Volume 95 — New York Supplement

<p>Negligence—Careless Driving—Injury to Standing Team—Contributory Negligence.</p> <p>Where plaintiffs left their horse and wagon standing in the street in front of a store from which they were loading goods into the wagon, they were not guilty of contributory negligence, as a matter of law, preventing their recovery for injuries to the horse, caused by the reckless driving of defendant’s servant.</p>

<p>Action by the Portland Company against one Hall. On demurrer to counterclaim.</p>

In the matter of the settlement of John W. Kelly, pauper. From a decision of the superintendent of the poor that his settlement was in the town of Camillus, and not in the town of Geddes, the town of Camillus- appeals.

<p>Appeal from Surrogate’s Court, Steuben County.</p> <p>In the matter of the appraisal of the property of the estate of John M. Deutsch, deceased. From an order modifying an order fixing the transfer tax on certain legacies, the comptroller appeals.</p> <p>This is an appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Steuben entered February 4, 1904, modifying an order of said court made theretoforé and on or about July 21, 1903, fixing the tax upon the transfer of certain property under the will of said deceased to Mildred Conderman and Frances Richardson. The first order imposed a tax upon said legacies, and the latter order by its modification relieved the same from taxation, upon the ground that they came within the exemption of section 221 of chapter 908, p. 869, Laws 1896, known as the “Tax Law,” which grants such exemption “when the property or any beneficial interest therein passes by any such transfer to * * * any child, to whom any such decedent * * * for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent: provided, however, such relationship began at or before the child’s fifteenth birthday and was continuous for said ten years thereafter.”</p>

Action by the Stock, Grain & Provision Company of New York, Limited, against Mary T. Haight and others. Plaintiff’s motion for an order permitting it to pay into court moneys claimed by defendants, enjoining them from proceeding against it to collect the same, and to interplead them, denied. One William C. Haight recovered a judgment against the Stock, Grain & Provision Company of New York, Limited, which was affirmed by the Court of Appeals March 17, 1905.

<p>Street Improvements—Assessments—Street Railways.</p> <p>A street railway company may not be assesses for the widening of a street merely because of its occupation of the street with its tracks.</p> <p>[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Cor- ■ porations, §§ 1033, 1050.]</p>

<p>Charles Murray and another were indicted for conspiracy. Defendant Murray demurs to the indictment.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by David Rachmiel against the Armour Packing Company. Prom an order setting aside a verdict and granting a new trial, plaintiff appeals.</p>

<p>Action by Anton Fuerst against the Musical Mutual Protective Union.</p>

<p>Appeal from Special Term, Fulton County.</p> <p>Action by Eugene S. Wood against George B. Hall. From an order setting aside a default judgment for plaintiff and permitting defendant to answer, plaintiff appeals.</p>

<p>1. Contracts—Consideration.</p> <p>A promise by an owner, made to a subcontractor after completing his work under his contract with the principal contractor, that he would not make further payments to the principal contractor until the latter furnished receipted bills for all labor, is without consideration.</p> <p>2. Statute of Frauds—Promise to Pay The Debt of Another.</p> <p>An oral agreement by an owner to pay for the work and materials furnished by a subcontractor,in the construction of a building, in case the principal contractor neglected to do so, is void within the statute of frauds.</p> <p>[Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 16-20.]</p> <p>3. Pleading—Cause of Action—Recovery on Another Cause of Action.</p> <p>Where, in an action against an owner for work and labor furnished by a subcontractor, the complaint alleged that the owner promised to pay the subcontractor if the principal contractor failed to do so, there can be no recovery on the theory that the owner became the principal debtor of the subcontractor.</p> <p>Chester and Houghton, JJ., dissenting.</p>

<p>Divobce—Alimony—Reduction.</p> <p>A decree of divorce required the husband to pay as alimony $2,700 per annum, and provided that, on the happening of any event materially changing the circumstances of the parties, an application might be made for a modification of the allowance. For three years prior to the decree the husband’s profits and salary averaged $6,000 a year. Since the decree, his average annual income amounted to over $7,000. The wife received no substantial income from her property. The husband was compelled, subsequent to the divorce, to borrow $2,640 to pay his debts. Held insufficient to warrant a reduction of the allowance.</p> <p>[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, § 693.]</p> <p>McLaughlin, J„ dissenting.</p>

Action by James E. Holland against the New York City Railway Company. From an order denying a motion to change the place of trial, defendant appeals. This action is brought by the plaintiff to recover damages for injury to an automobile, caused by having been struck by one of the defendant’s ears at or about the intersection of Washington Place with Broadway, in the city of New York, upon the 2nd day of September, 1904. The plaintiff claims damages to the amount of $2,000.

