Volume 91 — New York Supplement

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Julius Cossel and others against Samuel Altschul. From a judgment dismissing the complaint, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Adolph Reisenberg and another against the New York City Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Street Railroads—Injury to Passenger—Sufficiency of Evidence.</p> <p>Evidence in an action against a street railroad company for personal injuries hold insufficient to warrant submission to the jury of the question whether the ear alleged'to have caused the injury belonged to defendant.</p>

Action by Morris Rabinowitz against Bernard Haimowitz. From a judgment for plaintiff and an order denying a motion to open a default, defendant appeals.

<p>1. Conditional Purchase—Evidence.</p> <p>Evidence that a purchase of a store for $2,100 was on the condition that the gross receipts were $100 a day is not so improbable .that it may not be credited.</p>

<p>1. COEPOEATIONS—CONTEACTS—AUTIIOBITY OP DlBECTOBS—EVIDENCE.</p> <p>In an action against a theater company to recover for scenery furnished to it, it was competent for defendant to show, after a prima facie case made by plaintiff by showing a contract with certain of defendant’s directors, and the delivery of the scenery at defendant’s theater, and the subsequent use of it there, that at the time in question defendant was not "in possession of the theater, and that the property was ordered by a separate company of actors giving performances there, of which the two directors who ordered the machinery were members, and that in giving the order they acted either for themselves or on behalf of the company of actors, and had no authority to make the contract for defendant, and that the same was never ratified by it.</p>

<p>1. Evidence—Heabsay.</p> <p>Where defendant’s motorman, as a witness, stated that at the time o£ the accident in question he did not give his name to any one, evidence of a policeman, thereafter given, that the conductor of the car gave him a certain name as that of the motorman of the car, was objectionable as hearsay.</p> <p>2. Witness—Use of Memobanda—Foundation.</p> <p>Where a witness had not expressed or indicated'any loss of memory regarding, the circumstances detailed in his report of an accident, it was error to permit him to read such report.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Patrick Doherty against the Metropolitan Street Railway Company. From an order denying a motion for a new trial, defendant appeals.</p>

<p>1. Insurance—Brokers—Contracts—Breach.</p> <p>Where plaintiff contracted to obtain certain insurance for defendants at a less rate than plaintiff knew policies would be issued for by the insurance company, of which defendants had no knowledge, defendants’ notification to plaintiff that they would not accept the policies from plaintiff, before the policies were issued, but after defendants had ascertained the policies would not be issued for the rate specified, did not render defendants liable for breach of contract.</p>

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

<p>1. Monet Lent—Actions—Return of Security.</p> <p>Where plaintiff obtained the proceeds of the discount of a stranger’s note handed him by defendant, and loaned the money thus procured to</p> <p>■ defendant, an action against defendant to recover the money loaned could-not be maintained upon the note, neither plaintiff nor defendant being parties thereto, but was upon the debt, and, even assuming that the note served as security therefor, yet the action was not dependent upon the return of the note.</p> <p>2. Trial—Instructions—Discredit of Testimony.</p> <p>An instruction that the jury may disregard the uncontradicted testimony of a disinterested witness is erroneous.</p> <p>3. Appeal—Waiver of Errors.</p> <p>Failure to raise the point that a certain error calls for reversal operates as a waiver of the point.</p>

<p>1. Sale by Sample—Fraud op Broker—Commissions.</p> <p>' Where a broker is employed to sell goods by sample, and he uses samples of a better grade than that agreed on, he does not earn his commissions under his contract.</p> <p>2. Same—Evidence.</p> <p>Where plaintiff, employed to sell goods by sample, used samples of a better grade than that agreed on, and admitted the mistake in a letter to aid defendant in canceling an unprofitable sale, such admission is evidence against plaintiff in his action for commissions.</p>

