Volume 89 — New York Supplement

Suit by the New York Security & Trust Company, as substituted trustees, etc., and another, against Rosalie Shoenberg and others. From an order vacating a compromise agreement, and a judgment of foreclosure and sale based thereon, Rosalie Shoenberg and others appeal.

Summary proceedings by Solomon Weinhandler, landlord, against the Eastern Brewing Company and others. From a final order in favor of defendants, plaintiff appeals.

<p>Appeal from Special Term, New York County.</p> <p>Action by Caroline Smyth against Edward J. Graecen. From an order denying a motion to amend an interlocutory judgment, defendant appeals.</p>

<p>1. Easements—Contbacts—Violation.</p> <p>Where defendant sold his ice business and personal property used therein to plaintiff, and agreed that plaintiff should have the free use of a pond adjoining, for the purpose of cutting and taking ice, for 20 years, and there was no other adequate supply of water to the pond, except a ditch which drained water from the Erie Canal, which defendant pointed' out to plaintiff as the supply for the ice business, defendant had no right to stop the ditch, and thereby obstruct the flow of the water into the pond.</p> <p>2. Same—Judgments—Res Judicata.</p> <p>Where defendant sold his ice business to plaintiff, including the right to take ice from a pond, judgments in two prior actions between the parties, by which it was determined that defendant was entitled to draw off the water from the pond, so as to prevent his adjoining land from being overflowed, and restraining plaintiff from interfering with the flood gates in times of high water, so that the same would not be set back on defendant’s land, were not res judicata as to plaintiff’s right to restrain defendant from obstructing the ditch by which water was caused to flow into the pond.'</p>

<p>Appeal from Special Term, New York County.</p> <p>Suit by the Interborough Rapid Transit Company against Patrick ■Gallagher. From an order vacating an injunction granted plaintiff, it appeals.</p>

<p>1. Divorce—Judgments—Default—"Vacation.</p> <p>An action for divorce was placed on the calendar for the first time in February, 1904, and, by arrangement of the parties, was continued until the March term, when defendant was granted a postponement for illness. On March lGth a further postponement was asked on the ground that defendant was seriously ill, and confined to her bed in a sanitarium, with a leg in a plaster cast, which was supported by a physician’s certificate. The court declined to permit a postponement, but plaintiff intimated to defendant’s attorney that if defendant would personally sign a stipulation to try the case in April, or consent to a reference, the case might be continued to the April term. Such stipulation was signed, but, notwithstanding it, the court directed the case to be heard when reached, and on March 24th entered defendant’s default. Held, that defendant’s showing on her application for postponement was sufficient, and that her application to open the default on that ground should have been granted.</p> <p>2. Same—Proof.</p> <p>Where, in an action for divorce on the ground of adultery, defendant filed an answer of recrimination, charging plaintiff with having committed adultery with a servant girl, evidence of such servant, consisting of confessions made to her by defendant, of which she informed plaintiff, was insufficient to entitle plaintiff to a divorce on defendant’s default.</p>

Action by Charles W. Hall against Frederick Gerken. From an’ order granting a bill of particulars, defendant appeals. The action is to recover rent of certain premises in New York City, to which defendant filed an answer alleging an eviction, and setting up a counterclaim to recover damages by way of profits lost by certain alleged unlawful acts committed by plaintiff.

<p>Appeal from Trial Term, Erie County.</p> <p>Roger F. Pickert was convicted of gaming, and from the judgment and orders denying motions in arrest and for a new trial, and overruling a demurrer to the indictment, .defendant appeals.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Ida M. Lawrence against Alfred J. Cammeyer. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by William H. Elting. against the Gillette Clipping Machine Company. From an order directing plaintiff to furnish a bill of particulars, he appeals.</p>

Action by one Vail against one Blumenthal. Removed from the Municipal Court. On objection to consideration of plaintiff’s demurrer to new matter in the answer.

