Volume 87 — New York Supplement

<p>Appeal from Surrogate’s Court, New York County.</p> <p>Proceedings for the appointment of an administrator de bonis non of the estate of Rose Ferrigan, deceased. From an order appointing the attorney of A. Nicholas Sheridan, assignee of the next of kin, the Lawyers’ Surety Company, surety on bond of the deceased administrator, appeals. Reversed.</p>

<p>1. Pleading—Amendment—Conditions.</p> <p>As a condition for the service of an amended complaint, plaintiff should be required to pay all costs in the action except a trial fee for a trial at which a juror was withdrawn, such payment having been imposed on the plaintiff as a condition for allowing the withdrawal of the juror.</p>

<p>1. Contracts—Sharing of Losses—Collector—Diligence.</p> <p>Plaintiff was employed by defendant under a contract that plaintiff should stand a third of all loss on customers procured by him. A customer procured by plaintiff went into bankruptcy while indebted to defendant, and, in an action by plaintiff, he claimed that he should not stand a third of that loss, for the reason that he had, after leaving defendant’s employ, sought permission to collect the claim, which was refused. Defendant showed that he had used diligence to collect it, and there was no evidence that plaintiff could have obtained any better results than defendant did. Held, that it was proper to charge plaintiff with one-third of the loss.</p>

In the matter of the application of the administrators of the goods, etc., of George F.'Gilman, deceased, for leave to compromise a claim against the estate. From an order permitting the administrators to settle the claim, a minority of the next of kin of deceased appeal. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Jacob Bernstein and another against E. P. Loomis & Co. From a judgment in favor of plaintiffs, defendant appeals. Modified.</p>

<p>Appeal from Municipal Court, Borough of Manhattan.</p> <p>Action by John C. McLean against the Interurban Street Railway Company. From a judgment for plaintiff for $119.31, defendant appeals. Affirmed.</p>

<p>1. Appeal-Credibility op Witness.</p> <p>A judgment depending on the credibility of witnesses will not be disturbed on appeal.</p>

Action by Jacob Wendell and another against Joseph Walker. From a judgment for plaintiffs after a trial by court without a jury, defendant appeals. Affirmed.

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Max D. Steuer and others against Justin E. Rockwood and others. From a judgment on a verdict for plaintiffs, defendants appeal. Reversed.</p>

Action by Julius Wolff against the city of New York. From a judgment dismissing the complaint, entered on a decision of the court—a jury being waived—plaintiff appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by J. Fred Pierson against James Hughes and another. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Frentiss H. Manning against the Seaboard Paint Company. From a judgment for defendant, plaintiff appeals. Reversed.</p>

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

<p>1. Contracts—Assignment—Evidence—Conclusions.</p> <p>In an action on a contract by an alleged assignee, his testimony that the contract had been “sold” or “transferred” to him was inadmissible, because stating a conclusion.</p>

Action by William Csatlos against the Metropolitan Street Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

In the matter of the judicial settlement of the account of the Long Island Loan & Trust Company as executor of Daniel W. Northup, deceased. From the decree, the executor and Dwight Northup appeal. Affirmed.

Action by John Wanamaker and others against Robert H. Megraw. From a judgment for plaintiffs and from an order denying a new trial, defendant appeals. Reversed.

<p>1. Agent’s Commissions—Contract—Services Outside of Contract—Recovery—Evidence.</p> <p>An agent, entitled under his contract to commissions for orders for goods procured by him, cannot recover by virtue of the contract for services rendered in installing goods sold by another agent, Cut must show an agreement to pay a specified sum therefor, or a promise to pay the reasonable value of the services, and what the services are reasonably worth.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Joseph T. Mulligan against John J. Tobin. From a judgment for defendant, plaintiff appeals. Reversed.</p>

Application by John G. Ford against the board of supervisors of Delaware county for a peremptory writ of mandamus to compel respondents to audit and allow applicant’s claim for the publication of election notices. From an order denying the application, applicant appeals. Affirmed.