<p>1. Insurance —Forfeiture—Co-insurance.</p> <p>Where assured had obtained Insurance to the extent of 175 per cent of the cash value of his property at the time he obtained the policy in question from defendant, and afterwards procured other insurance without defendant’s permission indorsed on or added to defendant’s policy, such act authorized a forfeiture for violation of the co-insurance clause.</p> <p>2. Samé—Waiver.</p> <p>An 80 per cent, average or co-insurance clause contained in a fire policy did not constitute a waiver of a forfeiture incurred by assured in obtaining other insurance beyond the 80 per cent, without insurer’s permission indorsed on or added to the policy.</p>

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

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

Action by Erskine J. R. Van Houten, as trustee in bankruptcy of the Rochester Lamp Company, against Joseph H. Oliver. From a City Court judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals.

<p>Motion for reargument.</p>

<p>1. Street Railroads—Construction Work—Use of Streets—Liability to Pedestrians.</p> <p>An elevated railway is not liable for injuries to a pedestrian caused by his stepping on a nail in a plank placed on the sidewalk by the railroad in the course of the construction of steps, unless it permitted the plank to remain upon the sidewalk beyond a reasonable time.</p> <p>2. Judgments—Dismissal—Failure of Proof.</p> <p>A judgment of dismissal on the merits, entered after a nonsuit for failure of proof, is, in so far as it directs the dismissal upon the merits, erroneous.</p> <p>K 2. See Judgment, vol. 30, Cent Dig. § 359.</p>

<p>1. Damages—Excess over Proof—Mod lfication of Judgment.</p> <p>Where plaintiff claimed $150 for injuries to his person and $50 for injuries to his clothing, and the testimony relating to the injuries to his clothing was stricken out, a judgment for $200 should be modified, and rendered for $150.</p> <p>V1. See Judgment, vol. 30, Cent. Dig. §§ 443, 444.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by George H. Meyers against the Brown-Cochran Company. 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 the American Contractor Publishing Company against Ernest Bagge ánd another. From a Municipal Court judgment in favor of defendants, plaintiff appeals.</p>

<p>1. Fraud—Pleading and Proof—Checks and Drafts.</p> <p>An action for fraud, based on defendant’s misrepresentation that he had funds on deposit with a certain firm, thereby inducing plaintiff to pay him money on a check drawn on that firm, should not be dismissed on the ground that the instrument was not a check, but a draft; it being in form a check, and the distinction suggested only by the court being immaterial to the issues.</p>

Action by one Chambers against one Ackley to recover compensation for finding a money lender willing to make a loan on defendant's real estate. Judgment for defendant.

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Benjamin Nieberg and others against Samuel Green-berg. From a Municipal Court judgment in favor of plaintiffs, defendant apoeals.</p>

Action by Charles H. Woodward, against Anna Schaefer. Appeal by defendant from an order of the City Court in favor of plaintiff denying'defendant’s motion to cancel a judgment against her after her discharge in bankruptcy.

<p>1. Dismissal—Conclusiveness—Appeal—Statute.</p> <p>Under Municipal Court Act (Laws 1902, p. 1561, c. 580) § 249, providing that a judgment that the action may be dismissed on the merits, with costs, may be rendered where at the close of the whole case the court is of opinion that plaintiff is not entitled to recover, a judgment dismissing a complaint on the merits, which is supported by credible evidence on one ground, cannot be attacked as erroneous on some other ground.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by William C. Bolton against the Seamen’s Bank for Savings and others. From a judgment for plaintiff, defendants appeal.</p>

Action by Harry Rosen against John R. Voorhis and others. From a judgment and order setting aside the verdict and dismissing the complaint, plaintiff appeals.

Application by William F. Brenner for an order compelling Joseph Martin and James A. McElhinny to pay to petitioner money deposited by liim with them when they were his attorneys. From such an order directed against Martin alone, he appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Julius Ascheim against Harry Eevinsohn. From a judgment for plaintiff, defendant appeals.</p>

In condemnation proceedings by the Brooklyn Union Elevated Railroad Company relative to acquiring title to real estate on right of way on Crescent street, Myrtle avenue, and other streets in the borough of Brooklyn and Kings county in the city of New Yoyk. A. Am Stein and another appeal. Reversed, and plaintiff moved for leave to appeal to the Court of Appeals on certified questions of' law.

