Volume 86 — New York Supplement

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Jacob Davis against David Kidansky and another. From an interlocutory judgment sustaining a demurrer to a separate defense in the answer, defendants appeal. Reversed, and judgment directed for defendants on issue of law raised by the demurrer.</p>

<p>1. Partnership—Dissolution—Liability op Members.</p> <p>An employs of a firm had knowledge of the existence of the partnership from an inspection of the written articles, and thereafter, during his employment, and without his knowledge, the firm was dissolved. Held, that a note purporting to be a partnership obligation executed by one of the partners after the dissolution, but during the employment, was binding on all the members of the former firm.</p> <p>3. Same—Fraudulent Organization.</p> <p>In an action against members of a former firm on a firm obligation, defendants cannot set up the fraudulent organization of the partnership as a defense.</p>

<p>1. Carriers—Street Railway—Injury to Passenger in Alighting—Submission on Case to Jury.</p> <p>Evidence in an action by a street car passenger injured in attempting to alight held too uncertain and contradictory to warrant submitting the issues of negligence and freedom from contributory negligence to the jury.</p> <p>2. Appeal prom Dismissal op Complaint—Scope op Review.</p> <p>On an appeal from the dismissal of a complaint at the end of plaintiff’s case the Supreme Court is not limited to reviewing the ground assigned by the trial court for its action, but must examine the entire record.</p>

<p>1. Attorney and Client—Services—Compensation.</p> <p>An attorney’s right of action for compensation does not accrue until his relation as attorney in the suit has terminated.</p> <p>3. Same—Statute op Limitations.</p> <p>The statute of limitations does not begin to run against an attorney’s claim for compensation until the termination of his relation as attorney in the suit.</p>

<p>1. Sales—Action eor Purchase Price.</p> <p>Defendant, having rented a machine from plaintiff, delegated his brother to buy it. Plaintiff’s machinist examined and repaired the machine. Defendant’s brother tested it, and then gave the machinist a check for the price. Subsequently defendant, claiming the machine was defective and out of repair, stopped payment of the check, but did not tender a return of the machine. There was no evidence of warranty. Held, that plaintiff was entitled to recover in an action on the check.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Summary proceedings for the dispossession of a tenant by J. Blackburn Miller against Stella Lowe. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

Action by Efriam Ampel against Wolf Seifert and another. From an order denying a motion to vacate an order directing plaintiff to deposit or file security for costs, plaintiff appeals. Reversed. See 84 N. Y. Supp. 122.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by the Department of Health of the City of New York against the City Real Property Investing Company. From an order setting aside a judgment of the Municipal Court for plaintiff, plaintiff appeals. Affirmed.</p>

<p>1. Sales—Action for Price—Counterclaim—Sufficiency of Evidence.</p> <p>In an action to recover for paper weights sold by plaintiff’s assignor to defendant, the latter’s counterclaim, based on an alleged breach of the assignor’s agreement not to make paper weights for any one but defendant. to be sold at Coney Island, is not sustained by proof that defendant had purchased paper weights made by the assignor from dealers on the island, but not showing where such dealers obtained them, nor that the assignor sold them to any person other than defendant.</p>

<p>1. Contract with Partnership—Action on—Proof—Pleading—Parties— Defect of.</p> <p>A cause of action against defendant as an individual, the complaint alleging that he was carrying on business under a firm name and style, is not sustained by proving a contract between plaintiff and a firm consisting of defendant and another.</p> <p>SJ. Same—Amendment—Effect.</p> <p>An amendment to the summons by inserting the name of the other partner as defendant was properly denied, as .even an amendment of the complaint on the trial, with appropriate allegations of copartnership, designed to hold the present defendant alone liable, would have entitled the latter to plead anew, setting up a defect of parties defendant.</p> <p>11. See Partnership, vol. 38, Cent. Dig. § 418.</p>

An action by Robert N. Finck, as administrator, etc., against Newton Stachelberg. From an order denying a retaxation of costs, defendant appeals. Order reversed and retaxation ordered.

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Replevin by Samuel Lipschitz against Eugene McCarty, as marshal. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Joseph Blum against Max Sadofsky and others. From a municipal court judgment in favor of defendants, plaintiff appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Huse & Loomis Ice & Transportation Company against Joseph Wielar. From a judgment dismissing the complaint, and from an order denying a new trial for newly discovered evidence, plaintiff appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the G. S. Roth Clothing Company against the Maine Steamship Company. From a judgment for plaintiff, defendant appeals Reversed</p>

<p>1. Municipal Corporations — Obstruction of Street — Construction of Ordinance—Projecting Awning.</p> <p>A city ordinance provided that “no areas, steps, court-yards, or other projections, except show windows, not exceeding 18 inches in width, and signs not projecting more than 12 inches from the house line, shall hereafter be built” on a certain street. Held, that a stationary ornamental awning, projecting 5 feet from the house line, was within the inhibition of the ordinance.</p>

<p>1. Landlord and Tenant—Memorandum of Lease—Contract—Validity.</p> <p>Where an “agreement to lease,” sued on, was not signed on behalf of the landlord, but provided that the rent should be $783.75 for 5% months,- and gave the landlord the option to return a deposit and cancel the agreement within 10 days if the tenant’s references were not found satisfactory, and before the landlord had communicated with the tenant as to whether the references were satisfactory the tenant notified him, in writing, to cancel the application, and possession was never given to the tenant, the agreement did not constitute a lease, and the landlord was not entitled to recover.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Louis Goldstein against Samuel I. Abramson and others. From a judgment for plaintiff, defendants appeal. Reversed.</p>

