Volume 88 — New York Supplement

Certiorari by the people, on the relation of the Rochester Telephone Company, against George E. Priest and others, as State Tax Commissioners. From an order granting a motion to make the city of Rochester a party defendant, relator appeals. Reversed. The relator is a telephone corporation operating a telephone system in the city of Rochester.

<p>Appeal from Special Term.</p> <p>Action by Delia Wells, as administratrix of George Wells, deceased, against the town of Chazy. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>1. Corporations—Stock—Issuance—Rights of Holders—Injunction.</p> <p>An agreement for tlie merger of certain mining companies into plaintiff company provided that to defendant, who held “as trustee” a majority of the stock of a merged company, should be issued “as trustee” a corresponding amount of plaintiff’s stock. Thereafter defendant, by virtue of his controlling interest, caused a board of directors of plaintiff, named by him, to be elected, who elected defendant treasurer of plaintiff, whereupon he issued to himself as an individual 130,000 shares of its stock. Thereafter one of the companies merged authorized the issuance of notes to be offered, with a bonus of 500 shares each of its stock, which notes defendant was authorized to negotiate. He acquired some of these notes, entitling him to 8,000 shares of the company’s stock, which he exchanged for stock in plaintiff company. Plaintiff charged that these shares were issued irregularly and without consideration, and defendant, in his affidavits opposing an injunction before answer, merely stated that he had taken up the notes for the 8,000 shares for value, and that he received the 130,000 shares from one of the merged companies under a resolution granting the same to him in consideration of $25,000, which he • was informed by his bookkeeper he had advanced to the company. It appeared, however, that such advancement was to be treated as a debt of the merged company, to be repaid from money received from the sale of shares, and it did not appear that any board of directors of plaintiff authorized.the exchange, or that there was a proper authorization and issue of the stock. Held, that an injunction restraining defendant from voting or selling such stock was justified.</p>

<p>Appeal from Municipal Court, Borough , of Manhattan, Thirteenth District.</p> <p>Action by David M. Oltarsh against Israel Lewis and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.</p>

Action by the Fleischmann Realty & Construction Company against David Morison. From an order'setting aside a verdict for defendant and granting a new trial, defendant appeals.. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Benjamin Schoor against Emanuel Doctor. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Abraham Levy against Magnus Ash. From a judgment for defendant on his counterclaim, plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by James R. Flomerfelt' against J. J. Dillon. From a judgment dismissing the complaint, plaintiff appeals. Reversed.</p>

Summary proceedings by William Bantjo, as trustee, etc., landlord, against George W. Clark, tenant. From a final order for the landlord, the tenant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Charles J. Coyle against the Interurban Street Railway Company. From the judgment the parties prosecute cross-appeals. Affirmed.</p>

<p>1. Trial—Motion to Dismiss—Failure to Move—Effect.</p> <p>Failure of a defendant to move to dismiss tlie complaint, or for judgment at the close of the case, constitutes an admission that the case was properly left to the court for decision.</p> <p>2. Automobiles—Accidents—Imputed Negligence.</p> <p>Where there was evidence that defendants’ employé, on the occasion of an accident with an automobile, had been directed by defendants to accompany the operator of the machine for the purpose uf instructing and assisting him in its operation, and that the machine was under defendants’ control at the time, the negligence of the operator was imputable to defendants.</p>

<p>1. Champerty—Contingent Fee—Payment oe Court Costs.</p> <p>Under Code Civ. Proc. § 74, providing that an attorney shall not promise or give a valuable consideration to any person as an inducement to placing in his hands a demand of any kind for the purpose of Bringing an action thereon, an agreement by an attorney for a contingent fee of, 50 per cent, of the recovery, the attorney to advance all the court costs, is champertous and unenforceable.</p> <p>If 1. See Champerty and Maintenance, vol. 9, Cent. Dig. § 26.</p>

<p>1. Judgments—Conclusiveness—Similarity oe Issues.</p> <p>Where, in an action for the price of goods, the only question litigated was whether the goods were of the kind and quality ordered, which issue was resolved in favor of the sellers, the acceptance of a return of the goods being in no way involved, a judgment therein was not conclusive of a subsequent action by the buyers for the wrongful detention of the goods.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Morris Suffer and. others against Julius Levy. From a judgment for plaintiffs, defendant appeals. Reversed.</p>

<p>1. Process—Appearance—Jurisdiction.</p> <p>Where a summons was issued against “the estate of J.,” not showing whether J. was dead or alive, the appearance for “the defendant” of an attorney who expressly repudiated any appearance for the trustee of J. could not confer jurisdiction to substitute the trustee as defendant or render judgment against him.</p> <p>2. Same.</p> <p>Where a summons issued simply against the “estate of J.,” the testimony of a witness that he was a trustee of J. and was there to defend the action was not a voluntary appearance as a defendant, either in an individual or representative capacity.</p> <p>3. Estates of Decedents—Action—Evidence.</p> <p>Evidence was insufficient to support a judgment against a trustee under the will of J., where it failed to show that J. was dead, or, if dead, that ' he left a will, or the appointment of a trustee under the will.</p>

<p>1. Brokers—Commissions—Evidence.</p> <p>In an action by a broker to recover a balance alleged to be due for commissions in securing a building contract for defendants, evidence held insufficient to support a finding that the agreed compensation was $650, instead of $150, as contended by defendants.</p>

Action by Robert Abrahams against Louis Koch. From a Municipal Court judgment in favor of plaintiff, and from an order amending the judgment, defendant appeals. Reversed.

<p>1. Street Railroads—Persons in Street—Injuries—Imputed Negligence.</p> <p>In an action for injuries to the helper of the driver of a wagon, caused by a collision with a street car, the helper being in the rear of the wagon at the time of the accident, the negligence of the driver, if any, was not imputable to him.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by the Armstrong Manufacturing Company against Joseph Thompson and James Moran. From an order denying a new trial on the ground of newly discovered evidence, defendants appeal. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Mary J. Shaw against Patrick B. O’Meara. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>1. Payment by Postdated Check—Rettjbn oe Check—Eeeect.</p> <p>A plea oí payment by a postdated check which has been returned Is unavailable.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Bridget Rarkins against Edward T. McGinley, as executor, etc. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Max Kobro against Elias Schlomowitz. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Principal and Agent—Existence op Relation—Evidence—Sufficiency.</p> <p>In an action for labor performed and materials furnished in the construction of a building, evidence held insufficient to show that the one with whom plaintiff contracted as principal was in fact merely the agent of defendant.</p>

<p>1. Trial—Instructions—Evidence.</p> <p>Where, in a suit for personal injuries, the court instructed that plaintiff was entitled to recover compensation for the loss of earnings, but there was no proof in the record as to what were the loss of earnings, a judgment in his favor cannot be permitted to stand.</p>

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

Action by Gustave Weinberg and others against Bernard H. Novick. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Reversed.

<p>1. Bbeach of Contract—Damages—Evidence.</p> <p>In an action for breach of a contract by which plaintiff agreed to sell certain premises to defendant, defendant having, before the day for delivery of the deed, bought of the owners, thus preventing plaintiff from buying of them, plaintiff must, to prove damages, show the price at which he could have bought of the owners; the difference between that and what defendant agreed to pay being the measure of damages.</p>

Action by John M. Goetschius and another, as trustee, etc., against Morris Shapiro and others. From a judgment for plaintiff, defendants appeal. Affirmed on condition.

<p>1. Witness—Credibility—Cross-Examination.</p> <p>To test credibility a witness may on cross-examination be asked whether he has ever been an inmate of an insane asylum.</p>

Appeal ■ from Municipal Court, Borough of Manhattan, First District. Summary proceedings by Belding Bros. & Co. against Nathan V. Blum to dispossess for nonpayment of rent. From an adverse final order, the landlords appeal. Reversed.

