Volume 94 — New York Supplement

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Joseph Buellesbach against Amos Sulka and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Trial—Default-Relief.</p> <p>Where in the Municipal Court both parties appeared, and a dismissal was had because plaintiff was not prepared to go on, he might move for relief from his default.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Miriam Lazar against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Street Railways—Use of Tracks by Teams.</p> <p>One driving upon the side of a street has a right to drive upon a street railway track in order to pass another vehicle standing between the curb and the track.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 190-194.]</p> <p>2. Damages—Personal Injuries—Physician’s . Charges—Reasonableness.</p> <p>In an action for injuries, evidence of the amount charged plaintiff by his physician is incompetent in the absence of evidence that that amount was reasonable and proper.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Metal Stamping Company against David Samuel and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Counterclaim—Municipal Court Act—Action by Receiver—Affirmative Judgment.</p> <p>Under Laws 1902, p. 1539, c. 580, § 152, subd. 3 (Municipal Court Act), providing that if the plaintiff is a trustee for another, or if the action is in the name of the plaintiff, who has no actual interest in the contract on which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim, but so much of a demand existing against the person whom he represents,' or for whose benefit the action is brought, as will satisfy the plaintiff’s demand, must be allowed as a counterclaim, an affirmative judgment on a counterclaim cannot be rendered’ in an action by a receiver.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. 1</p> <p>Action by Charles Henry Vassin against James Butler. From an order setting aside the verdict for plaintiff, and granting a new trial without costs, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Joseph Widmari and others against Henry J. Straukarap and others. From a judgment in favor of defendants, and an order denying a motion for a new trial, plaintiffs appeal.</p>

<p>Action to partition real property by C. Adelbert Becker and wife against Maggie McCrea and others. Judgment for certain defendants.</p>

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

<p>Appeal—Findings of Trial Court—Conclusiveness.</p> <p>The decision of the trial court on questions of fact after opportunity of seeing and hearing the witnesses will not be interfered with on appeal.</p>

<p>Master and Servant-Personal Injuries — Negligence—Dangerous Machinery.</p> <p>An employs cannot recover for injuries sustained while working on a dangerous machine, which was not out of order, where the danger was perfectly obvious, and confessedly known to plaintiff, and where it is not. shown that any precaution or device was omitted which, if applied, would have lessened the danger of using the machine.</p> <p>[Ed. Note.—Eor cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 610-624.]</p>

<p>Appeal from Essex County Court.</p> <p>Action by Jerusha H. Doughty against Peter Picott. From an order denying plaintiff’s application to dismiss an appeal from a justice, and granting a motion of defendant for an order directing' that the appeal be heard on questions of law only, plaintiff appeals.</p>

<p>1. Dismissal—Power oe Trial Court.</p> <p>The trial court is not authorized to dismiss a case because the complaint is lengthy and cannot be understood without an adjournment to read it.</p> <p>2. Same—New Trial.</p> <p>Where a case was dismissed because the complaint was lengthy and could not be understood without an adjournment to read it, a new trial was properly granted.</p> <p>Woodward, J., dissenting.</p>

<p>Brokers—Commissions—Contract—Performance—Evidence.</p> <p>The south side of a pier rented by defendant to a lessee, with whom plaintiff had had negotiations for a lease of the north side, was 50 feet longer than the north side, and met the bulkhead line at an obtuse angle, while the north side met such line at an acute angle, thereby lessening the space in the slip. There was also a bulkhead line on the south side, available for the erection of a freight depot, but none on the north side; and, as a part of the negotiations resulting in the lease of the south side, defendant surrendered to the city its lease of the bulkhead, and a new lease was obtained directly from the city to defendant’s lessee; the agreed rental therefor being deducted from the rent agreed to be paid for the south side of the pier. Held, that the south side of the pier was substantially different from the north side, which plaintiff had been employed to rent, and plaintiff, having taken no part in the negotiations for the south side, was therefore not entitled to recover commissions. . ■</p>

<p>On motion for reargument.</p>

' Action by Clarence L. Lowther against Charles S. Lowther for the dissolution of a partnership and for an accounting. From an in - terlocutory judgment dissolving the partnership, directing an accounting, and appointing a receiver, defendant appeals.