<p>1. Carriers—Injuries to Goods—Actions—Ownership—Evidence.</p> <p>In an action against a carrier for injuries to goods, plaintiff was not entitled to recover where the evidence of ownership was insufficient to preclude the maintenance of a subsequent action by either the consignor or consignee.</p>

In the matter of the estate of Anthony Muschall, deceased, and judicial settlement of the accounts of Andrew Driskel, as executor under the will of Fredericka Driskel, deceased. From a decree requiring payment by Driskel, as executor, of legacies and interest thereon to Muschall’s children, Driskel appeals.

<p>1. Benefit Associations—Payment of Dues—Sufficiency -of Evidence.</p> <p>■Where the constitution of defendant benefit association provides for suspending a “member being three months in arrears with dues and assessments,” and that “all payments of dues and assessments shall be receipted for by stamps,” a member’s receipt book, showing payment by receipted stamps to within less than two months of his death, is controlling as against the testimony of defendant’s secretary that the member was in arrears for more than three months.</p>

Action by James Armstrong against Mary A. Chisolm and others. From the'judgment rendered, Charles N. Talbot, assignee of Andrew J. Robinson for the benefit of creditors, appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Frederick W. R. Eschmann against Jerome J. Atkinson. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Contracts—Breach—Action—Pleading—Covenants—Failure to Allege Plaintíff’s Performance.</p> <p>Where a contract between plaintiff and defendant required defendant to pay plaintiff certain sums on specified contingencies, and plaintiff agreed to surrender to defendant a certain stock certificate, the complaint, in an action by plaintiff on the contract, was demurrable, where he failed to allege performance or tender on Ms part, or excuse.</p> <p>T1. See Contracts, vol. 11, Cent Dig. §§ 1664-1676.</p>

<p>1. Street Railroad — Personal Injury — Negligence—Evidence—Sufficiency.</p> <p>Error of judgment and miscalculation on the part of one walking in dangerous proximity to a street car track as to the distance he could travel before an approaching car, which he saw and watched during the progress of his journey, would reach him, are insufficient to establish his right to recover, much less negligence on the part of the street railroad, even in the absence of signal of the approach of the car.</p>

<p>1. Street Railroads—Collision with Vehicle—Negligence—Sufficiency of Evidence.</p> <p>In an action by the owner of a vehicle against a street car company for damages from a collision, where the version of defendant’s motorman, that the negligence of plaintiff’s driver caused the accident, was directly supported by three disinterested witnesses, and the direct testimony of plaintiff’s driver varied from that on cross-examination, with but slight support by one disinterested witness, a verdict for plaintiff is against the weight of evidence.</p>

<p>L Evidence—Negligence—Injuries—Defendants’ Accident Insurance— Harmless Error.</p> <p>In an action for negligent injuries, a question to defendants’ witness on cross-examination tending to show that defendants had accident in-, surance was not reversible error, where the character and extent of the injuries was the only issue.</p>

<p>1. Street Railways—Injury to Passenger on Running Board—Contributory Negligence.</p> <p>A passenger on a street car, who, because it is crowded, stands on the running board, is guilty of contributory negligence; he having ridden on such board for several blocks without looking ahead, and being struck by the shaft of a wagon standing near the track, which the other passengers on the running board avoided by standing close to the car or getting between the seats.</p> <p>V1. See Carriers, vol. 9, Cent. Dig. § 1379.</p>

<p>1. Advertising Contract—Performance—Payment.</p> <p>Where defendant authorized plaintiff to insert a certain advertisement in plaintiff’s publication for a period of 34 insertions, for which defendant agreed to pay a certain sum “in monthly payments as due,” proof of 7 insertions between the dates specified in the complaint entitled plaintiff to recover therefor, regardless of whether the contract was entire or for a year.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Thomas H. Jones against Louis Oppenheim and others. From a City Court judgment in favor of plaintiff, and from an order denying defendants’ motion for a new trial, they appeal.</p>