<p>Corporations—Action by Stockholders—Suing on Behalf of Corporation—Conditions Precedent.</p> <p>An action by a stockholder of a corporation to set aside a purchase of certain appliances and to recover for the benefit of the corporation purchase money paid therefor, before demand made on the directors that they bring the suit in the name of the company for the rescission of the contract, etc., and before they had refused or unreasonably delayed to bring the suit, was premature.</p>

<p>Judgment—Opening—Newly Discovered Evidence.</p> <p>Opening decrees for new trial on the ground of newly discovered evidence is error, there being nothing in the new matter of such a character as to change the decrees.</p> <p>[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 715, 716.]</p>

<p>Libel—Question for Jury.</p> <p>In an action for publication of a newspaper article concerning the conduct of the counsel to a county board of supervisors, held, that whether the publication was libelous was for the jury.</p> <p>[Ed. Note.—For cases in point, see vol. 32, Gent. Dig. Libel and Slander, § 357.]</p>

Mandamus proceedings by the people, on the relation of Charles M. Murphy, against William McAdoo, as police commissioner of the city of New York. From an order awarding a peremptory writ, defendant appeals.

<p>Appeal from Special Term, Kings County.</p> <p>Mandamus proceedings by the people, on the relation of Rafael R. Nugent, against William McAdoo, as police commissioner of the city of New York. From an order awarding a peremptory writ, defendant appeals.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Mandamus proceedings by the people, on the relation of Henry S. Woodruff, against William McAdoo, as police commissioner of the city of New York. From an order awarding a peremptory writ, defendant appeals.</p>

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

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by William C. Bolton and another against James J. Amsler. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by William C. Bolton and others against John J. Amsler and others. From a judgment in favor of plaintiffs, defendants appeal.</p>

<p>1. Railboads—Reorganization—Receivers’ Liabilities.</p> <p>Where a transfer of railroad property in the hands of receivers was made pursuant to a statute prescribing a plan for the transfer of the railroad franchise and property by the receivers to a new corporation, through a reorganization committee, the real parties to the transaction being the receivers on the one hand and the new corporation on the •other, a holder of a claim against the receivers, arising out of a tort •committed by them in the operation of the road, was entitled to enforce -a condition in the deed against the reorganized corporation, by which the latter assumed all liabilities incurred by the receivers, though there was no liability on the part of the reorganization committee to plaintiff at the time of the transfer.</p> <p>"2. Same—Judgment Against Receiver—Limitations.</p> <p>Where a suit for damages, based on negligence of the receivers of a railroad company in the operation thereof, was brought against them within the time prescribed by law, and on the discharge of the receivers the conduct of the suit was assumed by a reorganized corporation, which covenanted to save the receivers harmless from any liability incurred by ■them in the operation of the road, the reorganized corporation was not •entitled to plead limitations as a defense to an action on the judgment •subsequently recovered in such suit, as its liability is on its covenants to save the receivers harmless.</p>

<p>Appeal from Trial Term, Montgomery County.</p> <p>Action by Abram G. Yates against the New York Central & Hudson River Railroad Company. From a judgment entered on a nonsuit, and from an order denying a motion to set aside a direction dismissing the complaint, plaintiff appeals.</p>

<p>Appeal—Bills and Notes—Action—Evidence.</p> <p>In an action on a note, where the defense is forgery, and there is a flat contradiction as to the signature to the note, and samples of the signatures of the defendants procured at the trial are not introduced in evidence, and certain witnesses whose evidence might throw light on the question are not produced, a judgment in favor of the plaintiff will be reversed, and a new trial granted.</p>