Action by one Mulligan against the New York & Queens County Railroad for personal injuries. Motion to set aside a verdict and for new trial.

Action by Harry Pesant against the Metropolitan Street Railway Company. From an order granting a motion to set aside a verdict for plaintiff, he appealed. Plaintiff died pending appeal, and Margaret Pesant, as administratrix de bonis non, was substituted.

Habeas corpus and certiorari to review a conviction of Ella Beebe and another for violating Pen. Code, § 378, prohibiting the taking of more than 6 per cent, interest 'for the loan of money.

Action by Paul A. Wagner against the Haight & Freese Company. On motion by defendant to vacate an order for the examination of certain officers of defendant before trial.

<p>Action by Henry J. Coggeshall and others against Francis Mc-Grath. Judgment for plaintiff.</p> <p>Trial before the court without a jury of an action by the plaintiffs as receivers of the Mutual Benefit Loan and Building Company (appointed to liquidate the company for insolvency) against the defendant on a promissory note for $400 made by the defendant to the said company.</p> <p>The answer pleads as a defense and counterclaim that the defendant being a member of the said company owning 15 shares became a borrowing member, and borrowed from the company $400, for which he gave his said note; that a by-law permitted borrowing members to withdraw from the company, applying the withdrawal value of their shares to the payment of their debts to the company; that the defendant gave the required notice of withdrawal, the withdrawal value of his shares at the time being $335 in excess of his said indebtedness of $400.</p> <p>Afterwards, and before the defendant’s withdrawal was acted upon and carried out (as appeared by the evidence), the action-in which the plaintiffs were appointed receivers was brought by the state to liquidate and dissolve the company for insolvency, and the company was then insolvent, and had been, as found by the judgment of dissolution, at least since May 1, 1900, which was four months before the defendant’s notice of withdrawal.</p>

<p>1. Special Proceedings—Proceedings before Supervisors—Constable’s Services.</p> <p>Under Code Civ. Proc. § 3333, defining the word “action” as signifying an ordinary prosecution in a court of justice by a party against another for the protection or enforcement of a right, the redress or prevention of a wrong, or the punishment of a public oifense, and section 3334, declaring that every other proceeding by a party for either of the purposes specified in the preceding section is a special proceeding, an appeal from a city auditing board to the county board of supervisors by a constable for the adjustment of his claim for services is a special proceeding.</p> <p>2. Same—Attorney’s Fees—Liens.</p> <p>Under Code Civ. Proc, § 66, as amended by Laws 1899, p. SO, c. 61, providing that from the commencement of an action or a special proceeding the attorney who appears for a party has a lien on his client’s cause of action, which attaches to a report, decision, judgment, or final order in his client’s favor, and the proceeds thereof, in whosesoever hands they may come, which lien cannot be affected by any settlement between the parties before or after judgment or final order, and authorizing the court, on petition of the client or attorney, to determine and enforce the lien, an attorney who appeared and prosecuted an appeal from a city auditing board to the board of supervisors of the county for a constable for the adjustment of the constable’s fees had a lien thereon, enforceable against, the award.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Samuel Hirsch and another against Thomas C. Platt, as president of the United States Express Company. From a judgment in favor of defendant, plaintiffs appeal.</p>

. Action by John C. Gauntlett, as trustee for Mary C. Gauntlett and others, against Frederick W. Cameron, as assignee, and others, to foreclose a pledge of securities, and to procure a determination of conflicting claims to the surplus. From a judgment in favor of plaintiff, defendants appeal.

<p>Action by the Mutual Milk & Cream Company against Dietrich Tietjen,. Defendant makes request for findings and rulings.</p>

<p>Action by Peter Early against Mary Ann Korn and others for partition. Defendant Korn applies for an order.</p>

Proceeding by the people against John Mahoney, surety, and Pietro Sorrentino, principal, on a recognizance. The surety moves to vacate and set aside a judgment forfeiting the recognizance.