<p>1. Master and Servant—Assumption of Risk—Simple Appliance—Promise to Remedy Defect—Servant’s Continuance in Employment.</p> <p>A servant, whose duty it was to wheel coal in a wagon, complained that one of 'the axle pins was coming out, and threatened to leave his employment if it were not repaired, whereupon the master told him to go on with his work, that the wagon would he repaired, and that he, the master, would be responsible for any accident to the servant. There was nothing complicated in the structure of the wagon, and the wheels and everything connected therewith were in plain sight. Held, that the servant, by thereafter remaining in the master’s employment and using the wagon, assumed the risk of any injury from the defect complained of.</p> <p>2. Same—Negligence—Evidence—Sufficiency.</p> <p>In an action by a servant for injuries, evidence held insufficient to show that, he was injured owing to a wagon breaking down while he was pushing it, and falling on his foot.</p>

<p>1. Trial—Verdict—Vacation—Grounds—Specification .</p> <p>Under the express terms of General Rule of Practice No. 31, an order of the court setting aside a verdict on a motion based on the grounds set forth in Code Civ. Proc. § 999, should specify the grounds on which the motion was made and the ground or grounds on which it was granted.</p> <p>2. Same—Costs.</p> <p>Where a verdict is set aside on the ground that it is contrary to the weight of evidence, it must be conditioned on the payment of costs of the trial, and disbursements.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p>

Application by the people, on the relation of Marvin A. Thomson, for peremptory writ of mandamus to compel William M. Hinsdale, clerk of the city of Fulton,' to file plaintiff’s acceptance and oath of office as mayor of the city of Fulton, and to issue to him a certificate, of election. Application denied.

<p>1. Chattel Mortgage—Municipal Court Act—Replevin.</p> <p>Under Municipal Court Act, § 139 (Laws 1902, p. 1533, c. 580), providing that no action shall be maintained in such court, arising on a written contract of conditional sale of personal property, where title is not to vest in the buyer until payment of a certain sum, or where a chattel mortgage is made to secure the purchase price, except an action to foreclose the lien, where a chattel mortgage was given to secure the purchase price of furniture sold to defendant, replevin could not be maintained in the Municipal Court to recover the property after condition broken.</p> <p>2. Same—Inquest—Appeal—Review.</p> <p>An appeal lies from an inquest taken without jurisdiction, and brings up the entire proceedings for review.</p> <p>3. Same—Amendmeni^Nurisdiction.</p> <p>Where replevin was erroneously brought to recover mortgaged chattels in the Municipal. Court, and the defendant appeared generally, the justice had jurisdiction to grant leave to amend the summons in the action so as to change it from replevin to an action to foreclose a lien, as authorized by Code Civ. Proc. § 723, and Municipal Court Act, § 166 (Laws 1902, p. , 1542, c. 580).</p> <p>4. Same—Restoration of Property.</p> <p>Where replevin erroneously brought in a Municipal Court to recover mortgaged chattels was changed by amendment to an action to foreclose a lien thereon, such amendment operated to terminate the replevin action, and entitled the defendant to a restoration of the property taken under the writ, in the absence of an attachment issued against the property as authorized by Municipal Court Act, § 138 (Laws 1902, p. 1532, c. 580).</p> <p>5. Same—Conditions—Compliance.</p> <p>Where replevin was erroneously brought in a Municipal Court to recover mortgaged chattels on breach of condition, and the court permitted an amendment of the summons so as to change the action to one to foreclose a lien, on payment of $10 costs and the immediate and unconditional restoration of.the chattels to the defendant, and plaintiff paid the costs, but failed to restore the chattels, it was proper for the court to dismiss the action.</p> <p>6. Same—Inquest.</p> <p>Where an action was dismissed for failure of plaintiff to comply with one of the conditions imposed on an amendment of the summons, the court had no further jurisdiction to permit an inquest.</p> <p>7. Same—Judgment.</p> <p>Where replevin was erroneously brought in the Municipal Court to recover chattels mortgaged to secure the purchase price on an alleged breach of condition, and, after an attempted amendment of the summons so as to change the action to one to foreclose a lien, an inquest was taken, without an attachment of the property, an order entered directing a sale of the chattels “replevied at the commencement of the action” was erroneous, since the replevied chattels had been taken without jurisdiction.</p>

<p>1. Contracts—Construction—Requirements.</p> <p>Defendant, who was constructing a building, induced plaintiff to put up a sample ceiling on the eighth floor of the building, on an understanding that, if the ceiling should prove satisfactory, plaintiff would be given an order for the balance; plaintiff’s proposal having specified the rate per square foot for putting up metal ceiling, and providing that the “spaces " ceiled are to be measured from wall to wall and an allowance made for that portion of the side walls which is covered by metal cornice.” The proposal was subsequently accepted. In an action for the price of the work, defendant set up a counterclaim on the ground that plaintiff had failed to put up a metal cornice on the eighth floor. It did not appear that, on all the floors except the eighth, metal cornices had been put up, nor was it shown that such cornices were essential or customary, nor did it appear that plaintiff had ever been requested or notified to put a cornice on the eighth floor; and a letter written by defendant previous to plaintiff’s final estimate contained a clause, “where cornice is used extending down to the side walls,” etc. Held, that the parties considered the eighth floor as completed when the estimate was signed, and plaintiff was under no obligation to place a cornice on such floor.</p> <p>2. Building Contract—Breach—Amount of Damages—Evidence.</p> <p>Where, in an action against the owner of a building for the contract price of putting in ceiling work, there was a counterclaim on the ground that plaintiff had failed to put in a cornice as required on one floor of the building, testimony of defendant that about $50 would be the cost of putting in such a cornice, but that it was “pretty hard to figure out,” did not amount to a sufficient basis for an allowance of $50 damages.</p> <p>3. Same—Measure of Damages.</p> <p>Where, in an action for the contract price of putting in ceiling work in a building, there was a counterclaim on the ground that plaintiff had failed to put in a certain cornice, but it nowhere appeared that the premises were any less valuable by reason of the absence of the cornice, the measure of damages on the counterclaim was the difference between the amount which the defendant would have been obliged to pay plaintiff for the cornice, and the fair cost of putting it up under existing conditions.</p>

<p>1. Bills and Notes — Checks — Fraudulent Indorsements — Burden oe Proof.</p> <p>In an aetiqn by a bank to recover against another bank the amount of checks paid by the former to the latter through the clearing house, on the ground that the indorsements on the checks were fraudulent and unauthorized, the burden of establishing the fraudulent and unauthorized character of the indorsements was on plaintiff.</p> <p>2. Same—Evidence—Sufficiency.</p> <p>In an action by a bank to recover from another bank the amount of checks paid by the former to the latter through the clearing house, on the ground that the indorsements on the checks were fraudulent and made in the name of a firm by one who had no authority to sign the same for the firm, a verdict for plaintiff held against the weight of the evidence.</p>

<p>1. Offer of Judgment—Sufficiency—Interest.</p> <p>Where no written offer of judgment is attached to the return, and the summons merely shows an offer of judgment for a certain amount, which did not include interest to which plaintiff was entitled, the offer was insufficient.</p> <p>2. Admissions—Retrial.</p> <p>In an action for a balance alleged to be due for goods sold, a waiver by plaintiff of its claim for an amount which defendant claimed as a rebate was not an admission that such amount was due defendant, so as to preclude plaintiff on a subsequent trial from litigating the question.</p>

Action by Cornelius Fitzgibbons against the Manhattan Railway Company. From an order denying its motion for a new trial on the minutes after judgment for plaintiff, defendant appeals. Affirmed.