<p>1. Pleading—Legal Conclusions.</p> <p>An allegation that the estate of a deceased partner owns an undivided half interest in certain bonds, which in fact belonged to the partnership and have consequently passed to the surviving partner, is a conclusion of law.</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 23.]</p> <p>2. Partnership—Death of Partner—Succession to Firm Property.</p> <p>Where a partnership owns certain bonds and one of the partners dies, title to the bonds is in the surviving partner, and the estate of the deceased partner has no legal interest therein until the partnership affairs are closed, and its interest is then in the net proceeds of the firm business.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Partnership, § 514.]</p> <p>3. Abatement and Revival—Proceedings on Death of Party—Statutes.</p> <p>Code Civ. Proe. § 452, requiring the court to direct parties whose presence is necessary for a complete determination of the controversy to be brought in and to permit persons who have an interest in the subject of the action to intervene on their application, applies to interested persons who are not made parties at the time the action is brought and who ask to intervene, and has no application to a case where a party dies subsequent to the institution of suit and his estate seeks to intervene in his place, in which case chapter 8, tit. 4, of the Code, entitled “Proceedings upon the Death * * * of a Party,” section 766 of which allows the action to proceed with parties still living unless the court directs others to be brought in, is applicable.</p> <p>4. Partnership—Death of Partner—Actions Against Surviving Partner</p> <p>—Intervention of Deceased’s Representatives.</p> <p>Under Code Civ. Proe. § 756, providing that, in case of a transfer of interest or devolution of liability, the action may be continued by or against the original party, unless the court directs the person to whom the interest is transferred or upon whom the liability is devolved to be substituted or joined, executors of a deceased partner have no absolute legal right to intervene in an action brought prior to the death of the partner, arising out of partnership transactions, and which is under the control of the surviving partner, where there is no conflict of interest between the surviving partner and the estate of the deceased partner, and there has been no mismanagement of the case or prejudice to the estate from the proceedings had therein.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Partnership, § 375.]</p> <p>5. Same.</p> <p>Where a partner dies before action brought against the partnership, the estate of the deceased partner can only be made a party to the action by alleging the insolvency of the surviving partner, and can only intervene at its own request upon a showing that the surviving partner is false to his trust, misrepresents the firm, or is treacherous to the interests of the estate.</p> <p>6. Parties—Motions to Intervene—Laches.</p> <p>A motion to be permitted to intervene in an action without terms, and thus put the case over the trial term, may be denied on the ground of laches, where important proceedings have been had to the knowledge of the attorney making the motion and ample time has expired Within which the motion might previously have been made.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Parties, § 69.]</p> <p>7. Same—Actions for Damages.</p> <p>Under Code Civ. Proe. § 452, requiring the court to direct a person not a party to the action, who has an interest in the subject thereof and who makes application to be made a party, to be brought in by proper amendment, intervention cannot be required in an action for damages.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Parties, § 59.]</p> <p>8. Same—Bringing in Necessary Parties.</p> <p>Code Civ. Proe. § 452, requiring the court to direct a person not a party to the action, who has an interest in the subject thereof and who makes application to be made a party, to be brought in by proper amendment, is to be construed as requiring parties to be brought in who, if their interests were known, were either proper or necessary parties at the time of suit brought.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Parties, §§ 61, 62.]</p>

<p>1. Landlord and Tenant — Dispossession — Counterclaim — Covenants —</p> <p>Breach—Evidence.</p> <p>Where, in summary proceedings to dispossess a tenant, he filed a counterclaim for failure of the landlord to furnish light and heat as agreed, evidence that the wiring of the building was defective and that complaints of insufficient heating and lighting had been made from time to time by the tenant was insufficient to establish “loss of earning capacity” pleaded.</p> <p>2. Same—Damages—Proximate Result.</p> <p>Where a tenant at an inconsiderable outlay could have provided heat for the rented premises, which the landlord had covenanted to provide, a loss to the tenant from idleness because he could not or would not work in the leased premises because the proper temperature was not maintained was not the natural or probable result of the landlord’s breach of the covenant.</p>

<p>Evidence—Burden of Proof.</p> <p>The burden of proving a counterclaim is on defendant.</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 120.]</p>

<p>New Trial—Conditions—Tbial Fee.</p> <p>An order setting aside a verdict in favor of defendant and granting a new trial should be conditioned on payment of a trial fee by plaintiff.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. New Trial, §§- 322, 323.)</p>

<p>1. Sales—Failure to Deliver Goods—Damages.</p> <p>A seller who, with knowledge that the buyer must deliver the goods to another under an agreement providing for penalties for delay beyond the time fixed in the seller’s contract, fails to deliver the goods in time, is liable to the buyer for the penalties incurred through the default; such damages being within the contemplation of the parties.,</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 1193.]</p> <p>2. Same—Contract of Sale—Stipulations—Questions for Jury.</p> <p>Whether a contract of sale stipulated that the seller would not be liable for the penalties to which the buyer was subject for his delay in delivering the goods tó another, so as to be relieved from liability to the buyer for penalties incurred through the seller’s failure to deliver in time, held, under the evidence, for the jury.</p> <p>3. Witnesses—Impeachment—Inconsistent Statements—Evidence.</p> <p>Where a witness was interrogated with sufficient particularity as to his having made statements contradicting his testimony, the exclusion of evidence of the statements for the purpose of impeachment was erroneous./</p> <p>[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 12Ó9, 1241, 1242.]</p>

<p>Appeal—Decisions Reviewable—Appealable Orders.</p> <p>An order declaratory of the undisputed fact that defendant had abandoned by neglect his right to serve a case on appeal, being in effect an order declaring that he had waived his right within court rule 33, does not affect any right, and is not appealable.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Philip Edelman against the Interurban Street Railway Company. Erom a judgment on a verdict for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Alfredo Fiorito against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed. :</p>

