Volume 98 — New York Supplement

<p>1. Insurance — Life Policy — Holder’s—Right to Share in Entire Surplus.</p> <p>A bolder of a life policy wbicb entitles him to “participation in profits” is not entitled as a matter of right to his equitable share of. the surplus over the legal reserve provided for by Insurance Law, Laws 1892, p. 1968, c. 690, §§ 84, 86, though the charter of the insurer provides for the accumulation of earnings over and above dividends, losses, and expenses, and for the crediting of each policy holder with an equitable share of the surplus, after deducting a sufficient amount to cover outstanding risks, either in reduction of premiums or for the, purchase of additional insurance.</p> <p>2. Same — Action—Accounting.</p> <p>Where a policy holder entitled to participation' in the profits is entitled</p> <p>, to a share in a greater proportion of the surplus than has been distributed by the insurer, the amount to which he is entitled- can be ascertained only by an accounting which under the ¡express provisions of Insurance Law, Laws 1892, p. 1958, e. 690, § 56, may not be decreed at the suit of a policy holder.</p> <p>3. Same — Parties.</p> <p>Where a policy holder, In an action to compel the insurer to credit him with his share in the surplus after providing for the legal reserve, accepts the insurer’s statement showing the surplus, the officers 'of the insurer are not proper parties, though the complaint charges them with wastefulness and wrongdoing. ■ ■</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Joseph Reichardt against Isaac S. Plaut and another. From an order of the City Court of New York, requiring defendants to furnish a further bill of particulars, they appeal.</p> <p>The complaint was for alleged wrongful discharge of plaintiff from defendants’ employ. The answer alleged that on or about the 3d day of October, 1904, defendants were engaged in manufacturing ladies’ cloaks and suits in the city of New York, and selling and shipping the same to divers patrons and customers; that they hired plaintiff to supervise the manufacturing of the merchandise, and that' by virtue of his employment he agreed to attend to the hiring of the help required for the purpose of such manufacturing and to supervise the work, and to carefully examine all goods manufactured and, when finished, before being shipped to patrons; that plaintiff failed to perform such duty and was negligent therein; that goods were shipped out by him in an improper condition, many of which shipments were returned; that plaintiff also failed to exercise proper and reasonable care in hiring proper help, but instead hired the same to suit his preferences, without regard to protection of defendants’ interests, and that for such reasons he was discharged ; that plaintiff, after discharge, failed to use due and proper diligence or make due effort to obtain other suitable employment. On plaintiff’s motion, the court required defendants to file a bill of particulars setting forth in detail the following matters: “(1) Stating in detail in what respects the defendants claim the plaintiff was inattentive, careless, and negligent in the rendering of his work, as alleged in paragraph 4 of the defendants’ amended answer herein. (2) Stating in detail in what respects the defendants claim the plaintiff failed to properly supervise the manufacture of merchandise in the defendants’ business, referred to in paragraph 4 of the defendants’ amended answer herein. (3) Describing the merchandise, the manufacture of which the defendants claim was improperly supervised by the plaintiff, as alleged in paragraph 4 of the defendants’ amended answer herein. (4) Stating in detail in what respects the defendants claim the plaintiff did not properly examine the merchandise when finished, as alleged in said paragraph 4 of the defendants’ amended answer herein. (5) Describing the merchandise the defendants claim the plaintiff improperly examined when finished, as alleged in paragraph 4 of the defendants’ amended answer herein. (6) Describing in detail the merchandise the defendants claim the plaintiff permitted to be shipped to the patrons of the defendants, which the defendants claim had not been properly manufactured nor properly examined by the plaintiff, and was not in a state warranting shipment and which the defendants claim have not been manufactured in accordance with their orders given the plaintiff, as alleged in paragraph 4 of the defendants’ amended answer herein. (7) Stating in detail the names and addresses of such patrons of the defendants to whom the defendants claim the plaintiff permitted merchandise to be shipped to them which had not been properly manufactured nor properly examined by the plaintiff and was not in a state warranting shipment and had not been manufactured in accordance with the defendants’ orders, as alleged in paragraph 4 of the defendants’ amended answer herein, other than the names and addresses of those specified in the said bill of particulars served herein. (8) Describing in detail such merchandise which the defendants claim had not been properly manufactured nor properly examined by the plaintiff and was not in a state warranting shipment and had not been manufactured in accordance with the defendants’ orders, as alleged in paragraph 4 of the defendants’ amended answer herein. (9) Stating what orders the defendants claim were given to the plaintiff with regard to the manufacture of such merchandise which the defendants claim the plaintiff did not manufacture in accordance with such orders, as alleged in paragraph 4 of the defendants’ amended answer herein. (10) Describing in detail in what respects the same had -not been manufactured in accordance with the orders alleged to have been given to the plaintiff and in what respects the defendants claim the merchandise was not in a state warranting shipment, as alleged in paragraph 4 of the defendants’ amended answer herein. (11) Stating in detail which of said shipments were returned to the defendants, and which of said shipments were not in a state warranting shipment, and in what respects they were not in such state, together with a statement of the loss defendants claim they have suffered thereby, as alleged in paragraph 4 of the defendants’ amended answer herein. (12) Stating in detail in what respects the plaintiff failed to exercise proper and reasonable care in the hiring of help, and failed to hire the same in accordance with his best judgment, etc., as alleged in paragraph 4 of the defendants’ amended answer herein. (13) Stating in detail the names and addresses of such help, in the hiring of which the defendants claim the plaintiff failed to exercise reasonable care and his best judgment, and who it is claimed were hired by- the plaintiff to suit his own preference and not solely with due regard to the defendants’ interest, as alleged in paragraph 4 of the defendants’ amended answer herein. (14) Stating in detail the names and addresses of persons from whom the defendants claim the plaintiff could have secured such employment, and the nature of such employment, and the salary thereat which the defendants claim the plaintiff eould have secured, as alleged in paragraph 8 of the defendants’ amended answer herein. And it is further ordered that as to the other particulars sought for by said motion, numbered in said notice of motion as Nos. 14 and 15, the motion is denied. And it is further ordered that, in default of the service of such bill of particulars setting forth the foregoing matters, the defendants be precluded from giving evidence of such alleged defenses on the trial of this action.”</p>