<p>1. Rent of Chattel—Lender’s Lien—Foreclosure—Sufficiency of Evidence.</p> <p>Evidence in an action by the lender of a sewing machine to foreclose a lien thereon examined, and held insufficient to sustain a judgment for plaintiff, as against the defense of a purchase of the machine for less than the value recited in the contract, and the payment in full of such purchase price.</p>

Action by Louis Rossin against Morris Petigor. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>1. Carriers of Passengers—Berries—Injuries—Means of Landing.</p> <p>The owners of a ferry were not guilty of negligence in the manner of providing for landing of passengers, where the means used had been employed by such company and by other ferries for years, and never found dangerous or ineffective.</p> <p>2. Same—Complaint—Amendment.</p> <p>In an action for injuries received by a passenger at the landing of a ferry, it was error to permit an amendment alleging, for the first time, insufficient lighting as an act of negligence.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Summary proceedings by Patrick H. Sullivan and another against A. O. Schatzel. From an order in favor of plaintiffs, defendant appeals. Affirmed.</p>

<p>1. Appeal—Findings op Trial Court.</p> <p>The appellate court will be slow to reverse a judgment of the trial court for defendant where the only evidence was the uncorroborated testimony of the plaintiff.</p> <p>2. Street Railroads—Personal Injuries—Evidence.</p> <p>That plaintiff dih not bring his suit against a street railway company for personal injuries which were alleged to be very serious until several weeks after the accident, though one of the attorneys was plaintiff’s nephew, and that the amount demanded was entirely inadequate to the injury alleged, tended to justify a judgment in defendant’s favor based on the uncorroborated testimony of the plaintiff.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Joseph Zerr against the Interurban Street Railway Company. From a City Court judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Anna Winter against the Independent Order Ahawas Israel to recover a benefit to which plaintiff alleged she was entitled, under the defendant’s constitution, on account of the death of her husband. On the trial a motion was made to dismiss the action, predicated on the fact that the deceased during his lifetime had instituted mandamus proceedings to compel a reinstatement on the ground that he had been wrongfully suspended from membership in the defendant; the decision in that case being pleaded as res adjudicata. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.</p>

<p>1. Stbeet Railways—Obossing—Collision with Vehicle.</p> <p>Where the driver of a vehicle driven in a trot, on arriving at the house line of an intersecting street, saw a car rapidly approaching on the further track of said street, hut continued to cross, he was guilty of contributory negligence, and could not recover for injuries from the collision.</p> <p>11. See Street Railroads, vol. 44, Cent. Dig. § 214.</p>

Action by Angelo Amorisiá against Frank Rando and another. From an order granting defendants a new trial, and from a judgment of default in favor of defendants, plaintiff appeals. Judgment affirmed, and appeal from order dismissed.

<p>1. Carriers—Responsibility to Passengers—Unanticipated Assaults.</p> <p>A street railway is not a guarantor of the safety of its passengers under all circumstances, but is required only to exercise requisite care, and' it cannot be held responsible for an assault by one passenger on another, which its servants had no reason to anticipate.</p> <p>H1. See Carriers, vol. 9, Cent. Dig. § 1125.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Meyer R. Reiss against Charles H. Kienle. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>1. Landlord and Tenant—Lease—Holding Over.</p> <p>Where defendant leased an apartment for a particular term, and permitted his stepmother to occupy the premises, defendant paying the rent until after the expiration of the lease, the holding over by the occupant was equivalent to a holding over by defendant, rendering him liable as a tenant for a new term equal to that of the original lease.</p> <p>2. Same—Findings—Conflicting Evidence—Appeal.</p> <p>A finding by the trial judge on a question of fact based on conflicting evidence will not be reversed on appeal.</p>

<p>1. Torts—Personal Injuries—Contributory Negligence.</p> <p>Where plaintiff testified that she did not see a horse and wagon before she started to cross the street, but she was struck so soon after leaving the sidewalk that it was apparent that the horse and wagon must have been in plain sight before she started, she failed to show freedom from contributory negligence.</p> <p>1i 1. See Highways, vol. 25, Cent. Dig. § 464.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Maurice De Brumoff against the Werner Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Municipal Court—Failure of Proof—Dismissal.</p> <p>Under Municipal Court Act, Laws 1902, p. 1561, c. 580, § 248, subd. 4, providing that an action shall be dismissed, with costs, without prejudice to a new action, where the plaintiff does not prove his cause of action, it was error for the court, in an action for negligence, to refuse to permit plaintiff to discontinue on his failure to prove defendant’s negligence, and to order a dismissal of the complaint.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Henry Kupfer against Waldemar Holtzmann. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Sales—Breach oe Warranty—Measure oe Damages.</p> <p>In an action for breach of warranty on the sale of a horse, the measure of damages is the difference in value of the horse at the time of the sale, if it had corresponded with the warranty, and its value with the defect complained of.</p> <p>1f 1. See Sales, vol. 43, Cent. Dig. § 1285.</p>

<p>1. Landlord and Tenant—Action for Rent—Question for Jury—Constructive Eviction.</p> <p>Where, in an action for rent, defendant claimed constructive eviction by the giving of singing lessons by the tenant- of an adjoining apartment, and there was testimony on both sides as to the extent and character of the noises, the question as to whether they constituted an eviction was for the jury.</p>

<p>1. Contract's—Execution—Evidence.</p> <p>Where it appeared that a contract was sent to defendant at its place of business with a request for defendant’s signature, and that it came back by mail signed by defendant’s usual signature, its execution of the contract was shown.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>• Action by John Romero against Edward McKernan and the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, defendant railroad appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, .Fifth District.</p> <p>Action by Isaac Kupferberg and others against the Central Crosstown Railroad Company. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Affirmed.</p>

<p>1. Trial—Instructions—Failure to Submit Issue.</p> <p>Though plaintiff was entitled to go to the jury on a certain question, failure to submit it will not be deemed error, in the absence of a request.</p> <p>V 1. See Trial, vol. 46, Cent. Dig. § 837.</p>

<p>1. Trial—Directing Verdict.</p> <p>Though the evidence would have justified setting aside a verdict for plaintiff, had one been rendered, as being against the weight of evidence, there being some contradictory evidence, it was error to direct a verdict for defendant</p> <p>V1. See Trial, vol. 46, Cent. Dig. § 383.</p>

Action by Laura M. Lindsey against the Maine Steamship Company. From a judgment for plaintiff for less than her demand, she appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Theodore Whitmore against Sylvia Werner. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Calvin W. Stewart, Jr., against the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Modified.</p>

<p>Appeal from City Court of New York, Trial Term.-</p> <p>Action by Jacob Falkenberg against Francis O’Neill. From a judgment in favor of defendant, plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Lozier Motor Company of New York against Neil W. Macintosh and another. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough' of Manhattan, Eleventh District.</p> <p>Action by Herman Kertscher and others against John A. Piclcen. From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

<p>1. Contracts—Parties—Meeting of Minds.</p> <p>Where plaintiff, who was unable to read, signed a contract without knowing what he was signing, he was not liable on the contract.</p> <p>2. Same—Parol Evidence.</p> <p>Where plaintiff did not know what he was signing when he executed the contract in controversy, parol evidence was admissible to show what the real agreement was.</p> <p>1f 1. See Contracts, vol. 11, Cent. Dig. § 417.</p>

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

Action by Margaret McCarthy against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed. An action was brought by plaintiff against the defendant to recover damages for injuries sustained by her on July 8, 1902, while she was leaving a car operated by the defendant on Second avenue at Twenty-Third street, Manhattan borough.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. °</p> <p>Action by Orasio La Cagnina against John Kelly. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Chester Gaslight Company against Charles J. Baker. Judgment for defendant, and plaintiff appeals. Reversed.</p>

<p>Appeal from Municipal Court.</p> <p>Action by the Isaac Goldman Company against Robert R. Wilkes and James P. O’Brien. From a judgment in favor of plaintiff against defendant O’Brien, and dismissing the complaint in favor of defendant Wilkes, plaintiff appeals. Reversed as to defendant Wilkes.</p>

<p>1. Agency— Commissions—Advancements—Complaint—Sufficiency.</p> <p>A complaint stating that, pursuant to a contract by plaintiffs to advance defendant $15 a week on account of commissions to be earned by him, and a further sum for traveling expenses, plaintiffs had made advancements exceeding the commissions earned, by a certain sum, but not showing how much was advanced on account of commissions, and how much for traveling expenses, does not state a cause of action.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Henry J. Heinz and others against the Union Railway Compány of New York City. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Samuel Sugarman against Braggio Mandolla and another. From a for defendants Reversed.</p>

Action by Guisseppe De Grazia against Thomas Rudden. From'a City Court judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals. Reversed.

