Volume 95 — New York Miscellaneous Reports

<p>Aotioh to recover an amount collected by the defendant, as sheriff, under a warrant issued out of this court against a debtor in proceedings supplementary to execution.</p>

<p>Motion' to set aside the judgment herein, and the transcript thereof, as filed and docketed in the office of the clerk of the county of Oneida, and staying all proceedings thereunder.</p>

<p>Jurisdiction — of County Court — pleading — when plaintiff entitled to equitable relief — actions.</p> <p>An action to recover $1,150 for damages to real property is within the jurisdiction of a County Court and that the complaint alleges facts which, if proved, might entitle plaintiff to equitable relief does not render the complaint subject to a demurrer.</p>

<p>Contracts — in writing — when oral agreement without consideration.</p> <p>Where plaintiff and another in writing agreed with defendant to do the work of laying brick in the construction of a certain building, an oral agreement subsequently made between plaintiff and defendant to do the same work is without consideration and no recovery can be had thereon.</p>

<p>Appeal from a judgment rendered by default in favor of the plaintiff against the defendant by a justice of the peace of the town of North Hempstead.</p>

<p>Carriers — of goods — action for damages — trial — interstate commerce commission — verdict.</p> <p>Certain goods were packed by plaintiff in a car upon the tracks of, and delivered at Detroit for shipment to, a connecting carrier of defendant. The car upon its arrival in New York city, the place of delivery specified in. the bill of lading upon which there was a notation “ Car to be opened by consignee,” was opened by defendant’s employees, who, according to custom, proceeded to store the goods or otherwise handle them for delivery to the representatives of plaintiff. In an action for damage to the goods witnesses for plaintiff testified that in unloading the car some of the goods were thrown about and trampled on and the evidence on behalf of defendant was to the effect that the ear had been improperly and carelessly loaded. Upon reversing a judgment entered upon a verdict in favor of plaintiff, held:</p> <p>That a request to charge that defendant having filed with the interstate commerce commission rules and regulations which provided that defendant should unload all cars consigned to the place mentioned in the bill of lading its connecting carrier had no authority to vary such regulation, correctly stated the rule as to the binding character of the tariffs and regulations filed with the interstate commerce commission and that the refusal to so charge was error.</p> <p>That as it appeared that the damage to the goods, if any, resulted not from the opening of the ear but from the subsequent handling of the goods, it was also error to refuse to charge that “ if the jury find that the damage was due to the improper packing by the shipper, the defendant is not liable,” and “ that unless the jury find that the damage occurred while the property was being unloaded by the defendant, the verdict should be for defendant,” particularly as the only issues to be submitted to the jury had not been clearly laid down in the main charge.</p>

Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered upon the verdict of a jury.

<p>.Ippbal by plaintiff: from a judgment of the City Court of the city of New York, dismissing the complaint upon the merits.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York dismissing the complaint at the close of plaintiff’s case.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, entered upon the verdict of a jury.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, after a trial by a judge without a jury.

<p>Appeal'by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, after a trial -by a judge without a jury.</p>

<p>Appeal by plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, dismissing the complaint upon the pleadings and the opening of counsel.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the City of New York, borough of Manhattan, fourth district, dismissing his complaint after a trial by a judge without a jury.

<p>Carriers—contracts—evidence—Public Service Commissions Law, § 38.</p> <p>Where the holder of a ticket over a railroad from Tuxedo to New York city went to the baggage department of the station at Tuxedo and, upon asking the expressman to have his bag transferred to his house in New York city, was told, that the transfer check would cost forty cents, which plaintiff paid and received a receipt therefor, the expressman taking possession of the bag which the railway company delivered to defendant, an express company, in New York city for delivery, the express company in handling the bag under the contract made at Tuxedo was engaged in intrastate commerce.</p> <p>Where the special delivery check was designed, as stated by the railroad rules and regulations, u for the checking of baggage from any line station to the residence, hotels, steamboat piers or railroad stations ” and does so by direction of a passenger that his bag be transported at the end of the journey to his home, the railroad company receiving four cents of the total charge of forty cents for the service, the railroad company acted as agent for defendant, the express company.</p> <p>While a common carrier in the absence of special contract for a through shipment is not liable beyond the terminus of its own route, the railroad company was not liable to the passenger as upon a through shipment for loss of his bag while in the hands of the express company, as the special delivery check did not evidence a special contract.</p> <p>A local baggage carrier by rendering services connected with interstate passenger traffic in the transportation of baggage from a railroad terminal to residences, etc., in a city is not a common carrier or express company subject to the provisions of the act to regulate commerce. Carmack Amendment, TJ. S. Stat. at Large, §§ 1905-1907, chap. 3591.</p> <p>The limitation in section 38 of the Public Service Commissions Law that the value of baggage carried in excess of $150 shall be stated upon delivery to the carrier which may make a reasonable charge for the assumption of such liability is not available to an express company which as agent of a railroad company upon receiving a passenger’s bag fails to ask him to state its value.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint.</p>

<p>Appeal by plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, second district.</p>

