Volume 96 — New York Supplement

<p>1. Appeal—Party Not Appealing.</p> <p>Where a judgment is rendered against two parties, and only one of them prosecutes an appeal therefrom, the judgment must stand as to the party who does not appeal.</p> <p>[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4415, 4410.]</p> <p>2. Livery Stable Keepers—Destruction of Property—Liability.</p> <p>Where plaintiff leased his sleigh, and the servant of the lessee left it at a livery stable, and the keepers let out the sleigh to some one who destroyed it, the livery stable keepers were liable for the loss.</p> <p>[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Livery Stable Keepers, § 6.]</p> <p>3. Appeal.</p> <p>A party cannot maintain an appeal from a judgment against his co-defendants, but not against himself.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Abraham Brown and another against Morris Cohen and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Nettie B. Fox against A. Woods. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Joseph Koester against the New York City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. '</p> <p>Action by William Kaniuk against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York.</p> <p>Action by Minnie McCarthy against the Metropolitan Street Railway Company to recover for personal injuries sustained while alighting from a street car in consequence of the sudden starting of the car. Erom a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>■Set-off and Counterclaim—Contract—Discontinuance of Performance.</p> <p>Where, subsequent to the making of a contract between plaintiffs and. defendants for the plastering by plaintiffs of a certain building, defendants accepted plaintiffs’ proposition to substitute at an increased price a different style of corners from those originally agreed on, the later agreement became part of the original contract, and defendants were entitled to set off against plaintiffs’ claim for a balance due the amount necessarily spent by them in completing the work on plaintiffs’ discontinuance thereof.</p>

Petition by Edward J. Walsh and another to review the action of the board of elections of the city of New York in determining objections to petitions for nominations of candidates to public office. From an order denying the petition, the petitioners appeal.

<p>Costs—Discontinuance at Trial.</p> <p>Under Municipal Court Act, Laws 1902, pp. 1585, 1586, c. 580, § 332, subds. 3, 6, providing that where, on defendant’s nonappearance, plaintiff recovers judgment for more than $200 and less than $300, he shall be awarded $10 costs, and that, where defendant recovers on plaintiff’s nonappearance, costs shall be awarded defendant in the same manner, defendant in an action for between $200 and $300 is entitled to $10 costs, where plaintiff discontinues after commencement of trial.</p>

<p>Damages—Personal Injuries—Evidence.</p> <p>In an action for injuries, the admission over objection of evidence of business profits, not mentioned in the bill of particulars, of payments to a physician not called, and the value of whose services were not shown, and as to other outlays not proven material, requires a reversal of a judgment for plaintiff.</p> <p>(Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, §§ 441, 443, 445.]</p>

<p>Tbial—Submission of Case to .Tuny—Contradicting- Facts.</p> <p>Where there are contradictions between the parties as to the facts in issue, the case must be submitted to the jury, although a verdict for plaintiff, if found, would have to he set aside.</p>

<p>1. Cabbiers—Bill of Lading—Recitals—Effect.</p> <p>A statement in a bill of lading that the goods were received in apparent good order is prima facie evidence thereof.</p> <p>[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 159.] 2. Evidence—Bill of Ladinc—Pabol Explanation.</p> <p>Parol evidence is competent to contradict a statement in a bill of lading that the goods were received in apparent good order.</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 1827.] 3. Cabbiebs—Damage to Shipment—Evidence—Sufficiency.</p> <p>In an action against a carrier, evidence held to warrant a finding that a shipment of cabbages was frozen when shipped.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by N. Margolys & Co. against Samuel Goldstein. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Emily Sichel against Albert Baron. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Contracts—Performance—Proof.</p> <p>Where, in a suit on a contract for excavation, on it appearing that" plaintiffs had not fully performed, they made an offer, pending adjournment, to complete the excavation, which was accepted, and- the hearing-adjourned, the subsequent filing of a certificate, signed by a person who had been called as a witness by defendant, certifying that he had examined the excavation and that the premises then complied with the specifications mentioned in the contract, constituted a mere statement, of" the witness’ opinion, and was insufficient to prove performance.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by August Kirschner against Robert J. Mahoney. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal—Review—Findings—Conflicting Evidence.</p> <p>A finding for plaintiff, based on conflicting testimony, will not be disturbed on appeal, though the preponderance 'appears to be for defendant.</p> <p>[Ed. Note.—For cases in point, see vol. 3, Cent Dig. Appeal and Error, §§ 3983-3989.]</p>

<p>1. Animals—Horses—Knowledge of Vioiousness.</p> <p>In an action for damages resulting from being bitten by defendant's horse, evidence that the horse was frequently kept muzzled implied knowledge on defendant’s part of its viciousness.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent Dig. Animals, $ 266.]</p> <p>2. Trial—Adjournment—Conditions—Payment of Costs—Powers of Court.</p> <p>Under Municipal Court Act, Laws 1902, p. 1548, c. 580, § 195, providing that the court may impose on the party applying for an adjournment such conditions as to it may seem reasonable, the court may require the payment of costs to the adverse party as a condition precedent to an adjournment</p>