<p>On reargument of appeal.</p>

<p>Champerty and Maintenance — Notes—Purchase by Attorney.,</p> <p>Code Civ. Proc. § 73,. forbids an attorney to buy any promissory note or other chose in action with an intent and for the purpose of bringing an action thereon; and section 76 exempts from such prohibition a case where an attorney receives such chose in action in.payment for property sold, for services actually rendered, or for a debt antecedently contracted. Held that, where an attorney sues on a note bought by him, the burden was on him to show that he took it under circumstances within the exception, in order to entitle him to recover thereon.</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>. .Action by August Schroeder against John Helms. From a Municipal Court judgment in favor of plaintiff, defendant appeals.</p>

<p>Trial — Dismissal of Action.</p> <p>It is error for the court to dismiss the action of its own accord when plaintiffs have called but one witness, and ask to be. allowed, to put in their, proof.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, Second District.</p> <p>Action by Sigmund Seligman against Charles S. Rosenzweig. From a judgment for plaintiff, defendant, appeals.</p>

<p>Indemnity — Contract—Enforcement—Persons Entitled.</p> <p>Land was conveyed to a wife. The husband guarantied to Indemnify the vendor against any claim a broker might have against him for commissions on the sale of the property. Held, that the broker could not maintain an action against the wife on the guaranty, it being for the benefit of the vendor.</p>

<p>Carriers — Loss of Goods — Action—Pleading—Amendment.</p> <p>In an action against an express company for failure to deliver merchandise to defendant, where defendant offered no evidence, and plaintiffs Introduced a receipt which contained no provision requiring notice of loss to be given within 60 days, an amendment to the answer, alleging plaintiffs’ failure to notify defendant of the loss, was properly denied.</p> <p>Scott, r. J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Milton J. Gordon against Zielli Stern. From a judgment for plaintiff, defendant appeals.</p>