<p>Pleading — defense of new matter — allegations contained in complaint . — denial — answer.</p> <p>False imprisonment — action for—pleading — criminal law.</p> <p>A defense of new matter within the purview of section 500 of the Code of Civil Procedure must be based on the theory of confession and avoidance and should not contain a denial except where a denial of the existence of some fact alleged in the complaint is necessary in order to perfect the answers as a complete affirmative defense, and in determining the sufficiency thereof all the allegations of the complaint not denied thereby are deemed admitted even though elsewhere denied by the answer.</p> <p>A complaint alleging that while defendant, a city marshal, was making a levy under an execution against one person he levied on and seized the property of another and upon being informed by plaintiff that said property belonged to his employer falsely and maliciously charged plaintiff with inter- ■ fering with him and caused his arrest and by direction of defendant was imprisoned and restrained of his liberty without reasonable cause and without any right or authority, states a cause of action for false imprisonment.</p> <p>The complaint further alleged that defendant falsely and maliciously charged plaintiff with using threatening, abusive and insulting behavior with intent to provoke a breach of the peace and that plaintiff was arraigned on said charge before a police magistrate and duly tried and the charge dismissed. For a separate defense the answer alleged that while defendant, as marshal, was attempting to levy an execution upon personal property of a judgment debtor plaintiff and others interfered with Trim in the performance of his duty; that defendant called a police officer in whose presence plaintiff continued to interfere with defendant and committed a breach of the peace, whereupon the police officer arrested plaintiff and took him before a magistrate who discharged him. There was no denial of any of the allegations of the complaint incorporated in the separate defense though they were denied by the answer. Held, that as there was no denial of the allegation of the complaint that defendant caused plaintiff’s arrest, the separate defense was subject to demurrer for insufficiency.</p> <p>That defendant had reasonable cause to believe that plaintiff had committed a breach of the peace, as alleged, was no defense, and although it might affect the damages it would not justify the imprisonment of plaintiff.</p>

<p>Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing complaint.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of plaintiff.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Bronx, first district, rendered in favor of the plaintiff.

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of defendant; and from an order denying plaintiff’s motion to set aside the verdict of the jury and for a new trial.</p>

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, denying a motion to vacate a judgment and for the trial of an issue raised by affidavits.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, dismissing.the plaintiff’s complaint at the close of the plaintiff’s case.

Appeal by plaintiff from order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, setting aside verdict in favor of plaintiff.

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, which vacates and sets aside a judgment after a trial before a justice without a. jury, and dismisses the complaint.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, rendered in favor of the plaintiff.

Appeal by the defendant from a purported judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, bringing up for review an order granting plaintiff’s motion for a re-taxation of costs.

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Bronx, second district, rendered in favor of plaintiff.</p>

<p>Appeal from a judgment of the City Court of the city of New York dismissing its complaint and from an order of the City Court granting defendant’s motion to dismiss the complaint and for judgment on the pleadings, upon which order the judgment appealed from was entered.</p>

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, vacating a judgment in favor of the defendant and granting a new trial.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the defendant, after a trial without a jury.

<p>Insurance (life) — provisions of policy of — misstated age — evidence.</p> <p>Where a policy of insurance providing that if the age of the assured be misstated the amount payable should be such as the premium paid would have purchased at the correct age was issued upon the assumption that the insured was then sixty years of age, as stated in his application, when in fact he was sixty-six years of age, a recovery on the policy is limited to the amount of insurance the premium paid would have purchased at the correct age as the parties by their contract agreed.</p> <p>The application for insurance though not attached to the policy was material and competent evidence to show that the contingency had occurred which made effective the aforesaid provision of the policy.</p>

Appeal by the defendant from a judgment rendered in the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the plaintiff.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, boroug’h of Manhattan, third district, in favor of the defendant, dismissing the complaint and from an order denying plaintiff’s motion to vacate said judgment and for a new trial.

Appeal by the defendant Joseph L. Harburger from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the plaintiff, which judgment provided that the defendant is liable to arrest and imprisonment.

<p>Alimony — action to recover arrears of — divorce — actions — motions and orders — evidence — when law of state of New York governs.</p> <p>Contempt — disobedience of orders made by courts of sister states.</p> <p>Where in an action to recover arrears of alimony alleged to he due under an order of a court of Illinois there is no evidence as to the law of that state upon the question in litigation, the law of the state of New York governs.</p> <p>Where the decree which finally determined, in favor of the husband, cross actions for divorce brought in the state of Illinois, made no provision for alimony, the life of an order for alimony pendente lite ended at the same time, and under the laws of the state of New York proceedings to enforce payment of temporary alimony must be taken in the action in which the order therefor was granted.</p> <p>Our courts will not punish as for contempt disobedience of the orders made by the courts of sister states.</p>

Appeal by the plaintiff from an order and judgment of the City Court of the city of New York, setting aside a verdict of the jury rendered in his favor dismissing the complaint.

Appeal by defendant from, a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, entered in favor of the plaintiff for $200 on the 31st day of January, 1916, after a jury trial.