Action by Leopold Kramer against the Metropolitan Street Railway Company. From a judgment for plaintiff and an order denying defendant’s motion for new trial, it appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Alice L. Carling against James L. Carling. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Street Railroads—Refusal to Transfer—Penalty—Action.</p> <p>Under the Railroad Law, § 104 (Laws 1890, p. 1082, c. 565, as amended by Laws 1892, p. 1406, c. 676), providing that for every refusal to comply with the act the corporation so refusing shall forfeit $50 to the aggrieved party, the passenger to whom a transfer is refused in violation of the act is the aggrieved party.</p> <p>2. Same—Action by Infant.</p> <p>A minor to whom is refused a transfer from one line of railway to another, in violation of Railroad Law, § 104 (Laws 1890, p. 1082, c. 565, as amended by Laws 1892, p. 1406, c. 676), is entitled, under Code Civ. Proc. § 468, to bring an action, through a guardian ad litem, for the penalty provided in the act.</p>

<p>1. New Trial—Grounds—Municipal Court Act.</p> <p>An order. setting aside a verdict, after reciting a motion on behalf of defendant for such relief, on exceptions taken'at the trial and on the ground that the verdict was contrary to the evidence, contrary to law, and for excessive damages, stated the granting of the motion, and the judge in a memorandum, after citing authorities, said that the verdict was set aside as against the weight of the evidence. Held that, although the memorandum stated as the reason of the court’s action a ground not expressly specified in Municipal Court Act (Laws 1902, p. 1563, c. 580) § 254, enumerating the grounds for such relief, yet the memorandum was no part of the record, and the order itself recited causes for the vacation of a verdict expressly enumerated in such section.</p>

Action by Michael Ferroni, an infant, by his guardian, against the Holbrook, Cabot & Daly Contracting Company. From an order of the City Court denying defendant’s motion to require plaintiff to give security for costs, defendant appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Patrick McCrystal against Mary O’Neill. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Replevin by Michael Ginzburg against Peter De Silvestri and another. From a judgment for plaintiff, defendants appeal. Reversed.</p>

Action by Robert A. Lytle and another against James R. Crawford and others. From a judgment for plaintiffs entered upon a direct verdict, defendants appeal. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Bridget Daly against John Minke. Judgment for plaintiff, and defehdant appeals. Affirmed.</p>

Action by Elias Vroman against Jacques Kryn and others. From a judgment for plaintiff, he appeals on the ground of insufficiency of the amount. Reversed.

<p>1. New Trial—Verdict against Evidence.</p> <p>In a proper case after the verdict on a contested trial, the trial justice should grant a new trial, under Code Civ. Proc. § 999, giving him such power when the verdict is contrary to the law or the evidence.</p>

<p>1. Street Railways—Collision—Evidence—Contributory Negligence.</p> <p>In an action against a street railway because oí a collision between plaintiff’s wagon and a car, the evidence tor plaintiff showed that when about 40 feet from the track the driver saw the car about a half a block away, but drove on the track, not seeing the car again until it struck the wagon. The defendant’s motorman testified that the plaintiff’s horses went upon the track about 10 feet ahead of his car, and a disinterested witness swore that the gong was sounded, that the car was going at a moderate rate of speed, and that the horses started to cross the track at a distance of only 8 or 10 feet ahead of the car. Held, that plaintiff was guilty of contributory negligence.</p> <p>V1. See Street Railroads, vol. 44, Cent. Dig. § 214.</p>

<p>1. Appeals—Municipal Court Act—Nonservice oe Summons—Determination.</p> <p>Under Municipal Court Act (Laws 1902, p. 1578, c. 580) g 311, providing for appeals from a judgment against a defendant personally served but who does not appear, an appeal lies from a judgment on the ground of nonservice of the summons, and in case of such appeal the provisions of Code Civ. Proc. § 3057, providing for affidavits on appeal founded on error in fact, are applicable.</p> <p>2. Same—Matters not Disputed.</p> <p>On appeal by defendant from a judgment of the Municipal Court.on the ground of nonservice of summons, where the allegations of the affidavits as to such nonservice are not disputed by plaintiff, they must be taken as true, and the judgment be reversed.</p>

<p>1. Fidelity Insurance—“Embezzlement or Larceny”—Declarations oe Employe-Admission in Evidence—Error.</p> <p>In an action on a fidelity insurance policy, indemnifying an employer against loss by reason of the fraud or dishonesty of an employé amounting to “embezzlement or larceny,” the declarations of the employé, made after the alleged embezzlement, are not binding on the insurer.</p> <p>2. Same—Proofs of Loss—Condition Precedent.</p> <p>By the terms of a fidelity insurance policy, indemnifying an employer against loss by reason of the fraud of an employé amounting to embezzlement or larceny, it was a condition precedent that the insurer “shall be entitled to call for. at the employer’s expense, such reasonable particulars and proofs of the correctness of such claim as may be required” by the officers of the insurer. Request was made by the proper officers “for the names of customers from which the employé had collected money, also all the dates when such money was collected by the employé and not turned in, and also when the employer first discovered the shortage.” Eeld, that the employer is not entitled to recover on the policy in the absence of allegation and proof of waiver or excuse for nonperformance of the condition.</p> <p>3. Same —Check on Employe — Verification of Accounts — Conditions Precedent.</p> <p>A fidelity insurance policy, indemnifying an employer against loss by reason of the fraud of an employé amounting to embezzlement or larceny, provided that it was entered into on the condition that the business of the employer “shall be continued to be conducted in accordance with certain statements in writing” which the employer had delivered to the insurer relative to the duties of, and check to be used on, the employé, and that the statements and answers therein contained constituted the basis of the policy. One of the statements so made was to the effect that the employé’s cash, securities, and stock would be compared and verified with his accounts and vouchers twice a week. Eeld, that the failure of the employer to comply with the stipulations precluded a recovery- on the policy.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Frank L. Egner against the Corn Exchange Bank. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Trial—Harmless Error—Exclusion op Evidence.</p> <p>Any error in excluding the question put to plaintiff's witness on cross-examination as to what driver he delivered certain goods was cured when the same witness was subsequently allowed to state that he gave the goods to a certain driver named.</p> <p>2. Same—Motion to Set Aside Verdict.</p> <p>A motion to set aside a verdict as against the weight of evidence is addressed to the sound discretion of the trial judge.</p> <p>f 2. See New Trial, vol. 37, Cent. Dig. § 10.</p>

