Volume 97 — New York Supplement

<p>Appeal from Surrogate’s Court, Albany County.</p> <p>In the matters of the judicial settlement of the account of William A. Smith and another, as executors of Mathew W. Bender, deceased, and of the application of Robert G. Scherer and another, constituting the firm of Scherer and Downs, to have a lien for their services as attorneys determined and enforced, and of the application of the executors to substitute Dyer and Ten Eyck, as attorneys in the place of Scherer and Downs. From an order of the Surrogate’s Court affirming a report of a referee, and directing that Scherer and Downs recover from William A. Smith and another, individually, and as executors, the amount found due them for services as attorneys, and making the same a lien on the assets of the estate of Mathew W. Bender, deceased, and from an order of reference appointing a referee to take proof as to the amount and value of the services rendered by the attorneys to the executors, as executors and individually, the executors appeal.</p>

<p>Appeal from Trial Term.</p> <p>Action by Ira Blount, as administrator, etc., against the city of Troy. Judgment for defendant, and plaintiff appeals.</p>

<p>Damages—Measure—Breach oe Conteact.</p> <p>Where defendant prevented plaintiffs from fulfilling the latter’s contract to make certain repairs to defendant’s buildings, at an agreed compensation, the measure of plaintiffs’ damages was the difference between the agreed compensation and the cost of performance.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 335.]</p>

Action of interpleader by the National Bank of Commerce in New York against William W. Irwin and others, as receivers of the Canton State Bank, and Mitchell L. Erlanger. On motion by defendant Irwin for an open commission to take testimony.

<p>Pleading—Biel of Particulars—Provisions of Order.</p> <p>In an action on a life insurance policy, the answer set up false warranties by deceased in her application for the policy, and the reply alleged that deceased, at the time of malting the application, informed defendant of the true condition of her health. Plaintiff was ordered to furnish a bill of particulars stating specifically what information as to the health of deceased was given to defendant, and giving the names of the officer or agent of defendant to whom the information was given. Held, that the order should further provide that if plaintiff swears that he is unable to give the name of the officer or agent to whom the information was given, he may give a description of such officer or agent or such other facts and circumstances as would tend to establish his identity.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Robert S. De Coster against the Herzog Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District.</p> <p>Action by Cilly Friedman against Sussman Yamner. From a judgment for plaintiff, defendant appeals.</p>

Action by John McCormick against' Annie A. Shea, impleaded with another. From an order opening the default of said defendant on payment of costs, she appeals.

<p>Appeal from Municipal Court, Borough of Bronx, Second District.</p> <p>Action by Webster D. Haynes and another against Abram G. Abramson. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Contracts—Action fob Services—Dismissal.</p> <p>Dismissal of the complaint is error, though the testimony is insufficient as to most of the services alleged to have been rendered to defendant, there being evidence that defendant’s president requested plaintiffs to put certain work in defendant’s office, and that this was done, and the value thereof being shown and in no way disputed; this making a prima facie case.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by the American Horse Exchange Company against the Naughton Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Aaron Denenholz against Edward J. Kelly and another. From a judgment for defendants, plaintiff appeals.</p>

<p>The court is not justified in wholly discrediting plaintiff’s testimony, she being uncontradicted and unimpeached, and her story not improbable, and there having been persons who might have been called to contradict her, if her testimony’ had been untrue in any particular.</p> <p>Evidence—Testimony oe . Party—Credibility. "</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2438.J</p>

Summary proceedings by Isaac N. Hebberd, landlord, against Margaret Mayo, tenant. From a final order in favor of the tenant, the landlord appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Actions by the New York Board of Fire Underwriters against Boughan & Company. From two judgments dismissing the complaints, plaintiff appeals.</p>

Proceedings by the people, on the relation of Rudolph Cook, for a writ of habeas corpus, against Sebastian W. Pitts, as sheriff of Albany county. From an order discharging relator from imprisonment, defendant appeals.

Proceedings by the people, on the relation of William Bidwell, for a writ of habeas corpus, against Sebastian W. Pitts, as sheriff of Albany county. From an order discharging relator from custody, defendant appeals.