<p>'Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of the plaintiff.</p>

<p>Appeal from a judgment entered in the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the plaintiff’s complaint in a trial before the court and a jury.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of plaintiff, and from an order denying defendant’s motion for a new trial. The case was tried by the court without a jury.

<p>Appeal from a judgment entered February 23, 1916, in the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of defendant after a trial before the court and a jury.</p>

<p>Pawnbrokers — licensed—when not liable for failure to deliver — pledge.</p> <p>A licensed pawnbroker is not liable for failure to deliver a diamond ring pledged under an agreement that he was not to be accountable for its loss by robbery, where the ring was stolen from his place of business.</p>

Appeal by the defendant from a judgment in favor of the plaintiff for the sum of $644.91, entered in the office of the clerk of the Municipal Court of the city of New York, borough of Manhattan, third district, after a trial before the court without a jury.

Plaintiff appeals from a judgment rendered in the Municipal Court of the city of New York, borough of Manhattan, seventh district, in his favor in the sum of $309, in a trial before the court without a jury, and the defendant appeals from so much of said judgment as awards the plaintiff the sum of $309.

Appeal by defendants from a judgment of the City Court of the city of New York, entered on a verdict and from an order denying a motion for a new trial.

Appeal by plaintiff from a judgment of the City Court of the city of New York dismissing the complaint after a trial by the court and a jury.

Appeal by plaintiff from a judgment of the City Court of the city of New York after a trial before the court without a jury.

<p>Brokers — employment of, to procure purchaser of leasehold property— action to recover commissions — pleading — contracts — evidence.</p> <p>Pleading — allegations of affirmative defense — answer — contracts — evidence — Code Civ. Pró. § 522.</p> <p>The employment of a broker to procure a purchaser for a leasehold interest in real estate may be proven either by oral testimony or by a writing; and the contract is' performed when the broker procures a purchaser ready, able and willing to take the property at .the seller’s terms.</p> <p>Where the complaint in an action by the broker to recover the agreed commission alleges facts showing plaintiff’s performance and defendant’s default in paying the commission, it will be assumed on appeal from a judgment for the dismissal of the complaint that its allegations are true.</p> <p>It was not essential to a recovery that plaintiff should prove the execution of a written contract between defendant and the intending purchaser.</p> <p>Under section 522 of the Code of Civil Procedure the allegations of an affirmative defense that a contract under seal, a copy of which was annexed to the answer and made a part thereof, was the agreement set forth and referred to in the complaint, will be deemed to be controverted so that after defendant had put in the contract under seal to establish his defense plaintiff had the right to offer testimony showing want of consideration or fraud.</p>

<p>Appeal from a judgment and order of the Municipal Court of the City of New York, fourth district, borough ■of Queens, in favor of the plaintiff. ■ -</p>

Application by the defendants to vacate a temporary injunction heretofore granted in this action restraining defendants- from discontinuing to furnish to the- plaintiffs quotations of the New York Stock' Exchange by means of “ ticker ” and “ fast wire ” service. The New York Stock Exchange, although not a party to this action, was represented by - counsel on the argument.

Motion by defendant to set aside the verdict of a jury in favor of plaintiff rendered upon the direction of the court, and for a dismissal of the plaintiff’s complaint on the merits.

<p>Action for conversion.</p>

<p>Specific performance — when not entitled to decree of — in action to remove cloud on title — deeds — contracts.</p> <p>A written instrument, drawn by defendant who was not a lawyer, whereby he offered to give plaintiff $25,000 for his farm, provided for the payment of $100 down and " six months after or before ” $9,900 of the purchase price and for a mortgage for the balance of $15,000 to plaintiff who was to give a warranty deed, was signed by both parties and $100 paid to plaintiff. In an action to remove a cloud on the title, held, in accordance with the practical construction of the parties, that the agreement could not be construed otherwise than that when the $9,900 was paid and the mortgage given the deed was to be delivered, and when on the day that sum was to be paid plaintiff tendered to defendant a properly executed deed of the premises and notified defendant, who refused to pay,, that the agreement was terminated and also refused to grant any extension of time, plaintiff was entitled to maintain an action for the cancellation of the agreement which was recorded in the county clerk’s office by defendant nearly two months after his default in making payment of the $9,900.</p> <p>Whether the agreement was to be regarded either as a land contract or a mere option to purchase it must be held, in view of plaintiff’s inquiry of defendant before the day the $9,900 was to be paid whether or not he expected to fulfill his agreement, that time was of the essence of the agreement but if under the terms thereof the matter was in doubt the action of the parties clearly made it so, for when plaintiff refused defendant’s request for an extension of payment for an indefinite time they then and there made time of the essence of the transaction.</p> <p>It would be a manifest injustice to plaintiff to hold him indefinitely under an agreement to sell the farm when so small a payment had been made upon property which was increasing in value, when defendant defaulted in his first substantial payment and gave no reasonable encouragement as to when any future payment would be made, and, therefore, in the circumstances defendant was not entitled to a decree of specific performance of the agreement which he alone had violated.</p>

Motion to set aside the verdict in favor of the plaintiff, rendered by a jury on the direction of the court, and for a dismissal of the plaintiff’s complaint.