<p>1. Brokers—Commissions—Compliance witi-i Contract.</p> <p>Where a contract for broker’s services provided that “commission or brokerage will be paid only to the one who actually makes and finally completes the sale and has the contract signed,” and plaintiff failed to show that any contract was signed between the owner and the purchaser procured, plaintiff was not entitled to recover commissions.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>- Action by Solomon Swlgelsky against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals.</p>

Action by James Kane against the Metropolitan Street Railway Company. From an order of the City Court denying a motion for leave to serve an amended answer, defendant appeals.

<p>1. Courts—Entry op Judgment—Jurisdiction—Statute.</p> <p>Under the Municipal Court Act, Laws 1902, p. 1557, c. 580, § 230, providing that when a justice tries a case without a jury he must decide all questions of fact and law, and render judgment accordingly within 14 days from the time the same was submitted, where a case was tried on October 6th, and briefs were submitted as of October 13th, the justice was without jurisdiction to render a judgment on October 28th.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by George H. Schleicher against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Herman Meyers and another against Samuel Zucker and another. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Betty Wulfart against Jacob Weinstein and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Annie Wappus against George Donelly. From a Municipal Court judgment in favor of plaintiff for alleged inadequate damages, she appeals.</p>

<p>Appeal from Rensselaer County Court.</p> <p>Action by Charles E. Barringer against the United Traction Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Conditional Sales—Covenant to Insure—Breach—'Waiver—Authority oe Agent.</p> <p>Where, as a part of a conditional sale of a piano, the buyer agreed to insure the same for the seller’s benefit, evidence that when the piano was delivered the buyer was informed by an unidentified agent of the seller that “the piano was insured at the store,” and that the buyer need not insure the same, without proof that the agent had authority to change the terms of the written contract, was insufficient to establish a waiver of the covenant to insure.</p>

Application in the name of the people of the state, on the relation ■of William G. Braisted, for a peremptory writ of mandamus to John H. McCooey and others, constituting the municipal civil service commission of the city of New York. From an order granting the writ, defendants appeal.

Suit by Charles J. Phalen against .the United States Trust Company of New York, as trustee of James Phalen, deceased, and others. From a judgment overruling a demurrer to the complaint (89 N. Y. Supp. 699), defendant trust company appeals.

<p>1. Contracts—Actions—Defenses—BIatters in Parol.</p> <p>Defendant promised, by written contract with plaintiff, to take a certain space in an advertising book, and to pay a certain sum therefor. The contract further provided that all agreements must be written on its face, and, if copy for the advertisement should not be furnished upon demand, a business card might be used. Plaintiff repeatedly demanded of defendant copy for the contemplated advertisement, and upon defendant’s failure to furnish the copy, just before the book went to press, his business card was used. Held, that defendant could not defend a suit on the contract on the ground of a misunderstanding with plaintiff’s solicitor as to the subject-matter of the advertisement.</p>

<p>Motion for amendment of order granted.</p>

<p>1. Wills—Construction—1Trust Fund—Judgment against Beneficiary.</p> <p>Where testator directed his executors to retain one-fourth of his residuary estate in trust to pay the income therefrom to testator’s son during life, and the income is insufficient for the son’s support, and the executors have obtained judgment for costs against the son as the result of unsuccessful litigation conducted by him, they cannot, on their accounting, pay on account of such judgments any sums from the principal or income of the trust fund.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Hyacinth G. McClelland against Jacob Baum and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal.</p>