Special proceeding by Edwin B. Mead, as trustee of school district No. 13 in the towns of Bethlehem, etc.,, against William A. Conger and another. On motion by defendants to confirm award of commissioners. Award confirmed.

In the matter of the appraisal and taxation of the property of Emily M. Lord, deceased. From an order assessing and determining a transfer tax in respect to certain property, Franklin B. Lord and another appeal.

Action by William E. Melody, sheriff of Kings county, for writ of certiorari to Cuthbert W. Pound and others, composing the state civil service commission. Further return ordered.

Action by Catharine Hynds against the Brooklyn Heights Railroad Company. ^ From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals.

<p>1. Costs—Term Fees.</p> <p>Where no proof was offered before the county clerk that plaintiff noticed the cause .for trial and was thereby estopped from denying that the same was necessarily on the calendar for a particular term, during which he filed an amended complaint, it was improper for the court to tax a-term fee for that term, over plaintiff’s objection that the case was not then at issue.</p> <p>2. Same—Witness’. Fees.</p> <p>Where it did not appear that certain codefendants were subpoenaed to-appear at a term at which the case was not tried, defendant was not entitled to tax witness’ fees for such defendants’ appearance at that term.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, § 717.]</p> <p>3. Same.</p> <p>Witness’ fees may be properly allowed to parties to the action who are-subpoenaed and compelled to attend as witnesses.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, g 724.]</p> <p>4. Same—Pleadings—Personal Service—Disbursements.</p> <p>Disbursements for personally serving the answer, amended answer, and an order on the opposing attorney should not be allowed, in the absence-of proof that personal service was necessary in order to obtain a speedy trial or to otherwise protect the interest of a client.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, § 702.]</p>

Application of the Niagara, Lockport & -Ontario Power Company to acquire the lands of Dennis L. Preisch and others by condemnation. From an order permitting plaintiff to immediately enter upon the lands-described in the petition, defendants appeal.

Action by Jacob D. Remsen against the New York, Brooklyn & Manhattan Beach Railroad Company and another. From an order transferring the cause from the equity calendar to the jury calendar, plaintiff appeals.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by A. Delos Kneelafid against Annié Hurdy. From a Municipal Court judgment in favor of plaintiff, defendant appeals'..</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Bertha Kahn against Nettie Eisenberg and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>New Trial—Newly Discovered Evidence—Diligence. '</p> <p>An affidavit for new trial on the ground of newly discovered evidence to be available must show that such evidence could not have been obtained on the former trial by the exercise of reasonable diligence.</p> <p>[Ed. Note.—For cases in point, see voi. 37, Cent Dig. New Trial, §§ 205, 206, 210-214.]</p>

<p>Work and Labor—Evidence—Sufficiency.</p> <p>In an action for work, labor, and services performed and materials furnished, evidence held insufficient to entitle plaintiff to recover. •'</p>

Action by Simon Brinn and another, composing the firm of S. Brinn & Bro., against Philip Levine and another, composing the firm of Levine & Shapiro. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by J. Fleming Dutch against Orsel A. Parker. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Sale—Effect of Statement on Billhead.</p> <p>The statement on the billhead of one making a sale that all claims must be made within 10 days after receipt of goods is not binding on the purchaser.</p>

<p>Tboveb and Convebsion—Right of Action.</p> <p>Where plaintiff and defendant had agreed that defendant was to- have possession of a wagon till a sum paid by him for plaintiff was repaid, defendant was not guilty of conversion of the wagon in refusing to deliver It before he was repaid.</p>

<p>1. Master and Servant—Contract of Exclusive Service—Modification-Burden of Proof—Instruction.</p> <p>Where plaintiff’s claim rests upon an alleged modification of a written contract of exclusive service, made immediately after the execution of the original written contract, and, permitting plaintiff to serve another master, the jury should be instructed as to the burden resting upon plaintiff to establish the modification, and as to the significance of the alleged change.</p> <p>2. Same—Sufficiency of Evidence.</p> <p>Where plaintiff’s claim rests upon an alleged modification of a written contract of exclusive service with a corporation, it is incumbent on him to establish the authority of the treasurer by whom the alleged modification, permitting him to work for another, was made.</p> <p>3. Same—Violation—Discharge.</p> <p>Where one under contract of exclusive service does work for another than his employer, his employer is justified in discharging him without assigning any reason therefor.</p> <p>[Ed. Note.—For cases in point,. see vol. 34, Cent. Dig. Master and Servant, § 30.] •</p>