<p>Application by a mother to obtain the custody of her son.</p>

<p>Judgment — motion for, on the pleadings — trial — pleading—partnership — Code Civ. Pro. § 547.</p> <p>Where a complaint entitles plaintiff to any relief, legal or equitable, even though the judgment demanded be not the precise relief to which he is entitled, defendant’s motion for judgment on the pleadings under section 547 of the Code of Civil Procedure will be denied.</p> <p>A defendant by moving for judgment under section -547 of the Code of Civil Procedure admits all the allegations of fact contained in the complaint, and the court must assume that they are true, and defendant is only entitled to an order granting his motion where the pleadings are legally insufficient or no issue of fact is raised.</p> <p>Issues of fact must be determined 'at the trial and cannot be summarily disposed of on a motion for judgment on the pleadings.</p> <p>Upon a motion for judgment on the pleadings they must be liberally construed in favor of the pleader so far as matters of form are concerned, but the answer may not be considered in determining whether the complaint states facts sufficient to constitute a cause of action.</p> <p>The complaint in an action by one partner by which he seeks to compel defendants, his co-partners, to share with him the profits and benefits which, as alleged, they acquired to their own advantage because of their failure to acquaint plaintiff fully and fairly as their partner with the conditions and circumstances surrounding a certain business venture set forth, considered, and held to state a cause of action.</p>

<p>City of Hew Rochelle — charter of, § 421 — fixing of district of assessment by common council — municipal corporations — actions — Code Civ. Pro. § 1638.</p> <p>Under section 421 of the charter of the city of New Rochelle its common council in fixing a district of assessment to cover one-third of the expense of laying out a new street, the city to' pay the balance, is under obligation to establish a district of assessment which shall contain all the real property which, in the judgment of the common council, is likely to be benefited by the improvement.</p> <p>In an action brought under section 1638 of the Code of Civil Procedure to cancel an assessment on plaintiff’s property on the ground that it was illegal and .void because made in excess of the jurisdiction of the common council in creating the district of assessment, it will he presumed that the common council did establish a district of assessment containing all the property likely to' be benefited by the improvement and, in the absence of fraud or bad faith, its action is conclusive.</p>

<p>Action to compel accounting by executor.</p>

<p>Motion for judgment on the pleadings.</p>

<p>Dbmuííber to complaint on the ground that it does not •state facts sufficient to constitute a cause of action.</p>

<p>Motion for judgment on the pleadings.</p>

<p>Banks — determining title to assets remaining in — bonds — actions — contracts.</p> <p>Where negotiable bonds, loaned to a firm of stockbrokers for the purpose of being shown as part of its assets, were immediately hypothecated by it with its bank to secure its indebtedness, and the bonds were sold by the bank under a collateral agreement before notice from the owner who was not indebted to .the stockbrokers, said owner, though not a party to an action against the bank by a customer o£ the stockbrokers, is bound by a decree therein made determining the title to the assets remaining in the hands of the bank under the collateral agreement.</p>

<p>Motion for judgment.</p>

<p>Action for the construction of a deed of trust.</p>

<p>Greater New York Charter, §§ 799, 800 — construction of — reinsurance.</p> <p>Sections 799 and 800 of the Greater New York Charter (Laws of 1901, chap. 466) should be construed so as to require the agents of foreign insurance companies to pay the percentage provided for in said statute on all policies of reinsurance as well as on all policies of direct insurance.</p>

<p>(junction — encroachments on building line — Greater New York Charter, § 50 — Code of Ordinances, § 238 — damages to easements of light, air and access.</p> <p>Stone stairways of solid masonry leading to entrances of a building erected by the city of New York and extending about six feet beyond the building line of a street sixty-five feet wide violate not only section 50 of the Greater New York Charter, which provides that the city government shall have no power “ to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same,” but offend against section 238 of the Code of Ordinances of the city which permits ornamental projections, provided they do not extend “more than one-fifteenth part of the width of the street they are upon, nor in any case more than five feet beyond the building line,” and an adjoining property owner will be granted a mandatory injunction requiring the city to remove from the sidewalk such obstruction.</p> <p>On a claim for damages to easements of light, air and access plaintiff is not entitled to recover for a diminution in value of his premises based on the assumption that the nuisance is to continue forever and at the same time have judgment of abatement and removal of the nuisance, but his recovery should bn limited to the loss of rentals sustained up to the commencement of the action with the right of successive actions of damages until the abatement of the nuisance.</p>

<p>Proceedings on the probate of a last will and testament.</p>

<p>Action to recover damages.</p>

<p>Actions to recover moneys paid- under conditional bills of sale.</p>

<p>Action to recover the value of certain merchandise.</p>

<p>Application to amend judgment.</p>

<p>Appeal from Justice’s Court from a judgment of forty-five dollars and ninety-three cents against the defendant.</p>

<p>Appeal by defendant from order of the City Court of the city of New York, granting plaintiff’s motion for judgment on the pleadings.</p>