<p>1. Landlord and Tenant—Eviction—What Constitutes—Assault by Servant.</p> <p>A single assault, committed by a hall boy upon a tenant, conceding that it can be imputed to the landlord, is not such an interference with the beneficial use and possession of the demised premises as. to amount to an eviction.</p>

<p>1. Stockbrokers—Stock Carried on Margin—Sale—Liability.</p> <p>Stockbrokers, who were carrying stocks for a client on margin, mailed him on May 20th a letter saying the market was very weak, and that they had been compelled to sell out some of his holdings, but still held certain stocks for him. The letter proceeded: “Your margin having become low we did not know just what you wished to do, but had to proceed as stated above. If you desire us to hold your stock kindly advise us before the opening of the market Thursday (May 21) and let us have a check, otherwise we will take it for granted you do not wish us to hold them for you.” The client made no reply to this letter, and the brokers sold the stock on June 5th. Seld, that the client’s silence could not be construed as a direction to sell the stock on May 21st, so as to charge the brokers with the highest price obtainable on that date.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Food Trade Publishing Company against Wilhelmine Harnishfeger, executrix. From the judgment, plaintiff appeals. Affirmed.</p>

<p>i. Sale of Real Estate—Reservation—Right to Rent.</p> <p>Defendant D. and others made a contract of sale of premises, reciting that it was their intention to convey the premises “as they now are actually occupied by them, and subject to * * * the rights of the monthly tenants, and the right of D. * * * to occupy the organ shop in the rear of said premises, now used by him for his business, with the means of exit and ingress till Nov. 1.” The deed contained the reservation of D.’s right as in the agreement. Held, that such reservation was not subject to any duty of D. to pay for use and occupation.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by William Reilly against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by David J. Lertora against the Central Fruit Company. ■ From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Mollie Lassig, an infant, against Joseph Barsky. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Street Railways—Collision with Team—Negligence.</p> <p>Plaintiff, a boy 12 years old, while riding on the rear of a wagon, was injured by its being struck by an electric car. He testified that when the wagon was on the track the car was a block away, and that the horse was going slowly. The motorman (in business for himself at the time of the trial) testified that as he approached the crossing, going four or five miles an hour, the horse was going rapidly, and when first seen was eighteen feet ahead of the car; that as soon as he saw it he reversed, and the car, after striking the rear wheel of the wagon without injuring it, went only five feet further. He was corroborated by the motorman of another car, and the driver of the wagon testified that his horse took fright, he was unable to control it, and it dashed in front of the car. Held, that there was nothing to show negligence of the street railway company.</p>

<p>• 1. Judgment—Action on—Jurisdiction—Evidence.</p> <p>Where the answer in an action on the judgment of a court of general jurisdiction impugns the jurisdiction of the court which rendered the judgment, and defendant introduces evidence of the revocation of the authority of the person on whom service of process was made, plaintiff may prove facts outside the record, not required to be part of the judgment roll, to show that such court did have jurisdiction.</p> <p>2. Trial—Order of Proof—Discretion.</p> <p>The order in which proof may be introduced is in the sound discretion of the court.</p> <p>3. Foreign Corporations—Action against—Jurisdiction—Doing Business in State.</p> <p>A foreign insurance company, though it has ceased to solicit new business, is still doing business in the state, so that jurisdiction may be acquired by service on an agent, where it still has outstanding policies in the state, on which it collects dues, and,' in case of losses thereunder, adjusts them and makes remittances.</p> <p>4. Same—Service of Process—Construction of Statutes.</p> <p>Laws N- C. 1899, p. 175, c. 54, g 62, providing that no foreign insurance company shall be authorized to do business in the state till it shall constitute and appoint the Insurance Commissioner its attorney to receive process in any actions against it, intends that process shall be served on the Insurance Commissioner in actions on policies previously issued, when the law provided for such service on the Secretary of State.</p> <p>5. Same—Impairing Obligation of. Contracts—Changing Remedy.</p> <p>Laws N. C. 1899, p. 175, c. 54, g 62, • by substituting the Insurance Commissioner in place of the Secretary of State as the person to be served with process in actions against foreign insurance companies, merely changes the remedy, and so does not impair the obligation of contracts, as respects policies previously issued.</p> <p>6. Same—Appointment of Insurance Commissioner to Receive Process—Revocation.</p> <p>Laws N. C. 1899, p. 175, c. 54, g 62, provides that no foreign insurance company may do business in the state till it shall constitute 'and appoint the Insurance Commissioner its attorney to receive process in any actions against it, by an instrument stipulating that this authority shall continue in force so long as any liability of the company shall remain outstanding in the state. Held, that an insurance company, having made such appointment, could not revoke it, at least as to policies on which it had received premiums, after it had made the appointment.</p> <p>7. Same.</p> <p>Act N. C. June 1, 1899 (Laws 1899, p*. 197, c. 62), prohibiting every insurance company from transacting business in the state unless it-became a corporation of the state, did not affect the prior policies of a foreign company, or revoke the authority of the Insurance Commissioner to accept process in an action thereon against the company.</p> <p>8. Foreign Judgments—Actions on—Federal Question.</p> <p>The question, in an action on a judgment of a court of another state, whether the foreign court obtained jurisdiction to render the judgment, is a federal question, so that a decision thereon of the Supreme Court of the United States, rather than one of a state court, must be followed.</p>