Action by Joseph Levenson against Manes Arnold. From a judg- ' ment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Carriers—Connecting Carriers—Special Contracts.</p> <p>The mere statement of the clerk of a railroad company receiving goods to the effect that they would be sent to the place of destination is no evidence of a special contract to transport the goods beyond the company’s own lines.</p> <p>[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 781.] Giegerich, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Salvatore Romano against Wethered J. Boyd and another. From a judgment in favor of plaintiff, defendants appeal.</p>

In the matter of the proceedings supplementary to execution of Henry W. Mitchell against Gerson Goderman and another. From an order reducing a fine imposed on a judgment debtor, the judgment creditor appeals.

<p>Appeal from Trial Term, Livingston County.</p> <p>Action by Frank G. West against Henry G. Woodruff. From a judgment for defendant, plaintiff appeals.</p>

In the matter of the appraisal, under the act in relation to taxable transfers of property, of the property of David Wolfe Bishop, deceased.

<p>Compromise and Settlement—Operation—Enforcement.</p> <p>Where an action of ejectment was discontinued on a stipulation signed by the parties, by which one of the defendants was to have possession of the property, pay all taxes, and keep the property insured and in repair. during her life, and a deed was executed in accordance therewith, th& life tenant cannot terminate the agreement by consenting to a sale of the land for partition.</p>

<p>Appeal from Trial Term, New York County. Action by Joseph Bambace, as administrator, etc., against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying its motion for a new trial, defendant appeals. Judgment and order reversed, and new trial ordered, on conditions. Bayard H. Ames, for appellant. James C. Cropsey, for respondent.</p>

<p>Action by James H. Brown against George H. Palmer.</p>

<p>Action by Edward W. Brown and James W. Shaw against, the Retsof Mining Company.</p>

<p>Appeal from City Court of New York, Special Term. Action by Edward N. Dickerson against Wayne Kratzer & Co. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Arthur H. De Groff against the Walden Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Municipa Court, Borough of Manhattan, Fifth District Action by Benjamin Freedman against Michae Kramer. From a judgment for plaintiff, de fendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Louisa Grainsky against the Interborough Rapid Transit Company. From a judgment in favor of defendant, plaintiff appeals. Reversed. Hamburg & Frank, for appellant. Charles A. Gardiner (G. Tarleton Goldthwaite, of counsel), for respondent.</p>

<p>Action by George Hall against 1 New York, Chicago & St. Louis Railroad Cc pany.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Edward P. Ingersoll against John H. Springer. From a judgment for defendant after trial without a jury, plaintiff appeals.</p>

<p>Apia! from Municipal Court, Borough of Manittan, Fifth District. Action by Samuel Kufrman and others against the New York City ailway Company. From a judgment for aintiffs, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Frank Lowenstein and others against Samuel Jaffe. From a judgment for defendant, plaintiffs appeal.</p>

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

<p>Action by tl Oil Well Supply Company against the Phcen Iron Works Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Martin O. Munch against Solomon Goldenkranz. From a judgment in favor of plaintiff, defendant appeals.</p> <p>Reversed.</p>

<p>Appeal from Munieip Court, Borough of Manhattan, Ninth Distric Action by Alfred Oleniek against Morrsi Hab and others. From a judgment for defendant plaintiff appeals.</p>

<p>Proceeding by the people of the state of New York, on the relation of Lewis G. Stillman, against Anna Amenda Stillman.</p>

<p>In the matter of the appraisal of the property of John Pratt, deceased.</p>

<p>Appeal from City Court c New York, Special Term. Action by Leo Schle; inger, as receiver, against Lewis Haase. Froi a judgment for plaintiff, defendant appeal;</p>

<p>Appeal from City Court of New York, Special Term. Action by Grazia Sicurezza against Salvatore Crisanti. From a. judgment for plaintiff, and from an order denying defendant’s motion to set aside the same,, defendant appeals.</p>

<p>Action by the United States Condensed Milk Company against Max Smith and Jacob Smith.</p>