<p>X. Husband and Wife—Necessaries Furnished Wife—Liability of Husband.</p> <p>Necessaries were furnished a wife living at her husband’s house from which he had removed. He had made no provision for the wife, whose right to support had not been forfeited, so that the seller was justified in relying on her agency. BelA, that the husband was liable for the necessaries, whether the husband and wife lived apart or together.</p> <p>[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Husband and Wife, §§ 121-126.]</p> <p>2. Same—Notice of Husband’s Unwillingness to Extend Obedit.</p> <p>The liability of a husband for necessaries furnished to his wife, entitled to support, is not affected by his publishing a general notice of his unwillingness to extend his credit therefor, but not brought to the attention of the person furnishing them.</p> <p>[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Husband and Wife, § 126.]</p>

<p>Appeal from City Court of New York.</p> <p>Action by John Darners against Morris S. Sternberger. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Irving Elmer against Louis Levin and others. From a judgment of the City Court of New York in favor of defendants, plaintiff appeals.</p>

Action by John E. Brown against Frederick Gauss and others. From orders granting defendants’ motion for dismissal and denying plaintiff’s motion to compel acceptance of notice of trial, plaintiff appeals.

<p>Receivebs—Setting Aside Sales—Interest oe Debtob.</p> <p>The debtor has an interest authorizing his moving the court to set aside "the sale by his receiver, though intervening the sale and motion the property was sold under a mortgage given by him, where he disputes the validity of such mortgage sale.</p>

<p>1. Street Railways—Collision with Team—Contributory Negligence-</p> <p>Instructions.</p> <p>In an action for collision of a street car with a wagon, the driver having turned, to cross in front of the car while it was standing 25 feet away, and there being evidence that thé heads of the horses had not got on the track before the car started, it was error to refuse an instruction that if it was apparent to the driver, or would have been apparent to a person of ordinary prudence, exercising ordinary care, that the car would overtake him unless its speed was slackened, it was not a prudent act for him to assert his rights and proceed, though it was the motorman’s duty to slow down or stop to enable him to cross.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 214.]</p> <p>2. Damages—Cause of Injury—Evidence.</p> <p>That the injuries received by horses were caused by collision of a street car with the wagon to which they were attached is not proved by testimony of the owner and driver that after the accident the horses limped; their p condition prior to and at the time of the accident not being shown.</p>

<p>Master and Servant—Injury to Employé—Negligence—Res Ipsa Loquitur."</p> <p>An employé, Injured by a nut on the end of a shaft in some way coming loose, allowing a pulley to fall on her, does not make out a prima facie case, under the rule of res ipsa loquitur; the attendant circumstances not suggesting the employer had failed in any duty owing the employé.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent Dig. Master and Servant, §§ 881, 884.]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Oscar L. Richard and another against the National Distilling Company. From an order denying a motion to vacate a judgment taken on inquest on default, defendant appeals.</p>

<p>Tbover and Oonvebsion—Demand and Refusal—Defenses.</p> <p>Where, in conversion, defendant admitted possession of the chattels in • question, but justified by asserting a superior title in another, from whom he had leased them, plaintiff was not bound to prove demand and refusal in order to recover.</p>

<p>Master and Servant—Discharge oe Servant—Measure oe Damages.</p> <p>Where a salesman’s contract provided that he should receive $10 a week when traveling and $20 a week when at home, and should travel as directed by the employer, and he was wrongfully discharged, he was entitled to receive $20 per week for the unexpired term.</p>

<p>Collision—Barge at Fault—Ownership.</p> <p>In an action for damages to a canal boat, caused by the alleged negligence of the captain of a barge claimed to belong to defendant, S., proof that the barge belonged to the “S. Transportation Line” was insufficient to establish that S. was the owner or responsible for the acts of the captain.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Irving P. Lovejoy against Charles Weil. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Mamie Cunningham against Joseph Heidelburger. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Max Satkofsky and others against Sender Jarmulowsky. From an order resettling a case on appeal by striking out portions of the proposed case, defendant appeals.

<p>Appeal from City Court of New York, Special Term.</p> <p>Supplementary proceedings by Sydney Deane against Leander S,. Sire. From an order denying a motion to punish the judgment debtor for contempt, the judgment creditor appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Abraham Scholtz against the Interborough Rapid Transit Company. From a judgment for plaintiff, defendant appeals.</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh Dis1 trict.</p> <p>Action by Joseph W. Needham against the Interborough Rapid Transit Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Master and Servant—uompetency of Employé—Evidence—Conclusion.</p> <p>On the issue as to whether plaintiff, employed as a cook for defendant’s hotel, was competent, testimony that the guests would not eat the meals prepared by her, but returned the food when served them, is not objectionable as a conclusion; it being directed to a simple fact, and there being no suggestion that the matter was not one as to which witness spoke from knowledge.</p>

<p>Master and Servant—Contract of Employment—Termination by Master.</p> <p>A contract of employment, terminable for specified reasons, of the existence of which the employer was to be the sole judge, gives the employe the right to the exercise by the employer of his personal judgment on the existence of the specified grounds, and it cannot be terminated by another employé on his own judgment.</p>