<p>1. Appeal—Loss of Testimony—Affidavits.</p> <p>Where, on appeal by defendant from the Municipal Court, it is shown that the testimony of defendant has been lost, the cause will not be decided on opposing affidavits as to what the evidence was—such affidavits raising an issue of fact—but the judgment will be reversed, and a new trial granted.</p>

<p>1. Damages—Amount Recoverable.</p> <p>Where, by her summons, plaintiff sued for $250, and by her bill of particulars claimed $240, of which $40 was for items of damage which could not be recovered in the action, and as to which the trial justice refused to receive evidence, a judgment for $250 will be reduced to $200.</p>

Action by Lawrence Spinner against Jacob Klinger. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Modified.

<p>1. Street Railways—Collision with Push Cart—Negligence.</p> <p>The motorman of a slowly moving car is not negligent in not anticipating that a push cart will run into the car after the head of the car has safely passed it.</p>

<p>1. Master and Servant—Discharge of Servant—Question fob Jury.</p> <p>Where a contract of employment and the servant’s discharge before its expiration were admitted, and the testimony as to whether the discharge was without cause, or for cause, and as to whether the contract ■ was terminated by mutual consent, was in sharp conflict, the case was for the jury.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Joseph Toch against Isaac R. Horowitz. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

Action by Julius Berliner against the Interurban Street Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed.

<p>1. Appeal—Evidence—Exhibits—Recoed.</p> <p>Where, on appeal, it appeared that plaintiff’s cause of action was based on written exhibits offered in evidence, but not attached to the record, and it did not appear on what the judgment in favor of plaintiff was based, judgment for plaintiff will be reversed.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Joseph L. Gerson and others against Enrico Berti and others. From an order adjudging Parodi, Erminis & Co. guilty of contempt, they appeal. Reversed.</p>

<p>1. Corporations—Acts of President.</p> <p>A corporation is chargeable with the acts and admissions of its president, as a general agent.</p> <p>2. Motion to Dismiss Complaint.</p> <p>Failure to move to dismiss the complaint at the close of plaintiff’s case, or of the whole case, is an admission that there is a question of fact.</p> <p>11. See Corporations, vol. 12, Cent. Dig. § 1688.</p>

<p>1. Injury to Wife—Action by Husband—Damages—Evidence.</p> <p>Admission o£ evidence of loss of wages by a daughter—she not being shown to be a minor—in an action by a husband for damages from injury to his wife is error.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by the Herrmann Furniture & Plumbers’ Cabinet Works against German Exchange Bank. From an order of the New York City Court denying defendant’s motion for an interpleader, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Harry Eisenberg against the Stuyvesant Insurance Company. From a judgment of the New York City Court in favor of defendant, dismissing plaintiff’s complaint, he appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Gedilia Nemorofskie, by guardian, against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed conditionally.</p>

Action by the New York House Wrecking Company against Rob•ert M. Jarvis. From a judgment in favor of defendant for costs of $31.99 on a verdict in favor of plaintiff for $38.21, and from an order denying a new trial, plaintiff appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Pauline Wolf against Samuel Mendelsohn. From a judgment for plaintiff, defendant appeals. Modified. .</p>

<p>1. Action for Personal Injury by Married Woman—Extent of Recovery— Evidence—Admissibility.</p> <p>A married woman living with her husband can recover in an action by her for personal injury only for the pain and suffering endured, rendering inadmissible evidence of the value of the medical services rendered to her by reason of the injury.</p> <p>V1. See Husband and Wife, vol. 26, Cent. Dig. § 768.</p>