<p>Appeal from. Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Richard M. Bent against Charles O. Renken. Appeal by defendant from a final order of dispossess in summary proceedings. Reversed.</p>

<p>1. Breach of Contract—Damages.</p> <p>Plaintiff cannot recover of defendants, for breach of contract to do work for a certain amount, the difference between that and what he pays others for doing it, if with reasonable exertions he could have had it done for less.</p> <p>If 1. See Damages, vol. 15, Cent. Dig. §§ 128, 292.</p>

<p>Appeal from ■ City Court of New York.</p> <p>Action by Nathan Rosenstoclc against the Metropolitan Street Railway Company. From a judgment dismissing the complaint at the close of plaintiff’s case, he appeals. Reversed. ■</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Herman Weisberger against Charles Martin. From a judgment for defendant, plaintiff appeals. Reversed.</p>

Action by Daniel P. Nichols and others against Richard H. Williams. From a judgment of the Municipal Court for defendant on his counterclaim, and dismissing the complaint, plaintiffs appeal. Reversed.

<p>1. Real Estate Agent—Action fob Commissions.</p> <p>Under Pen. Code, § 640d, making it a misdemeanor to attempt to earn commissions for the sale of real estate without written authority, plaintiff, who had no written authority, cannot raise the question of waiver of the written authority, in an action to recover commissions therefor.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Isaac Albert against the R. Lewis Steiner Manufacturing Company and the Hamilton Bank. From a judgment in favor of defendant the Hamilton Bank, plaintiff appeals. Affirmed.</p>

Action by Cora Morris against Harold C. Dayton. From a judgment for plaintiff for less than asked and an order denying a motion for a new trial, plaintiff appeals. Reversed. For former opinion, see 84 N. Y. Supp. 392.

<p>1. Leases—Condition of Execution—Waivee—Evidence.</p> <p>In an action tor rent, the issue being whether the lease was entered into on condition that plaintiff would repair the premises, and whether defendant waived its performance, where, in order to show that defendant retained possession after failure of the landlord to repair, he was asked, on cross-examination, whether when he moved out he had put up a “To Let” sign in his own name, and he answered in the negative, plaintiff on rebuttal could show that defendant did, after his removal, put up such a sign.</p>

<p>1. Carriers—Assault on Passenger—Nature of Action—Jurisdiction.</p> <p>Where a passenger on a street car is thrown from the car by the conductor on the ground that he has not paid his fare, an action for damages is for the neglect of duty by the carrier, of which the Municipal Court has jurisdiction; and it is not a mere action for personal assault, beyond such jurisdiction.</p> <p>2. Same—Bill of Particulars.</p> <p>In an action against a street railroad to recover for personal Injuries inflicted upon a passenger, an objection that plaintiff had filed no bill of particulars is without merit, where no order therefor was procured by the defendant.</p> <p>H 2. See Pleading, vol. 39, Cent. Dig. § 974.</p>

<p>1. Negligence—Personal Injuries—Dogs—Evidence—Sufficiency.</p> <p>In an action for damages for personal injuries inflicted on plaintiff by a dog, the evidence showed that on two previous occasions the dog had shown a vicious disposition by attacking two other persons on or about the same premises where defendant kept a grocery store; that defendant’s wife, who lived with defendant on the same premises, had notice of at least one of the incidents referred to; that plaintiff sustained injury as the result of the bite. Defendant admitted ownership of the dog. Held sufficient to make out a prima facie case for plaintiff.</p> <p>2. Same—Parties Defendant.</p> <p>In an action against a husband and wife for damages for personal injuries inflicted by a dog, the complaint is properly dismissed against the wife where the evidence is insufficient to connect her with the ownership of the dog.</p> <p>3. Same—Presumption.</p> <p>Where one, with knowledge of the propensities of a vicious dog, keeps it, he is bound to keep it secure at his peril, and if the dog does mischief negligence will be presumed.</p> <p>f 2. See Animals, vol. 2, Cent. Dig. §§ 233, 262.</p> <p>4. Same—Failure of Defendant and Wife to Testify—Presumption.</p> <p>In an action for damages for personal injuries inflicted on plaintiff by a dog, the defense was that defendant did not know the propensities of the dog, but neither he nor his wife testified. Held, that the inference deducible from their failure to testify is that their testimony would have been unfavorable to the defense.</p> <p>5. Same—Defense—Proob^Sufficiency.</p> <p>In an action for damages for personal injuries inflicted on plaintiff by a dog, testimony of witnesses for defendant as to the inoffensive disposition of the dog on prior occasions, when the dog was much younger, is insufficient of itself to overcome a prima facie case for plaintiff, where neither defendant nor his wife testified.</p>

Action by School District No. 23 of the town of Mooers, by Benjamin Langto, sole trustee, against Luke Raymond. From an order of the County Court affirming a final order of a justice for plaintiff, defendant appeals. Reversed. Luke Raymond, the father of the defendant, on October 25, 1875, conveyed to School District No. 23, in the town of Mooers, in Clinton county, a small parcel of land, for the price of $20.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Abramson-Engesser Company against Robert Mc-Cafferty and another. From a judgment for plaintiff, defendants appeal. Reversed in part.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Isaac Cohen against Felice Boccuzzi. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Action by John J. McKernan, an infant, by Rose Mealiff, guardian ad litem, against the Thomas Conville Brewing Company and another. From a judgment for plaintiff, defendants appeal. Reversed.