<p>Evidence—Examination of Medical Expert—Form of Question.</p> <p>In an action for injuries, a question to a medical witness as to whether, if a man had had rheumatism and received an injury to a particular portion of his body, it would “be likely” to localize the rheumatism in that portion, was improper.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth Dis-. trict.</p> <p>Action by Florence K. Greene against Katherine Ker. From a judgment for plaintiff, defendant appeals.</p>

<p>Evidence—Leases—Tebms—Parol Evidence.</p> <p>In order for a tenant, holding under a written lease, .to show an oral agreement on the part of the landlord to make repairs, the tenant must show that the agreement was a condition to the making of the. lease, and an oral agreement to repair during the term of the lease, as distinguished from repairs to be made before the tenancy commenced, is not collateral, and is inadmissible.</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2048-2051.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Replevin by Fidelity Loan Association against Bernard J. Connolly to recover mortgaged goods. From a' judgment for defendant; plaintiff appeals. Reversed.</p>

<p>Teial—Verdict—Inconsistency.</p> <p>In an action for services, a verdict in favor of plaintiff, but fixing Ms compensation at an absurd figure, contrary to the only evidence in the case respecting the value of the services, is inconsistent.</p> <p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p>

<p>Bills and Notes—Actions—Defenses—Payment.</p> <p>Where, in an action on a note for 600 lire, indorsed to plaintiff, defendant introduced a receipt for 100 lire, signed by the payee, and an Italian post office order to the payee’s order for an amount sufficient to make up the balance of the note, but failed to prove that such amounts were sent to the payee as a payment on the note in suit, the defense of payment was not established.</p>

<p>1. Negligence—Injury to Cab Struck by Coach—Ownership of Coach-</p> <p>Evidence—Sufficiency.</p> <p>Evidence In an action for injuries to a cab by being run into by a stagecoach examined, and held insufficient to show that defendant owned and operated the coach.</p> <p>2. Appeal—Record—Defects—Amendments.</p> <p>Where the return on appeal does not contain all the proceedings, etc., a motion must be made to amend it, and affidavits by appellant will not be considered; the return being conclusive on the appellate court.</p> <p>[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2865, 2866.]</p>

<p>Appeal from City Court of New York.</p> <p>Action by Edward Kann against Levi C. Weir, as president of Adams Express Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Civil Rights—Discriminations Against Negroes—Theaters—Evidence.</p> <p>Where, in an action for the penalty provided for by Laws 1895, p. 974, c. 10Í2, imposing a penalty on any person denying to any citizen by reason of color the full enjoyment of his theater, it was shown that defendant was not personally present at the time plaintiff, a negress, was excluded from his theater, and the exclusion was the act of an employé, evidence that defendant had not authorized the exclusion of negroes, but had made rules to the contrary, and customarily permitted negroes to enjoy the privileges of his place of amusement, was admissible, in connection with other evidence, on the issue whether defendant was responsible for plaintiff’s exclusion.</p>

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

<p>Trial—N onsuit—Evidence.</p> <p>Where, in an action for injuries, plaintiff’s evidence warrants an inference that his injuries were due to defendant’s negligence without contributory negligence on plaintiff’s part, it was error to grant a non-suit on the evidence of plaintiff’s physician that he examined plaintiff on the- day of the accident, and found no bruises on him or any apparent discoloration which would indicate that he had received a recent blow, which evidence was at variance with a statement signed by the physician, who explained the inconsistency merely by stating that at the time he signed the statement he was not under oath.</p> <p>[Ed. Note.—For eases in point, see vol. 46, Cent. Dig. Trial, § 342.]</p>

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

<p>1. Oabbiebs—Transportation of Freight—Deviation.</p> <p>Where defendant carrier deviated from a contract of transportation by transferring the freight to another carrier at D. street, instead of delivering it at 125th street, in a certain city, where it had an office and to which point its route extended, it was liable for the damages sustained thereby.</p> <p>[Ed. Note.—For cases in point, see vol. 9, Oent. Dig. Carriers, §§ 290-294, 356.]</p> <p>2. Judgment—Insertion of Costs—Entry.</p> <p>Under Municipal Court Act, Laws 1902, p. 1589, c. 580, §§ 341, 342, providing that, when judgment has been rendered by the justice, costs must be taxed by the clerk and inserted in the judgment, and that a. taxation may be reviewed by the justice within five days after the “entry” of judgment, without any limit of time being fixed for the taxation of costs after judgment is “rendered,” the judgment is not completed until the costs are inserted.</p> <p>3. Costs—Taxation—Review.</p> <p>Under Municipal Court Act,' Laws 1902, p. 1589, c. 580, § 342, providing that a taxation of costs may be reviewed by the justice within five days after the “entry” of judgment, such review may be had within five days from the time when the “entry” is completed by the insertion of costs.</p>

