Volume 90 — New York Supplement

<p>Appeal from Trial Term, Kings County.</p> <p>Action by the Northern Insurance Company of New York against the Associated Manufacturers’ Mutual.Fire Insurance Corporation. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Judgments—Defaults—Opening—Conditions.</p> <p>As a condition of opening a default and vacating a judgment, defendant should be required to pay all costs of the action up to the date of granting the order, including a trial fee.</p>

Certiorari by the people, on the relation of Adam A. Cross, against Francis V. Greene, as police commissioner of the city of New York, to review the dismissal of relator from the office of police inspector.

Application by Fanny M. Dake for the probate of the will and codicils of Jonathan M. Dake, deceased. From a decree admitting certain codicils to a will to probate, the heirs appeal.

<p>1. Specific Peefobmance—Judgment—Damages.</p> <p>In an action for the specific performance of a contract for the exchange of property, where the judgment not only directed the specific performance of the contract, but also provided for the equalization of the rents, interest, taxes, etc., on each piece of property, a further judgment for the damages sustained by reason of defendants’ failure to perform the agreement was unauthorized.</p>

<p>Appeal from Trial Term, Monroe County.</p> <p>Action by Kate L. Davy against Samuel Davy and others. From a judgment for plaintiff, defendants "appeal.</p>

<p>Appeal from Trial Term, Yates County.</p> <p>Action by Clarence T. Birkett against James E. Nichols and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Sales—Inspection—Place—Waiver—Question eor Jury.</p> <p>In an action for breach of a contract for the sale of saponified oil, intended for export by the buyer, evidence held to tend to establish a waiver of the buyer’s duty to inspect the same on delivery to him in New York, and to authorize inspection by his foreign customers, so as to require submission of case to the jury.</p> <p>McLennan, P. J., and Stover, J., dissenting.</p>

<p>l. Contracts—Agreement as to Collections.</p> <p>Under an agreement whereby defendant acknowledges receipt of m'oney from plaintiff, in consideration of which it agrees to pay plaintiff a certain sum on the collection by it of notes of P., which it holds, it is not liable as for a collection of all the notes by allowing a renewal of them for the balance due on them after collecting a part of them.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Jonas Weil and another against Christopher H. Witte and another. From a for defendants</p>

<p>1. Bank Deposit—Action by Assignee.</p> <p>Testimony of J. B. that he opened a depositor’s account with defendant bank, a bankbook containing an account of M. B. & Son with the bank, and further testimony of J. B. that he assigned his claim' to plaintiff, does not authorize a recovery for plaintiff, it not being shown who M. B. & Son were, or what authority J. B. had to assign an account belonging to them as evidenced by the bankbook.</p> <p>2. Parol Evidence.</p> <p>An assignment of a bank account being in writing, it cannot be proved by oral testimony.</p>

Two actions—one by Nathan Peters, and the other by Caroline Ullman—against the Empire Life Insurance Company. From judgments for plaintiffs, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Samuel Lustbader, Jr., and another against the George A. Fuller Company. From a Court judgment in favor</p> <p>of defendant, plaintiffs appeal.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Isaac E. Stern against the Wabash Railroad Company. From an order denying in part defendant’s motion for bill of particulars, he appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Blanche C. Davis, administratrix, etc., against Amelia M. K. Fischer. From a judgment for plaintiff, defendant appeals.</p>

Action by Alfred C. Marks against Arthur H. Elliot. Erom a judgment for plaintiff and from an order denying a motion for a new trial, defendant appeals.