<p>Contracts for Excavation—Extra Work—Evidence.</p> <p>Evidence in an action by a subcontractor who had undertaken to do excavation for a dam, including disposal of the earth, held insufficient to show that he did any extra work of refilling.</p>

<p>Suit by Julius Jacoby against Henrietta Jacoby and others for the construction of a will. Judgment of dismissal.</p>

Cullen for a writ of peremptory mandamus against the New York Telephone Company to compel it to render telephone service to him. From an order denying the application, the applicant appeals.

<p>Order Opening Default—Appealability.</p> <p>Under the express provisions of Laws 1902, p. 1563, c. 580, $ 257, no appeal lies in the first instance from an order opening a default and vacating a judgment entered thereon.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent Dig. Appeal and Error, §§ 758, 766.]</p>

<p>Damages—Personal Injuries—Inability to Perform Work—Employment of Help.</p> <p>Where a complaint for injuries to a married woman living with her husband alleged that, by reason of the injuries, plaintiff was for a time prevented from performing her usual duties, and thereby suffered the loss of an income, evidence that plaintiff conducted a boarding house as her own separate business and had the income or profit therefrom, and that.she was disabled for eight weeks and was required to employ a woman to do the work which she herself had formerly performed, was proper.</p>

<p>1. Motion to Set Aside Verdict—Preponderance oe Evidence—Consideration on Appeal.</p> <p>Where defendant does not move to set aside the verdict, the appellate court need not pass on the question of preponderance of evidence.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1302-1303, 1727.]</p> <p>2. Same—Evidence—Exceptions—Reversible Errob.</p> <p>On the issue as to the value of a piano, evidence that “they told me it [the piano] was worth $400’’ was cause for reversal.</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by John Hebron against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Heinrich Hirschberg against Louis Marx and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Trial Term, Westchester County.</p> <p>Action by Harvey M. Washburn and others against John F. Betz. From a judgment for plaintiffs on the report of a referee, defendant appeals.</p>

Action by Nettie Fox against Lucy A. Woods. From a judgment in favor of plaintiff for less than the relief demanded, she appeals.

<p>1. Corporations—Action for Services—Issues and Proof.</p> <p>Where plaintiff sued a corporation for services rendered to it, he was not entitled to recover on the theory that he rendered the services to. another corporation, and that defendant afterwards assumed the liability.</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent Dig. Pleading, §§ 111, 1333.]</p> <p>2. Same.</p> <p>Where plaintiff rendered services for a corporation before defendant corporation was organized, and plaintiff’s claim was entered as an indebtedness in the books of the corporation for which the services were rendered, the fact that such books subsequently came into defendant’s possession—it never having received or accepted the benefit of the services sued for, or took over the assets of the former corporation—was insufficient to render defendant liable for such services. »</p>

Proceeding for the appraisal of the property of Alexander C. Hutchison, deceased, for the assessment of a transfer tax. Prom a surrogate’s order sustaining an appeal from the order confirming the report of an appraiser and remitting the matter to the appraiser for further proceedings, the Comptroller appeals.

<p>Payment—Acceptance oe Note—Right to Recover on Original Debt.</p> <p>A creditor taking a note for Ms claim, believing that it was indorsed as agreed, may, on finding that it was not so indorsed, and objecting thereto, recover on the claim without returning the note; no demand for its return having been made by the debtor.</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Payment, § 141.] MacLean, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District.</p> <p>Action by Emil Goldberger and another.against Abraham Morris. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Carriers—Injuries to Passengers—Damages—Pleading.</p> <p>In an action for injuries to a passenger, an allegation that she was seriously wounded, bruised, and contused about her head and body, suffered a severe shock, and was made sore and sick, and had since suffered from dizzy spells, etc., was insufficient to justify the- admission of evidence that she suffered thereafter from undue menstruation.</p> <p>2. Same—Physician’s Evidence.</p> <p>In an action for injuries to a passenger, evidence of her physician that it was reasonably certain that a shock of the kind she suffered would cause undue menstruation, without proof that the shock did cause such condition, was inadmissible.</p>

Certiorari by the people, on the relation of Owen McElearney, against Robert Grier Monroe, as-commissioner of the department of water supply, gas and electricity of the city of New York, to review a determination of the commissioner dismissing relator.