<p>Default'—when entitled to have default opened without terms—calendar — trial — actions.</p> <p>Nine separate actions to recover on policies of fire insurance appeared on the calendar of Part I of the trial court, numbered in consecutive order. The trial of the first cause being unfinished on the last day of the term all of the cases with the assent of plaintiff’s counsel were adjourned to Part II. Held, that in the absence of due service of notice of trial defendant was not entitled to take plaintiff’s default in appearance or refusal to proceed with the other actions after the conclusion of the trial of the first ease and that plaintiff was entitled to have his default opened without terms.</p> <p>Even had the default been properly granted, a requirement that plaintiff should stipulate to try the other actions as one deprived him of a substantial right and could not be properly imposed as part of the terms for opening the default.</p>

Appeal by defendant from judgment of the City Court of the city of New York, entered upon verdict directed for the plaintiff.

<p>Corporations — assignment of account for goods sold and delivered — evidence — Stock Corporation Law, § 66.</p> <p>In the absence of proof that a corporation had refused to pay any of its obligations or that it was insolvent or that its insolvency was imminent, an assignment by it of an account for goods sold and delivered to one of its officers and stockholders does not violate section 66 of the Stock Corporation Law.</p>

Appeal by defendant James Kennedy, from judgment of the City Court of the city of New York entered on verdict in favor of plaintiff, and from order denying motion for a new trial.

<p>Insurance (accident) — conditions of policy of — compliance with —■ notice of acident.</p> <p>A condition of a policy of accident insurance requiring the insured to give immediate notice to the insurer of any accident is to be interpreted as meaning that the insured Shall give such notice after he has been apprised of the accident, or should have been had he exercised reasonable diligence.</p> <p>Where the insured is a storekeeper it is his duty to so regulate his business that he may he apprised with reasonable certainty of any accident that may occur in its conduct.</p> <p>If in such ease, despite the exercise of reasonable care, the insured fails to acquire information as to an accident until sometime thereafter, but on its acquisition promptly notifies the insurer, he complies with the condition of the policy as to giving immediate notice.</p>

<p>Carriers — assignment of bill of lading — sales — through rates.</p> <p>Plaintiff’s assignor purchased from defendant 1,000 bales of cotton compressed at the shipside New Orleans, terms sight draft attached to the bill of lading.. At .the time of the purchase the cotton was stored in Texas uncompressed and at defendant’s suggestion it was shipped on a through bill of lading direct to a customer of plaintiff’s assignor who was advised by defendants that they had obtained a through rate and would deduct fifty-one cents for one hundred pounds to New Orleans and in fact deducted at the rate of forty-nine cents one hundred pounds. Held, that plaintiff’s assignor was entitled to deduct from the invoice only so much as represented the actual rate charge including compression though it appeared that all the railroads except that by which the cotton was shipped charged sixty-one cents one hundred pounds for a like transportation.</p>

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, dismissing the complaint at the close of plaintiff’s case.</p>

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, granting a motion made by the defendant to vacate a judgment entered in favor of the-plaintiff and also from an order granting a stay of proceedings.</p>

Appeal by Samuel Silinsky, a witness in this action, from an order of the Municipal Court of the city of New York, borough of the Bronx, second district, denying his motion to vacate an attachment against his person.

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, entered by direction of the court after a trial without a jury.</p>

Appeal by defendant from judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint of the plaintiff without prejudice to a new trial and from an order denying defendant’s motion to set aside said judgment and dismiss the complaint upon the merits.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, after a trial before the court without a jury.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of plaintiff, entered by direction of the court after a trial without a jury.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, in favor of defendants, dismissing the complaint on the merits, with costs, after a trial by the court mthout a jury.

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, dismissing the complaint.</p>

<p>Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, entered upon the verdict of a jury.</p>

<p>Contracts — covenants of — breach of — failure to fix terms for continuance of agreement — actions — when unenforcible — appeal.</p> <p>Plaintiff was employed by defendant to go to a certain territory and there hire salesmen, put them out to sell goods and as soon as a check writer got there they were to sell check writers. The check writer was to be.there about the first of February and plaintiff’s commission was to be fifty per cent, and forty per cent was to be paid to the salesman. Held, that in the absence of any covenant on plaintiff’s part either to purchase a definite number of the articles to be supplied defendant or to continue his services for any definite period acquiesced in by defendant there was no enforcible contract.</p> <p>The failure of the parties to fix any terms for the continuance of the agreement left it as one terminable at will.</p> <p>In an action for breach of the alleged contract defendant on motion to dismiss the complaint on the ground that the contract was too indefinite and uncertain might urge the absence of a specified term for its continuance.</p> <p>Even if on defendant’s motion to dismiss the complaint the points that the contract was unenforcible because of the absence of a covenant on plaintiff’s part to purchase a definite number of articles from defendant or to continue in its employ for a definite period were not separately and clearly urged, defendant was entitled to avail itself of them on appeal from a judgment in favor of plaintiff since the objections were not to a defect in formal proof but that plaintiff had failed to establish a cause of action.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, involving also the dismissal óf defendant’s counterclaim, after a trial by the judge without a jury.