<p>1. Sales—Goods not Accobding to Saseple—Rescission.</p> <p>Where a purchaser of goods, on receiving the last installment of them, found them not according to the sample, he had a right to rescind the agreement.</p> <p>2. Same—Recovery fob Portion.</p> <p>Where a purchaser of goods, on receiving an installment, refused some of them as not according to sample, but offered to keep the others, in an action on the entire contract the offer to keep some of the goods not having been accepted, no claim for a portion could be allowed. .</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth . District.</p> <p>Action by the Mercantile Finance Company against Alexander Welsh. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Giovanni Figarra against Philip Saitta. From a" judgment for defendant, plaintiff appeals.</p>

<p>1. Municipal Court of New York—Substituted Service—Sufficiency.</p> <p>Municipal Court Act, Laws 1902, p. 1501, c. 580, § 34, providing that, when substituted service is made, the order and the papers on which it was granted must be filed and the service made not less than six days before the return day of the summons, or that otherwise the order becomes inoperative, is mandatory.</p> <p>2. Same—Insufficient Service—Trial-Waiver of Defect.</p> <p>Municipal Court Act, Laws 1902, p. 1561, c. 580, § 248, declares that when it is objected at the trial and it appears by the evidence that the court has no jurisdiction, but if the objection be taken and overruled, it is cause only for reversal on appeal; and if not taken at the trial it is waived, and the court will be deemed to have jurisdiction. Held, that where defendant, on the return day and before trial, moved to set aside the service of summons on the ground that the order for substituted service and the papers on which it was granted were not filed six days before the return day of the summons, as required by section 34 (page 1501), he did not waive his rights by proceeding to trial after his motion had been denied.</p> <p>3. Same—Jurisdiction—Burden of Proof.</p> <p>Where, in an action in the Municipal Court, the order and papers on which an order authorizing substituted service were founded did not show that they were filed six days before the return day of the summons, as required by Municipal Court Act, Laws 1902, p. 1501, c. 580, § 34, and the jurisdiction of the justice was questioned, the burden was on plaintiff to shtiw jurisdiction.</p>

<p>1. Master and Servant—Right to Discharge—Removal oe Belongings.</p> <p>An employer may at any time dismiss a janitress or servant in his building, and he may put out her furniture if she refuses to remove it, but he cannot, in so doing, forcibly destroy or injure the furniture.</p> <p>2. Damages—Personal Property—Evidence—Cost and. Use.</p> <p>In the absence of better proof, evidence of the cost of articles, and further evidence of the amount that they have been used, is a basis fertile estimation of damages resulting from the destruction of the articles.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Pauline Bernzweig against Esther Zwisohn. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by the city of New York against Henry BifHe. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Insurance Brokers—Premiums—Actions—Persons Entitled to Sue.</p> <p>Where insurance brokers acted as agents for foreign insurance companies in placing the insurance in question, and had no interest in the premiums payable to the insurers, they were not entitled to maintain an action in their own name therefor.</p>

<p>1. Trial—Preponderance of Evidence—Burden of Proof.</p> <p>A plaintiff assumes the burden of establishing his complaint by a preponderance of evidence.</p> <p>2. Same—Preponderance of Evidence—Preponderance of Witnesses.</p> <p>A preponderance of evidence does not mean merely a preponderance of witnesses.</p> <p>3. Same—Landlord and Tenant—Lease fob Fixed Period—Evidence of Existence—Sufficiency.</p> <p>In an action wherein plaintiff claimed that defendant had leased certain rooms of plaintiff for a fixed period, evidence held insufficient to show such an agreement made.</p> <p>12. See Evidence, vol. 20, Cent. Dig. § 2450.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Frederick J. Snyder, doing business under the name and style of the Vulcan Asbestos Company, against the International Economist Company. From a verdict directed for plaintiff, and from an order granting a motion to dismiss defendant’s counterclaim, defendant appeals.</p>