Action by Catherine Zvonik against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Guisseppe Zinna against the Saveria Friscia Society. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by Anna M. Grannemann and another, infants, by guardian, against Louise H. Grannemann, individually and as special guardian, and others. From a judgment for plaintiffs, defendant Louise H. Grannemann appeals. Modified.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Anna R. Walker against Margaret E. McCormick. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>1. Contracts—Manufacture of Goods—Breach.</p> <p>The fact that plaintiffs returned unfinished a portion of the garments sent to them by defendants to be manufactured did not constitute a breach of contract by plaintiffs, where they had not agreed to make any certain number of garments, and it did not cost defendants any more to manufacture the garments returned by plaintiffs than the price agreed to be paid plaintiffs for making similar garments.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Durand Woodman against Cassius M. Wicker. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Action by Alfred O. Dunk against Eliza Dunk, executrix of Alfred Dunk, deceased. From a judgment for defendant on report of a referee, plaintiff appeals. Reversed. This action arises under the reference of a disputed claim made by the plaintiff against the estate of the defendant’s testate. Judgment has been entered on the report of the refereé dismissing the claim, with costs, and plaintiff appeals.

<p>Appeal from Trial Term, Nassau County.</p> <p>Action by Thomas Finucan against Thomas T. Ramsden and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.</p>

Action by Margaret Smith against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>1. Corporations—Subscription for Benefit—Title to Monet Collected.</p> <p>Where several persons formed themselves into a committee, and published a paper with the announcement that proceeds from the sales of the paper, etc., would be turned over to a corporation formed for a charitable purpose, title to the moneys realized by the committee did not pass to the corporation.</p> <p>2. Same—Donations.</p> <p>One is not bound by his subscription or promise to give, to a charitable or public enterprise after the enterprise has been abandoned.</p> <p>3. Same—Action against Committee—Monet Obtained bt False Pretenses.</p> <p>Where a number of persons formed themselves into a committee, and collected money, which they announced would be turned over to a certain corporation formed for a charitable purpose, in an action by the corporation against the committee to recover the money, a contention that the funds had been obtained by false pretenses, was of no avail to plaintiff.</p> <p>4. Action against Committee—Parties.</p> <p>Where a number of persons formed themselves into a committee, and obtained moneys, which they announced would be turned over to a certain corporation, but the treasurer of the committee retained the moneys, in an action by the corporation against the treasurer all the members of the committee should be made parties.</p> <p>Chase, J., dissenting.</p> <p>If 2. See Subscriptions, vol. 45, Cent. Dig. § 22.</p>

<p>1. Decedents’ Estates—Obeditobs—Agreement to Pay by Will.</p> <p>Where services are rendered under an understanding that they shall be paid for by bequest or devise, 'and the one served dies without making such provision, the other is a creditor of the estate merely for the value of the services.</p> <p>2. Conflicting Instructions—Prejudicial Error.</p> <p>Though the principal charge instructed correctly that the measure of damages was the value of the services rendered, a subsequent instruction that, if deceased promised to devise a house in payment of the service, plaintiff might recover an amount equal to the value of the house, is prejudicial, the proof not being full as to the character and extent of the services.</p> <p>f 1. See Executors and Administrators, vol. 22, Cent. Dig. § 737.</p>

<p>Appeal from Judgment on Report of Referee.</p> <p>Action by Sydney Wolfsohn against John Haven. From a judgment in favor of plaintiff on a referee’s report, defendant appeals. Reversed.</p>

<p>1. Nuisance—Fireworks Exhibition—Injury to Spectator.</p> <p>A person injured by a skyrocket while standing in a highway looking at a fireworks exhibition given by authority of and under contract with a city cannot recover from the person discharging the fireworks, irrespective of negligence, on the ground that defendant was guilty of a nuisance.</p> <p>2. Same—Res Ipsa Loquitur.</p> <p>Where plaintiff, while standing in a crowd watching a fireworks ex hibition, was struck by the falling stick of a rocket, and, though a number of rockets were fired, all the other sticks struck at other places, where they would do no harm, the mere happening of the accident was not proof of negligence.</p> <p>Smith, J., dissenting.</p>

<p>Appeal from Special Term.</p> <p>Action by Caroline Palmer against Andrew C. Terwilliger, administrator of the goods, chattels, and credits of Peter D. Terwilliger, deceased. From an order refusing to set aside an ex parte order amending nunc pro tunc an interlocutory judgment, defendant appeals. Affirmed.</p>

Proceedings under Code Civ. Proc. § 2471a, by Seymour Lowman, as city chamberlain of the city of Elmira, to compel the delivery to him of the books and papers belonging or' appertaining to such office, in possession of Henry J. Haase. From an order directing Haase to deliver the books and papers appertaining to the office to Low-man, Haase appeals. Affirmed.

<p>1. Water Commissioners—De Facto Officers—Verbal Appointment.</p> <p>Under Village Law (Laws 1897, pp. 377, 386, c. 414) §§ 43, 68, declaring that the board of water commissioners shall be appointed by the board of trustees, and that all offices, except certain specified ones, not including water commissioner, shall be appointive, a water • commissioner verbally appointed by the board of trustees is an officer de facto for the purpose of making an assessment for fire protection under section 230 (page 435), as amended by Laws 1902, p. 1628, c. 591.</p> <p>2. Same—Commissioner Holding Over.</p> <p>So, also, is a regularly appointed commissioner holding over after expiration of his term.</p> <p>3. Same—Commissioner Elected.</p> <p>Village Law (Laws 189,7, p. 386, c. 414) § 68, provides that the board of water commissioners shall be appointed by the board of trustees; and section 43 (page 377) provides that certain offices, not including water commissioner, shall be elective, and the rest appointive, except that the offices of clerk and street commissioner may be made elective by adoption of a proposition to that effect. A village adopted a proposition to make the office of water commissioner elective, and elected a water commissioner, who assumed to act as such. Held, that this commissioner did not hold office under color of title, so as to make him an officer de facto for the purpose of making an assessment for fire protection under section 230 (page 435), as amended by Laws 1902, p. 1628, c. 591.</p> <p>4. Assessment for Fire Protection—Legality—Evidence.</p> <p>In an action by a village to recover an assessment for fire protection imposed by the board of water commissioners under Village Law (Laws 1897, p. 435, c. 414) § 230, as amended by Laws 1902, p. 1628, c. 591, defendant, for the purpose of showing that a part of the assessment was for an illegal purpose, offered the report of the commissioners for the year preceding that in which the assessment was made, showing that during that year they had paid one of their number a salary for acting as superintendent, but there was no offer to show that .any such payment was contemplated for the year during which the assessment was made. Held, that the exclusion of the evidence was not such error as to require reversal of a judgment for the village.</p> <p>5. Same—Constitutionality of Statute—Due Process of Law.</p> <p>Village Law (Laws 1897, p. 435, c. 414) § 230, as amended by Laws 1902, p. 1628, c. 591, providing that a building and the lot on which it stands, in which water from the waterworks is not used, or which does not take water from the waterworks corporation, standing within 500. feet of a hydrant, may be assessed for fire protection, etc., is unconstitutional, .as a taking of property -without due process of law.</p>

Action by John Tereszko against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>1. Bastards—Contract to Support—Release.</p> <p>Defendant, after having agreed to support plaintiff’s illegitimate child, of which he was charged with being the father, entered into negotiations with plaintiff for a release, which she agreed to give on defendant’s payment of $1,000. This agreement, however, she refused to complete, and placed the matter in the hands of an attorney, who agreed with defendant’s attorney, after renewed negotiations, to accept $1,500 in full consideration for a release of her claim against defendant. This amount was paid to plaintiff, and she executed a full release, with knowledge that she was thereby releasing all claim against defendant. Held, that such release was a complete defense of the defendant’s liability on his agreement to support.</p>

<p>1. Corporations—Legislative Control.</p> <p>A corporation is subject to the general statutes of the state of its organization applicable to its conduct and management, as well as to the reservation of the right on the part of the Legislature to alter its charter by subsequent laws, and a stockholder must be regarded as consenting not only to the existing law, but to such alterations as may be made.</p> <p>2. Same—Contract between Promoters.</p> <p>A corporation is not bound by an agreement between its promoters unless it has been ratified by the corporation.</p> <p>3. Same—Issue of Additional Stock—Contract between Promoters—Construction of Contract.</p> <p>Stock Corporation Law (Laws 1900, p. 1074, c. 564) §§ 44-46, authorize a corporation to increase its capital stock by a vote of a majority of the shares of stock, and by General Corporation Law (Laws 1890, p. 1062, c. 563) § 11, a corporation may make by-laws for the management of its affairs. Plaintiff and another promoted a corporation, and contracted that there should be $150,000 of common stock, that the property they placed in the corporation should be taken at a valuation of $50,000, and that plaintiff should have one-sixth of the plant. The corporation was organized under the stock corporation law, and $25,000 worth of stock issued to plaintiff; and a by-law provided that whenever the capital stock of the corporation should be increased each bona fide stockholder should be entitled to purchase at par an amount of stock in proportion to the number of his shares. Relé that, in the light of the circumstances and the law, the contract did not mean that additional stock should not be issued when done in good faith, and for the benefit of the corporation.</p> <p>f 2. See Corporations, vol. 12, Cent. Dig. §§ 1789, 1790.</p>

Certiorari by the people, on the relation of Patrick F. Ryan, as chief of the construction and repairs to apparatus in the fire department of the city of New York, against Thomas Sturgis, as fire commissioner, to review the removal of relator. Writ dismissed.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Lewis Dorfman against Joseph Weiler and another. From a judgment in favor of defendants, plaintiff appeals. . Affirmed.</p>

Judicial settlement of the accounts of Anna and George Muller, executrix and executor of the last will of George Muller, deceased. From a surrogate’s decree surcharging their accounts, and from an order denying a motion for a rehearing, they appeal. Reversed.