<p>1. Chattel Mortgages—Default—Foreclosure—Necessary Parties.</p> <p>Where a mortgagor removed chattels to a warehouse in violation of the terms of the mortgage, and without the mortgagee’s consent or knowledge, although the mortgagee’s title thereby became absolute, and the mortgagor lost all title and right of possession, there still remained in her the right of redemption, and she was therefore a necessary party to an action by the mortgagee against the warehouseman to foreclose the lien.</p> <p>2. Same—Municipal Court Act.</p> <p>Where a chattel mortgagee brings suit under Municipal Court Act (Laws 1902, p. 1532, c. 580) §§ 137, 139, providing that an action may be brought in such court for the foreclosure of a lien, and that for the purposes of such an action a chattel mortgage shall be deemed a lien, he must conform to the provisions of the act, and will be deemed a lienholder, and not the owner of the chattels, though a default has vested in him the absolute title and right of possession, and hence must join the mortgagor.</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 in favor of plaintiff, defendant appeals.. Affirmed.</p> <p>See 84 N. Y. Supp. 134.</p>

Action by Samuel Blick against Hyman Fabian and others. From an order of the city court setting aside a verdict for plaintiff and granting a new trial, plaintiff appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fpurth District.</p> <p>Suit by Louis Leavitt against Sarah Epstein. From an order denying a motion to vacate a default judgment, defendant appeals. Dismissed.</p>

<p>1. Personal Injury Case—Weight of Evidence.</p> <p>Where plaintiff in an action against a street railway is the only witness sworn in her behalf, and defendant calls four witnesses, three of whom are disinterested, and the fourth a former employé, all of whom contradict the plaintiff and testify to her contributory negligence, a judgment for plaintiff is against the weight of evidence.</p>

Action by Joseph Goldberg against John B. Schlessinger. From a judgment of the City Court for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>1. New Tbial—Newly Discovebed Evidence—Conditions.</p> <p>Where, after verdict and judgment for plaintiff, defendant presented irresistible reasons for the granting of a new trial for newly discovered evidence, it was error, in granting a new trial, to impose as conditions the giving of an undertaking by defendant to plaintiff conditioned to pay any judgment that might thereafter be recovered by plaintiff against defendant, and the payment of $104 costs of the action taxed in the judgment roll.</p>

<p>1. Street Railways—Negligence—Collision—Evidence—Sufficiency.</p> <p>In an action against a street railway because o£ a collision between a car and plaintiff’s vehicle a bystander testified to the rapid movement of the car. Two employés of plaintiff, who were in charge of the vehicle, which was a covered one with two windows about 12 by 9 inches in the back, testified that as they drove on the track in order to pass a truck they looked back through the windows, and saw no car; that just as they passed the truck they turned off the track, but, before the wagon cleared it, it was struck from behind by a car. Defendant offered no evidence. .Held, not error, on verdict for defendant, to deny plaintiff a new trial.</p>

<p>1. Street Railroads—Personal Injuries—Loss of Clothing—Value—Evidence—Sufficiency.</p> <p>Where one of the items in the bill of particulars in an action against a street railroad for personal injuries for which plaintiff claimed damages was the destruction of his clothing, evidence merely that plaintiff paid $50 for it is insufficient to sustain a judgment for plaintiff including an assessment of damages at $50 for the loss of the clothing.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by James T. White & Co. against Henry C. Corbin. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>1. Carriers—Alighting Passenger—Injuries—Evidence—Weight.</p> <p>In an action against a street railway company for injuries to an alighting passenger, verdict for plaintiff held against the weight of the evidence.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Generosa Leonardi and others against Theodore W Stemmier and others. From a judgment in favor of plaintiffs, defendant Stemmier appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Carl Ernst and another against Judas Harrison. From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by New York Metal Ceiling Company against Herman Raub and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Patrick M. Dunne against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Modified.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the United Wine & Trading Company against Adolph Platz. Judgment was rendered against defendant by default, and plaintiff appeals from an order opening the default and vacating the judgment, and also from a judgment dismissing the complaint. Affirmed.</p>

<p>1. Bills and Notes—Actions—Evidence—Sufficiency.</p> <p>Where plaintiff alleged execution by defendant of four several notes to the order of a payee named, that the notes were purchased of the owner by plaintiff for a valuable consideration, that they were presented for payment and not paid, and defendant denied all the allegations except the execution of the notes, the putting in evidence of the notes, with the name of the payee written thereon, with testimony of plaintiff that he owned the notes, and that no part of them had been paid, was insufficient to establish a prima facie case without proof of indorsement and delivery to plaintiff.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by William P. Dixon and another against Solomon Silberblatt. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Affirmed.</p>

<p>1. Conversion—Identity of Article—Nonsuit.</p> <p>Plaintiff’s evidence that he delivered an “S. S.” piano to H. at a certain place, and that defendant stated he had stored an “S. S.” piano that H. had at such place, sufficiently identifies the piano to prevent a nonsuit in an action for its conversion.</p> <p>2. Same—Evidence of Title.</p> <p>Plaintiff in an action for conversion of a piano which defendant took from H. may, to show title, introduce a conditional bill of sale to H. from him.</p>

Action by Michael C. Gross against Emerson Owen. From a final order of the Municipal Court of the City of New York dispossessing defendant as a tenant for nonpayment of rent, he appeals. Reversed.

<p>1. Expert Witness—Contract for Conditional Compensation—Illegality.</p> <p>Where the evidence shows that a physician called as an expert witness for plaintiff testified under a contract that he should recover 10 per cent, of the judgment obtained by the plaintiff, the services bargained for were illegal, and the physician cannot recover for the same.</p> <p>K 1. See Contracts, vol. 11, Cent. Dig. § 617.</p>

In the matter of the appraisal of the estate left under the will of Loftis Wood, deceased, for the purpose of determining the amount of the transfer tax. From an order permitting Mary J. Howey, remainderman, to recover interest on the amount illegally collected, the Comptroller of the state appeals. Affirmed.