<p>Appeal from City Court of New York.</p> <p>Action by Lena Spiegel, as executrix, against the Empire Life Insurance Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal—Reversal—Disregard of Evidence.</p> <p>Where, in an action by a master against his salesman on discontinuance of the employment, undisputed evidence of money collected and not turned over by defendant and of facts which under the contract made .commissions paid to defendant refundable was disregarded, the judgment for defendant on the counterclaim merely will be reversed.</p> <p>[Ed. Note.—For cases in point, see vol. 3, Cent Dig. Appeal and Error, $ 3990.1</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Patrick H. Roche against the Road Driver’s Association of New York. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, -Sixth District.</p> <p>Action by the G. -R. Shepard Engineering & Construction Company against-Charles Spofford. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Attorney and Client—Contract of Retainer—Construction.</p> <p>Where an attorney dictated a contract of retainer, the client not being able to read English and knowing nothing of what she signed, except as he explained it to her, it should be construed in favor of the client as favorably as the language will permit.</p> <p>2. Same—Collections—Action to Recover— Burden of Proof.</p> <p>In an action by a client to recover moneys collected by an attorney, the burden was on defendant to prove that he was justified in having made a settlement for a less sum than that agreed on between himself and the client.</p> <p>3. Interest—Money Collected by Attorney.</p> <p>In an action against an attorney to recover moneys collected by him for plaintiff, defendant was liable to pay interest only from the time that he actually collected the money.</p> <p>[Ed. Note.—For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 237.]</p>

Application by Maurice Boom, a bankrupt, for the cancellation of a judgment entered against him by Mary E. Mackintosh. From an order denying the application, Maurice Boom appeals. The judgment was obtained June 7, 1894, and Maurice Boom obtained his discharge December 12, 1900.

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by the Alcolm Company against Philip Hano & Co. Erom a judgment in favor of defendant, plaintiff appeals.</p>

<p>1.. Sunday—Penalties—Action to Recover.</p> <p>Under Greater New York Charter, Laws 1897, p. 522, c. 378, § 1481, prohibiting certain entertainments on Sunday, and providing that the giving and participating in the same shall constitute a misdemeanor, and that the person so giving them shall be subject to a penalty of 8500, recoverable in an action by the city, in addition to the punishment provided therefor, an action for the penalty may be maintained, though defendant has not been convicted of a misdemeanor.</p> <p>2. Same—Illegal Exhibitions.</p> <p>Under Greater New York Charter, Laws 1897, p. 522, c. 378, § 1481, prohibiting the giving of certain entertainments on Sunday, and providing for a punishment criminally, and also a penalty recoverable in a civil action, both remedies may be pursued together or independently.</p>

<p>Judgment—Default—Vacating—Conflicting Evidence.</p> <p>Where the evidence on a motion to set aside a default, as to the cause thereof, is in direct conflict, the issue should not be decided on affidavits, but the court should open the default on such terms as it may deem proper.</p>

<p>Municipal Corporations—Use oe Streets—Actions por Damages—Personal Injuries—Evidence—Sufficiency.</p> <p>In an action for injuries from being struck by an automobile, evidence he Id sufficient to support a verdict for plaintiff.</p>

<p>.Appeal—Reversal and Remand.</p> <p>Where the issue on a counterclaim was whether plaintiff, as contended by him, owed P., or, as contended by defendant, owed him and he owed P., and, while it appears that P. believed plaintiff owed defendant and defendant owed him, the testimony is incomplete and unsatisfactory, judgment for plaintiff will be reversed, and a new trial granted.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Habeas corpus proceedings by the people on the relation of John Hill. From an order adverse to the petitioner, he appeals.</p>

Action by Carl Vohmann and others as trustees, etc., against Frank Rinschler and others. From a judgment in favor of defendants, plaintiffs appeal.

<p>Appeal from City Court of New York.</p> <p>Action by Harry Goldman against John Abd-el-Nour. From an order granting a stay of execution after final judgment, plaintiff appeals.</p>

In the matter of Moses Carl Levine. From an order of the Special Term, reversing an order denying recognition of a certificate of nomination, appeal is taken.