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

<p>1. Assignment—Evidence—Admissions of Assignob.</p> <p>Admissions of the assignor made after the assignment are not competent to prove that goods came into defendant’s hands as assignee.</p> <p>2. Same—Bueden of Pboof.</p> <p>Plaintiff’s evidence that certain goods were returned to the assignor does not put the burden on defendant of proving" that they did not come to him as assignee; there being no presumption that they had been retained by the assignor till the assignment, and then passed to the assignee.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Robert Hill against Catherine E. Martin. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by the Hudson Valley Railway Company against Thomas O’Connor and- others. Prom an order enjoining defendants, during pendency of the action, they appeal. Reversed.

Action by Henrietta A. Fremont, as administratrix of the estate of Francis M. Fremont', deceased, against the Metropolitan Street Railway Company. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Reversed. 'For former opinion, see 82 N. Y. Supp. 307.

<p>1. Taxation—Assessment—Review.</p> <p>Where, in proceedings to review an assessment of relator’s real estate located in. New' York City, assessed at $350,000, the referee found that on the date of the assessment the actual value of the property was $325,-000, and that similar property in the city was .assessed for that year at an average of not to exceed 70 per cent, of its value, an order reducing the assessed valuation of relator’s property to $227,500 was proper.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Hamilton H. Salmon and others against Charles J. Norris, impleaded with others. From a judgment in favor of defendant Norris, plaintiffs appeal. Affirmed.</p>

Action by Alexander Copeland against the D egnon-McDean Contracting Company. There was verdict for plaintiff, and from an order denying a motion for a new trial defendant appeals. Reversed.

<p>Application of Ella Boyce for a writ of mandamus against the board of supervisors of St. Lawrence county. Writ granted.</p>

<p>1. Contracts—Construction—Question for Jury.</p> <p>Where a contract for the erection of a monument provided that it should be erected by a certain date, or “very soon thereafter,” the question of whether the contract was performed and the monument delivered within the required time was one of fact for the jury.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Susan Potter against Ann E. Katzenbach. From a judgment for plaintiff, defendant appeals. Judgment vacated. .</p>

<p>1. Steeet Railways—Collision with Wagon on Tback—Contbibtjtory Negligence oe Dbiveb.</p> <p>In an action against a street railway company for injuries to a wagon struck by a car, evidence held to show the driver guilty of contributory negligence.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, ■ Second District.</p> <p>Action by James Johnson against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Giovanni Chiavarelli against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by William B. Franklin, and others against Cyrus Field Judson, in which Joseph H. Hoadley was subpoenaed as a witness, and appeals from an order denying a motion to vacate the subpoena. Affirmed.

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

<p>1. Street Railways—Injuries to Passenger Alighting from Car—Contributory Negligence—Evidence—Sueeiciency.</p> <p>In an action against a street railway company for injuries to a passenger alighting from a car, evidence held to show plaintiff guilty of contributory negligence.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by James F. Meehan against Julius Figliuolo. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.</p>

<p>1. Negligence—Dangerous Premises—Tenement Houses—Cellar Ways— Barriers.</p> <p>Tenement House Act (Laws 1901, p. 889, c. 334) § 36, providing that in every tenement house all stairways shall be provided with proper banisters arid railings, which shall be kept in good repair, does not require that barriers or guards should be erected across the entrance to tenement house cellar ways.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Vincenzo Borgia against Antonio Gange. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Alfred W. Sexsmith and another against the SiegelCooper Company. From a judgment for plaintiffs, defendant appeals. Reversed.</p>

<p>1. Landlobd and Tenant—Action fob Rent—Evidence—Substituted Tenant.</p> <p>In an action for rent under a lease by the month, evidence examined, and held to support a finding that the premises were occupied under the lease by defendant through subtenants, who were not in privity of contract with plaintiff, rendering defendant liable for the rent.</p> <p>2. Same.</p> <p>It may not be presumed, in an action for rent, that defendant had assigned his lease, where it was not proven that another was in possession of the entire premises.</p> <p>3. Same.</p> <p>Mere proof that a third person furnished money to a lessee to pay his rent is not sufficient to show that the landlord has accepted the third person as his lessee.</p>

<p>1. Principal and Agent—Default op Principal—Liability of Agent.</p> <p>An agent of the owner of premises, who was disclosed and known as the principal, and who was relied upon by a real estate broker for the payment of commissions for securing a tenant for the premises, and of whom alone payment was demanded, could not be held liable for such commissions at the suit of the broker.</p> <p>fll. See-Principal, and Agent, vol. 40, Cent. Dig. § 478. ;</p>

<p>1. Judgment—Failure of Plaintiff to Pbove Cause of Action—Fobm of Judgment.</p> <p>Under Laws 1902, p. 1561, c. 580, § 249, providing that judgment that an action be dismissed on the merits with costs may be rendered where the court is of the opiriion that plaintiff is not entitled to recover as a matter of law, such a judgment should be entered in an action for injuries wherein the court finds for defendant on the merits.</p>

<p>1. Street Railways—Personal Injuries—Evidence—Sufficiency.</p> <p>In an action against a street railway for-personal injuries by collision, evidence held insufficient to support a judgment for plaintiff.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Tony Cirello against the Metropolitan Express Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Samuel Bauer against William Blaha. From judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Cabbiebs of Passengers—Personal Injuries—Street Railways.</p> <p>Where, in an action for personal injuries received while alighting from defendant’s street car, the weight of the testimony is to the effect that the injuries were received by stepping off the car before it stopped, a judgment for plaintiff should not be permitted to stand.</p>

<p>1. Principal and Agent—Unauthorized Acts op Agent—Ratification.</p> <p>The receivers of a brewing company, which had been in the habit of procuring bonds for its customers, on failing to procure such a bond for a certain customer from a surety company were advised by a collector of the brewing company to advance a considerable sum of money to other persons to induce them to give such a bond. This they declined to do, and warned the collector that,- if he should pay more than the customary fee of surety companies for the bond, it would be at his own expense. Notwithstanding this warning, the collector procured the bond at an expense of $700. Held that, even if what the collector did was for the benefit of the estate held by the receivers, their conduct in availing themselves of the collector’s action by afterwards furnishing money for the customer’s tax certificate, and accepting him as a customer, did not constitute a ratification of the collector’s unauthorized act, and he could not reimburse himself out of his indebtedness to the receivers for his outlay in procuring the bond.</p>

<p>1. Contracts—Employment oe Accountant—Compensation—Evidence.</p> <p>In an action by an accountant for compensation for services performed for defendants, evidence held to sustain a finding that the services had been rendered under an express contract, and that defendants had paid the amount due thereunder.</p>

<p>1. Carriers of Goods—Injury to Property in Transit—Burden of Proof. Where a carrier £or hire undertook to transport property which was unbroken when delivered to the carrier, and broken when delivered by it, the burden was on the carrier to show that the injury was not due to negligence.</p> <p>f 1. See' Carriers, vol. 9, Cent. Dig. § 578.</p>