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

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by William F. Haggerty against the New York City Railway Company. From a jurgment in favor of plaintiff, defendant appeals.</p>

<p>Í. Brokers—Right to Commission—Option Money.</p> <p>A broker who Is to receive 10 per cent, of the purchase money for making a sale is not entitled to half the amount one pays for an option, and then forfeits by not completing the purchase.</p> <p>2. Same—Consent to Deduction .in Price.</p> <p>A broker who is to receive a percentage of the purchase money for making a sale, and who, after the purchaser has refused to pay more than $800 of the $1,600 agreed on as the price, tells the seller that he will be satisfied if she accepts such a sum, whereupon she accepts it in full, is entitled to a commission on $800' only.</p>

Appeals from Municipal Court, Borough of Manhattan, Twelfth District. Action by James Polacci against the Interurban Street Railway Company, and action by Joseph Polacci against the same defendant. Appeals by defendant from judgments in favor of the plaintiffs. Judgment in the first case affirmed and in the second reversed, unless respondent stipulate to reduce recovery by the sum of $16; otherwise affirmed.

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

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Jacob Goldberg against the Interurban Street Railway Company. From a for defendant</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Charles E. Fisher against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Title Insurance Company of New York against Meyer Bach. From a judgment for plaintiff, defendant</p>

Action by Max Kirschner against Gustave Hirschberg and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. The action was brought to recover damages for breach of a contract of employment entered into between plaintiff and defendants. The witness Peltz, referred to in the opinion, had charge of defendants’ books; making entries therein showing the work which each man did.

<p>1. Principal and Agent—Contract for Services—Enforcement.</p> <p>Where plaintiff was retained to obtain a settlement of defendant’s claim for damages against a railway company, and plaintiff omitted to disclose to defendant the railway company’s standing offer to settle such claim at a fixed rate, he was not entitled to recover under his contract for services.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Charles Fishman and another against Thomas C. Platt, as president, etc. From a Municipal Court judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Actions by Jacob Oppenheim against the Simon Reigel Cigar Company on promissory notes. From judgments for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Maria C. Vacca against Michael Martucci for money had and received. From an order a motion for a new trial after verdict for plaintiff, defendant appeals.</p>

<p>1. Sale—Action fob Price—Evidence—Sufficiency.</p> <p>Defendant signed a contract for the purchase ofa cash register, which was in his place of business at the time. His signature was not that of an inexperienced penman, and there was no pretense that he could not read. Held, that a judgment for defendant in an action to recover on the contract was improper.</p>

<p>1. Bills and Notes—Transfer by Indorsement—Payment—Liability of Payee.</p> <p>Defendant, the payee of a note, transferred the same by Indorsement. The note not being paid, defendant took it up by payment, and placed it in the hands of an attorney for collection. One of the persons liable on the note borrowed money from G. with which to pay the same, and immediately turned the note over to G., who assigned it to plaintiff. Held, that plaintiff could not recover the amount from defendant.</p>

Action by Helen Dittel against Max Bowsky. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Abraham Levy against Max Tiger. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Joseph Krombach against Isidore Teilelbaum. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by John Robinson against the New York City Railway Company. From a judgment in favor of defendant, dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Summary proceedings by Salvatore Perniciaro against Antonio Veniero. From an order dismissing the same, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action to recover for professional services as an actress by Margaret Hamilton against Owen Davis, impleaded with Frederick Darcy. From a judgment for plaintiff, defendant Davis appeals.</p>

<p>1. Sale by Description—Acceptance.</p> <p>Where the vendor and vendee had both had long experience in the trade, and a sale was by description, delivery made, and an actual inspection by the vendee, the vendee is liable for the price.</p>

<p>Appeal from Municipal Court.</p> <p>Action by the Schwarzschild & Sulzberger Company against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Joseph Erdman against Ernest G. Stache. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Street Railroads—Injury to Passenger—Evidence.</p> <p>In an action for injuries received while plaintiff was boarding defendant’s street car, evidence held insufficient to support a finding that the car was not in motion.</p>

<p>1. Checks—Want of Consideration.</p> <p>The drawer oí an accommodation check cannot plead want of consideration against a bona fide holder.</p>