Action by Bridget Quinn against the Bank for Savings of the City of New York. From an order of the City Court granting defendant’s application to have the administrator of one Mary Houlihan, deceased, made a party defendant, plaintiff appeals. Affirmed.

<p>Appeal from City Court of New York, Trial Term-.</p> <p>Action by Samuel Glaser against Sarah Michelson. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.</p>

<p>1. Trial—Opening Default—Conditions—Bond.</p> <p>In an action for injuries, an order permitting defendant to open his default was conditioned on his giving a bond to secure any judgment plaintiff might obtain against him. Counsel for plaintiff made affidavit that the defendant was not financially responsible, ffeld, that the order should be modified by allowing the judgment previously entered to stand as security for any judgment plaintiff might recover, and limiting the undertaking to security for costs and allowance in the customary sum of §250.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by William B. Franke against George S. Adams. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Carrier—Refusal to Give Transfer—Excuse.</p> <p>It is no excuse for the refusal of a street railroad company to give a passenger a transfer, as required by statute, that he could travel over another route of its system for one fare.</p> <p>2. Same.</p> <p>It is no excuse for the refusal of a street railway company to give transfers at a certain point, as required by statute, that to give transfers there would cause undue crowding on the street and at the crossing.</p> <p>3. Same—Statutory Regulation of Fares.</p> <p>Const, art. 8, § 1, provides that corporations may be formed under general laws. Laws 1850, p. 211, c. 140, authorized the formation of railroad corporations, which should be subject to 1 Rev. St. (1st Ed.) p. 600, pt. 1, c. 18, tit. 3, § 8, providing that the charter of every corporation shall be subject to alteration in the discretion of the Legislature. Held, that a railroad corporation formed under Laws 1850, p. 211, c. 140, is subject to statutory regulation of the fares it may charge.</p> <p>4. Same—Lease of Railroad.</p> <p>In view of the course of legislation (Laws 1839, p. 195, c. 218; Laws 1850, p. 211, c. 140; 1 Rev. St. [1st Ed.] p. 599, pt. 1, c. 18, tit. 3; Laws 1884, pp. 314, 315, c. 252, §§ 15, 18; Laws 1885, pp. 525, 526, c. 305, §§ 1, 4; Laws 1890, p. 1114, c. 565, art. 4, §§ 103, 104) relating to the leasing of railroads, Laws 1892, p. 1406, c. 676, art. 4, § 104, providing that every railroad corporation entering into “such contract” shall give a transfer to each passenger, entitling him to one continuous trip to any portion of any railroad embraced in “such contract,” refers to contracts of lease of railroads as well as to traffic contracts for the use of roads.</p> <p>5. Same—Corporation Operating Railroads.</p> <p>In view of Laws 1892, p. 1399, c. 676, art. 4, § 90, as amended by Laws 1895, p. 791, e. 933, providing that the provisions of the article apply to every corporation which operates a street surface railroad, section 104, art. 4, c. 676, p. 1406, Laws 1892, providing that “every such corporation” shall give a transfer to each passenger, applies to a corporation formed under the stock corporation law, which owns and operates a railroad.</p> <p>6. Same—Railroads within' City.</p> <p>In Laws 1892, p. 1406, c. 676, art. 4, § 104, requiring corporations operating street railroads to carry passengers for a single fare, and providing that its provisions shall only apply to railroads wholly within the limits of any city, the proviso refers to the railroads, and not to the corporations operating them.</p> <p>7. Same—Consolidation of Railroads.'■</p> <p>Where various street railway companies consolidated as authorized by the railroad law (Laws 1890, p. 1082, c. 565, as amended by Laws 1892, p. 1382, c. 676), the consolidated company and its successors in interest, under section 90, art. 4, c. 676, p. 1399, Laws 1892, as amended by Laws 1893, p. 908, c. 434, providing that the provisions of the article shall apply to every corporation operdting a street railroad in a city, are subject to section 104, art. 4, c. 676, p. 1406, Laws 1892, requiring every railroad corporation entering into “such contract” to give transfers to passengers.</p>

Action by Guy Witthaus against Jacob A. Zimmerman. From an order of the Appellate Term of the Supreme Court affirming a judgment of the Municipal Court of the City of New York in favor of plaintiff, and granting leave to appeal, defendant appeals. Affirmed.

<p>1. Sales—Account Stated—Evidence.</p> <p>In an action to recover a balance for goods sold, evidence that there was a dispute between the parties as to the amount due, the defendant claiming the amount to be from $50 to $60, while plaintiff’s decedent claimed it was over $100; that defendant offered to pay $75 to settle when deceased brought a receipt to defendant’s wife, which he never brought; and that defendant never paid the money—shows an attempt at compromise, and not an account stated.</p> <p>2. Same—Payment.</p> <p>Where, in an action for a balance due for goods sold, defendant’s wife testified in his behalf that plaintiff’s decedent had said, on an occasion when they were having a dispute over the amount due, that such amount was $75, and such testimony was entirely undisputed, it was error for the court to direct a verdict for plaintiff for $201.87 and interest, which was the amount claimed, though such witness made a statement inconsistent with her previous testimony to the effect that defendant stated the amount due on the contract was over $100.</p>

<p>Appeal from Special Term, Wayne County.</p> <p>Action by Alexander B. Williams against George A. Brandt. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals. Reversed.</p>

<p>1. Partnership—Dissolution—Accounting—Limitations.</p> <p>On November 1, 1889, a copartnership existing between plaintiff and defendant was dissolved by mutual consent. Defendant’s évidence, partially corroborated by plaintiff, was that at the time of the dissolution the firm was practically insolvent, and that it was agreed that defendant was to take the assets, discharge the obligations, and save plaintiff harmless therefrom. In March, 1895, plaintiff requested a copy of the trial balance on the day of the dissolution, and a statement of his account, which defendant failed to furnish, by reason of not having the data, and inclosed a claim 'against plaintiff accruing from transactions after the dissolution. This, however, the parties settled by setting off plaintiff’s alleged claim against the old firm, and, after substantially all the books and papers of the firm had been lost or destroyed without defendant’s fault, plaintiff, in May, 1901, brought suit for dissolution of the firm, the appointment of a receiver, and for an accounting. Held, that such facts justified a finding that the affairs oí the parties had been settled at the time of the dissolution of the firm, and hence plaintiff’s tights, if any, were barred by limitations.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by John A. Murray against Louis Lese and others. From a judgment' on a verdict for plaintiff, defendants appeal. Reversed.</p>

C. V. Hoenig was prosecuted for a violation of the liquor tax law. Motion for a direction that the charge be prosecuted by indictment. Granted.