<p>Judgment—On Dismissal.</p> <p>Where defendant rested at the close of plaintiff’s case and moved for a dismissal of the complaint, and plaintiff moved for judgment, a judgment for defendant was not one of nonsuit, but one involving a determination that plaintiff was not entitled to recover on the facts as submitted to the court.</p>

<p>Tiiial—Instructions.</p> <p>In an action for personal Injuries, the negligence alleged was that defendant permitted a beam to lie in a public street and took no proper precautions to guard against accidents. The evidence showed that a beam fell- from one of defendant’s wagons into the street, and that defendant’s foreman immediately had it rolled into the gutter, where it was when the accident occurred. There was no evidence as to what caused the beam to fall off the wagon. Held, that it was error to charge that the jury might find that it was negligence for defendant to permit the beam to fall into the street.</p>

<p>Vendor and Purchaser—Payment oe Purchase Monet—Deferred Payments —Right to Receive.</p> <p>Where the attorney for a purchaser of real estate retained a sum of money out of the purchase price and gave a receipt therefor, which included an agreement to hold it as a deposit until certain violations filed by the tenement house department had been removed, the vendor, on removing such violations, was entitled to have the deposit paid to him.'</p> <p>[Ed. Note.—For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, § 373.]</p>

<p>Pleading—Genebal Denial—Evidence Admissible.</p> <p>Evidence that plaintiff is not the real party in interest is not competent under a general denial.</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 1293.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Abraham Arndt and others against Miller, Daybill & Co. From a judgment for defendants, plaintiffs appeal.</p>

<p>Trial—Instructions—Evidence to Sustain.</p> <p>In an action for personal injuries, a charge that negligence on plaintiff’s part would preclude a recovery, unless defendant was “guilty of such gross negligence as to imply willful or wanton injury,” was erroneous and prejudicial, where there was evidence of culpable carelessness on plaintiff’s part, and there was no evidence of gross negligence, such as to imply willfulness or wantonness, on defendant’s part.</p> <p>Fitzgerald, J., dissenting.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by John N. Slattery against James Noble and another. From an order denying defendants’ motion for leave to renew a motion to amend the answer, and, on leave being given, to amend the answer, they appeal.</p>

<p>Elections—Nominations by Electobs—Numbeb of Signatures.</p> <p>The assembly and aldermanie districts being coterminous, and the statute requiring that a certificate for an independent nomination of a member of the assembly should be subscribed and verified by at least 500 electors of the district, the same rule should apply to the requisite number to constitute a valid nomination for alderman.</p>

<p>Complaint to review nominations of certain candidates for member of assembly and for alderman.</p>

<p>Money Lent—Evidence.</p> <p>That a bank received the proceeds of a loan by a third person to its debtor, made on the security of invalid bonds which it had delivered to such debtor, does not render it liable to the person making the loan, in the absence of evidence that its officers knew the amount received was part of such a loan, that the bonds had been deposited as security therefor, or that the bank had delivered the bonds for the purpose of having its debtor borrow money on them.</p>

Proceedings by Fred Henry Cox for the punishment of Charles E. Clarke, a defendant in an action, and Charles Stein, his attorney, for contempt of court. From an order adjudging defendant and his attorney guilty, thev appeal.

<p>Appeal from Special Term, New York County.</p> <p>Action by John R. Platt against Hannah Elias and others. Erom a judgment of dismissal, plaintiff appeals.</p>

Action by the United States Casualty Company against the John N. Robins Company. From an order granting plaintiff’s motion for a discovery and inspection of defendant’s books for the purpose of framing a complaint, defendant appeals.

<p>Appeal from Court of General Sessions, New York County.</p> <p>William Nichols was convicted of the crime of subornation of perjury, and appeals.</p>

<p>1. Reference—Referee’s Fees—Liability.</p> <p>Where a referee was appointed under a stipulation to take testimony, and both parties had the benefit of his services, they were both responsible for his fees.</p> <p>2. Same—Employment by Attorneys—Presumption .</p> <p>Where a referee was appointed by attorneys under a stipulation, such employment was sufficient to raise a presumption of a contract for the referee’s services on behalf of the parties to the suit.</p> <p>3. Same—Fees—Recovery—Necessity of Report.</p> <p>Where parties to an action terminated the same by a stipulation, and entered a judgment without the knowledge or consent of the referee, and the plaintiff therein was the prevailing party, the referee’s cause of action for fees could be enforced against plaintiff, the defendant being insolvent, without the filing or delivery of the referee’s report</p> <p>4. Same—Amount Recoverable.</p> <p>A referee’s recovery for fees should be limited to the actual hearings before the referee, and to such adjourned days as the parties met and further adjourned, whether evidence was taken or not.</p>