<p>1. Evidence—Admissions in Pleadings.</p> <p>A copy of a pleading in another action is not the best evidence of an admission contained in the pleading.</p> <p>2. Same—Scope of Admission—Time.</p> <p>Upon an issue as to whether defendant operated the street railroad on which plaintiff was injured, an admission by defendant in another suit that it did operate it did not establish the affirmative of the issue, in the absence of evidence that plaintiff’s injury was at or near the time to which the admission related.</p> <p>8. Appeal—Supplying Omitted Pboof.</p> <p>Where defendant offers no evidence, but relies on its motions to strike out the evidence on a material issue and to dismiss, the court, on appeal from the municipal court, cannot receive evidence to supply omitted proof.</p>

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

Action by John S. Sampson against Clara Mayer and others on an obligation in writing whereby defendants bound themselves jointly and severally to save plaintiff harmless from the claims of creditors of a firm of which hé had been From a judgment for plaintiff, defendants appeal.

<p>1. Action on Contract—Prooe oe Execution.</p> <p>Where the action was brought on a contract against three defendants, but before trial it was discontinued as to one defendant, and the undisputed evidence showed that the contract was made only by the defendant against whom the action was dismissed, a motion to dismiss the complaint for failure of proof should have been granted.</p>

<p>1. Advancement oe Money—Failure oe Consideration—Recovery.</p> <p>Money advanced on a consideration -which subsequently fails may be recovered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Charles Poucher against Eeander' B. Eaber. From a Municipal Court judgment in favor of plaintiff, defendant appeals</p>

<p>1. Negligence—Injuries—Nonsuit.</p> <p>Where plaintiff was injured by a team', and there was some evidence that such team belonged to defendant, the fact that the wagon was partially on the sidewalk at the time was a circumstance from which negligence might be inferred, and the granting of a nonsuit was error.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Leon Edward Muller against Sarah M. Barker. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Street Railroad—Injuries to Pedestrian—Evidence.</p> <p>In an action for injuries to a pedestrian while attempting to cross a street railway track, evidence held insufficient to sustain a verdict for plaintiff.</p> <p>2. Same—Appeal—Verdict—Vacation—Weight of Evidence.</p> <p>A verdict will be set aside on appeal where it is against the clear weight of the evidence.</p>

.Action by Jannie Lederer against Bernauth Krausz and another. From an order of the New York City Court denying a motion to stay all proceedings on the part of plaintiff until payment of a judgment for costs in a former action in the Supreme Court between the same parties, defendants appeal.

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

Action by Christian Karch against Rathburn Kipp. From an order of the City Court setting aside a verdict in favor of plaintiff and ordering a new trial, plaintiff appeals.

Appeal flrom City Court of New York, Trial Term. Action for negligence by Mathew Foley against the Young Men’s Christian Association of New York. From a City Court judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.

<p>1. Proof of Debt.</p> <p>Receipt by an attorney of a claim for collection against an individual, a letter written by the attorney to such individual stating the amount of the claim, that it had been placed with him' for collection, and requesting an answer before suit is brought, and failure to answer the letter, is not proof of an indebtedness.</p>

Action by Frank Hillman against Andre De Rosa. From a judgment for plaintiff, defendant appealed. Record returned to files to allow of motion to return for settlement of case.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Harry Levey against James C. Duff and others. From a judgment for plaintiff, defendant Duff appeals.</p>