<p>Verdict of Jury—Sufficiency.</p> <p>A verdict “for the full amount claimed” is sufficient within Municipal Court Act, Laws 1902, p. 1560, c. 580, § 239, declaring that the verdict must be “for a specific sum," the court in its charge stating the specific amount claimed.</p> <p>[Ed. Note.—For cases in point, see vol. 46, Cent Dig. Trial, §§ 781, 784-787.] '</p>

Action by Richard J. Couch against the New York City Railway Company, and separate actions by Lucy A. Couch, Mary Sullivan, and Charles Heckman against the same defendant. From judgments in favor of plaintiffs in the actions, defendant appeals. Affirmed except as to the judgment in favor of' Richard J. Couch, which is reversed.

<p>Appeal from Municipal Court, Borough of Manhattan.</p> <p>Action by William Tiger, by Nathan Tiger, his guardian ad litem, against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Witnesses—Credibility—Evidence—Conclusions.</p> <p>Evidence of a witness in rebuttal that one of defendant’s employés related in detail the direct examination of the plaintiff, and went over the testimony, and said to other witnesses, “Now, don’t forget, and get mixed up,’’ for the purpose of attacking the credibility of such other witnesses, was inadmissible as containing statements of conclusions.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by William Cook against Henry Levintan. From a judgment for plaintiff, defendant appeals.</p>

<p>City Court—Jurisdiction—Order of Interpleader.</p> <p>Under Code Civ. Proc. § 820, providing that the court may, in its discretion, authorize interpleader by order in certain cases, the granting of an order of interpleader in the City Court would transform the action into an equitable one, of which the court would have no jurisdiction, and such an order will be denied.</p>

<p>City Court—Jurisdiction—Order of Interpleader.</p> <p>Under Code Civ. Proc. § 820, providing that the court may, In its discretion, authorize interpleader by order in certain cases, the granting of an order of interpleader in the City Court would transform the action into an equitable one, of which the court would have no jurisdiction, and such an order will not be granted.</p>

Actions by Lorenz Reich against William F. Cochran. Pending the actions defendant died, and Eva S. ‘Cochran and others, as executors, were substituted. From a judgment (85 N. Y. Supp. 247) for plaintiff, both parties appeal. Affirmed as to plaintiff and reversed as to defendant.

<p>Principal and Agent—Nonexistence of Principal—Liability of Agent.</p> <p>Individuals who sign a lease to a fictitious corporation, as president and vice president thereof, are individually liable on the lease, although it is under seal.</p> <p>[Ed. Note.—For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 486.]</p> <p>MacLean, J., dissenting.</p>

<p>Goods Sold and Delivered—Judgment—Sufficiency of Evidence.</p> <p>Where defendant’s agent, who had authority to order coal for the use if defendant’s house, and authorized the janitress to receipt for the coal when delivered, ordered coal of plaintiffs, for which the janitress gave receipts, evidence of such facts, and of the price and amount of the coal, entitled plaintiffs to judgment</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Gerson Stutsky against the Brooklyn Heights Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Martha Jacoby against Thomas C. Platt, president of the United States Express Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by George I. Rochelle against Louis Pell. From a judgment for plaintiff, defendant appeals.</p>

Action by Ernest W. Kinsey against the American Hardwood Manufacturing Company. From an order denying a motion to set aside the service of summons on defendant, a foreign corporation, made on its president, a nonresident, while in the state as a witness on a trial, defendant appeals.

Certiorari by the people, on the relation of George C. Rose, against Jacob V. Jacobs and others, assessors of the city of Troy, to review an assessment of lands. From an order confirming a report of a referee and dismissing the writ, relator appeals.