<p>Usury — Parol Evidence.</p> <p>That a contract is in writing does not exclude parol evidence that it is but a cloak for a usurious transaction.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 1872, 2029; vol. 47, Cent. Dig. Usury, § 32G.]</p>

Action by Dorothy K. Bodine against Frederick R. White. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Sales — Conditional Sales — Cancellation oe Conteact by Buyeb — Remedy of Selles.</p> <p>Where a buyer of personalty, under a contract providing for payment in installments and for the retention of title in the seller until the last installment is paid, cancels the contract, and refuses to accept the goods when tendered, the seller may recover the contract price.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, § 1436.]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Clifford C. Moore against George H. Blake. From an order setting aside the service of summons, plaintiff appeals.;</p>

<p>1. Attorney and Client — Contract eor Fees — Reasonableness.</p> <p>Defendant C., having been disinherited by his father, who died leaving a very large estate, employed plaintiffs to oppose the probate of his father’s will by a contract assigning to plaintiffs 40 per cent, of any and all recovery, to be reduced to 33% per cent, if the contemplated litigation was ended by a decision of the surrogate, and to 10 per cent, in the event of a settlement realizing $50,000 or more; plaintiffs agreeing not to call on C. for money to pay disbursements required in such proceedings. Plaintiffs succeeded in obtaining a settlement of the controversy by which O. was paid $30,000 in cash, and secured an annuity of $4,000. Held that, in the absence of fraud, such contract was not unconscionable.</p> <p>2. Champerty and Maintenance — Contract eob Attorneys’ Services — Construction.</p> <p>AVhere an unsolicited contract for attorneys’ services provided for payment of a percentage of the recovery, and the attorneys agreed not to call on the client for any money to pay necessary disbursements required in the proceedings, it should be construed as providing that the percentage should be figured after deducting the expense incurred from the recovery, and was not therefore void for champerty.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig. Champerty and Maintenance, §§ 22-51.]</p> <p>3. Attorney and Client — Liens—Enforcement—Equity.</p> <p>AVhere, under an agreement for attorneys’ services, the attorneys were entitled to 10 per cent, of the proceeds of an annuity as the same was paid, with a lien to secure payment thereof, and both the trust company obligated to pay such annuity and the annuitant refused to recognize the attorneys’ claim, their remedy was by a suit in equity to enforce their lien.</p>

Judicial settlement of the accounts of Owen D. McGovern, as administrator, etc., of the estate of Patrick .McGovern, deceased. To a surrogate’s decree allowing one-fifth of the surplus of the estate to a certain grandnephew and grandniece objections were filed.

<p>In the matter of the judicial settlement of the account of Bennett Van Decar and Anna B. Kilby, executors of Lucy Bates, deceased.</p>

Proceedings by the city of New York to acquire title to certain lands on the easterly side of Amsterdam avenue, between 139th and 140th streets, alleged to belong to one Jacob Herb. An award was made in favor of Herb. From an order taxing costs and granting an extra allowance in his favor, the city appeals.

<p>Appeal from Special Term, New York County.</p> <p>Proceedings by the city of New York to acquire title to cértain lands on the easterly side of Amsterdam avenue, between 139th and 140th streets, alleged to belong to James R. Hay. An award was made'in favor of Hay. From an order taxing costs and granting an extra allowance in his favor, the city appeals.</p>

Action by Margarete Antes, as administratrix, against William H. Watkins and others. From a judgment dismissing the complaint as against the defendant named and another, plaintiff appeals.