Appeal, by defendant from judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, for $360.65, in favor of plaintiff after a trial by a judge without a jury.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, dismissing the plaintiff’s complaint.

Appeal by plaintiff from an order of the Municipal Court of the city of Hew York, borough of Manhattan, fourth district, setting aside a verdict of a jury for fifty dollars in favor of plaintiff.

Appeal by defendant from a judgment for $228 in • the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, after trial by a judge without a jury.

<p>Animals — escape of trained lions — negligence — liability of proprietor of theatre for injuries to spectator.</p> <p>Where during a performance by trained lions in a theatre one of them escapes and enters the dfficfedhe proprietor of the theatre is liable to a spectator who in the resultant rush to escape from the theatre was injured, though he was not the owner of the animal.</p>

<p>Conversion — evidence held not to sustain counterclaim for storage.</p> <p>Landlord and tenant — boarding-house keeper’s lien — action for rent — surrender and acceptance.</p> <p>Evidence in an action for the conversion of a piano that when defendant, a hoarding-house keeper, refused to deliver it to plaintiff on demand no claim was made for storage but only for damages for plaintiff’s failure to retain a room for a year does not establish a lien for storage pleaded as a counterclaim.</p> <p>The language of the statute which gives a boarding-house keeper a lien for accomodations, board, lodging and extras furnished cannot be extended to cover future rent or damages under a yearly hiring of a room.</p> <p>Where defendant counterclaimed for the balance due for the hiring of a room for a year at -a weekly rate it will be assumed on appeal from a judgment i'or defendant that the hiring was by the year.</p> <p>Where it appears that plaintiff gave the koy of her room to defendant who thereafter rented the room, such ' acts constituted a surrender and acceptance from the date of the reletting.</p> <p>Where the record on appeal does not show th.e date of defendant's acceptance of the surrender she could not claim rent for the entire period of hiring, and the burden' was on her to show the period for which she was entitled to receive the rents. 'x</p>

<p>Landlord and tenant — summary proceedings to terminate relation — damages for breach of covenant.</p> <p>In the absence of an express agreement to the contrary a landlord cannot recover for damages which accrued by reduced rentals received after the lease had been terminated by sum-, mary proceedings.</p> <p>A tenant’s default in payment of rent for which he was dispossessed in summary proceedings cannot be regarded as being the cause of alleged decrease in rental value and is not an element of damage allowable to the landlord.</p> <p>Where a lease recites a deposit of money as security for the faithful performance of all the terms, covenants and conditions of the lease to be allowed on all damages from any breach, the landlord is only entitled to have recourse to the security to the extent of any damages arising during the tenancy by reason of a breach of the covenants expressly covered by the security under the terms of the lease.</p> <p>After summary proceedings to dispossess the tenant for breach of covenant the landlord may not recover moneys expended for repairs which the tenant was obligated to make under the lease, in the absence of proof that they were made necessary by any neglect of duty on the part of the tenant during the tenancy.</p>

<p>Assignments — unconditional — to trust company of shares of stock — order by decree of Surrogate’s Court — contracts — negotiable instruments.</p> <p>By a decree of the Surrogate’s Court executors were ordered to assign and transfer to a designated trust company a certain number of shares of stock which, at the value found by the appraiser appointed to fix the value thereof and which constituted the bulk of the estate, together with a small amount in cash, made a total of $10,400 with interest, the claim therefor being based not upon any contract between the parties as evidenced by a note of $10,400 but upon the apparently unconditional assignment of an interest in the estate to the trust company. Held, that said decree simply fixed the extent of the interest of the trust company in the estate and in that respect was as binding on the trust company as upon the assignor and definitely determined what that interest was, and the share of the 'assignor remained as collateral in the hands of the trust company when transferred to it subject to all the conditions of the contract between it' and said assignor, and that the value of the stock as between them was to be determined according to the terms of the note.</p>

<p>Appeal from a judgment and orders of the Municipal Court of the city of New York, borough of Manhattan, fourth district.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiffs.</p>

<p>Accord and satisfaction — when there is an — partnership — when action barred.</p> <p>Where upon the dissolution of a partnership plaintiff sold to defendant his interest in the business for $2,500, payable $1,000 in cash and $1,500 in three notes for $500 each, and shortly before the maturity of the first note plaintiff accepted $500 from the defendant and surrendered all the notes, there was an accord and satisfaction which barred an action to recover the balance of the purchase price.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, rendered in favor of plaintiff, after a trial by the court without a jury.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered upon a verdict, and from an order denying defendant’s motion for a new trial.</p>