Action by Joseph M. Abrams against the Manhattan Consumers’ Brewing Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Insurance—Proofs of Loss—Waiver.</p> <p>Where an insurance company made an offer of payment after the receipt of a paper which purported to show, although informally, some .statement of loss, and did not for over three months take the position that the offer was without prejudice to its right to assert the insured’s failure to furnish formal proofs, it was competent for the jury to infer that the formal proofs of loss had been waived.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Christian Bahnsen against Alex Horwitz. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Street Railroad—Personal Injury—Collision—Questions for Jury.</p> <p>In an action against a street railroad for personal injuries received in a collision between a wagon in which plaintiff was riding and one of defendant’s cars, alleged to have resulted from the negligence of defendant’s motorman, the act of the defendant in permitting the case to go to the jury without objection at the close of the case is a tacit concession of the sufficiency of the evidence to require a submission to the jury of-the questions of the motorman’s negligence and the plaintiff’s contributory negligence.</p> <p>2. Same—Contributory Negligence—Imputed Negligence.</p> <p>In an action against a street railroad company for injuries received in a collision between a wagon in which plaintiff was riding and one of defendant’s cars, alleged to have resulted from the negligence of the defendant’s motorman, it appeared that the plaintiff was riding gratuitously in the wagon at the time of the collision, on the invitation of the driver, who was also its owner. The driver was engaged in the business of carting ice for the plaintiff and his customers and others, and it did not appear that plaintiff did or was authorized to exercise any control over the wagon. Held, that the driver was not a servant of plaintiff, and hence the negligence of the driver could not be imputed to plaintiff.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Nathan against Israel Herman. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal—Record.</p> <p>The sufficiency of a judgment roll to justify dismissal under a plea of former recovery cannot be determined where it does not appear in the case on appeal.</p> <p>2. Same—Amendment of Record.</p> <p>Where plaintiffs excepted to dismissal on the ground that a judgment roll showed a former recovery, it was defendant’s duty to add the judgment roll to the case on appeal by proper amendment.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Isidore Bial against the Interurban Street Railway Company. From a judgment of the New York City Court in favor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.</p> <p>Action for personal injuries alleged to have resulted to the plaintiff through the negligence of the defendant’s driver in starting his car while the plaintiff was in the act of boarding it:</p>

<p>Appeal from Municipal Court, Borough of Manhattan,- Sixth District.</p> <p>Action by Julia Goldzier against the Central Railroad Company of New Jersey. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Michael Stein against the Manhattan Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Jacob Blum and another against Joseph A. Blum. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

Action for negligence by Samuel Schwartz against Albert London and others. From a judgment of the City Court in favor of plaintiff, and from an order a motion for a new trial, defendants appeal.

<p>1. Street Railways—Negligence—Evidence—Declaration in Nature of Res Gests.</p> <p>In an action against a street railroad company for injuries sustained in a collision, the declaration of the motorman almost immediately after the accident that he “lost control” was not admissible as res gestae.</p>

Action by Morris J. Hirsch against the American District Telegraph Company. From a judgment for plaintiff and from an order denying a motion for a new trial, defendant appeals.

<p>1. Pleading—Negative Pregnant.</p> <p>In an action on a contract, a denial that plaintiff has performed all the conditions precedent is not a negative pregnant</p> <p>2. Practice—Amendment oe Judgment.</p> <p>Under Municipal Court Act, § 254 (Laws 1902, p. 1563, c. 580), authorizing motions to amend judgments, failure of a judgment to declare that the complaint was dismissed without prejudice must be remedied by amendment in the trial court.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Summary proceedings for the possession of real estate by Rachael Gossett Isaac Fox. From a in favor of defendant, plaintiff appeals.</p>

<p>1. Appeal-Objections not Made at Tbial.</p> <p>An objection that an order allowing a preference in the trial of a case was in violation of a City Court rule could not be made for the first time on appeal from such order.</p>

<p>1. New Trial—Perjury—Conflicting Evidence—Review.</p> <p>Where, in an action for injuries, defendant applied for a new trial on the ground that the verdict was the result of conspiracy and perjury on the part of the original plaintiff, his attorney, and various witnesses, and the evidence introduced on such motion was not only conflicting, but contained a mass of perjured testimony by witnesses whose character was directly impeached, the exercise of the trial court’s discretion in denying the motion will not be reversed on appeal.</p>

Action by Joseph Finn against the Ironclad Manufacturing Company. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals.