<p>In the matter of Vyse street. On motion to confirm reports of commissioners of estimate and assessment.</p>

<p>Negligence—Evidence—Sufficiency.</p> <p>Plaintiff was Injured in consequence of defendant’s servant pulling down a dumb waiter. The waiter had been pulled up to plaintiff’s apartments, and while she was placing articles on a shelf therein she put her head inside of it, and as it was pulled down she" was injured'. She knew that there was a safety clutch, but did not use it. The servant could not see plaintiff, and he had no reason to anticipate that, in placing the articles on the shelf, she would put her head so far into the waiter that his act in pulling it down would injure her. He did not wait for a signal. Bel A, as a matter of law, that the servant was not negligent.</p>

<p>Action by Mary Beglin against the People’s Trust Company. On motion for inquest.</p>

<p>Courts—Municipal Courts—Jurisdiction—Assault and Battery or Negligence.</p> <p>An action by a passenger against an elevated street railway company for the act of its guard, who wrongfully pushed him into the car, then assaulted him, and further on pushed him off the car, is not for assault and battery, of which the Municipal Court has no jurisdiction,' but for negligence of defendant in the discharge of its duty to plaintiff as a passenger.</p>

Charles Thompson was prosecuted for a violation of the liquor tax: law. Erom a judgment sustaining his demurrer to the indictment, the people appeal.

Action by Dennis L. Wright against the Knights of the Maccabees of the World to compel defendant to restore plaintiff to membership after suspension for nonpayment of dues. Judgment for plaintiff.

<p>Appeal from Special Term.</p> <p>John Walsh was prosecuted for a violation of the liquor tax law. From a judgment sustaining his demurrer to the indictment, the people appeal.</p>

<p>Action by Walter H. Ayers against the Grand Lodge of the Ancient Order of United Workmen of the State of New York.</p>

<p>Action by Alice Babbitt against the Erie Railroad Company.</p>

<p>Action by Finley Barrell and others against Avis S. Van Wagenen.</p>

<p>In the probate of the last will and testament of Leonora Post Banks, deceased.</p>

<p>Appeal from City Court of New York. Action by Joseph Berliner against Arthur M. Wiener. From a judgment for plaintiff, defendant appeals.</p>

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

<p>In the matter of proving the will of Anton Berkes, deceased.</p>

<p>Action by Phebe S. Bennett and another against Wallace Anthony.</p>

<p>Action by Emily Boyer, as administratrix, etc., against the Erie Railway Company and the International Railway Company.</p>

<p>Actions by Nathaniel Bull and by John R. Smith against the New York & Queens County Railway Company.</p>

<p>Appeal from Municipal 'Court, Borough of Manhattan, Twelfth District. Action by Ogden Brower and another against the New York Mailing & Advertising Company. From a judgment for" plaintiffs, defendant appeals.</p>

<p>In the matter of the petition of the Brooklyn Union Elevated Railroad Company relative to acquiring title, etc. Parcel No. 4, premises 1364^1494 Broadway; James H. Hart, owner.</p>

<p>Action by Fanny Campbell against James P. Lines and Nicholas Healy.</p>

<p>Ac-' tion by Mary Clare against the New York Safety Reserve Fund Life Insurance Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Kassel Cohen against the New York City Railway Company. From an order setting aside a verdict, plaintiff appeals.</p>

<p>Action by Anna V. Cornwall against the New York Central & Hudson River Railroad Company.</p>

<p>Appeal from Trial Term, New York County. Action by Michael Ccnyngham against Louis P. Haffen. From a judgment overruling demurrers to two separate defenses in the answer, plaintiff appeals.</p>

<p>Action by John S. Corning against Harriet S. Babcock and another.</p>

<p>Action by Holton M. Grotty against De DionBouton Motorette Company. In the matter of the application of Jessie E. Crotty.</p>

<p>Appeal from City Court of New York. Action by the David Stevenson Brewing Company against Rosie G. Graziadio and another. From an order opening a default of plaintiff, defendants appeal.</p>

<p>Action by Timothy Finn against Carl C. Smith and others.</p>

In the matter of the appointment of a board of examiners to examine into the operation of the jury system in the county of Erie, created by chapter 369, p. 188, of the Laws of 1895.