<p>1. Sales—Admissions—Delivery—Value.</p> <p>An offer on defendant’s part to compromise a claim against him for goods sold and delivered involves an admission of the delivery of the goods and of their value, up to the amount of the offer.</p> <p>2. Appeal—Waiver of Objections.</p> <p>Where the fact of agency was assumed by both parties throughout the trial, the failure of the proof to show agency could not be first questioned on appeal.</p> <p>3. Sales—Actions—Measure of Recovery—Value of Goods.</p> <p>In an action for goods sold and delivered, where there is no evidence o£ value, except such as is involved in an offer of compromise made by defendant, the recovery cannot exceed the sum at which defendant agreed to compromise.</p>

<p>1. Bills and Notes—Liability of Surety—Notice of Dishonor.</p> <p>Plaintiff cannot recover against a surety on a note without proving service of notice of dishonor, an affidavit of nonservice having been filed with the answer.</p> <p>2. Review—Record.</p> <p>In determining a question of fact on review, the court cannot consider what purports to be a transcript of evidence not made a part of the return.</p>

<p>1. Chattel Mortgage — Foreclosure — Counterclaim — Evidence — Sufficiency.</p> <p>Where default in making payment as required by a chattel mortgage was admitted on foreclosure, a judgment for defendant, based on a breach of warranty of title, is not sustained, in the absence of evidence of damage, merely on proof that some of the mortgaged goods were taken from defendant under claim of a prior chattel mortgage, the existence of which was not shown.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by David Isselcs against William Nelson. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Maude Turner against Peter Cedar and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>1. Witnesses—Redirect Examination—Evidence—Exclusion—Discretion.</p> <p>A physician having testified, in an action for injuries, that there was nothing to indicate injury except purely subjective symptoms, and having been cross-examined, it was not error to refuse to permit him to testify on redirect examination as to whether he discovered anything which would prevent plaintiff from attending to his business.</p>

Action by Andree Liquari against Samuel I. Abramson and another. From a Municipal Court judgment in favor'of plaintiff, and from an order denying defendants’ motion to open a second default, they appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action b)’' Ásaph P. Childs against John Swift. From a Municipal Court judgment in favor of. plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Louis Heller against Moritz Altman and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Street Railroads—Tracks—Defects—Injuries—Appeal—Right to Allege Error.</p> <p>Where, in an action against a street railway company for injuries to plaintiff’s horse and buggy by an alleged defect in the street, defendant, admitted its incorporation, its duty to keep the pavement and track in repair, and plaintiff’s damages, whereupon the case was submitted on briefs without suggestion that plaintiff had failed to prove any fact entitling him to recover, defendant could not contend for the first time on appeal that plaintiff was not entitled to recover for failure to prove that he was damaged by reason of the conditions existing at the point of injury, or that such conditions were due to defendant’s negligence.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Samuel Fettman, an infant, etc., against the Hencken & Willenbrock Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Willis H. Lines against the village of Otego. Plaintiff having asked the court to direct a verdict, and, defendant having moved for a dismissal of the complaint, the jury was discharged, and briefs were submitted to the trial justice. Judgment for plaintiff.

<p>Appeal from Special Term, New York County.</p> <p>Action by the Pope Manufacturing Company against the Rubber Goods Manufacturing Company. From an order denying defendant’s motion to compel plaintiff to reply to the separate defenses set up in the answer, defendant appeals.</p>

Action by John Gowans añd others against Frances H. Jobbins, as ancillary executrix of William F. Jobbins, deceased. From an order directing that open commissions issue to take testimony of foreign witnesses in behalf of defendant, plaintiffs appeal.

In the matter of the appraisal, under the act in relation to taxable transfers of property, of the property of Marcus Daly, deceased. Appeal from an order of the surrogate setting aside an order fixing the amount of taxes to be assessed, and remitting the report to the appraiser for further consideration and report.