<p>1. Trial—Nonsuit—Eallure to Take—Evidence of Defendant.</p> <p>In an action for rent, where plaintiff did not establish nonpayment so that a nonsuit would have been proper, but defendant nevertheless proceeded, plaintiff had the right to rely on defendant’s statement that the rent had not been paid.</p> <p>2. Landlord and Tenant—Eviction—Abandonment—Waiver of Right.</p> <p>Where the right to abandon premises exists, the tenant must remove with reasonable promptitude after the circumstances creating the eviction arise, and, if he fails to do so, his right to repudiate the hiring is lost.</p> <p>If 2. See Landlord and Tenant, vol. 32, Cent. Dig. § 713.</p>

Action by Sadie Finkelstein, an infant, by Abraham Finkelstein, her guardian ad litem, against the American Ice Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by William Nathan Tuthill against' De Lancey T. Smith. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>1. Sales—Waebanty of Title—Action against Vendee.</p> <p>Where the seller of a horse with warranty of title is notified by his purchaser of an action against him, and refuses to have anything to do with it, the refusal excuses a formal demand to defend.</p> <p>2. Same-v-Failuee of Title—Meabube of Damages.</p> <p>Where the seller of a horse with warranty of title is afforded an opportunity of defending an action brought against his purchaser, and does not defend the action, he is bound by the result thereof, so far as concerns the value of the horse, which was necessarily involved in the action.</p> <p>3. Same—Costs.</p> <p>The seller was also liable for the costs of the action because their imposition on the seller was the natural and proximate consequence of the sale with a false warranty.</p> <p>4. Same—Counsel Fees.</p> <p>Counsel fees paid by the seller were not recoverable in the absence of evidence that they were reasonable.</p>

<p>1. Account Stated—Sending of Statements—Effect.</p> <p>The sending of statements of account to one who had not incurred the indebtedness, and who paid no attention to such statements, could not make him liable upon the indebtedness, which was in fact that of another.</p> <p>2. Corporations—Assumption of Indebtedness—Promises of President. '</p> <p>A promise to pay an indebtedness, made by the debtor after he became president of a company which succeeded to his business, even if made by him as president, is not binding upon the company.</p>

<p>1. Carriers—Animals—Care Required.</p> <p>Where a horse became frightened while in the custody of the carrier and ran away, but no fault was attributable to the carrier as to either the place where or the means by which the horse was fastened, the carrier was not liable.</p>

<p>1. Warehousemen—Negligence—Evidence.</p> <p>In an action against a warehouseman for failure to redeliver goods, a showing of the agreement for storage and the delivery, and evidence tending to show a failure to redeliver, make a prima facie case of negligence.</p>

<p>1. Street Railroads—Collisions with Teams.</p> <p>Where both the motorman of a street car and the driver of a truck were at fault in calculating that there was space enough for the car to pass, there could be no recovery for an injury to one of the horses on the truck, caused by a collision of the car with the truck.</p> <p>'2. Same—Negligence of Driver.</p> <p>A driver of a truck, who, when backing it against the curb to unload, • did not leave room enough for street cars to pass, but unnecessarily occupied the tracks, and left his team with a young boy, who, from lack of judgment or discretion, did nothing to avert a collision when he saw an approaching car, was guilty of negligence, so that for an injury to one of the truck horses, caused by a collision, there could be no recovery.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Louis Gottesman against David Heiden. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from City Court of New' York, Special Term.</p> <p>Action by Richard L. Machale against Edward F. Leber and others. From a City Court judgment in favor of defendants, plaintiff appeals. Affirmed.</p>

<p>Action by Mollie C. Leigh against the Interurban Street Railway Company. From an order setting aside the verdict, plaintiff appeals. Affirmed.</p>

<p>1. Landlord and Tenant—Lease—Breach—Summary Proceedings.</p> <p>Where a lease provided, that the tenant should make certain improvements and alterations within six months, and, if the sáme be not then made or commenced, he should pay the landlord the sum of $2,400, such payment not being shown to be for rent, a failure of the tenant to perform the covenant or make such payment did not warrant-the maintenance of summary proceedings to recover possession.</p> <p>2. Same—Final Order—Appeal.</p> <p>Where, in summary proceedings to recover real estate, no final order granting possession or awarding costs to the defendant was made, as required by Code Civ. Proc. § 2249, but only an order dismissing the proceeding was entered, no appeal could be taken from such order.</p>

<p>1. Default Judgment—Setting Aside.</p> <p>Where defendant knew the date to which a cause was adjourned, it was his duty to attend, and, in the absence of a sufficient excuse for failure to do so, a default will not be set aside.</p> <p>2. Same—Appeal.</p> <p>On appeal from a judgment rendered on default the court will examine the evidence to see if it is sufficient to support the judgment.</p> <p>3. Cabriebs of Goods—Failure to Deliver—Unreasonable Delay.</p> <p>■In an action against a carrier for failure to deliver goods to a consignee in Denver, evidence that the goods were shipped July 2d, and had not been delivered down to July 10th, did not show an unreasonable delay.</p> <p>4. Same—Pleading—General Denial.</p> <p>Where plaintiff alleged that defendant received goods for carriage, but neither delivered them to the consignee nor returned them to plaintiff, a general denial put in issue both the delivery of the goods to defendant and their nondelivery by it.</p>

<p>1. Appeal—Review of Facts—Certificate.</p> <p>On appeal to the Appellate Term from a judgment of the City Court, the facts cannot be reviewed where there is no certificate that the case contains all the evidence.</p>

<p>Appeal from City Court of'New York, Special Term.</p> <p>Action by William H. Llewellyn against Theodore H. Froehlich. From an order directing a bill of particulars of the counterclaim set up in the answer, defendant appeals. Affirmed.</p>

<p>1. Appeal—Decision of Lowes Court—Grounds—Affirmance.</p> <p>Where a magistrate refused to issue a body execution on the ground “that the proof was insufficient to grant the same,” without specifying any defect in which the proof was lacking, his decision in the matter will be upheld if there is any inadequacy in the proof.</p> <p>2. Execution—Capias—Municipal Court Act.</p> <p>One who fails to sue until more than a month has elapsed after the accrual of the cause of action has no right to a body execution under Municipal Court Act (Laws 1902, p. 15G9, c. 580) § 274, providing that in an action for services rendered as a wage earner, if plaintiff recovers a judgment for less than $50, and the action shall have been brought within one month after the cause of action accrued, and if the execution is returned unsatisfied, the clerk must, on the application of plaintiff, issue an execution against the person of defendant for the sum remaining uncollected.</p>

<p>1. Master and Servant—Discharge—Continuation ov Contract—Presumptions. _</p> <p>was a whole year’s service, and that services were rendered thereunder for at least one year, the presumption that, in the absence of-evidence to the contrary, the servant’s continuance in the employment after the expiration of the year was under an implied contract for services for another year at the same salary, has no application.</p>

Action by Moses Bernstein against the New York, New Haven & Hartford Railroad Company. From a City Court judgment in favor of defendant, and from an order denying plaintiff’s motion for a new trial, he appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Frederick Meyer and another against 'James A. Jewell. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Reversed.</p>

<p>1. Adjoining Owners—Buildings—Construction—Injury to Adjoining Property—Independent Contractors.</p> <p>Where a building was being erected for the use of an express company, of which defendant was president, by an independent contractor, and all damage which was done to the building of an adjoining owner was done by the workmen of the contractor, the express company was not liable therefor.</p> <p>■2. Same—Actions—Trespass—Breach of Contract.</p> <p>Where plaintiff sued in trespass to recover damages to his building, he- could not recover in such action for an alleged breach of contract by which defendant agreed that, if plaintiff would permit an entry upon his premises by defendant’s servants in order to shore up plaintiff’s wall, plaintiff’s water and sewer pipes would be protected from freezing.</p> <p>■3. Same—Contract to Shore Wall—Consideration.</p> <p>Under Laws 1855, p. 11, c. 6, imposing on lot owners proposing to excavate their lots to a depth of more than 10 feet below the curb the duty of protecting at their own expense a wall on or near the boundary line of adjacent premises from injury from such excavation, “if afforded the necessary license to enter upon the adjoining premises, and not otherwise,” an adjoining landowner is not authorized to impose as a condition to a license to permit an entry on his premises to shore up his wall, under the statute, that the licensee should protect certain plumbing from freezing, and hence such license was not a sufficient consideration for the licensee’s agreement to protect the same.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Jacob Huchberger against Frank Barsody. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.</p>

<p>1. Sales—Delivery to Carrier—Designation—Evidence.</p> <p>In an action for the price of goods sold, to be shipped from New York to the purchaser’s residence, in California, evidence reviewed, and held insufficient to support a finding that the purchaser did not give shipping directions, or order the seller to ship by way of a certain carrier.</p>

Action by Alfred Bertsch against Israel Unterberg. From a judgment for plaintiff and from an order denying new trial, defendant appeals. Reversed. This action was brought to recover damages alleged to have been sustained by reason of the negligence of the defendant, which caused an overflow of water from a tank in the premises of the defendant and under his control, and damaged the goods of the plaintiff’s firm. The claim was assigned to the plaintiff.