<p>Tbial—Misconduct of Jury—Setting Aside of Verdict.</p> <p>Where it was known before verdict was rendered that a juror had revealed the conclusion of the jury on the way from their room to the courtroom, the misconduct was not sufficient to justify the setting aside of the verdict on a late application.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. New Trial, § 105.)</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Elias Platzer against the North British & Mercantile Insurance Company of London & Edinburgh. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Marie R. Menzies against the city of New York. From a judgment for plaintiff, defendant appeals.</p>

<p>Stbeet Railroads—Operation—Injury to Passenger—Instructions.</p> <p>An instruction, in an action against a street railway company for injuries to a passenger while alighting from a car, that the company was bound to carry passengers safely and to use the utmost care and skill of a cautious person in doing so, was erroneous.</p> <p>[Ed. Note.—For cases in point, see vol. 9, Cent Dig. Carriers, §§ 1087, 1089-1091.]</p>

<p>1. Pbomissoby Notes—Liability of Indobseb—Notice of Dishonob.</p> <p>In an action by the holder of a promissory note against an indorser, failure of plaintiff to show that timely notice of dishonor was given defendant precludes recovery.</p> <p>2. Same—Time of Giving Notice.</p> <p>Under Negotiable Instrument Law, Laws 1897, p. 741, c. 612, § 174, re.quiring notice, of dishonor, if given at,the place of business of the person to receive the same, to be before the close of business hours on the day following the dishonor, notice to an indorser that the note had not been paid, given two or three days after it was due, was too late.</p> <p>3. Same—Affidavit of Nonreceipt of Notice—Notary’s Cebtificate-t-Pre-SUMPTIONS.</p> <p>Under Code Civ. Proc. § 923, providing that a notary’s certificate of presentment and nonpayment of a note, and service of notice thereof, is presumptive evidence of the facts certified, unless the party against whom it is offered has served on the adverse party an affidavit that he has not received notice of nonpayment, the only effect of failure to serve such affidavit is to render the notary’s certificate presumptive evidence of the matters therein stated.</p> <p>4. Same—Notary’s Certificate—Sufficiency.</p> <p>A notary’s certificate, merely certifying to presentation and nonpayment, and not stating that notice of dishonor was given or sent an indorser, is insufficient.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Bernard Chambers against Nettie Greenwald as administratrix. From a judgment for plaintiff, .defendant appeals.</p>

<p>Street Railways—Breach of Contract—Exceptions—Motion to Strike out Testimony.</p> <p>Where, in an action against a street railway for breach of contract in failing to carry him to his destination, plaintiff claimed damages for illness consequent on exposure while riding in one of defendant’s cars, and a witness volunteered the statement, “I really think the man has tuberculosis now from the effects of that,” referring to the experience he concluded plaintiff had undergone, the denial of defendant’s motion to strike out the statement was erroneous, the record not disclosing what the word “that” covered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Joseph Kelly against Anna F. Bullock. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Bonds Given by' Club—Actions on—Construction—Termination of Membership—Effect.</p> <p>Where, by each of certain bonds, defendant club acknowledged itself indebted to plaintiff in a certain sum, “which it agrees to pay the holder hereof in person, or to any other member of the club to whom this bond may be transferred,” etc., the fact that after acquiring the bonds plaintiff relinquished his membership did not discharge defendant from liability, the reference to “any other member of the club” only limiting the class of persons to whom assignment might be made.</p> <p>2. Same.</p> <p>The further provision that after maturity the bond would be accepted in payment of club charges against its members did not create an exclusive method of realizing on the bond, but merely an alternative one, and in no sense qualified defendant’s absolute undertaking to pay.</p>

<p>1. Intoxicating- Liquors—Unlawful Sale.</p> <p>The sale of “lager beer” which was drunk on the premises during the hours when the sale of malt liquors was prohibited was a violation of Liquor Tax Law (Laws 1897, p. 207, c. 312) § 2, defining liquors as used in the act to include all distilled or rectified spirits or fermented or malt liquors.</p> <p>[Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, §§ 142-144.]</p> <p>2. Same—Witnesses—Failure to Cross-Examine—Effect.</p> <p>Where, in a prosecution for violation of the liquor law, the witnesses are not cross-examined to test the value of their testimony, it must be assumed that they recognized the beverage which they described.</p>

Action by Edwin Curry and another, as administrators, etc., of Sarah F. Theall, deceased, against Charles V. Fanning. From a judgment for plaintiffs and from an order denying a motion for a new trial, defendant appeals.