<p>Appeal from Municipal Court of City of New York.</p> <p>Action by Sam Ferracane against the Brooklyn Alcatraz Asphalt Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Action by Loenza J. Aldrich against William H. Panning.</p>

<p>Action by Gaetano Alban against the Press Publishing Company. W. H. Van Benschoten, for appellant. S. W. Stearns, for respondent.</p>

<p>Appeal from City Court of New York, Special Term. Action by the A. Cuneo Company against Samuel Hoepfen and another. From an order - and judgment, entered on default, for plaintiff, and from an order denying a motion to open the default, defendants appeal. Affirmed. I. Cohn, for appellants. F. E. M. Bullowa, for respondent.</p>

<p>Appeal from Special Term, New York County. Action by Adele Baldwin and William Ogden Harrison, administrators with the will annexed of Elizabeth B. Rice, deceased, against William M. Rice, Jr., and others, executors of William M. Rice, deceased. From a judgment (89 N. Y. Supp. 738) dismissing the complaint, plaintiffs appeal. Modified and affirmed. J. B. Leavitt, for appellants. J. Byrne, for respondents.</p>

<p>Action by Peter Bricks against the Wáyland Portland Cement Company.</p>

<p>Action by Esther J. Brundage against the city of New York.</p>

<p>Action by James IT. Burton against Eustace H. Lemay, impleaded with George S. Hoke.</p>

<p>Action, by Jane A. Buckley against the Metropolitan Street Railroad Company. J. P. Cotton, for appellant. A. C. Cowan, for respondent.</p>

<p>In the matter of the petition of the Brooklyn Union Elevated Railroad Company relative to acquiring title to real estate, etc., on Crescent street, etc., in the borough of Brooklyn, etc., parcel' 61; premises, 271 Myrtle avenue. Lilian Becker and Emily Becker appeal.</p>

<p>Action by Franklin It. Case against the New York Mutual Savings Association ando others. T. E. O’Brien, for respondents.</p>

<p>Action by John F. Cahill against Joseph F. Hogan, as mayor of Troy, etc.</p>

<p>Action by William Morris Butler against Alma Louise Earner.</p>

Action by George H. Cassidy against George W. Arnold and others. From an interlocutory judgment overruling demurrer to part of answer, plaintiff appeals. Reversed. George W. Glaze, for appellant. George Gordon Battle, for respondents.

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

<p>Action by the city of Rochester against Joseph B. Bloss.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Walter Christie, doing business as the Christie Iron Works, against Robert E. Gaskell". From a judgment for plaintiff, de fendant appeals. Reversed. Thomas A. Stoddart, for appellant. Alvin S. Hall, for respondent.</p>

<p>In the matter of Luida D. Cooksey, deceased. H. E. Deming, for appellant. G. M. Judd, for respondent.</p>

<p>Action by Margaret A. Commins against John W. Perry.</p>

<p>Action by Patrick W. Cullman against Elliott D. Paxon and others. W. W. Cantrell, for appellants. H. H. Kellogg, for respondent.</p>

<p>Action by George A. Davis against Grover W. Wende.</p>

<p>Action by Sarah A. Davis against John C. Owens.</p>

<p>Action by Mary Ann Evans against Thomas Evans.</p>

<p>Action by Albert. T. French against the United States Canning Company.</p>

<p>Action by Elizabeth S. Fox, as administratrix, etc., against the Manchester, Ontario, Light & Traction Company, J. Pearl Peck, and Robert B. Peck.</p>

<p>In the matter of the application for a compulsory accounting of Hannah Gill, as executrix of the last will and testament of Robinson Gill, deceased.</p>

<p>Action by John Grady against the city of New York. T. Farley, for appellant. M. Deiches, for respondent.</p>

<p>Action by Janies Heffern against the Holly Manufacturing Company.</p>

<p>Action by Frank D. Heyward and Georgia Anna MacDonald against Reuben L. Maynard.</p>

<p>Action by N.athan W. Horning against the Hudson River Telephone Company and the Fulton County Gas & Electric Company.</p>

<p>Appeal from Special Term, New York County. Action by Isabel A. Holmes against Egbert B. Seaman. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Action by Belle M. Howe against the New York Central & Hudson River Railroad Company.</p>