<p>Action by Helen M. Coan, individually and as executor of Amos S. Coan, deceased, against Grover Patridge.</p>

<p>Appeal — Review—Failure to Present Question Below — Instructions.</p> <p>Code Civ. Proc. § 1726, provides that, where a verdict awards a chattel to plaintiff, it must fix the value of the chattel at the time of the trial. The court instructed that defendant should return a certain chattel, or the value thereof, which amounted to a certain sum, and the judgment directed defendant to restore the chattel, or pay to "plaintiff the sum mentioned by the court. Held, that the judgment was not open to an attack on appeal, on the ground that there was no evidence to show the value of the chattel at the time of trial; it not appearing that defendant took any exception to the court’s instruction, or made any request that the present value be submitted to the jury.</p>

<p>Pleading — Motions to Strike — Feivolous Demurrer.</p> <p>Where a demurrer is not so plainly bad as to require no argument to show it so, and a bare inspection does not indicate that it was made in bad faith, it cannot be disposed of as frivolous.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, § 1101.]</p>

<p>Landlord and Tenant — Termination of Lease — Surrender.</p> <p>A lease dated January 25tb for a year and three months stipulated-that two months’ notice should be given before the expiration of the lease, or the same should be renewed for one year at the same terms. The lessee vacated the premises about May 1st in the following year. No written notice of his intention to vacate was given. He did not know whether he gave the key to the landlord or to the elevator boy, or whether he left it in the office. "He did not know when the landlord said he would accept the surrender of the lease. Held not to warrant a finding that the landlord accepted a surrender before the expiration of the lease.</p>

<p>Husband and Wife — Contract of Wife — Liability of Husband.</p> <p>In an action for work done on a house belonging to the wife, the facts held to show that plaintiff had not contracted with defendant, but with his wife.</p>

Action by Carletta Herrmann against George Herrmann to establish a common-law marriage. On motion to vacate a verdict in favor of plaintiff, and to dismiss the complaint.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Thomas F. Scanlon against Edward Muller and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Judgment — Counterclaim—Evidence.</p> <p>A judgment for defendant on a counterclaim for improper work cannot be sustained, in tbe absence of any evidence as to tbe amount of damages.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by William H. Alden against Douglas Robinson and another. From a judgment for plaintiff, and an order denying a motion for new trial, defendants appeal.</p> <p>This action was brought by plaintiff, a real estate broker, against defendants, a firm of real estate brokers, to compel the latter to divide with plaintiff a sum received for brokerage commissions on the sale of certain real estate. The complaint alleged that plaintiff was employed by the owner of the property to sell the same, and that thereupon plaintiff entered into an agreement with defendants to co-operate in selling the property; the defendants to divide equally with plaintiff any commission paid or received by them on the sale of the property to any of defendants’ customers. The ruling referred to in the opinion as appearing at folio 261 was the refusal of an instruction requested by defendants that, “if the premises in question were brought to defendants’ notice prior to the plaintiff’s bringing notice thereof to them, he cannot recover upon the contract pleaded in the complaint”</p>

<p>Tender — Pleading—Failure to Prove — Effect.</p> <p>Where, in an action for wages, defendant admitted a certain amount to be due, and handed this sum to the justice, but tender, while pleaded, was not proven, plaintiff was entitled to judgment for the amount admitted to be due.</p> <p>[Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Tender, § 91.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by the Manhattan Leasing Company against Henry M. Weill., From a judgment in favor of defendant, plaintiff appeals.</p>

<p>A ppeal — Matters Not in Record — Judicial Notice — Preliminary Motion. On appeal, the court will not take judicial notice of the truth of statements made on a preliminary motion raising objection to the trial of an action before the justice then holding court.</p>

<p>1. Judgment — Res Judicata — Matters Concluded.</p> <p>In an action on an accident policy insuring plaintiff against loss by reason of liability for damages resulting from plaintiff’s negligence in tbe use of horses and vehicles, a judgment against plaintiff and others in- an action against them as partners, by one sustaining injuries through negligence in the management of a horse and vehicle, was not res judicata on the question of plaintiff’s copartnership with his codefendants In such action.</p> <p>2. Same.</p> <p>Nor was _ such judgment res judicata as between the parties to the present action on the question whether or not the horses belonged to plaintiff or to him and his codefendants in the action fior negligence.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Godfrey Moore against Sylvester Maguire. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Frederick Egner against Cyrus H. Strong. Judgment for plaintiff, and defendant appeals.</p>