<p>L Venue—Inadvertence—Complaint—Amendment.</p> <p>Where both parties recognize and act on the assumption that the county named in the summons is the place of trial, the fact that the complaint names a different county as the place of trial merely through inadvertence does not render an amendment of the complaint necessary.</p>

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

<p>Appeal from Chenango County Court.</p> <p>Supplementary proceedings, on the application of Gilbert E. Ellis against Adelbert Rugg and another, for the examination of the First National Bank of Earlville as a third person alleged to have moneys and credits belonging to the defendants. From an order denying a motion to vacate an order requiring the bank to appear and answer before a referee, the judgment debtors appeal.</p> <p>The judgment creditor, Ellis, recovered judgment against Adelbert and Mary Rugg on October 24, 1898, for $838.75 debt and $18.05 costs. A transcript thereof was duly filed and docketed in Chenango county November 14, 1898; and execution issued same day. On November 23, 1903, on the application of Ellis, an order was granted in supplementary proceedings against such debtor, by the county judge of that county, to examine the First National Bank of Earlville as a person having property belonging to such debtors, under section 2441 of the Code. A motion was subsequently made before such judge to vacate that order, and a decision made by him to vacate it, but before it was entered, and on March 1, 1904, such judge made a second order requiring the bank to appear on March 5th before a referee therein named, and through its cashier, Guy H. Clark, be examined under oath concerning any debt or property, etc., it held belonging to said debtors, as provided by said section 2441. Such order also enjoins the bank and the said debtors from disposing of or in any manner interfering with the property or debt concerning which the bank was required to be examined “until further direction in the premises.” On March 5, 1904, such county judge, on the application of said judgment debtors, granted an order that said Ellis show cause, before him at chambers on March 7th why such order of March 1st should not be dismissed on several grounds therein stated. On March 14th an order was made by such county judge denying the motion to vacate the order of March 1st, and amending the same by adding to it language making it clear that the injunction in such order was not intended to affect any property other than that on deposit, or in its control, to the credit of the said debtors or either of them, or in which they or either of them have an interest. From the order of March 14th so refusing to vacate the order of March 1st this appeal is taken.</p>

<p>Appeal from Special Term, New York County.</p> <p>Suit by the Samuel Cupples Envelope Company against John Lackner. From an order of injunction pendente lite, defendant appeals.</p>

<p>1. Contract—Execution—Authority of Agent—Jury Question.</p> <p>In an action for breach of an alleged contract to deliver goods, evidence examined, and whether the contract was made by a person authorized by the defendant to make it held to be a question for the jury.</p> <p>2. Same—Question of Fact.</p> <p>An order for goods was taken by defendant’s agent, and an acceptance thereof was left with plaintiffs, who discovered a mistake in the acceptance, when one of the plaintiffs took it to the defendant’s agent for correction, whereupon the agent struck out the part inserted by mistake in both the order and acceptance, plaintiffs taking the order, while the defendant’s agent kept the acceptance. Held insufficient, as a matter of law, to show that no contract had been made.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by the Cluster Gaslight Company against Charles J. Baker for agreed price of a lamp delivered to defendant. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant—Employé by the Month—Abandonment oe Employment.</p> <p>Where an employé by the month was not paid for the first month, and voluntarily left the employ about the middle of the second month, he could recover only the actual wages earned; the nonpayment for the first month not being a discharge.</p>

<p>1. Landlord—Defective Premises—Liability.</p> <p>A landlord Is not liable for injuries to a tenant of a part of a building for injuries from a defective staircase in the building, without proof that he had notice of such condition, or that the unsafe condition had existed for such a length of time as to charge him with notice.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Guy C. Dempsey against Frederick Zittel. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Barnett Hamburger and another against Meyer Heilman. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Morris Bernstein against the Bear Lithia Springs Water Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Tbial—Objection to Evidence—Motion to Stbike.</p> <p>In an action for Injuries, an objection that plaintiff’s evidence did not sufficiently identify the injury with the one found by a physician two days after the accident should have been suggested at trial, and a motion at the close of plaintiff’s case to strike the physician’s testimony as not connected with the accident was properly denied.</p>