<p>Action by George Juengst and others against the city of New York.</p>

<p>Action by John R. Keil, as administrator, etc., against the Delaware, Lackawanna & Western Railroad Company.</p>

<p>In the matter of the estate of Mary Killan (or Killeen), late of the city of Rochester, N. Y., deceased.</p>

<p>Action by James O. Livingston against Julius Breckwoldt.</p>

<p>Action by Richard Luderer against Robert A. Maekay.</p>

<p>Action by Samuel Lemberg against Israel Kaufman and others. ‘</p>

<p>Action by Ryerson McCoy against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Charles R. Madden against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Charles McManus, an infant, etc., against the St. Regis Paper Company.</p>

<p>Action by A. Boyce Marion against Earle Blilliken and Ira Blilliken, doing business as E. Miiliken & Co.</p>

<p>Action by Albert A. Manda against Emilius Etienne. H. M. Hitcliings, for appellant. H. W. Rudd, for respondent.</p>

<p>Action by John P. Milliken against Harry B. Fullerton.</p>

<p>Action by Barbara Mix, as administratrix, against the Hamburg-American Steamship'- Company. E. P. Wheeler, for appellant. J. C. Palmer, for respondent.</p>

Proceedings by the people of the state of New York, on the relation of Charles D. Blatchford, against William Mc-Adoo, as police commissioner of the city of New York, and Edward M. Grout, as comptroller, etc.

<p>Proceedings by the people of the state of New York, on the relation of the Delaware & Hudson Railway Company, against James L. Wells .and others. D. Rumsey, for appellants. A. Opdyke, for respondent.</p>

<p>Proceedings by the people of the state of New York against Rozell Harper.</p>

Proceedings by the people of the state of New York, on the relation of John Padian, against William McAdoo, commissioner. T. Farley, for appellant. W. S. Gordon, for respondent.

<p>Proceedings by the people of the state of New York, on the relation of the Rochester Telephone Company, against George E. Priest and others, state board of tax commissioners. In the matter of the application of Charles F. Pond and others, assessors of the city of Rochester.</p>

<p>Action by James H. Redman, individually, etc., against Charles J. Redman and others.</p>

<p>Action by Jacob Schulehofer against Charles E. Fink.</p>

<p>Action by William L. Shannon against the New York & Queens Electric Light & Power Company. Eugene Lamb Richards, Jr., for appellant. Geo. Y. S. Williams (Melville J. France, on the brief), for respondent.</p>

<p>Action by Wright Sheldon against King A. Sheldon.</p>

<p>Action by Joseph Sigerist against the Union Railway Company of New York Oity. F. A. Gayner, for appellant. J. C. Robinson, for respondent.</p>

<p>Action by Delia Slattery against the Metropolitan Street Railroad Company. B. H. Ames, for appellant. D. R. Almy, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. Action by Jacob Smoensky against the Brooklyn Heights Railroad Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Affirmed. Charles Frankel, for appellant. George D. Yeomans (H. F. Ives, of counsel), for respondent.</p>

Action by Asa M. Sypher, Jr., against Charles Schaeffer. From a judgment and order for plaintiff, defendant appeals. Affirmed. Edward Mieliling, for appellant. Tim & Hart, for respondent.

<p>Action by Charles T. Telford against George A. Parker.</p>

<p>Action by .Albert H. Vayo against Matthew A. Rosenberg.</p>

<p>In the matter of the final judicial settlement of the accounts of Anna M. O. Wilkin, as trustee, etc., of James Cunningham, deceased.</p>

<p>Actions by Herbert L. Whitney against the New York Evening Journal Publishing Company, against the Star Company, and against the Press Publishing Company.</p>

Action by Emil J. Winterroth and others against Andrew J. Brose. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Reversed conditionally. John P. Schuchman, for appellant. Gantz, Neier & McKenneil, for respondents.

<p>In the matter of Josiah J. White, guardian, etc., and of Frederick Hall White, an infant, etc.</p>

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