<p>Trial — Exclusion op Evidence.</p> <p>In an action to recover for work done in sponging cloth at defendant’s order, a counterclaim was based on plaintiff’s failure to perform an alleged agreement to examine all cloth, and advise defendant of any defects, and defendant testified that he had no conversation with plaintiff at the time that the particular goods in question were sent. Held that, it appearing that the cloth in question was hut a part of several lots sent at different times, it was error to exclude evidence as to the counterclaim, on the ground that the matter had been covered by the testimony.</p>

<p>Wobk and Labob — Action—Evidence.</p> <p>In an action for services evidenced by pay tickets issued by the defendants, evidence held sufficient to justify a judgment in favor of plaintiff.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Thomas R. Ball and others against George E. Lovett. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal — 'Verdict Contrary to Evidence. • ■</p> <p>Wliere, in an action for breach of contract, there was a total failure of proof upon the subject of damages-, -and no possible basis for those allowed, the judgment will be reversed. ’• "</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error; § 3933.] y ' •</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by Michael Sullivan against Jules Wolff and others. From a Municipal Court judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Elizabeth R. Dinsmore against Wilson W. Butler. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth Dis- - trick</p> <p>Action by Bernard Kamber against Max Rosen and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Manhattan Delivery Company against Abraham Simon and. another. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by Addie S. E. Korin and another against Albert Rutz. From a judgment in favor of plaintiffs, defendant appeals.</p>

, . . , . . Action by Henry Margolys and another, partners doing business under the name of H. Margolys & Co., against Sarah Mollenick. From a judgment for plaintiffs, defendant appeals.

Court, New York County. In the matter of the appraisal, etc., of the property of Francis B. Cooley, deceased. From an order of the Surrogate’s Court, affirming an order confirming the report of appraisers fixing the transfer tax on certain shares of stock owned by decedent, his executors and beneficiaries under his will appeal.

<p>Action by Charles J. Bellinger against William S. Rice.</p>

<p>Action by Eugene J. Coleman and another against the New York Central & Hudson River Railroad Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Kopel Engelberg against Cavanagh Bros. & Co. From a judgment for plaintiff, defendants appeal.</p>

<p>Action by August H. Gutkes against Nelson Morris and others.</p>

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

<p>Action by Charles. MacMullen against the city of Middletown.</p>

<p>Action by Gussie Lipshitz against Samuel Salaway and others.</p>

<p>Action by William R. Malloy, by guardian against the city of New York.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Thomas F. Martin against David Horowitz. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by the Raisler Heating Company against Max Verschleiser. From a judgment for defendant, plaintiff appeals.</p>

<p>Action by Benjamin J. Reilly against the Empire Life Insurance Company.-</p>

<p>Appeal from Municipal Court, Borough of Manhattan. Action by William J. Redmond against Frederick W. Hatch and others. From a judgment for defendants, and an order denying a new trial, plaintiff appeals.</p>

<p>Proceeding by the people of the sjate of New York, on the relation of Henry" A. La Chicotte, against George E. Best, as commissioner, etc.</p>

<p>Proceeding by the people of the state of New York, on the relation of the Rochester Railway & Light Company, against Lester F. Stearns and others, as tax commissioners, etc., and the city of Rochester.</p>

<p>Action by the Potsdam Electric Light & Power Company against the village of Potsdam and others.</p>

<p>Action by Solomon Rosenstein and another against the Traders’ Insurance Company of Chicago, Ill.</p>

<p>Action by the town of North Hempstead against Louise U. Eldridge.</p>

<p>Action by Eranklin B. Lord against the Equitable Life Assurance Society of the United States, impleaded' with Alfonso De Navarro and others.</p>