Action by Matthew Hilgert against Archibald P. Black. From a judgment of the City Court for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Samuel Kaufman against Harris Abrams. From a judgment for defendant on his counterclaim, plaintiff appeals.</p>

<p>1. Appeal—Review—Sufficiency of Evidence.</p> <p>Where the testimony of plaintiff, corroborated in some details by his wife, was not contrary to the probabilities, the verdict in his favor will not be set aside, as against the weight of the evidence, because the two defendants contradicted plaintiff’s evidence.</p>

Action by Charles Patterson against the V. J. Hedden & Sons Company. From a judgment for defendant dismissing the complaint at the close of the case of plaintiff, he appeals.

<p>1. Appeal—Harmless Error.</p> <p>Where, in an action to recover the value of a specific number of pieces of goods, defendant, by stipulation, admitted that the goods were never returned, error in rulings on evidence on the question of the number of pieces returned was not reversible error.</p> <p>Appeal from City Court of New York, Special Term.</p> <p>Action by Kalman Radin and another against Randolph G. Paul. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by John McCormick against Henrietta Gubner, as executrix. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Louise Mitterwallner against the Supreme Lodge of the Knights and Ladies of the Golden Star. From a judgment on a verdict directed for plaintiff, and from an order denying a motion for a new trial, defendant .appeals.

Action by Mary E. Coolidge, administratrix of the estate of Erwin E. Coolidge, deceased, against the city of New York and others. From a judgment for plaintiff and an order denying a motion for a new trial, defendants appeal.

Action for goods sold and delivered by Martin J. Wade and others against Harry Wolfson; From a judgment for defendant, plaintiffs appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Jacob Zlotnick against Morris Greenfeld and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Action by the Bell Telephone Company of Buffialo against the city of Rochester.</p>

<p>Action by Ellen J. Bogardus against the Metropolitan Street Railway Company. J. P. Cotton, for appellant. J. A. Douglas, for respondent.</p>

<p>Action by Amelia Benedict against Rhode A. Houghton and others.</p>

<p>Action by Frank M. Bonta against Willis T. Gridley and another.</p>

<p>Action by Bridget Brady against the Metropolitan Street Railway Company. B. H. Ames, for appellant. R. L. Tarbox, for respondent.</p>

Action by Iole Brusco against the Star Company. From an order granting a preference and setting the case for trial on a day certain in the October term of the court, defendant appeals. Reversed. David B Hill, for appellant. Joseph J. Cunningham, for respondent.

<p>Action by the Buffalo Structural Steel Company against Charles E. Dickinson.</p>

<p>Action' by Chapman & Co. against the city of New York.</p>

<p>Action by the city of Mt. Vernon against Andrew M. Kenlon and others.</p>

<p>Action by John F. Cahill against Joseph F. Hogan, as mayor of the city of Troy, and others, together assuming to act as the municipal improvements commission of the city of Troy.</p>

<p>Action by Mar^ E. Conklin, as administratrix, against William A. Garrigues, impleaded. E. L. Richards, for appellant. D. F. ICiely, for respondent.</p>

<p>Action by E. Warren Day against Marie E. Billings. From a judgment for defendant, plaintiff appeals. Affirmed. Frank M. Wills, for appellant. Herbert J. Hindes, for respondent.</p>

<p>In the matter of the application of Patrick X. Daley for a writ of mandamus.</p>

<p>Action by Herbert S. Dixon against Thomas L. James and others.</p>

Action by Jane B. Eddy against Bernard Spaulding and others. From an order perpetually staying the execution of a judgment of foreclosure and sale, plaintiff appeals.