<p>1. Street Railways—Persons on Streets—Contributory Negligence—Evidence.</p> <p>In an action for injuries by a street sweeper against a street railroad, evidence held insufficient to show that plaintiff was in the exercise of due care.</p>

<p>1. Appeal—Dismissal op Complaint—Reservation op Question in Lower Court.</p> <p>.Though a printed case contains no certificate that it embraces all the evidence, and no exception to the dismissal of the complaint, or request by plaintiff to go to the jury, yet, where plaintiff immediately moved for a pew trial on the minutes, and duly excepted to the denial thereof, and then entered a formal order of denial, from which he appealed, as well as from the judgment, the propriety of the dismissal of the complaint may be reviewed.</p> <p>2. Action to Recover Money Loaned—Issue op Fact—Dismissal op Complaint.</p> <p>Plaintiff sued to recover money loaned to defendant and her husband jointly. Defendant alone answered, interposing a general denial. The real issue was whether the loan was made to defendant and her husband jointly, or to the husband alone. Plaintiff made out a prima facie case. The defendant then testified that she was not a party to the transaction, though she admitted that she indorsed a note given by her husband in furtherance of the loan. Held, that the evidence raised a disputed question of fact, rendering the dismissal of the complaint erroneous.</p>

Action by Herman Grabenstein against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed. See 84 N. Y. Supp. 261.

<p>1. Process—Return Day—Mistake in Date.</p> <p>Where a copy of the summons served on defendant was dated February 26th, and made returnable February 10th," though a clerk of the plaintiff’s attorney discovered the error when the summons was served, and offered to correct the same, the court acquired no jurisdiction.</p> <p>2. Fraud—Evidence.</p> <p>Evidence that plaintiff trust company allowed defendant to overdraw a specified sum, and that he had not paid it, did not warrant a judgment for plaintiff in an action for “damages for fraud and fraudulent representations.” .</p>

<p>1 Sale—Action fob Peice—Evidence—Bill of Pabticulabs.</p> <p>In an action for the price of goods sold, the bill of particulars is not admissible to show the price, on evidence merely that the price had been agreed on before the goods were delivered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Hyman Weinstein 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, Second District.</p> <p>Action by James Reilly’s Sons Company against Wolf Aaron. From a Municipal Court’s judgment in favor of plaintiff for less than the relief demanded and without costs, plaintiff-appeals. Reversed.</p>

<p>1. Contempt—FAmuRE to Pkodtjce Books.</p> <p>A defendant ordered to produce books on supplementary proceedings, having given no valid reason for refusal to produce some of the books, may be fined for contempt.</p> <p>2. Same—Fine.</p> <p>A fine based on loss to plaintiff may not be imposed on defendant for refusal to produce books of account on supplementary proceedings, there being no evidence of actual loss, but merely a claim that the books might have shown assets.</p>

<p>1. Ferryboats—Injury to passengeb—Invitation to Embark—Assurance of Safety.</p> <p>Where a company operating a ferryboat moors its boat and keeps open the gate, it thereby invites a passenger to embark, and gives assurance that it is safe to do so.</p> <p>2. Same—Contributory Negligence—Sufficiency of Evidence.</p> <p>Evidence in an action by a passenger injured in attempting to board a ferryboat examined, and held to sustain a verdict for plaintiff, negativing contributory negligence.</p> <p>MacLean, J., dissenting.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Selig Warshawsky and others against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment of the City Court for plaintiffs, and from an order denying a new trial, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First Dis- , trict.</p> <p>Action by Joseph Lejoune against the Dry Dock, East Broadway & Battery Railway Company. From a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed.</p>

Action by Sadie Rubenstein against John H. Hudson, as sole acting trustee under the will of Stephen Philbin, deceased. From a judgment of the Municipal Court for plaintiff, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Jefferson Bank against Louis Gossett and another. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Eureka Fire Hose Company against James Reynolds and another. From a judgment in favor of plaintiff, defendants appc3,l Reversed</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Edwin R. Case against Joseph A. Duffy. From a judgment of the Municipal Court for defendant, plaintiff appeals. Affirmed.</p>

<p>1. Action fob Sebvices—Unconscionable Contbact—Quantum Mebuit.</p> <p>In an action on a contract for services which cannot be upheld because unconscionable, defendant 'may prove the value of services which plaintiff has shown were rendered under the contract.</p>

<p>1. Negligence—Failure to Unload Boat—Damages—Failure of Proof.</p> <p>In an action for damages alleged to have been caused by defendant’s unreasonable failure to unload a cargo of wood from plaintiff’s _ canal boat, in consequence of which the boat, with cargo, was frozen in, it was shown that, if the boat had been immediately unloaded, it would still have been frozen in, and that it was necessary to have boats calked in the spring, whether they were frozen in with a load on or not. There was evidence that certain repairs were made, and the boat calked, but no showing that, if the boat had been frozen in unloaded, the same repairs and amount of calking would not have been required. Held, that no damage was proven.</p>