<p>1. Negotiable Instruments—Statute—Bona Fide Holder after Maturity —Defenses.</p> <p>The Negotiable Instruments Law, § 97 (Laws 1897, p. 732, c. 612), provides that in the hands of any holder other than a holder in due course a negotiable instrument is subject to the same defenses as if it were nonnegotiable, but that the holder who derives his title from a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter. Held, that where a note was indorsed by the payee to another and by three successive holders before it was acquired by plaintiff, and the indorser to plaintiff was a bona fide holder of the note, and transferred it for value, after maturity, to the plaintiff, defenses available as between the original parties were not available against plaintiff.</p> <p>f 1. See Bills and Notes, vol. 7, Cent. Dig. § 939.</p>

Action by Hugo Lachenbruch against Lewis Cushman and another. From an order of the City Court granting a motion for a bill of particulars, defendants appeal. Modified.

<p>Appeal from City Court of New York, Special' Term.</p> <p>Action by. the Fidelity & Casualty Company of New York against the Wendell & Evans Company. From an order granting insufficient relief, plaintiff appeals. Affirmed. ' .</p>

<p>1. Buildings—Construction—Statutory Regulations.</p> <p>Laws 1897, c. 415, § 20, as amended by Laws 1899, p. 351, c. 192, provides that all contractors and owners, when constructing buildings in cities, the plans and specifications for which require the floors to be arched between the beams thereof, or where the floors, or filling in between the floors, are of fireproof material or brickwork, shall complete the flooring or filling in as the building!. progresses, to not less than within three tiers of beams below that on which the ironwork is being erected, and, if the plans and specifications do not require the filling to be of fireproof material, all contractors for carpenter work shall lay the underflooring of each story as the building progresses to not less than two stories below the one to which the building has been erected. Held, that the division of buildings as to which the act was applicable depended not on whether the beams were iron or wooden, but whether the filling between the beams'was to be of fireproof material.</p> <p>2. Same—Injuries—Statutes—Failure to Comply—Negligence.</p> <p>Where plaintiff’s injury was the proximate result of defendant’s failure to comply with Laws 1897, c. 415, § 20, as amended by Laws 1899, p. 351, c. 192, requiring building contractors to complete the flooring or filling as the building progresses within three tiers of beams below that on which the ironwork is being erected, when the filling between the. floors is to be of fireproof material, defendant was liable for such injury.</p> <p>Í 2. See Master and Servant, vol. 34, Cent. Dig. § 177.</p>

<p>1. Obder of Arrest—Motion to Vacate—Appeal.</p> <p>Where defendant did not appeal from an order denying his motion to vacate an order of arrest, whether the affidavit on which the order was founded was sufficient could not be reviewed on appeal from the judgment.</p> <p>2. Conversion—Delivery- of Property for Sale.</p> <p>Where plaintiff delivered property to defendant, to be sold by him, plaintiff reserving the title until the property was sold, and, in an action against defendant for conversion, he did not allege as a defense that he had sold the property unaccounted for, it would be presumed that he did not sell it, but concealed it with a view to appropriating it to his own use.</p> <p>3. Same—Refusal to Deliver—Demand.</p> <p>Where plaintiff delivered property to defendant for sale, reserving title to the same until-sold, defendant’s refusal to redeliver to plaintiff the goods unsold, on demand, amounted to conversion.</p> <p>4. Evidence—Presumptions—Failure of Defendant to Testify.</p> <p>Where, in an action for conversion, defendant was sworn, but did not testify, all presumptions must be taken most strongly against him.</p>

<p>1. Agents—Real Estate Brokers—Compensation.</p> <p>Where an owner of real estate employed a firm of brokers to sell his property at auction, and the brokers advertised the property and did everything necessary to prepare for the sale, they were entitled to recover from the owner the reasonable value of their services, although they did not sell the property owing to its sale, the day before the auction, by the owner.</p>

<p>1. Evidence—Records of Court—Identification.</p> <p>It was error to receive in evidence, over objection, records of the court, with no other proof of identification than the word of counsel that they were the originals.</p> <p>2. Same—Appeal—Practice—Abandonment of Appeal.</p> <p>Where an order extended the time for serving a case on appeal on certain conditions, the trial court had authority under the general rules of practice, on a showing that the condition had not been complied with, to make an order that the appeal be declared abandoned.</p> <p>3. Same—Dismissal of Appeal.</p> <p>Where a motion to dismiss an appeal, on the ground that the terms imposed on the granting of an extension of time to serve the case on appeal had not been complied with, was denied on condition that appellant pay costs, etc., appellant having done so and had his case heard, his appeal from the order on the motion should be dismissed.</p> <p>jf 1. See Evidence, vol. -20, Cent. Dig. § 1522%.</p>