<p>Action by Jeffrey Donahue against the Utica & Mohawk Railroad Company.</p>

<p>Action by Jennie J. Dusenbury against Millard F. Smith and others.</p>

<p>Action by Maria Ellman against the city of North Tonawanda.</p>

<p>Action by George Elsey against the International Railway Company.</p>

<p>Action by Ann S. Foster against Albert T. Foster and Andrew H. Smith.</p>

<p>Action by the Giveen Manufacturing Company against Charles J. McNulty, as trustee, etc. From an order granting a preference of the cause on the trial calendar, plaintiff appeals. Reversed. A. H. Parkhurst, for appellant. Charles L. Greenhall, for respondent.</p>

<p>Action by Katie Hoffman, as, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Bertha Irving, an infant, etc., against the city of Utica.</p>

<p>In the matter of L. Laflin Kellogg.</p>

Actions on foreign judgments by Robert Charles Lambert, administrator, against the Mutual Reserve Life Insurance Company. From judgments rendered, after trial without a jury, for plaintiff, defendant appeals. Affirmed. Frank R. Lawrence, George Burnham, Jr., and Gordon T. Hughes, for appellant. Gilbert E. Roe, for respondent.

<p>Action by Bridget Larkins against Edward T. McGinley, as executor of the will of Bridget Harrington, deceased. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Affirmed. Burn-ham Kalisch, for appellant. Mulqueen & Mulqueen, for respondent.</p>

<p>In the matter of Alma Louise Larner, an alleged incompetent person.</p>

<p>Action by John C. Leggett against Addison S. Stevens and others.</p>

<p>Action by James P. McDonald against the Ecuadorian Association, Limited. E. H. Childs, for appellant.. A. C. Rounds, for respondent.</p>

<p>Action by William W. Long against Eva R. Anderson.</p>

<p>Action by Katharine Linick against the International Railway Company.</p>

<p>Action by Bridget Lydon as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Homer J. Markham against Frank Shue.</p>

<p>Action by Martin’s Bank, Limited, against- the Amazonas Company. An order was entered placing the cause on the special calendar of part 2 as a short cause for trial, as authorized by court rule 5, and defendant appeals. Modified. W. M. Seabury, for appellant. Abraham Benedict, for respondent.</p>

<p>In the matter of the discovery and delivery of property belonging to the estate of Lucy Mink, deceased.</p>

<p>Action by Solomon Biorrison and another against Albert D. Ullman and others.</p>

<p>Action by Samuel K. Nester against Henry Colter.</p>

<p>Action by James C. Penfold against William Gaul.</p>

<p>Action by Elizabeth Ragette arid others against Adam Zimmer and others. From a judgment for plaintiffs, defendants appeal. Modified. Alfred Steckler, for appellants. A. C. Hottenroth, for respondents.</p>

Action by Mabel Riglander against the Morning Journal Association and the Star Company. From an order granting a preference and setting the case for trial for' a day certain in the October term of the court, defendants appeal. Reversed. David B. Hill, for appellants. Joseph J. Cunningham, for respondent.

<p>Action by George H. Rubenstein and another against George W. Ryan.</p>

<p>Action by the state of New York against George Jones.</p>

<p>Action by Michael Sullivan against the city of Rome.</p>

<p>Actions by Clarence Ten Eyck, as receiver, against Leroy and Lucinda Bookman and others.</p>

<p>Action by James S. Thompson and others against Henry Witkop, as treasurer, etc.</p>

<p>Action by the town of South-old against Francis B. Parks and others.</p>

<p>Action by Oscar Vancise against Stephen L. Peterman.</p>

<p>Action by Oscar Vancise against Stephen L. Peterman.</p>

In the matter of the application of Josiah J. White, as guardian of the person of Frederic Hall White, an infant, for the payment by the Long Island Loan & Trust Company, as guardian of the property of said infant, of the requisite funds for the support and maintenance of said infant, and for other purposes.

<p>Action by William P. Wood against the New York Central & Hudson River Railroad Company.</p>

<p>Action by the W. S. Tyler Company against the Thomas W. Finucane Company.</p>

<p>Action by Elizabeth Gamble Young against Frederick S. Gamble and another.</p>