<p>1. Insurance—Payment—Accord and Satisfaction.</p> <p>Where a receipt given for a payment made on a policy of insurance expressly stated that the amount was received “under protest,” it was insufficient to support a plea of accord and satisfaction.</p> <p>2. Same—Beneficial Associations—By-Laws—Suicide—Proportionate Liability.</p> <p>A by-law of a beneficial association providing that, in case a member commits suicide, the association shall be liable for only 75 per cent, of the face of his policy, was binding on a member who became such before the enactment of the by-law,' where the original contract and by-laws were silent on the subject.</p>

<p>1. Waives—Ratification.</p> <p>In an action on a contract in which plaintiff claimed that a release of all liability which he had executed on receiving a payment under the contract was executed under duress, failure to return or offer to return the money received when the release was executed was a waiver of duress and ratification of the release.</p> <p>2. Release.</p> <p>A writing acknowledging the receipt by an employs of a certain sum in full for all claims for wages, and releasing the employer from all contracts previously entered into, was not a mere receipt, biit a release relieving the employer from liability on a previous contract to employ the re1 leasor a certain length of time.</p>

<p>Appeal from Municipal Court, Borough- pf Manhattan, Twelfth District. -</p> <p>Action by the Ardsley Hall Company against Lucien L. Sirrett. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Action on Contract—Burden of Proof.</p> <p>In an action on a contract, the burden of establishing his case by a.preponderance of evidence remains on plaintiff throughout the case, and is not shifted by the making of a prima facie case.</p>

Action by Nellie Corde against Frank D. Laughlin. From an order adjudging defendant guilty of contempt.in disobeying an order issued in proceedings supplementary to execution, he appeals. Reversed.

<p>1. Evidence—Refreshing Memory.</p> <p>In an action for conversion of household furniture it was competent for plaintiff to read from a written list of articles after having testified that without the list he could not testify to the articles named therein, but that it so refreshed his memory as to enable him to state what articles were taken.</p> <p>2. Husband and Wife—Authority of Wife.</p> <p>A wife has no authority to authorize a third person to enter her husband’s dwelling and remove his furniture.</p> <p>3. Conversion—Demand.</p> <p>Where possession of personalty is wrongfully taken, no demand for its return is necessary in order to maintain conversion.</p> <p>4. Same—Justification.</p> <p>Where a father took possession of his son-in-law’s furniture without the latter’s consent, the fact1 that he did so because of trouble between the son-in-law and his wife, and to protect the latter from supposed ill-treatment, was no justification.</p> <p>5. Same—Instructions.</p> <p>In conversion by a son-in-law against his father-in-law, based on the latter’s wrongfully taking possession of the furniture of the former, the ownership of the property was admitted to be in plaintiff, and defendant attempted to justify on the ground that the furniture was taken because of trouble between the son-in-law and his wife. The court charged that the jury might consider the facts' touching the difference between the parties as to their family relations in ascertaining on which side the truth lay. Held more favorable to defendant than he was entitled to.</p> <p>V 2. See Husband and Wife, vol. 26, Cent. Dig. § 139.</p>

Action by Abraham Deitch and another against Morris Feder and another. From a judgment for plaintiffs, andean order denying a motion for a new trial, defendants appeal. Affirmed.

<p>L Corporations—Action for Services—Employment—Parol Evidence.</p> <p>In an action against a corporation for services, parol evidence that a resolution was passed authorizing plaintiff’s employment was inadmissible in the absence of a foundation, by showing that the corporation’s minutes had been called for and not produced, or that the minutes failed to contain any record of the resolution which had in fact been passed.</p> <p>2. Same—Estoppel.</p> <p>Where, in an action for services rendered a corporation, it did not appear that the corporation as such accepted the services, or that they were of value to it as a corporation, it was not estopped to dispute plaintiff’s employment.</p>

Action for personal injuries by Zachariah T. Allison against the Long Clove Trap Rock Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

<p>Appeal from Special Term, Queens County.</p> <p>Action by Frank W. Goreth, as ancillary administrator of Thomas Keiher, against Jacob R. Shipherd. From an order denying defendant’s motion to vacate certain orders granting plaintiff leave to discontinue the action, and for a stay of plaintiff’s proceedings, and for final judgment in favor of defendant, he appeals. Affirmed.</p>

<p>Appeal from Surrogate’s' Court, Kings County.</p> <p>In the matter of the judicial settlement of the account of proceedings of Julia Levy and another, as executors of Philip Levy, deceased. From an order denying a motion for a resettlement of the case on appeal, Rosetta Corn appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Hyman Rosenberg against James Hassett. From an order imposing costs and disbursements as terms upon granting motion to open a default, defendant appeals. Modified and affirmed.</p>

Action by Nathan L. Miller, as comptroller of the state of New York, against William G. Tracy and another, as executors of George N. Kennedy, deceased. From an order of the Surrogate’s Court modifying an order or decree fixing the transfer tax in the matter of Kennedy’s estate, plaintiff appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Mary O. Malone against the Metropolitan Express Company. From a judgment of the Municipal Court for plaintiff, defendant appeals. Affirmed.</p>

Action by Amelia S. Meinrenken, as administratrix of the estate of Gustave D. Meinrenken, deceased, against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by the Engineer Company against Jacques Senn. Plaintiff’s complaint alleged a cause of action to recover damages sustained by reason of defendant’s refusal to permit plaintiff to complete a contract for the operation of certain machinery, etc. Defendant admitted the execution of the contract, denied all other allegations of the complaint, and set up two counterclaims, one of which, alleged in the eighth subdivision of the answer, was for damages in the sum of…

<p>Action by Amelia M. Appel, as administratrix, etc., against the ¿Etna Life Insurance Company.</p>

<p>Action by Joshua W. Barnum against John T. Williams.</p>

<p>Action by the Albany County Bank against the People’s Co-Operative Ice Company.</p>