<p>1. Agency—Authority—Proof—Declaration of Agent.</p> <p>The authority of an alleged agent to accept payment for goods sold on behalf of his employer cannot be proved by the mere declarations of such agent.</p> <p>U1. See Principal and Agent, vol. 40, Cent. Dig. § 416.</p>

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

<p>1. Negligence—Defective Peemises—'Variance.</p> <p>Where plaintiff alleged that at the time he was struck by a falling brick he was in front of the premises in question, and the negligence alleged was defendant’s failure to guard the premises so as to avoid injury to plaintiff and others lawfully in front of the premises, plaintiff’s proof that, as one of the shorers in the employ of a contractor, he was at work in the rear of the building, and that at the time he was struck he was in the cellar in the center of the building, constituted a fatal variance.</p> <p>2. Same—Right to Amend.</p> <p>Where evidence constituting a fatal variance was seasonably objected to, the denial of plaintiff’s motion to amend the complaint was not error.</p> <p>3. Complaint—Dismissal.</p> <p>Where there is a fatal variance between the complaint and evidence offered and objected to, and plaintiff declines the court’s offer of leave to withdraw a juror, the complaint is properly dismissed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Five separate actions by Mary M. Austen against the Columbia Lubricants Company. From judgments for plaintiff in each, defendant appeals. Dismissed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Newman Leavy against the Manhattan Delivery Company. From a judgment of the City Court for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Adolph Michelson against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>1. Interest—Usury—Loans of Credit—Questions of Fact.</p> <p>Whether a transaction was a sale or loan of personal credit, or simply a cloak to cover a usurious loan, is a question of fact.</p> <p>2. Judgment—What Constitutes—Memoranda.</p> <p>A memorandum filed by a trial judge, stating the grounds of his decision, is no part of the judgment</p>

<p>1. Attorney and Client—Compensation.</p> <p>Defendant agreed to pay an attorney one-half of the amount the latter might save from a claim made against defendant. After a court decision in a similar case, the claimant, substantially acceded to the attorney’s contention, and the claim was settled at a reduction. Held, that the attorney was entitled to recover the agreed compensation.</p> <p>2. Same—Settlement without Suit.-</p> <p>An attorney obtaining a favorable settlement of a controversy without suit is entitled to recover his fees therefor.</p>

Action by Catherine D’Anglemont against Charles Fischer and William Oldenburg. From an order denying a motion to preclude defendants from giving evidence under separate defenses interposed by them, as to which they had been ordered to give a bill of particulars, but had failed to comply with the terms of the order, plaintiff appeals. Reversed in part.

<p>1. Checks—Negotiations—Indorsement—Prima Facie Case.</p> <p>Where plaintiff purchased defendant’s check from S., to whom it was made payable, and S. was known to plaintiff to be the person whose name was indorsed on the check, proof of such facts prima facie established a valid indorsement.</p> <p>2. Same—Bona Fide Purchases—Knowledge of Defects.</p> <p>S. exchanged checks with defendant, receiving a check from defendant payable to S.’s order, which he indorsed and took it to R., who indorsed it and procured it to be cashed by the H. Bank. Defendant, ascertaining that the check given him by S. would- not be paid, stopped payment on the check given to S.; but he, through R., had already obtained the money on defendant’s check from the bank. The bank’s clerk thereafter demanded and received the money from R., who returned the check to S. after striking out R.’s indorsement thereon. S. thereupon delivered the check to plaintiff, to whom he was known, in payment of a smaller debt, and a part of the balance in cash, the remainder of which plaintiff agreed to pay to S. the succeeding day, on cashing the check; S. having informed plaintiff that defendant was indebted to him, that the check was in part payment, and that R. had indorsed the check in order to get it cashed to accommodate S., but, not being able to do so, had erased his indorsement Reid, that plaintiff was the holder of the check in due course, and having no actual knowledge of any infirmity or defect therein, or knowledge of such facts, his action in taking the check did not amount to bad faith, within Negotiable Instrument Law, § 95, and he was entitled to recover the amount he had advanced to S. thereon from defendant.</p>