<p>Sales — conditional — action to foreclose lien of contract —■ trial — evidence — pleading.</p> <p>All installments of the purchase price under a contract for the conditional sale of certain fixtures and like articles relating to the equipment of a cigar and stationery store conducted by defendant were paid except two represented by notes given by the buyer, and the contract provided that for failure to pay any installments upon maturity all future installments should immediately -become due and payable. In an action to foreclose the lien of the contract and to have the property covered thereby sold, based upon an alleged default in the payment of the first of the unpaid installments of the purchase price, it appeared that defendant upon receiving notice that his notes were held by a trust company and bank mailed to it at maturity a certified check payable to the order of the bank which the trust company received and returned the same day and presented the note for payment at defendant’s address and protested it for nonpayment. Held, that defendant having already paid the note according to his justifiable understanding was entitled to disregard a demand that he take the matter up with the bank; that such demand would-not support the action.</p> <p>It having been stipulated on the trial that plaintiff had put the four notes given in the transaction in the hands of the trust company and bank, a letter from the trust company mailed to defendant acknowledging the receipt of and return of the certified check, was admissible in evidence.</p> <p>A tender and payment into court of the amount of the note given for one of the unpaid installments of the purchase price was sufficient and the effect thereof was not destroyed by a counterclaim for damages based on a partial breach of the contract of conditional sale nor was plaintiff under necessity of putting in any evidence in support of the prima facie ease on the note.</p>

Appeal by the defendants from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, denying a motion to vacate a judgment.

<p>Master and servant — when relation does, not exist — negligence — contracts.</p> <p>Damages — personal liability of owner excavating property — contracts.</p> <p>City of Buffalo — provisions of section 73 of city ordinances—negligence.</p> <p>Where the relation of master and servant or principal and agent does not exist, but an injury results from negligence in the performance of work by an independent contractor, the party with whom he contracts is not responsible for his negligence or that of his servant.</p> <p>At common law the owner of land contiguous "to that of another is entitled to the right of support, and when excavation is made and this right of support is taken away and damage results to the adjoining owner the owner making the excavation must make good the damage.</p> <p>This natural right of support as between owners of contiguous lands existed in respect of lands only, and "not in respect of buildings or erections thereon, but by statute (Laws of 1855, chap. 6) this duty of protection was extended to buildings and other erections in the city of New York.</p> <p>The duty to properly protect the land or soil of contiguous property where excavations are made adjoining is an absolute one, and the owner of the property excavated cannot absolve himself from personal liability for damages resulting from inadequate protection against cave-ins by contracting with a third party for doing the work, and in such contract providing that the contractor shall properly shore and protect the adjoining property.</p> <p>Section 73 of the ordinances of the city of Buffalo which provides that “In excavating to adjoining premises, where there is not existing a retaining wall at the time of such excavation and in excavating to line of street curbs for any building or other purpose, to a greater depth than four (4) feet from grade — the party causing such excavation shall sheet pile with plank two inches thick, extending full width and from grade to bottom of excavation. The party causing such excavation and placing such sheet piling shall replace all damaged work and material, in as good condition as it was before excavation was commenced,” and which was passed by virtue of the provision of the charter of the city giving it power to prescribe general regulations for the erection of all buildings therein, is valid, and a violation thereof gives a cause of action.</p> <p>Where in walking near premises being excavated for the owner by an independent contractor plaintiff was injured by a cave-in which resulted from failure to “ sheet pile ” the excavation, as required by said ordinance, plaintiff has a cause of action against the owner of the premises and his failure to obey the ordinance is some evidence of negligence to be considered by the jury with the other facts .and circumstances of the case.</p>

<p>Contracts — for building loan — must be in writing — mortgage — liens.</p> <p>A contract for a building loan is an agreement by which one undertakes to advance to another money to be used in the erection of a building.</p> <p>Where at the time of an advance of $1,500 on a bond and mortgage given to a savings and loan association to secure a loan of $5,500 on a half completed house nothing whatever was said or agreed upon as to how the money advanced should be used by the mortgagor, the transaction was not a contract for a building loan within the meaning of section 22 of the Lien Law which provides that such a contract must be in writing and duly acknowledged and within ten days after the execution thereof be filed in the office of the clerk of the proper county.</p> <p>There being nothing in the agreement between the parties as to how the balance of the loan should be used, the case was covered by section 13 of the Lien Law which provides that “a lien for materials furnished or labor performed in the improvement of real property shall have priority * *</p> <p>over advances made" upon any mortgage or other incumbrance thereon after such filing” that is, filing of notice of lien.</p>

<p>Taxes—Tax Law, § 24—who entitled to money collected for taxes on stock of hank — actions — municipal corporations.</p> <p>Under section 24 of the Tax Law a city, which in and. of itself is a tax district within a county, is alone entitled to the money collected for taxes on the stock of a bank located within said city.</p> <p>A contention that as the complaint in an action by the county against the town in which the city was located to recover eertain moneys erroneously paid to defendant upon a distribution of the amount paid for taxes on the stock of a bank located in said city alleged that said moneys were paid to the town voluntarily through inadvertence and mistake of law, they could not be recovered back, was untenable under the doctrine that voluntary payment cannot be invoked by a defendant to enable him to retain the money of a municipality illegally paid to him.</p> <p>Under said section 24 of the Tax Law the county had such a special interest in the moneys so erroneously paid to the town that it could maintain an action to recover the amount so paid which legally belonged under the statute to the city in which the bank was located.</p>