<p>1. Street Railroads—Actions for Injuries—Pleading—Admissions.</p> <p>Where an answer to a complaint against a street railroad, for injuries denies that defendant’s car injured plaintiff, an admission of the answer that defendant operated “certain” cars on different thoroughfares, including that where the accident happened, is not an admission that it was defendant’s car which caused the injury, and does not excuse plaintiff from showing that the car which injured him was owned, operated, or controlled by defendant.</p> <p>2. Same—Injuries to Pedestrians—Contributory Negligence.</p> <p>One who stands on a street car track, talking, with knowledge that a car is rapidly approaching, and without taking any precaution to avert injury to himself, is guilty of contributory negligence.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Street Railroads, I 206.]</p>

<p>Appeal from Special Term, Orange County.</p> <p>Mandamus by the people, on the relation of James R. McCullough, against Jonathan D. Wilson and others, to compel respondents, as the board of public works of the city of Newburgh and another, to remove a person from office. From an order denying an application for a peremptory writ of mandamus, relator appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Joseph Lunansky against the Hamburg-American Packet Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Sales—Acceptance of Goods—Waives of Defects—Recovery of Pbioe.</p> <p>A buyer who voluntarily pays the amount due on the goods, less an agreed deduction, after he has discovered that they will not answer his purpose, cannot recover back the money so paid.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent Dig. Sales, §§ 1112, 1113.]</p> <p>2. Same—Failure to Fulfill Contract—Remedy of Buyeb—Recovery of Price.</p> <p>A buyer who orders goods of a certain kind and weight, which the seller undertakes, but fails, to furnish, may recover back so much of the price as he has paid in advance.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1115, 1125.]</p>

<p>1. Street Railroads—Personal Injuries—Evidence—Ordinances.</p> <p>In an action against a street railroad company for personal injuries caused by a collision in a street, an ordinance giving the railroad company the right of way in the street was admissible as bearing on the degree of caution imposed on the motorman.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Street Railroads, $ 230.]</p> <p>2. Same—Duty of Motorman.</p> <p>A motorman operating a street car is only required to use ordinary care, under the circumstances; so that a charge that the motorman was obliged to use more than ordinary caution because the day was wet was erroneous.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 174.]</p> <p>3. Trial—Misconduct of Counsel.</p> <p>It is highly improper for counsel to persist in repeatedly asking a question which has been excluded.</p> <p>[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 827, 828.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by Cosimo Ranalli against Pietro Zeppetelli. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Antonio J. Sadallah and another against Tanius Man-dour and another. From a judgment for plaintiffs, defendants appeal.</p>

' . . Actions by Anthony G. Ibbeken against the city of New York, and Louise G. Ibbeken, an infant, etc., against the city of New York, From judgments for the respective plaintiffs, defendant appeals.

<p>Divorce—Separation—Alimony—Counsel Fees.</p> <p>Where, in an action for separation by a wife, it appears that she is. in receipt of an income from personal services sufficient for her Support, and that she has at her disposal funds sufficient to defray the expenses of the action, which funds, or her services which produced the same, either belong to the defendant or have been given by him to her, her motion for temporary alimony and counsel fees will be denied.</p> <p>[Ed. Note.—For cases in point, see vol. 17, Cent Dig. Divorce, §§ 616, 646.]</p>

<p>Proceedings for the probate of the last will of John O. Stocum, deceased. Decision of the surrogate on issues raised by Prank L. Stocum.</p>

Claim by Emma E. Strevell against the estate of Catherine Jones, deceased; and, from a decree (92 N. Y. Supp. 719) disallowing the claim, claimant appeals.