<p>1. Contracts—Construction—Interest of Mortgagee.</p> <p>An agreement that “whatever interest” a first mortgagee has in property to be sold .at a foreclosure sale under a second mortgage shall be transferred to the proceeds, “and that such interest, stated by” plaintiff to be $712.40, shall be first paid by the auctioneer from the proceeds, does not authorize the first mortgagee to recover more than his interest as shown by the amount due on his mortgage.</p> <p>2. Question for Jury—Conflicting Evidence.</p> <p>Where the evidence on an issue is conflicting, the issue must be submitted to the jury.</p>

<p>Appeal from City Court, Trial Term.</p> <p>Action by Isaac Blumberg against Marcus Marks. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Corporation—Action by Nonresident-Jurisdiction—Injunction.</p> <p>Under Code Civ. Proc. § 1780, specifying the cases in which a nonresident may maintain an action against a foreign corporation, courts have no jurisdiction of such an action' brought to restrain the defendant from receiving or recognizing as valid any vote by a third person till the ownership of the stock has been vested in the plaintiff and third party jointly, and then only as they may mutually agree to the vote.</p> <p>2. Same—Title to Stock—Injunction Pending Litigation.</p> <p>Where stock in a foreign corporation, whose directors and stockholders hold all their meetings in the state, stands in the name of the defendant as trustee of the plaintiff, and the plaintiff claims title to the stock jointly with defendant, during the litigation of this claim the plaintiff is entitled to an injunction restraining defendant from voting or transferring, the stock.</p>

<p>Submitted controversy by the Western New York Institution for Deaf-Mutes against the county of Yates. Judgment for plaintiff.</p>

<p>1. Citizens—Civil Rights—Violation—Proof.</p> <p>A negro born in Africa is not entitled to recover a penalty under Laws 1895, c. 1042 (Laws 1895, p. 974), entitled “An act to protect all citizens in their civil and legal rights,” for a saloon keeper’s refusal to serve him with a glass of beer in a saloon because of his race and color, without proof 'that he was a citizen, either native or naturalized.</p>

<p>1. Street Railroads—Contributory Negligence.</p> <p>Where a driver, knowing that a car was coming, heedlessly drove in front of it without taking any pains to avoid a collision, he was guilty of contributory negligence. 0</p> <p>IT 1. See Street Railroads, vol. 44, Cent. Dig. § 214.</p>

<p>1. Brokers—Sale of Real Estate—Written Authority—Commissions.</p> <p>A real estate broker is not entitled to recover commissions for procuring customers for the purchase of real estate for defendant,, in the absence of proof of written authority from the owner to offer the property for sale.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Audit Company of New York against James McNaught and others. From a judgment for defendants, and from an order denying a motion to open a default, plaintiff appeals. Judgment affirmed.</p>

Action by Albert A. Manda against Emilius Etienne. From a judgment in favor of defendant, and from orders denying the motions of the respective parties for a new trial, both parties appeal. Reversed.

<p>1. Usury—Loan—Evidence.</p> <p>Plaintiff, a surviving partner, sued to reform a deed. There was evidence that defendant had written to one of the partners, since deceased, that he could place a certain sum in real estate that would net 8 per cent, for two years; that such partner forwarded that amount of the firm money; and that defendant conveyed to such partner his own property, with a proviso for reconveyance on repayment, with the promise that the grantee should assume certain mortgages on the property, and that the grantor would guaranty to the grantee 8 per cent, net on his investment in such property. Held insufficient to show a loan to the grantor, but rather an investment, so that usury would be no defense to the action.</p> <p>2. Deed—Option to Repurchase.</p> <p>Where a deed provides for a repurchase of the property within two years, the option to repurchase survives after such time where the grantee receives remittances on the investment, though at a lower per cent, than that provided-for in the deed.</p> <p>8. Same—Exercise of Option.</p> <p>Where a grantor in a deed with an option for repayment and reconveyance finally refuses to make further payments, claiming that his advances to the grantee have exceeded the consideration of the deed, he must at once surrender and deed the property or exercise his option to purchase.</p> <p>4. Witness—Transactions with Decedent.</p> <p>A grantor in a deed to a partner, since deceased, cannot testify, under Code Civ. Proc. § 829, to personal transactions by him with such decedent In regard to an investment and advances in connection with the firm business, where the plaintiff was the surviving partner of the decedent and the purchaser of his interest in the firm.</p>