<p>Appeal from judgment of the City Court of Buffalo dismissing the plaintiff’s complaint.</p>

<p>Workmen’s Compensation Law, §§ io, 20—hazardous employments — pleading—what states a cause of action — negligence.</p> <p>Section 10 of the Workmen’s Compensation Law after specifying what are to be deemed hazardous employments provides: “ Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and.in the course of his employment, without regard to fault as a cause of said injury.”</p> <p>Held, that a complaint alleging in substance that the defendant negligently failed to furnish and provide the plaintiff while in its employ “with reasonably safe implements, appliances, ventilators, fans, blowers or other devices * “ * for the carrying away of poisonous and dangerous gases and fumes; in permitting and allowing poisonous gases and fumes to accumulate and remain in and about the place in which this plaintiff was required to work, * * * and through the carelessness and negligence of defendant ” in other ways failing and neglecting to perform certain alleged duties for the proper and reasonable safety of the plaintiff, whereby it is alleged the plaintiff inhaled certain poisonous gases and fumes, which occasioned permanent injuries to his lungs and other portions of his body, states a cause of action.</p> <p>Under section 20 of the Workmen’s Compensation Law which requires the commission to determine the claim before it for compensation and declaring that its decision shall be final as to all questions of fact a finding that injury to the plaintiff was not due to accident is res adjudícala as to the fact as to whether the injury was accidental and precludes further inquiry on the point.</p> <p>If the compensation commission was in error in making the finding as to whether plaintiff’s injury was accidental, his only remedy was an appeal from such decision as provided by section 23 of said law.</p>

<p>Habeas corpus — writ of — when denied—Liquor Tax Law.</p> <p>Where on conviction in a County Court of a violation of the Liquor Tax Law the relator was sentenced to a term of one year in the penitentiary and to pay a fine, which was paid the same day, and the execution of the sentence of imprisonment suspended, and more than six months thereafter relator was arrested upon a warrant issued by the county judge and brought before the court which made an order that the order theretofore made suspending the execution of the sentence of imprisonment be revoked and relator committed to the penitentiary to serve for a period of one year as directed by the original sentence, and it appears that the course pursued by the court wholly ignored the whole scheme of probation as outlined in the statute, it must be concluded that relator was given the benefit of only a common-law suspension of the execution of the sentence and not one under the statute, and that upon revocation of said sentence it only remained to carry out the terms of the original judgment of conviction and that relator’s application on habeas corpus for release from imprisonment, on the ground that the term thereof had expired, must be denied and the writ dismissed.</p>

<p>Motion by plaintiff for judgment on- the pleadings.</p> <p>This action was' brought by the plaintiff as a stockholder in the Rochester Electric Railway Company on behalf of himself and other stockholders against the city of Rochester impleaded with the Rochester Electric Railway Company and the New York State Railway's as lessee and stockholder of the Rochester Electric Railway Company to enjoin the enforcement of chapter 359 of the Laws of 1915 changing the rate of fare on the Rochester Electric Railway.</p> <p>Chapter 359 of the Laws of 1915 is an act amending the charter of the city of -Rochester generally and contains an amendment to section 636 of the charter providing that a corporation operating a street surface railroad shall not charge any passenger more than five cents for one continuous ride- from any point on its road to any other point thereon, within the limits of the city of Rochester.</p> <p>The Rochester Electric Railway prior to the passage of the act was located outside of the city and operated from the boundaries of the city to Lake Ontario, charging a five-cent fare each way. By the act the territory through which the railroad passed was annexed to the city. The act in question provides for the reduction of the fare on the railroad by prescribing a five-cent fare for a continuous ride throughout the city.</p> <p>The act in question is attacked on the ground that it reduces the fare below a point where the railroad can be profitably operated and on the further ground that it violates the provisions of the Constitution relating to private and local bills.</p>

<p>Contracts — written agreements— partnership — actions — evidence.</p> <p>A written agreement under which, plaintiff took charge of the restaurant, part of defendant’s business in consideration of which he was to receive as compensation a certain percentage of the net earnings of the entire business, the amount to be paid plaintiff for services to-be determined upon an accounting each month, does not create a partnership between the parties, plaintiff having no financial responsibility in connection with the business or title to any of the stock or fixtures used therein.</p> <p>The fact that an action on contract seeks an accounting does not make it an equitable one requiring determination at the Special Term and the ease should be sent to the Trial Term.</p> <p>While the fact that the parties held themselves out as partners erecting an electric sign with their joint names thereon might be evidence to create a liability of both parties to creditors such acts did not change the contractual relation from one of employment to one of partnership.</p>

<p>Motion for a peremptory writ of mandamus.</p>

<p>Motion to set aside a judgment of foreclosure and sale.</p>

<p>Motioh for an extension of time to complete the purchase of premises sold under a judgment of foreclosure.</p>

<p>Motion by defendant to change the place of trial from Greene to Kings county as the proper place for trial.</p>

<p>Action for partition.</p>