Action by Josephine B. Price, as executrix of Bruce Price, deceased, against Cornelius J. Ryan, to recover for services by testator in preparing plans and specifications for a building at 142 West Forty-Second street, city of New York, in which defendant set up a counterclaim for damages, alleging that the testator willfully specified in all the papers and drawings connected with the plans that the property was situated 186 feet, instead of 185 feet 6% inches, from a certain…

<p>1. Negligence—Steps of Building—Injuries—Liability of Owner.</p> <p>The owner of an apartment house is not liable for injuries caused by an uneven deposit of ice and snow on steps, where it appears that there was no weather permitting removal, and that the unevenness was caused by ashes put on to render the steps more safe.</p>

<p>1. INSUEANCE—SEPAEABLE POLICY—BREACH OF CONDITIONS—EFFECT.</p> <p>Where a separable policy of insurance covering a stock of merchandise and barber’s furniture and fixtures provided that the term “furniture and fixtures” should include, among other things, “the tools, implements and utensils used in the business of the assured,” a breach of condition against a misstatement of interest, consisting of a chattel mortgage covering the furniture and fixtures, invalidated the entire insurance on the furniture and fixtures as defined by the policy, though, some portions thereof were not covered by the mortgage.</p>

<p>1. Motion foe New Trial—Costs.</p> <p>Where the order granting defendant’s motion for a new. trial • recited that the motion was made upon a case and exceptions duly made and settled, such recital was conclusive, and defendant, on his final success in the action, was entitled to costs for making and serving a case, under Code Civ. Proc. § 3251, providing that the successful party on a motion for a new trial on a case shall have costs, in the same sum as on appeal; and this is true though defendant also obtained leave to file a supplemental and amended answer, and was required, as a condition thereto, to pay the plaintiff the costs and disbursements of the action.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Raphael Goldman against David I. Tobias and another. From a judgment for defendants, plaintiff appeals. Reversed.</p>

<p>1. Appeal—Questions Presented—Review of Facts—Absence of Proper Certificate.</p> <p>Where there is no stipulation of the parties nor certification, by the trial justice that the case contains all the evidence, the Appellate Term, on appeal from a City Court, will not interfere with the action of the trial justice in dismissing the complaint.</p> <p>2. Same—Settlement and Signing of Case.</p> <p>Settlement and signing of a case by other than the judge before whom the action was tried is invalid when none of the reasons, set forth in Code Civ. Proc. § 997, appear, and the judgment will be affirmed.</p>

<p>1. Appeal—Second Tbial—Law oe Case.</p> <p>Where, after the reversal of a judgment, a second' trial was had, without a material change in the proof, the decision on the first appeal constitutes the law of the case.</p> <p>MacLean, J., dissenting.</p>

<p>1. Specific Pekfobmance—Evidence—Sufficiency.</p> <p>In an action to compel defendant to execute and deliver a deed to plaintiff for an undivided one-half of certain property, and to account for rents, evidence examined, and held insufficient to sustain a finding that defendant purchased the property under an agreement that the parties should own it in common.</p> <p>Patterson and Laughlin, JJ., dissenting.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by John Murray against the National Biscuit Company. From an order denying a motion to strike out certain allegations of the complaint, defendant appeals. Reversed.</p>

<p>1. Written Lease—Requisites.</p> <p>A paper cannot be considered as a lease where it is not signed by the lessee, does not identify the premises, or state when the term is to begin, or upon what dates the rent is payable.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>■ Action by Louis Seliger against the city of New York. From a judgfor plaintiff, defendant appeals. Reversed.</p>

<p>1. Process—Service.</p> <p>Code Civ. Proc. § 1895, requiring summons in actions to recover penalties to be served by a marshal, applies only to actions brought by a common informer, and not to one by a stockholder for refusal to allow inspection of corporate books.</p> <p>2. Appearance—Demurrer—'Waiver.</p> <p>A demurrer equivalent to a general appearance waives any defect in service.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Charles W. Tansley against William H. Higgins and another. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>1. Account Stated—Evidence—Sufficiency.</p> <p>In an action by an assignee of an account for labor and materials, testimony by the assignor that he presented a bill, and defendant said he would send a check—such testimony being denied by defendant—is' too indefinite, and insufficient to support a judgment for an amount even greater than the claim.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Kalman Eeiffer and another against Joshua E. Post. From a judgment for plaintiffs, defendant appeals. Reversed.</p>

<p>1. Verdict—Compromise—Misunderstanding oe Evidence.</p> <p>Where plaintiff claimed $398.18, and there was no evidence of any diminution of the value put on any of the items, except as to two aggregating $76, but the jury found for plaintiff for $100, a new trial should be had; it appearing that the jury either compromised, or misunderstood the evidence.</p>

Summary proceedings under Code Civ. Proc. § 2231, by William R. O’Brien as landlord against Jacob Jaffe as tenant. From a judgment for the landlord, the tenant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Abraham D. Salzstein against Ignatz Kleinberg and others. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Pincus Shadletsky against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>1. Trial—Evidence—Cross-Examination—Explanation oe Contradiction.</p> <p>In an action against a street railroad company for personal injuries, the motorman testified on direct examination that he put on the reverse when he struck plaintiff’s wagon, so that the car went backward, and on cross-examination stated that near a corner, which from some of the evidence appeared to be the place where the accident happened, he had no power on, because there was a “breaker” there where the power was cut off. On redirect he was asked if there was a “breaker” at or near this corner, and the question was excluded on the ground that he had already-testified there was. Held error; the witness being entitled to explain the seeming contradiction.</p>

<p>1. Negligence—Automobile—Collision with Pedestbian—Evidence—Sufficiency.</p> <p>In an action for personal injuries caused by defendant’s automobile striking plaintiff as the latter was attempting to cross a street, evidence held insufficient to support findings that defendant was negligent and plaintiff free from contributory negligence;</p> <p>Patterson and Laughlin, JJ., dissenting.</p>

Petition by E. Laflin Kellogg and others to enforce an attorney’s lien. From an order on a motion to confirm a referee’s report, petitioners appeal. Reversed..

<p>1. Landlord and Tenant—Lease—Construction.</p> <p>Premises leased consisted of a store, basement, and conservatory, to be used for selling flowers, and were part of the lessor’s building; and the lease recited that the building was in process of construction, and intended to be of the general character shown in certain plans, and provided that, in case the premises should not be ready for occupancy at the beginning of the term, possession should be delivered as soon as completed, and that rent should be computed only from the time the premises should be ready for occupancy. Held, that the phrase “ready for occupancy” did not mean fitted by the lessor with fixtures rendering it ready for the lessee’s business.</p> <p>2. Same—Parol Evidence—Admissibility.</p> <p>Parol evidence of conversations prior to and contemporaneous with a written lease, to show that the phrase “ready for occupancy” meant fitted by the lessor with fixtures suitable for the lessee’s business, was inadmissible, since the lease presumably expressed the whole agreement.</p> <p>3. Same—Action eor Rent—Parol Evidence.</p> <p>Where, in an action for rent, the issue was the meaning of a clause of the lease, conversations had by the lessee with a person not shown to have been the general agent of the lessor, or authorized to contract for him, were inadmissible on behalf of defendant.</p> <p>4. Payment—Pbotest.</p> <p>A mere protest accompanying a payment does-not render it not a voluntary payment.</p> <p>5. Landlobd and Tenant—Action fob Rent—Countebclaim—Tobt.</p> <p>In an action on a lease for rent, a counterclaim founded on a tort is not maintainable.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Accursie Azzara and others against Louis Waller and others. From a Municipal Court judgment in favor of plaintiffs, defendants appeal. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Jacob Drake against the Inter urban Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by Mary Schlesinger against Charles A. ICeene. From a City Court judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Patrick Schan against the Uvalde Asphalt Paving Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by Max Vogel against Bayard Hawthorne. From a judgment dismissing.a second counterclaim defendant appeals, and from a judgment allowing the first counterclaim plaintiff appeals. Judgment reversed on plaintiff’s appeal and affirmed on defendant’s appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Pincus Margolius against Morris Muldberg. From a Municipal Court order granting a new trial after dismissal of the complaint for failure of proof, defendant appeals. Reversed.</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Charles Koehler, an infant, against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.</p>