<p>Husband and Wife—Decree of Sepabation—Alimony.</p> <p>Where, in an action by a husband for separation, it appeared on a motion by defendant for an increase of alimony and for a counsel fee that plaintiff was paying defendant $8 a week for support under an order of a magistrate on a hearing in abandonment proceedings, and that plaintiff was earning, according to the moving papers, from $40 to $50 a week, and had $500 in the bank, but the answering affidavit showed that he had no money in the bank, and only earned $15 a week, and his employer testified that plaintiff would shortly be laid off for at least a couple of months, $8 a week, as a substitute for the magistrate’s order, would be allowed as alimony, and $25 as counsel fees.</p>

Five actions by Frederick N. Van Zandt against the New York City Railway Company. From judgments for plaintiff, defendant appeals. Judgment in four cases reversed, and in the remaining case modified and affirmed.

<p>Action by William G. Barson and others against Agnes K. M. Mulligan and others. On motion for leave to amend the answer.</p>

Action by William G. Barson and others against Agnes K. M. Mulligan and others. From a judgment for defendants and from an order denying a new trial, plaintiffs appeal.

Action by William G. Barson and others against Agnes K. M. Mulligan and others. From an order denying a motion to amend the judgment, plaintiffs appeal.

<p>Appeal from Special Term, New York County.</p> <p>Action by Leo Schlesinger, as receiver, etc., against Benjamin S. Wise. From an order striking out an answer, defendant appeals.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Leo Schlesinger, as recéiver, etc., against Leonora Wise, impleaded with another. From an order striking out an answer, defendant named appeals.</p>

Action by David I. Ullman against Solomon Rothschild. From a judgment in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed conditionally.

<p>Banks—Receiver—Return of Checks—Impossible Requirement.</p> <p>Where petitioner, having three checks in possession against a bank, sent them to the bank for collection, and the checks were received by the bank, who deliverd to the petitioner its check on another bank to pay these checks, and the bank on which the check was drawn refused to honor it, and on the insolvency of the first bank the petitioner asked for a return of'the three checks which it had presented for payment and in payment of which it had received the check drawn by the insolvent bank, the receiver of such insolvent bank will not be ordered to deliver such checks to the petitioner when they are not in his possession, but have been returned as paid to the depositors, who drew them.</p>

<p>Appeal from Special Term.</p> <p>Action by William M. Durkin against Barnet Markus and others. From the judgment, defendants appeal.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Moses L. Schiller and others against Isaac H. Weinstein and others. From an order granting leave to issue execution, defendants appeal.</p>

Application of the city of New York to acquire title to Rockwood street, and property owners appeal from an order confirming the report of the commissioners of estimate and assessment.

<p>Appeal from Trial Term, New York County.</p> <p>Martin Regan was convicted of murder in the second degree, and appeals.</p>

Action by Edward D. .Farrell, as receiver of the Cobleskill Quarry Company, against Patrick Ryan and others. From a judgment for defendants and from an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from Trial Term, New York County.</p> <p>Action by Sidney C. Chambers against Isaac N. E. Allen and another. From a judgment for plaintiff as against defendant Allen, and dismissing the complaint as against Alexander S. Bacon, plaintiff and said Allen appeal.</p>

<p>Appeal from Special Term, Cattaraugus County.</p> <p>Action by William Hogg and another against Eliza Rose and others; George T. Hogg, impleaded. From a portion of an order making distribution of the proceeds of sale of real estate, plaintiffs appeal.</p>

<p>Vendor and Purchaser—Action to Recover Deposit—Alteration op Contract-Liability.</p> <p>Where plaintiff in an action to recover the- amount of its deposit on a contract for the purchase of real estate, and expenses incurred in searching the title, was shown to have altered the counterpart of the contract delivered to it for execution as to encroachments by erasing the “s” in the words “walls” and “buildings,” and to have delivered the counterpart to the vendor, so changed, and to have taken the vendor’s copy of the contract in exchange therefor, without informing the vendor of the erasure, it could not recover.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Alteration of Instruments, § 133.]</p>

Action by the Farmers’ Loan & Trust Company against the New York & Northern Railway Company and others. Judgment for plaintiff. Suit by the mortgage trustee to foreclose a second mortgage by the defendant railroad company to secure $3,200,000 of bonds.