<p>1. Attorney and Client—Investments by Attorney—Negligence.</p> <p>In an action by a client against an attorney for damages because of the-negligent investment of her funds by defendant, evidence considered, and held insufficient to support a finding that a written agreement for the-loan purporting to be executed by plaintiff was forged by the defendant.</p>

<p>1. Injunction—Right to Relief—Cessation of Interest.</p> <p>Where, at the time of trial, a plaintiff, whose right to injunctive relief at the time of filing the complaint depended on a special hack stand license and maintenance of a hack stand, no longer had such a license and no longer maintained such a stand, the dismissal of the complaint as to. him was proper.</p> <p>2. Same—Costs.</p> <p>Where one maintaining a private hack stand under a special license brought suit to enjoin the usage of the space as a public hack stand, but before the time of trial had ceased to maintain such a stand, his license having expired, costs should not have been awarded against him on the dismissal of his complaint.</p> <p>3. Same—Interference with Street—Use as Hack Stand.</p> <p>A hotel company is entitled to an injunction to restrain the use of the-street in front of its hotel as a public hack stand, where the street is not a part of such a stand.</p>

<p>1. Corporations—Sale of Stock—Misrepresentation by Officer—Liability , —Statute—Joinder of Actions.</p> <p>An action against an officer of a corporation under the Stock Corporation Law, Laws 1892, p. 1833, c. 688, § 31, providing that, if any annual report of a corporation shall be false in any material representation, the officers signing the same shall be personally liable to any person who has become a stockholder on the faith of such report to the amount of the damage sustained by such stockholder, and a common-law action against the same officer for the same damage on substantially the same facts, but supplemented by further allegations of the misrepresentations, and stating the knowledge of the defendant, are properly joined.</p>

Action by Eugene Carley against Robert Gair. From a judgment in favor of defendant dismissing the complaint at the close of plaintiff’s case, he appeals. Affirmed.-

Certiorari by the people, on the relation of the Farmers’ Loan & Trust Company and others, as executors of the will of Eugene A. Hoffman, deceased, against Wells and others, tax commissioners, to review the assessment of the estate for taxation. Writ quashed

' Appeal from Special Term, Queens County. Action by Rosetta Corn against Julia Levy and another, as executrix and executor, respectively, of the will of Philip Levy, deceased. Fyom an interlocutory judgment sustaining plaintiff’s demurrer to the second separate defense in defendants’ amended answer, defendants appeal. Reversed.

Appeal frcm Surrogate’s Court, Westchester County. Proceedings by Fanny W. Plopldns for the probate of the will of Robert E. Hopkins, deceased. From an order of the surrogate’s court denying a motion to vacate an order entered on a remittitur from the Court of Appeals and orders appointing temporary administrators (83 N. Y. Supp. 890), proponent appeals. Affirmed.

<p>1. Contracts—Personal Services—Evidence—Sufficiency.</p> <p>In an action on a contract for services consisting of the furnishing of a number of trucks and day laborers, plaintiffs’ bill of particulars was introduced in evidence by stipulation, and, though one of plaintiffs testified that he did not personally know that the trucks and laborers remained each day in the service of the defendant after they were furnished, because he was only at work from a half an hour to an hour and a half daily, it appeared that a bill was rendered to defendant which was an exact copy of the bill of particulars, and that the defendant made no objection to it, but promised to pay it if time were allowed him. Held, to make a prima facie case for plaintiffs.</p>

<p>Action by Abraham Schwartzman against Joshua L. Post and others. Judgment for defendants. 84 N. Y. Supp. 922. Plaintiff appeals. Affirmed.</p>

Action by Olive A. Sternaman - against the Metropolitan Life Insurance Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

<p>Appeal from Special Term, Genesee County.</p> <p>Action by Selina A. Doty and another against John Dellinger and others. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.</p>

Action by Justus Hoerle and Christina Hoerle against Wilhelmina D. Hoerle and others. From an interlocutory judgment affirming a referee’s report in partition, defendants appeal. Affirmed.

Action by Gottlieb Grieb against the city of Syracuse. From a judgment and order of the county court affirming a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed.