<p>1. Municipal Court—Jurisdiction—Amount in Controversy—Interest.</p> <p>Under the Municipal Court act (Laws 1902, c. 580, § 1, subd. 1), conferring jurisdiction on the Municipal Court of an action to recover damages on or for a breach of contract, express or implied, where the sum claimed does not exceed $500, the court has no jurisdiction of an action in which the summons and complaint demand judgment for $500 and interest.</p>

Action by J. Fred Pierson against James Hughes and another. From an order denying a motion for a new trial on the ground of newly discovered evidence, defendants appeal. Affirmed. This was an action against defendants for rent of a dock for a period after which they had abandoned the premises, and a defense interposed was that during such period plaintiff has leased a portion of the property to the city.

<p>Appeal from Special Term, New York County.</p> <p>Action by the Lembeclc & Betz Eagle Brewing Company against Edward P. Hatch, impleaded, and others. From a judgment in favor of plaintiff, defendants appeal. Modified.</p>

<p>1. Street Railroads—Injury to Pedestrian—Negligence.</p> <p>Where a fender on the rear of a car fell, and there was no evidence to show it had not been properly strapped up, nor any to show what caused it to fall, nor that the conductor knew of the same, the railway company is not liable to a traveler on the street injured thereby.</p>

<p>1. Municipal Corporations —Injuries—Notice—Appeal—Objections not Made at Trial.</p> <p>Where, in an action against a city for injuries, the answer substantially admitted that the notice required by Laws 1886, p. 801, c. 572, had been filed, and no point was made during the trial or at its close by motion to dismiss the complaint for failure to serve such notice, an objection that the notice was not served was not available on appeal.</p>

<p>Action by Clara F. Apollonio against Edward D. W. Langley, individually and as administrator de bonis non with the will annexed of Frances A. Skinner.</p>

<p>Action by the Bank of Genesee against John Dellinger, impleaded, etc.</p>

<p>Action by Minnie A. Blanchard against Gordon B. Archer and others.</p>

<p>Action by Charlotte Beyer against the city of North Tonawanda.</p>

<p>In the matter of the application of the Brooklyn Bar Association to punish Albert M. Fragner, an attorney,</p>

<p>Action by Mary Brady, as administratrix of Owen Brady, deceased, against the Brooklyn Heights Railroad Company. .</p>

<p>Action by Conrad Brand against the Borden’s Condensed Milk Company.</p>

<p>Action by George T. Chester against the Buffalo Car Manufacturing Company and others.</p>

<p>Action by Josephine M. Bulkley and another against Edward B. Perley.</p>

<p>In the matter of the charges against Alonzo A. Burby, an attorney of the Supreme Court of the state of New York.</p>

<p>In the matter of Arthur E. Clark, an attorney and counselor.</p>

Action by John Fallon, as administrator of the estate of Michael Fallon, deceased, against William C. Howard. Erom a judgment dismissing the complaint, plaintiff appeals. Affirmed. Edward J. McCrossin, for appellant. Frederic W. Hinrichs, for respondent.

<p>Action by the Farmers’ Loan & Trust Company, as trustee, against the New Xork & Northern Railway Company and others. Artemas H. Holmes and Nathaniel A. Elsberg, for appellants. Thomas Thacher (James F. Horan, on the brief), for respondent.</p>

<p>Action by Francis E. Ferris against the Interurban Street Railway Company.</p>

<p>Action by Henry M. Flinn against the American Engine Company.</p>

<p>Action by Joseph "Foster, Jr., against the International Paper Company.</p>

In the matter of the judicial settlement of the accounts of William Hollahds, as administrator, and Elizabeth Thomas, as administratrix, etc., of John I. Winne, deceased.

<p>Action by Roscoe A. Hillman against the American Clay Working Machinery Company.</p>

Action by Edward Knaeagh against the Interurban Street Railway Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed. Henry W. Goddard and William E. Weaver, for appellant. Fleischman & Fox, for respondent.

<p>Action by Rinehart Kuelling against the Roderick Lean Manufacturing Company.</p>

<p>In the matter of the petition of Michael Kinneally against the people of the state of New York.</p>

<p>Action by Jeremiah F. Lynch against the American Linseed Company and the Deane Linseed Oil Company. Frederick Hulse (Ernest F. Eidlitz, on the brief), for appellant. Richard J. Donovan (Herbert D. Cohen, on the brief), for respondent.</p>

<p>Action by Catharine C. Lyons, individually and as executrix, etc., against the Pease Piano Company and John D. Pease.</p>

<p>Proceeding for the judicial settlement of the estate of John Martin, deceased. From a surrogate’s decree extending distribution, William J. Riley, individually and as administrator of the estate, appeals. Reversed. John R. Kuhn, for appellant. Melville J. France, for respondents.</p>

<p>Action by Louis N. North am against the Dutchess County Mutual Insurance Company of Poughkeepsie, N. Y.</p>

Proceedings by the people of the state of New York to recover penalties for violations of the game law against Nathan Schweitzer, Harry Schweitzer, William Sommer, Michael Goss, Charles Cohen, Isaac Heineman, and Balthasar Arras. From judgments in each case dismissing the complaint, the people appeal. Affirmed. H. Peck, for the People. L. Marshall, for respondents.

<p>Proceeding by the people of the state of New York against Edward Sexton.</p>

<p>Proceeding by the people of the state of New York, on the relation of Minnie R. Masten, against William H. Maxwell, as city superintendent of schools of the city of New York.</p>

<p>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 James L. Wells and others, as tax commissioners, to review the assessment of decedent’s estate for transfer taxation. From an order quashing the writ, relators appeal. Affirmed. William H. Harris, for appellants. George S. Coleman, for respondents.</p>

<p>Action by William B. Rankine against the De Veaux College for Orphan and Destitute Children and others.</p>

<p>Proceeding by the people of the state of New York, on the relation of Jane Walrath and another, against the board of assessors of the town of Brownville and others.</p>

Action by Harry Saltzma-n against Harris Friedman and others. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants, appeal. Affirmed. Shapiro & Shapiro, for appellants. Henry Kuntz and Sigmund Horkimer,. for respondent.

<p>Action by Josephine M. Sweet, as trustee, etc., of Francis Fely, deceased, against J. Schliémann.</p>

<p>Action by one Sutton against one Hollender.</p>

In the matter of the application of John Augustus Snook and others, as executors, etc., of John B. Snook, deceased, for a peremptory writ of mandamus.

<p>Action by John P. Strone against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying motion for a new trial, defendant appeals. Affirmed. Bayard H. Ames and F. Angelo Gaynor, for appellant. Louis Steckler, for respondent.</p>

<p>Action by Louisa Sutton against Frederick Hollender. From a judgment for plaintiff, defendant appeals. Affirmed. John E. Brodsky, for appellant. Milton Mayer, for respondent.</p>

Action by Alberta P. Tracy and others against Catharine Falvey and others. From an interlocutory judgment entered on a decision after trial, defendants appeal. Reversed. Edward W. S. Johnston, for appellants. Walter S. Logan, for respondents.

<p>Action by Myra Wilcox against the Syracuse, Binghamton & New York Railroad Company.</p>

<p>Action by Harris Wolf against Henry Herman. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Modified. Edward Herrmann, for appellant. Samuel Rosenbloom, for respondent.</p>