<p>1. Landlord and Tenant—Abandonment by Tenant—Liability for Rent.</p> <p>Where a lease contained a covenant that, in case of vacation of the premises and re-entry by the landlord, the tenant should be liable in a sum equal to the rent reserved, less any sum which should be received by the landlord as rent for the premises, the tenant, after abandonment and re-entry by the landlord, was no longer liable for rent as such, but was liable only on the above covenant, which survived re-entry.</p> <p>2. Same—Liability on Surviving Covenants—Accrual.</p> <p>Under a clause in a lease providing that, in case of the vacation of the premises and re-entry by the landlord, the tenant should be liable in a sum equal to the rent reserved, and payable at the same periods, less any sum which should be received by the landlord for rent for such period, the measure of liability for any monthly period, in case of abandonment and re-entry, was not ascertainable until the end of that period, and the phrase “payable at the same periods”—the rent being payable monthly in advance—was without effect.</p> <p>3. Same—Pleading—Defenses—Surrender.</p> <p>In an action by a landlord against the tenant on a covenant, to pay a sum equal to the rent reserved, less any sum which should be received by the landlord as rent for the premises, a defense that the premises were relet by the landlord, not in good faith, for the benefit of the tenant, but rent free, in order to induce the new lessee to take a longer lease, so that thereby the landlord accepted the tenant’s surrender, was properly pleaded as a matter of defense, and not as a counterclaim.</p>

<p>Action by one Berg against the Third Avenue Railroad Company. On motion to set aside verdict and for a new trial.</p>

Action by Robert P. Pierce, as executor of Elizabeth T. Peckham, deceased, against Sarah W. Martin. Motion to vacate a warrant of attachment. The grounds for attachment, as stated in the warrant, are as contained in Code Civ.

Action by Angelo Adamo against Peter Blohm and another. From a Municipal Court judgment in favor of defendants, dismissing plaintiff’s complaint after a trial before the court without a jury, plaintiff appeals.

<p>1. Will—Undue Influence.</p> <p>In order to set aside a will for undue influence, evidence of an opportunity to exercise it is insufficient; but it must be shown that testator’s mind was reduced to helplessness, so that he succumbed to an influence making his will that of another,</p> <p>2. Same.</p> <p>Feebleness of mind and body does not create a presumption of lack of testamentary capacity.</p> <p>2. See Wills, vol. 49, Cent. Dig. §§ 92,110.</p>

Certiorari by the people, on the relation of Barnard College, against James J. Wells and others, as commissioners of taxes and assessments of the city of New York. On motion to quash the writ.

Action by Kittie Conlon, as executrix, etc., of the estate of Mary Conlon, deceased, against Gilbert W. Minor and another. From, a judgment in favor of plaintiff, defendants appeal.

<p>Submission of controversy between Sarah M. Clark and Adaline Yerks Van Alstyne as to the share of Sarah M. Clark in the real estate of testator John F. Yerks, and the proceeds of the sale of a portion of his real estate received by George W. Yerks, as executor of the estate of John F. Yerks, deceased.</p>

<p>1. Landlord and Tenant—Lease—Action fob Bent.</p> <p>Defendant occupied certain apartments in pursuance of a scheme to convey the impression that the apartments rented for $1,100 per year, the arrangement being that defendant should pay a small amount early in the year, and then to make payments at the rate of $91.67 per month for the remainder of the time, so that, if the year was completed, it would amount to $900. Defendant, whose tenancy under such arrangement began in October, paid $75 on October 8th, and paid no more until January, from and after which time to the termination of his tenancy in May he gave five checks for $91.67 each.' Held that, in the absence of proof that such checks were not received in full payment of the rent due at the several periods when the checks were given, it would be so presumed, so that neither the landlord nor his assignee were entitled to recover alleged additional rent due after termination of the tenancy. Hooker, J., dissenting.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Eli P. Miller and another against the Edison Electric Illuminating Company of New York. From a judgment in favor of plaintiffs, defendant appeals.</p>

Action by Catherine M. Beet-son against Mary E. Stoops and others. From an order granting defendant Stoops leave to serve an amended answer, plaintiff appeals. Modified.