<p>Appeal from Municipal Court, Borough of Bronx, Second District. Action by Alice Farrell against the Interborough Rapid Transit ■Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Action by Emilie Gade and Christian Gade, her husband, against Henry Segelke.</p>

<p>Action by the F. J. Emmerich Company against W. & J. Sloane.</p>

<p>Action by Wyckoff H. Garrison against James Matthews and Gardner D. Matthews.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by Loda M. Giblyn against Charles H. Stevens, as executor, etc. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Action by Elizabeth Salford Gillespie against the Brooklyn Heights Railroad Company.</p>

<p>Action by Jeremiah Haak against the Buffalo, Rochester & Pittsburg Railway Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the Haverhill Box Board Company against Coy, Hunt & Co. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan. First District. Action by Michael Hickey against the New York City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Anna M. Hedstrom and others against George D. Harris and another.</p>

<p>Action by Washington D. Hays against Charles F. Hathaway.</p>

<p>Action by Martha F. Hoch against the Brooklyn Borough Gas Company.</p>

In the matter of the estate of George W. Hojer, deceased. The partition action in this case relates only to real estate.

<p>Appeal from City Court of New York, Trial Term. Action by George F. Hohner against the Interurban Street Railway Company. From a judgment on a verdict for plaintiff, defendant appeals.</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Augustus Jennings against the Silver Point Ice Company, impleaded with the New York City Railway Company. From a judgment in favor of plaintiff, defendant ice company appeals.</p>

<p>Action by William ICarlsberg as administrator, against the Metropolitan Street Railway Company.</p>

<p>Actions by the Knickerbocker Trust Company against the Oswego Street Railway Company and others, and by C. Sidney Shepard and another against the Lake Ontario & Riverside Railway Company.</p>

<p>Action by Emanuel Lewis against Jacob Hirschberg.</p>

<p>Action by -Kate McGuire against William Roberts.</p>

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

<p>Action by Catharine McNeil against Daniel Hall.</p>

<p>Action by Charles W. Maier against Joseph fi. Rebstock.</p>

<p>Action by Arthur V. Marlette and others against Lena S. Tumpowski and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by David Meyer against Badie Bassel, impleaded. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Ludowick Matecki against Michael Oster and another.</p>

<p>Appeal from Municipal Court, Borough ■ of Manhattan, Sixth District. Action by James B. Moore against the New York City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Oourt, Borough of Manhattan, Eleventh District. Action by Albert St Moore against the Clarence L. Smith Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Emily A. Moulton against Nehemiah N. Cornish and others.</p>

<p>Action by George H. Neidlinger against the Onward Construction Company.</p>

<p>Action by Thomas O’Connor against the Virginia Passenger & Power Company and others.</p>

<p>Action by Thomas O’Connor against the Virginia Passenger & Power Company, and the Atlantic Development Company and others.</p>

<p>Action by Lucy Parker against Solomon George and others.</p>

<p>Action by Lizzie M. Palmer and others against the Hickory Grove Cemetery.</p>

<p>Proceeding by the. people, on the relation of George T. Jimeson, against Frank L. Patterson, president of the Seneca Nation of Indians, and others.</p>

Proceeding by the people of the state of New York, on the relation of William F. McCabe, against John A. Snedeker and others, as the board of town auditors of White Plains.

<p>Action by Emma D. Pit-kin against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Almon C. Phelps against the New York Central & Hudson River Railroad Company.</p>

In the matter of Pierce N. Poole as to independent nominations of assemblyman and alderman in the twelfth district. Appeal from an order of the Special Term affirming the determination of the board of elections.

<p>Action by Adelbert Risley against Charles H, Harlow and others.</p>

<p>Action by Celia Reilly, as administratrix, etc., of David Reilly, deceased, against the Troy Brick Company.</p>

<p>Action by Herbert Rogers against the city of Rome.</p>

<p>Action by Mary Rudden against the Brooklyn Heights Railroad Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Thomas R. Savage against James Woods. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Action by Barbara Schloerb and others against the department of health of the city of New York.</p>

<p>In the matter of petition of William Smith for an order revoking and canceling liquor tax certificate No. 26,152, issued to Stephen R. Ryan.</p>

<p>In the matter of the petition of Henry C. Soop, as agent and attorney of the estate of Thomas Cornell, against Webster H. Burhans.</p>

<p>Action by Michael Stenger against the Buffalo Union Furnace Company.</p>

<p>Appeal from City Court of New York. Action by the State Bank against Samuel Kahn and others. From an order granting a motion to restore the case to the short-cause calendar, defendants appeal. Affirmed. Wasserman & Jacobus, for appellants. Nathaniel Levy, for respondent.</p>

<p>Action by Morris Ullman and others .against Albert L. Cameron, as trustee and individually, and others.</p>

<p>Action by Elizabeth Whalen against Mary J. Squires and others.</p>

<p>Action by Nellie M. Walters against the Brooklyn Heights Railroad Company.</p>

<p>Action by Ransom C. Washburn against the New York & Pennsylvania Railway Company.</p>

<p>Action by George R. Wood against Edmund A. Stuart.</p>

<p>from Court, Borough of Manhattan, Fifth District. Action by Joseph Zatz against Gassian Schwartz and another. From a judgment for plaintiff, defendants appeal.</p>