to tow a canal boat from S. to W. within a reasonable time, defendant introduced evidence tending to show that the conditions of the river at that time of the year rendered navigation very dangerous, heavy ice running in the channels, and the flats being frozen, but defendant did not show that it made the slightest effort to get the canal boat. There was no dispute but that the tug finally engaged by the plaintiff, on January 8th following, towed plaintiff’s boat'to W. The captain of the canal boat testified for plaintiff to the effect that, during the time between his notification to defendant and the time he was actually towed down the river, the river was open, and that boats were being towed across it. Held sufficient to sustain, a finding that defendant had refused to attempt the towing.</p> <p>4. Same—Excuse for Nonperformance—Proof—Sufficiency.</p> <p>The evidence was sufficient to sustain a finding that defendant was not prevented from performance by excusable conditions.</p> <p>5. Same—Measure oe Recovery.</p> <p>In an action for breach of contract to tow a canal boat from S. to W., it appeared that the boat was discharged of her cargo on December 29th, at which time she was ready to leave S., and was towed to W. on January 8th. The defendant made no attempt to show that less than eight days-had elapsed from the time the captain telephoned to defendant to do the towing, which was on or about December 29th, and the time she left for W. Plaintiff's bill of particulars filed in the court made claim for eight days’ use of the boat, which was allowed. Held that, as there was no evidence disputing plaintiff’s claim, a contention that the judgment was unreasonable in amount is without merit.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Annie Muhlstein against Isadore Hertzberg. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Morris Rubin against the Wells Fargo Express Company. From a judgment of the Municipal Court for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by William P. Collins and another against the Damson Consolidated Store Service Company. From an order setting aside a verdict for defendant and the judgment rendered thereon and for a new trial, plaintiffs appeal.</p>

Separate actions by Daniel Donovan and Michael McGrath against the Cunard Steamship Company. From orders of the City Court granting motions to make the complaint more, definite and certain, plaintiffs separately appeal. The following is the substance of the complaint: First Paragraph. That the defendant is a corporation. Third Paragraph. That the plaintiff was in the employ of the defendant. Fourth Paragraph.

<p>Appeal from City Court of New York, Special Term.</p> <p>Separate actions by Daniel Donovan and Michael McGrath against the Cunard Steamship Company. From orders extending the time to answer, etc., plaintiffs separately appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Daniel C. Cahill against Joseph D. Hagerty. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Rio Tinto Copper Mining Company against William-H. Black. From an order of the City Court at Special Term denying, leave to file and serve a supplemental answer, defendant appeals.</p>

Action by R. A. Schoenberg & Co. against William C. Loftus. From an order vacating an order for the examination of defendant before trial, plaintiff appeals.

<p>Appeal from Municipal.Court, Borough of Manhattan, Seventh District.</p> <p>Action by the city of New York against the Madison Avenue Real Estate Company. From a judgment for plaintiff, defendant appeals.</p>

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

<p>1. Street Railways—Injuries to Passengers—Verdict against Evidence-Setting Aside.</p> <p>In an action against a street railway for personal injuries, where plaintiff, a passenger, is wholly uncorroborated, and is contradicted in all essential particulars by the overwhelming testimony of a number of disinterested witnesses, who give a consistent and not improbable version of the accident, a verdict for plaintiff must be set aside as against the weight of evidence.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Richard D. Cook against Max Williams. From a Municipal Court judgment in favor of defendant, plaintiff appeals.</p>

<p>L Bills and Notes—False Representations—Actions—Judgments—Body Execution.</p> <p>Where, In an action for money loaned on defendant’s note, plaintiff alleged that he was induced to loan the money by defendant’s false and fraudulent representations, and defendant admitted executing the note, but denied the false statements, and made no motion to dismiss or for judgment either at the close of plaintiff’s case or at the close of the whole case, he could not object to a judgment in favor of plaintiff on the note which contained no provision on which a body execution could be issued.</p>

<p>Action by Caroline K. Brull against the New York Dispatch & Delivery Company. From a judgment for plaintiff for §145 damages and §16.50 costs, defendant appeals. Conditionally reversed.</p>

<p>Action by John C. Carey against Noah C. Beachey.</p>

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

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

<p>Action by Thomas Cover and others against George Wolf and others. From an order denying a motion to discontinue the action as against certain defendants, and to amend summons and pleadings by striking the names of such defendants therefrom, plaintiffs appeal.</p>

<p>Action by Michael Crage against the International Railroad Company.</p>

Action by Raine Ewell against John Kennedy and others. From an order of the City Court of New York directing the clerk to tax defendants’ bill of costs, and to enter judgment for defendants for the costs so taxed, plaintiff appeals.