<p>Action by Marian Armstrong against Webster P. Moore and others.</p>

<p>Action by Jennie A. Blount against the Syracuse Rapid Transit Railway Company.</p>

<p>Action by Charles B. Barker against Eva M. Barker.</p>

<p>Action by Fred.</p> <p>Boardman, an infant, against Edward M. Moody.</p>

<p>Action by Joseph Breslar, as administrator of the goods, chattels, and credits of Felix Dajrowski, against the New York Central & Hudson River Railroad Company.</p>

<p>In the matter of the application of the Brooklyn Bar Association to punish Benjamin E. Valentine, an attorney.</p>

<p>Action by Ellen Burns against, the city of Buffalo.</p>

<p>Action by the City Trust, Safe Deposit & Surety Company against the American Brewing Company.</p>

Action by Joseph Donnelly against the Interurban Street Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Action by the Electric Vehicle Company against the Weston-Mott Company.</p>

<p>Action by Margaret Doyle against the W. L. Douglas Shoe Company.</p>

<p>Action by the Fidelity Trust Company, 'as committee, etc., against Charles D. Marshall, as executor, etc., and Charles D. Marshall, as administrator, etc.</p>

Action by Abraham Greenspan against David Joffe. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Action by Laura A. Haack against the Brooklyn Labor Lyceum Association, Joseph Heliig, and the city of New York.</p>

Action by Alfred H. Hoadley against James Leopold and another. From an interlocutory order restraining defendants pendente lite from selling certain stocks, they appeal. Affirmed.

<p>Action by Helen Huber and others against Franklin B. Case, Jr., and others.</p>

<p>Action by F. Seward Hurd against George M. Taylor.</p>

<p>Action by the Jennie Clarkson Home for Children against the Union Pacific Railroad Company and another. From a judgment for plaintiff (S3 N. Y. Supp. 913), defendants appeal. Affirmed. Austen O. Fox, for appellant Gibson. Pierce & Greer, for appellant Union Paci Ry. Co. Henry W. Saekett, for respondent.</p>

<p>Action by James L. Kent, as administrator of the goods, chattels, and credits of John E. Kent, deceased, against the New York, New Haven & Hartford Railroad Company.</p>

Action by the Jennie Clarkson Home for Children against the Missouri, Kansas & Texas Railway Company and another. From a judgment for plaintiff (83 N. Y. Supp. 913), defendants appeal. Affirmed. Ward, Hayden & Satterlee, for appellant Missouri, K. & T. Ry. Go. William R. Bronlc, for appellant Gibson. Sackett & McQuaid, for respondent.

<p>Actions by Athalia Jones and by George E. Jones against the Brooklyn Heights Railroad Company.</p>

<p>Action by Yosaku Kudara against Otora Iriye Kudara.</p>

<p>Action by George E. McConnell against the Trade Paper Advertising Agency. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Action by Frank L. Magar against Stoddard Hammond and Edward Tompkins.</p>

<p>Action by Mark C. Meagher against Oliver Lyman Tunis and Julia B. Tunis.</p>

Certiorari, on the relation of Donald Grant, to review the determination of Francis V. Greene, as police commissioner, dismissing relator from the police force. Writ sustained.

<p>Proceeding by the people of the state of New York, on the relation of Gamaliel T. Conine, against the county of Steuben and others.</p>

<p>Proceeding by the people of the state of New York, on the relation of Robert LeSerts, against George B. McClellan and others, composing the board of estimate and apportionment of the city of New York.</p>

<p>Proceeding by the people of the state of New York, on the relation of Elizabeth S. Lord, against Thomas L. Feitner.</p>

<p>Action by Stanley E. Plewes against the Philadelphia Casualty Company.</p>

<p>In the matter of the application of the Prudential Insurance Company of America for a writ of mandamus against Hon. William J. Gaynor, one of the Justices of the Supreme Court, to compel him to settle and-sign a case on appeal, etc.</p>

<p>Action by Frank J. Saxton against James O. Sebring and others.</p>

<p>Action by Charles Siler against the Bath & Hammondsport Railroad Company.</p>

<p>Action by Ernelie R. Seidenspinner against the Metropolitan Life Insurance Company.</p>

<p>Action by John H. Shaper against Mary E. C. Davis.</p>

<p>Action by Joseph Straub against the Metropolitan Street Railway Company.</p>

<p>Action by Ignatz Steinman against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>