<p>Action by Edward M. Tyrrell against the city of New York. Judgment for defendant.</p>

Action by the Euller Buggy Company against Adelbert Waldron. On motion to compel the acceptance of service by plaintiff’s attorney of defendant’s unverified answer.

<p>1. Divoece—Motion fob Alimony—Affidavits.</p> <p>Affidavits for plaintiff, on defendant’s motion for alimony and counsel fee in an action to annul a marriage, which show not only the conduct of the parties towards each other, but also towards others, are proper, so far as the latter has a bearing on the wife’s conception of and adherence to correct standards of conjugal conduct.</p> <p>[Ed. Note.—For cases in point, see vol 17, Cent. Dig. Divorce, §§ 670, 671, 676.]</p> <p>2. Same—Reply Affidavits—Suppression.</p> <p>Defendant in an action to annul a marriage is not entitled to suppression of plaintiff’s affidavits on motion of defendant for alimony, where the matter therein complained of is in reply to defendant’s affidavit, wherein she accepts the issue tendered by the complaint, as to whether the estrangement was due to the fault of the one or the other, and seeks to show that the fault was his. r,</p>

In the matter of the application of the city of New York for a writ of certiorari to S. Fletcher Allen and others, as assessors of the town of Cortlandt, county of Westchester, etc. From an adverse judgment and order, the city appeals.

Submission of controversy, under Code Civ. Proc. § 1279, between SaraH M. Clark and Adaline Yerks Van Alstyne, for the construction of the will of John F. Yerks, deceased. Judgment for plaintiff.

<p>Appeal from Special Term, Orange County.</p> <p>Action by Asa J. Williams against Josiah M. Williams and others. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Action by Max Binswanger against New York Central & Hudson River Railroad Company.</p>

<p>Action by Harriet O. Baynard against the Standard Knitting Mills Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by Josephine Bean against the New York Edison Company. From a judgment in favor of plaintiff for less than claimed, both parties appeal. Reversed on defendant’s appeal. Plaintiff’s appeal dismissed.</p>

Action by Abraham Blau against the Interurban Street Railway Company and another. From a judgment for plaintiff, and from an order denying a new trial, defendant railway company appeals.

<p>Appeal from Municipal Oourt, Borough of Manhattan, Twelfth District. Action by Thomas Brown against Abraham Ruth. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Action by George C. Broadbrooks and another against Edward D. Tolies.</p>

<p>Action by John Conboy against De Lancey B. Armstrong and others.</p>

<p>Action by Stephen J. Chapman against William Shat-tuck.</p>

<p>Appeal from Trial Term, New York County. Action by Patrick W. Cullinan, as excise commissioner, etc., against George A. Bensen and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Action by Libbie Cooper against Willis Van Sehaick.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District. Action by Mary Davis against Meier Reis. From a judgment for plaintiff, defendant appeals.</p>

<p>In the matter of the probate of the last will and testament of Jane Davis, deceased.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Lottie Del Campiglio against the New York Central & Hudson River Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Sydney Deane against Leander S. Sire, impleaded, etc. From a judgment of the City Court in favor of plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Samuel K. Ellenbogen against the S. C. Beckwith Special Agency and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District. ■ Action by Adolph Freyer against Eugene Van Maasdyk. From a judgment for plaintiff,' defendant appeals.</p>

<p>Action by Martin J. Frick and others against Myra J. Schenck and others.</p>

<p>Action by the Green Island Ice Company against Daniel Norton.</p>

<p>Appeal from Special Term, New York County. Action by Harry T. Gause against the Commonwealth Trust Company. From an order overruling the defendant’s demurrer to the complaint, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Henry C. Griffen against Robert Beatty. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Action by Harriet Gessler against the Lehigh Valley Railroad Company.</p>