<p>Action by Betty Frank and others against George Wolf and others. From an order denying a motion to discontinue the action as against certain defendants, and to amend summons and pleadings by striking the names of such defendants therefrom, plaintiffs appeal.</p>

<p>Action by William Franklin against William H. Beegle and another.</p>

<p>Action by John G. Gardner against Robert H. McPotter. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Thomas Gaynnr against Margaret Quinn and another. Judgment for plaintiff, and he appeals.</p>

<p>Action by Julius Hammer against Harry J. Leon. From an order for the dty court adjudging defendant guilty of contempt, he appeals.</p>

<p>Action by William Holloran against the Buffalo, Rochester & Pittsburg Railway Company and others.</p>

<p>Action by Addie Hodge against Charles E. Hodge.</p>

<p>In the matter of the accounting of William Hollands and Elizabeth Thomas, as» administrators, etc., of John I. Winne, deceased.</p>

<p>Action by Charles A. Jacques and another against Mattie A. Jacques, impleaded, etc.</p>

<p>Action by Margaret H. Jones, individually and as executrix, etc., against Elizabeth H. Thomas and others.</p>

<p>Action by the Hudson River Water Power Company against the Glens Falls Gas & Electric Light Company and the Glens Falls Portland Cement Company.</p>

<p>Action by Charles Lajotle against Albert Freeman. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Action by Ralph B. Kenyon against Harry G. Barber and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Action by James B. Loveland against Frederick H. Tidman, as receiver of the Oswego Street Railway Company, and another, impleaded with William T. Mullen.</p>

<p>Action by Oliver Lightowler against Emma Doig, personally and as executrix, etc. From a judgment of the City Court for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Action by Killian McClellan, as administrator of Joseph McClellan, deceased, against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and a denial of a motion for a new trial on the minutes, defendant appeals.</p>

<p>Action by Margaret Mallory and others against William Facer arid others.</p>

<p>Action by Giacehi Marotto against William S. McOotter. Judgment for defendant, and plaintiff appeals.</p>

<p>Action by Charles J. Pate against Augustus E. Maxwell.</p>

<p>Action by James H. O’Brien against the Victoria Paper Mills Company.</p>

<p>Action by Thomas H. Parvis against the Erie Preserving Company.</p>

<p>Proceeding by the people of the state of New York against David Weiler.</p>

<p>Proceeding by the people of the state of New York, on the relation of Elizabeth Smith, against Charles Smith and others.</p>

<p>Action by John H. Pierson against the Delaware & Hudson Company.</p>

<p>Action by Charles E. H. Phillips and others against the Manhattan Railway Company and others.</p>

<p>Action by Emma Quincy, as executrix of John D. Quincy, deceased, against Samuel Lawson and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Action by Charles N. Rapp against William B. Ash and another.</p>

<p>Action by Andrew J. Reese and another against Halsey F. Northrup.</p>

<p>Action by Frank J. Saxton, as trustee, etc., against James 0. Sebring and others.</p>

<p>Action by Peter F. Schapp against Sherman Bloomer and another.</p>

<p>Action by Frank W. Smith against the American Locomotive Company.</p>

<p>Action by the Tenement House Department of the City of New York against ICatie Moeschen. From a Blunicipal Court judgment in favor of plaintiff, affirmed by the Appellate Term (84 N. Y. Supp. 577), defendant appeals.</p>

<p>Action by. Theodore Strutz against the Rochester Railway Company.</p>

<p>Action by Giustino Veraecio against Angelo Marcolo. From a judgment for plaintiff, defendant appeals.</p>

<p>In the matter of Anna M. C. Wilkin, as, etc., of the estate of James Cunningham, deceased.</p>

<p>In the matter of the estate of John F. Yerks, deceased.</p>