Action by Stevens Voisin against Edward Mitchell and another. From an order denying a motion to compel plaintiff to reply to allegations in the answer, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Ike Cohen and another against Hyman Mincoff. From a Municipal Court judgment in favor of plaintiffs, defendant appeals.</p>

<p>Trial—Question for Jury.</p> <p>Where there is some evidence to support plaintiff’s case on a question of fact, the court should submit the same to the jury in the first instance, though, in case a verdict was returned in favor of plaintiff, he would feel compelled to set it aside as induced by false testimony; and it is therefore improper to dismiss the complaint.</p> <p>[Ed. Note.—For eases in point, see vol. 46, Cent. Dig. Trial, § 360.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p>

<p>NEGLIGENCF—CONTKIBUTOKY NEGLIGENCE.</p> <p>Where one saw a truck slowly approaching, and had abundant opportunity to get out of the way, but, instead, stood still and was injured, he was guilty of contributory negligence.</p> <p>(Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 86.]</p> <p>Blanchard, J., dissenting.</p>

Action by Owen Toher against John V. Schaefer, Jr. Rrom a Municipal Court judgment in favor of defendant, and from an order denying plaintiff’s motion to amend his complaint, he appeals.

In the matter of the judicial settlement of the account of proceedings of John M. Bowers, as sole surviving executor of and trustee under the will of William B. Cooper, Jr., deceased. From the decree ordering distribution of the estate, appeal is taken.

Action by Thomas P. McKenna against Thomas Simpson and others. From an order denying a motion to vacate an order for the examination of defendants Thomas Simpson and others before trial, they appeal.

<p>Certiorari.by the people, on the relation of John F. Tietjen, against Michael A. Reis, as assessor of the city of Kingston, and others, to review a special assessment of relator’s property. Assessment annulled.</p>

<p>Action by one Leggett against one Campbell. On demurrer to the complaint. Overruled.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by George M. Buslcirk against James Talcott. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Abraham Kasower against Joseph Sandler and others. From a final order in favor of the tenant in hold-over proceedings, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by James J. Nealis, as receiver, etc., against Alfred C. Marks. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.</p>

In the matter of the estate of William Ashmore. Application by an heir for decree revoking letters of temporary administration issued to Rachel Ashmore and John E. Richardson.

<p>Appeal from Trial Term, Kings County.</p> <p>Action by William R. Shaw against the New York Evening Journal Publishing Company and Star Company. From a judgment overruling a demurrer to the complaint, defendants appeal.</p>

<p>Judgment-—Recitals—Areest of Defendant.</p> <p>Where it is shown upon oath and without controversy that defendant has converted to his own use money received by him "in a fiduciary capacity, plaintiff is entitled to have the judgment recite that defendant is subject to arrest and imprisonment.</p> <p>[Ed. Note.—For cases in point, see vol. 30, Cent, Dig. Judgment, § 409.]</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Charles M. Preston, as receiver of the New York Building Loan Banking Company, against Maud E. Rockey and Walter S. Rockey. From a judgment for plaintiff, defendants appeal.</p>

<p>Gabbiers—Injury to Passenger—Contributory Negligence—Evidence.</p> <p>A passenger who, after alighting from a trolley car of defendant, found one of its trains blocking the way, and after waiting a while for it to move,, during which time several passengers from such car crossed the train by :going over the platform of one of its cars, was injured by the train starting up on signal from the conductor while she was crossing it, cannot be held to have been guilty of contributory negligence as matter of law; she testifying that she started to cross on the conductor calling to her, as she stood beside the train, to “Come ahead!” as this authorized a finding that he assured her it was safe to attempt to cross.</p> <p>[Ed.- Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1357-1361, 1402; vol. 41, Cent. Dig. Railroads, § 1075.]</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Charles M. Preston, as receiver of the New York Building Loan Banking Company, against Charles Willich and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Abraham Hummel was indicted for crime. Motion to quash indictments.</p>

<p>Action by William R. Rose and another against the Merchants’ Trust Company. Judgment in favor of plaintiff.</p>

Action by Augustus B. Kellogg and another, as executors of the estate of Edwin L. Burdick, deceased, against Alice H. Burdick, individually and as guardian of. certain minors, and others, for the construction of a will. From a portion of a surrogate’s decree in favor of defendants, plaintiffs appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. •Action by Hugh V. Monahan against John Campion. From a judgment for defendant, plaintiff appeals.</p>

<p>Carriers—Street Railways—Injuries to Passenger—Contributory Negligence.</p> <p>A passenger, injured while attempting to leave a moving car under circumstances affording no notice to the railway company that he had placed himself in a position to be injured by an increase in the speed of the caí-, cannot recover for injuries so received.</p> <p>fEd. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1224, 122G.]</p>

<p>Judgments—Defaults—Application to Open.</p> <p>Where defendant permitted five weeks to elapse from the entry of a default judgment against him before applying to have the same reopened, and was examined in supplementary proceedings, and requested and obtained an adjournment of his further examination therein, the application was properly denied.</p> <p>[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, § 257.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by the Livermore & Knight Company against the American Darracq Automobile Company. From- a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Samuel H. Stone against Albert Plant and others. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Carriers—Actions—"Weight of Evidence.</p> <p>In an action against a street railway for injuries to a passenger, caused by the premature starting of the car while the passenger was attempting to board it, a verdict for plaintiff held against the weight of the evidence.</p> <p>[E'd. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 1313.]</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Henry P. Griffin against Willian H. Arlt. From a judgment for plaintiff, defendant appeals.</p>