<p>Action by Loretta Hall against the Interurban Street Railway Company.</p>

<p>Action by the International Paper Company against the Kanes Falls Electric Company and others.</p>

<p>Action by the Hudson Valley Railway Company against the Delaware & Hudson Company.</p>

<p>Appeal from Munieipal Court, Borough of Manhattan,' Thirteenth District. Action by Henry H. Jaffe against the Pennsylvania Railroad Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.. Action by John Keefe against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Max Kesnowitz against Barnett Pronin and others. Judgment for plaintiff, and defendants appeal. Reversed as to defendants other than Brown, and affirmed as to defendant Brown.

<p>Action by Joseph ICashare against Nathan Lu-bow and Samuel Bayer.</p>

<p>Action by Frederick W. Kuehn against the Syracuse Rapid Transit Railway Company.</p>

<p>Action by Oliver A. Kingsbury and another against John E. Brandegee, as executor, etc., and others.</p>

<p>In the matter of the judicial settlement of the accounts of Charles T. Kilham, as executor, etc.</p>

<p>Action by Edward L. Koons and another against Luella H. Potter and Jennie A. Rodgers.</p>

In the matter of the application of the Lyons Cemetery Association to acquire title to certain real estate owned and possessed by Amelia Smart.

<p>Action by Cassius N. McFarren against the village of Penn Yan.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Moses Livingston against Adolphus Weiss. From a judgment for defendant, plaintiff appeals.</p>

Action by Eugene S. Mayer against Edgar J. Mayer. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from Special Term, New York County. Action by Jacob Manheim and others against Rosa Brown and others. From an order requiring plaintiffs to furnish a bill of particulars, they appeal. Modified, and, as modified, affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Joseph T. Minaldi against Alfred H. Thurs-ton. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by the New York Brick & Paving Company against the Bronx Borough Bank of New York.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Francesco Nicolino against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From an order setting aside a verdict for defendant, it appeals.</p>

<p>Appeal from Trial Term, New York County. Action by Antonio Palombo against William F. Norton and others. From a judgment for defendants, plaintiff appeals.</p>

Mandamus by the people, on the relation of William H. Davis, against Frank E. O’Brien and others, as the board of education of the city of Troy.

<p>Appeal from City Court of New York, Trial Term. Action by Isabelle BI. Pettet against Sherman T. Smith. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Action by Ellen Phillips against Christian F. Tietjen.</p>

<p>Appeal from City Court of New York, Special Term. Action by Samuel Phillipson and another against Patrick Gallagher. From an order setting aside a verdict for plaintiff and granting a new trial, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Girolamo Polizzi and another against Michele Voccoli. From a judgment for defendant, plaintiffs appeal.</p>

<p>Action by Adelbert D. Risley against Charles H. Harlow and another.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Alexander F. Rosenberg against the Cohen-Levison Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Jacob Schenkel against Ilochem Lischinsky. From a judgment for defendant, plaintiff appeals.</p>

<p>Action by Charles C. Sackett, as administrator, etc., against Grace D. Jphnson, as administratrix.</p>

<p>In the matter of the application of Mary V. Scanlon to continue certiorari proceedings against Erastus C. Knight and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Samuel Schlatter against the Independent Radom Aid Association. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Special Term. Action by Neptune B. Smyth against Herman F. Lippe and another. From an order of the City Court, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Pietro Spinella against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

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

<p>In the matter of the disposition of real property of Henry Taylor, deceased, for the payment of debts and funeral expenses.</p>

<p>In the matter of the probate of the will of Caroline Sullestad, deceased.</p>

<p>Action by James S. Thompson against the Erie Railroad Company.</p>

<p>Action by Apollonia Warth against Jacob Kastriner and Charles Eisenman.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Egerton L. Winthrop against Max- Ballenzweig. From a judgment for defendant, plaintiff appeals.</p>

<p>Action by John C. Warren against Edward S. Parkhurst and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Louis Wollowitz, an infant, against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Action .by Arthur Worden against Clarence D. Bentley.</p>