<p>Action by August Adolff against Louis Molia. Prom a judgment of the Municipal Court for defendant, plaintiff appeals. Affirmed. Lewkowitz & Schaap, for appellant. G. L. P. Rohan, for respondent.</p>

<p>Action by Arnold Binger against Max A. Feuerlieh and another. From a judgment of the Municipal Court for plaintiff, defendants appeal. Modified. Alexander Rosenbaum, for appellants. Kantrowitz & Esberg, for respondent.</p>

<p>Action by William Beethem against the Interurban Street Railway Company. From a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed. Henry A. Robinson (William E. Weaver, of counsel), for appellant. Harrison, Seasongood & Edwards, for respondent.</p>

<p>Action by Alfred N. Benjamin against William Edge and the Williams Wire Hinging Machine Company. L. J. Hunt, for appellant. H. B. Bradbury, for respondent.</p>

<p>Action by Morris Brown against the Dutchess County Mutual Insurance Company of Poughkeepsie.</p>

<p>Action by Durfee C. Chase against Katharine B. Drake.</p>

<p>Action by Alexander D. Chew against the Watervliet Hydraulic Company. From an order granting a motion for bill of particulars, defendant appeals. Modified. G. E. Miner, for appellant. L. A. Tanzer, for respondent.</p>

<p>Action by Cornelia Gary Hull Burnett against Harold Livingston Burnett.</p>

Action by the city of New York against James Matthews. From a judgment for plaintiff, defendant appeals. Affirmed. Joseph A. Burr, for appellant. Martin Saxe, for respondent. ■

<p>Action by Abraham Cohen against Simon Schneider and others. From a judgment for defendants, plaintiff appeals. Affirmed. Henry Sallant, for appellant. Wilder & Anderson, for respondents.</p>

<p>Action by the city of New York against the Interurban Street Railway Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed. George L. Rives .(Arthur F. Cosby and George O’Reilly, of counsel), for appellant. H. A. Robinson (Arthur K. Wing, of counsel), for respondent.</p>

<p>Action by Katharine Coulson against Bernard G. Flynn.</p>

<p>Action by Charles E. Crouse, as administrator, etc., against Edward B. Judson, Jr., and others.</p>

<p>Action by William Erhardt against the Pettier & Stymus Company.</p>

Action by William A. Gray and others against the York State Telephone Company and another for an injunction restraining defendants from erecting telephone poles and wires on a highway adjoining the plaintiffs’ land. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

<p>Action by David Goldman and another against Luigi A. Rocca, as one of the marshals of the city of New York. From a judgment of the Municipal Court for plaintiffs, defendant appeals. Affirmed. Fulton McMahon (Henry C. De Witt, of counsel), for appellant. Stanislaus N. Tuck-man, for respondents.</p>

<p>Action by Francis J. Groarke against George Laemle. T. Bracken, for appellant. D. L. Berier, for respondent.</p>

<p>Action by George C. Hudson against the Erie Railroad Company. J. M. Gardner, for appellant. H. Bacon, for respondent.</p>

<p>Action by the J. G. Diffenderfer Company against the Importers’ & Traders’ National Bank of New York.</p>

<p>Action by Frederick Keim against David C. Townsend. D. McCurdy, for appellant. E. M. Shepard, for respondent.</p>

Action by James McQuillan against the Metropolitan. Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed. Bayard H. Ames and F. Angelo Gaynor, for appellant. G. H. Epstein, for respondent. ■

<p>Action by Alexander Martin against Charles J. Wilson.</p>

<p>Action by Matthew J. O’Donnell against the New York Central & Hudson River Railroad Company.</p>

<p>Ewan H. Clark was convicted of grand larceny in the first degree, and he appeals. Affirmed. Max D. Steuer, for appellant. Robert O. Taylor, for the People.</p>

<p>Action by Samuel Packard against Levi Elsohn and others. Francis C. Raines, for appellant Samuel Packard, for respondent.</p>

<p>Mandamus by the people;, on the relation of the Independent Telephone Company, against Robert G. Monroe, as commissioner. From an order denying a motion, for a peremptory writ, relator appeals. Affirmed. G. Hill, for appellant. T. Connoly, for respondent.</p>

<p>Proceeding by the people, on the relation of David Sandman, against Henry S. Brush, county treasurer of Suffolk county, and Patrick W. Cullinan, as State Commissioner of Excise.</p>

<p>Action by William F. Sagar against the Oldsbury Electro-Chemical Company.</p>

<p>Action by Lillian Romaine, as administratrix, against the New York, New Haven & Hartford Railroad Company.</p>

<p>Action by Elizabeth Reich against Edith L. Dyer and another, executrices of Alicia V. La Bau. From an order denying a motion for a new trial on the ground of newly discovered evidence, defendants appeal. Affirmed. John M". Bowers, for appellants. Charles Strauss, for respondent.</p>

<p>Action by Tilly Schnurr against Alexander Quinn.</p>

<p>Action by John Splain against the Utica Gas & Electric Company.</p>

<p>Action by Sarah A. Spalding against the Supreme Council, Royal Templars of Temperance, and others.</p>

<p>Action by the Traders’ National Bank of Rochester against Moses Shire, as administrator, etc.</p>

<p>Action by the United States of America, to the use and benefit of Adelbert S. Nichols, against the Union Surety <& Guaranty Company and others. From a judgment overruling its demurrer to the complaint, defendant company appeals. Affirmed. Van Sehaiek & Norton (Wilson B. Brice, of counsel), for appellant. Goeller, Schaffer & Eisler (Robert Goelier, of counsel), for respondent.</p>

<p>Action by Camille Weidenfeld against William McClure. Herbert R. Limburger (Edward Lauterbaeh and Henry L. Schenerman, on the brief), for appellant. Lewis Cass Ledyard, for respondent.</p>

<p>Action by Emma J. Wells against the New York Central & Hudson River Railroad Company.</p>