<p>Evidence—Conclusiveness on Party Introducing It.</p> <p>In an action agaiust a married woman on a contract alleged to have been made through her husband, where plaintiff calls defendant’s husband as a witness, he is bound by testimony of the husband in direct examination negativing his authority to make the contract in question.</p> <p>[Ed. Note.—Por cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2440, 2441.]</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Jacob Drake against Hyman D. Baker. From a judgment entered upon a dismissal of the complaint, and from an order dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan,* Third District.</p> <p>Action by John Keller against Rose Haug. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Damages—Loss of Services.</p> <p>In an action for injuries to plaintiff’s son, where there was no evidence that plaintiff lost the benefit of his son’s services, except as measured by his earnings, nor that the future earnings of the son would in reasonable probability be lessened as a result of the accident, and no expenses other than for medical services were proven, the only damage recoverable was for loss of earnings and medical expenses.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 240.)</p>

<p>Street Railroads—Persons in Street—Injuries—Negligence.</p> <p>The driver of defendant’s street car detached his horses therefrom in order to get over a hole in the street, and, after the car had been pushed over the hole, was about to attach the horses again to the car, when they suddenly bolted, ran away and injured plaintiff, a street sweeper. Held, that the mere fact that the horses broke from the driver'«aid ran did not establish defendant’s negligence.</p> <p>[Ed. Note.—For cases in point, see vol. 25, Cent. Dig. Highways, § 472.]</p>

<p>Landloed and Tenant—Assignment oe Lease—Validity.</p> <p>Where one took a lease of a house, to carry on the business of renting furnished rooms, and deposited a certain sum as security, which it was agreed should be applied on the payment of the last month’s rent, and before the expiration of the term she executed a bill of sale of her business, together with the “lease with security thereon,” she could not, in the absence of any showing of fraud or imposition, avoid the effect of the bill of sale as a transfer of her right to the security by asserting that she could not read English and did not know that she was making such transfer.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig.' Contracts, §§ 416, 417.]</p>

<p>New Trial—Surprise.</p> <p>AVhere defendant was notified on June 2d to produce, certain checks at the trial, which occurred June 26th, he was not entitled to a new trial on the ground of surprise at plaintiff’s evidence as to such checks, which he desired to present at- the new "trial to controvert plaintiff’s evidence.</p> <p>[Ed. Note.—For eases in point, see vol. 37, Cent Dig. New Trial, § 193.]</p>

Action by Louis Turtel against Samuel Greenwald. From a judgment dismissing the complaint, and from an order denying a motion to open a default, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by James H. Tully, as commissioner, etc., against William Stout and another. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>1. Insurance—Action on Policy—Pleading.</p> <p>Where plaintiff, in an action on an insurance policy, desires to plead waiver by the company of any condition of the policy not complied with, he may set forth the condition and such circumstances as will, if true, establish a waiver.</p> <p>2. Same—Waiver of Proofs of Loss.</p> <p>Where an insurance policy calls for formal proofs of loss, mere silence, though pleaded, coupled with an offer of settlement, which was immediately rejected and is not pleaded, does not establish waiver of the condition.</p>

<p>Action by Philip J. Cogan and others against John O’Brien and others.</p>

<p>Action by William H. Hale against John P. Worstell and Joseph P. McNamara, inpleaded with others.</p>

<p>Action by Patrick J. Hatton and Charlotte A. Carey against the Supreme Council Catholic Benevolent Legion.</p>

<p>Action by Frank M. Hardenbrook against the New York Citv Railway Company.</p>

<p>Action by Sarah McConnell, as administratrix, etc., of Matthew McConnell, deceased, against the Morse Iron Works & Dry Dock Company.</p>

<p>Action by Chiel Blartenson against the Metropolitan Express Company.</p>

<p>Action by Joel Marks against the Collins Building Construction Company.</p>

<p>Action by George M. Scliinzel against George E. Best, as commissioner of bridges, etc., impleaded with others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Robert M. Steindler against the New York Importation Company. From a judgment granting insufficient relief, plaintiff appeals.</p>

<p>Action by Herman Stump against Julia L. Butterfield, as executrix, etc.</p>

<p>Action by George Stepniak against the Lake Shore & Michigan "Southern Railway Company.</p>

<p>Appeal from judgment on Report of Referee. Action by John W. Sterling, as executor, etc., against Albert K. Chapin, individually, etc. Prom a judgment entered on the report of a referee, and from an order granting costs, both parties appeal.</p>