<p>In the'matter of the judicial settlement of the accounts of Hannah M. Corbin, George B. Edgell, and Austin Corbin, Jr„ as executors, etc., of Austin Corbin, deceased.</p>

<p>In the matter of the petition of the Citizens’ Water Supply Company of Newtown relative to acquiring title to real estate, etc., at Cook avenue and Toledo avenue, in the borough of Queens, etc.</p>

<p>Action by Nellie L. Dickerson Earl, an infant, against Wheeler N. Earl.</p>

<p>Action by German Bge against the city of Buffalo.</p>

<p>Action by Mark Duntz, as trustee, etc., against the Pfaudler Company, impleaded, etc.</p>

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

<p>Action by John C. Gauntlett, as trustee, etc., against Henry Patton and others.</p>

<p>Action by William Griffin against the Interurban Street Railway Company. From a judgment of the Appellate Term, affirming a judgment of the Municipal Court in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>Action by Sarah A. Griffin against the Prudential Insurance Company of America.</p>

<p>Action by Sol Goldberg against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Action by Minnie Grube, as administratrix, against the Hamburg-American Steamship Company.</p>

<p>In the matter of the appraisal, under the taxable transfer act, of the estate of George T. Hanford, deceased.</p>

<p>Action by Augusta O. Henry against the Brooklyn Heights Railroad Company.</p>

<p>Action by Sarah M. Hawley against Walter L. Hawley. From a judgment for defendant, plaintiff appeals. Affirmed. See 88 N. Y. Supp. 606.</p>

<p>In the matter of the probate of the will of Robert E. Hopkins, deceased.</p>

<p>Action by Arabella D. Huntington, as executrix, and another, against Jules S. Bache and others.</p>

In the matter of the judicial settlement of the account of proceedings of Julia Levy and William Hyams, as. executors, etc., of Philip Levy, deceased.

<p>Action by Matthew Lane against the New York, New Haven & Hartford Railroad Company and another.</p>

<p>Action by Edward L. Mawson against William Wermuth.</p>

Action by Cora Morris against Harold C. Dayton. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

<p>Proceedings by the people of the state of New York against Loring Moore.</p>

<p>Proceedings by the people of the state of New York, on the relation of Daniel S. Garvey, against John N. Partridge, police commissioner, etc.</p>

Application by the people of the state of New York, on relation of Harry Cossey, against Edward M. Grout, as comptroller, for mandamus. From an order denying the writ, the applicant appeals. Affirmed.

<p>Action by Mary J. Ricketts against Henry Powell Ramsdell, James A. P. Ramsdell; and Homer S. Ramsdell, individually and as-executors, etc.</p>

<p>Action by Mortimer 0. Rosenfeld against the Lancashire Insurance Company and 19 other defendant companies.</p>

<p>Action by Sampson Sammons against the city of Gloversville.</p>

<p>In the matter of the application of the South Shore Natural Gas & Fuel Company to lay and maintain its pipes in, upon, along, and across certain highways in the town of Sheridan, N. Y.</p>

<p>Action by Frank C. Walker against the Interurban Street Railway Company. From a judgment of the Appellate Term, affirming a judgment of the Municipal Court in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>Action by Eliza Tyson against the Joseph H. Bauland- Company.</p>

<p>Action by the Welsbach Company against the Norwich Gas & Electric Company.</p>

<p>In the matter of C. A. Wheaton against E. Floyd Conrow.</p>

<p>Action by Samuel Wilson against Paul Epstein and others. From a judgment for plaintifE, and from an order denying a new trial, defendants appeal. Reversed.</p>