Volume 99 — New York Supplement

<p>Eminent Domain—Assessment of Compensation—Conclttsiveness of Award.</p> <p>In condemnation proceedings, an order, made after an appeal confirming a report of the commissioners of appraisal to determine the compensation, was not conclusive on persons not parties to the appeal, nor to the subsequent proceedings.</p>

Action by Florence S. Clark against Elizabeth H. Sprague ana others for partition. The premises were sold, and William G. Schmidt and others purchased at the sale. From an order requiring the purchasers to complete their purchase, they appeal.

Proceedings by J. Madyson Wells for the probate of the will of Jonathan Preston, deceased, in which H. Stephen Preston and other» appeared as contestants. From a judgment denying probate, the proponent appeals. On February 11, 1904, William T. Ross, a nephew of Jonathan Preston, instituted proceedings de lunático inquirendo to have his uncle declared incompetent .and for the appointment of a committee of his person and property.

<p>Contracts—Building Appliances—Construction.</p> <p>A contract for the construction of a steel tank for a school building consisted of certain letters and a part of the specifications of the board of education made a part of the agreement by reference in the letters. Plaintiff agreed to deliver the tank f. o. b. on the sidewalk at No. 7 D. street, the letters also providing that the tank should be of the dimensions therein specified, and the specifications declared that it should be made up in sections,“riveted and caulked.” Held, that the specifications requiring plaintiff to assemble the parts were a part of the contract, and were not referred to merely for the purpose of fixing the dimensions of the tank.</p>

Action by Henry C. S. Stimpson, receiver in' supplementary proceedings of Martin Foody, against Michael E. Foody, interpleaded in place and stead of George S. O’Neil. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals.

<p>Payment—Receipt—Evidence—Question fob Juey.</p> <p>A receipt acknowledging payment of a certain sum is not conclusive evidence of the correctness of the sum therein stated; and, where the evidence as to the amount paid is conflicting, it should be submitted to the jury.</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Payment §8 226, 248.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Albert Datz Company against Otto Dieckman. From a judgment for plaintiff, defendant appeals.</p>

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

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

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

<p>Street Railroads—Injuries to Animals—Evidence.</p> <p>In an action against a street railway company for injuries to plaintiff’s horse in collision with a street car, evidence held insufficient to establish plaintiff’s claim that as he swung his horse around across the track in front of the approaching car the ear struck the rear wheel of his wagon, and threw the horse to the ground, causing the injuries complained of.</p>

<p>Master and Servant—Wrongful Discharge—Prima Facie Case.</p> <p>Where, in an action for a servant’s wrongful discharge, plaintiff’s uncontradicted testimony showed an express contract of employment for a period between September, 1905, and the following Christmas at $15 per week, and that plaintiff was wrongfully discharged on October 16, 1905, after which he succeeded in getting employment elsewhere and thus reduced his damages, it established a prima facie case in plaintiff’s favor.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 41, 42, 49.]</p>

<p>Sales—Transfer of Title—Delivery—Failure to Pat Purchase Price— Effect.</p> <p>A buyer, to whom the goods had been delivered, is the owner thereof, though the purchase price has not been paid; and the seller, intrusted with the possession for a day, confers no title by a sale to a third person having knowledge of the facts.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 552, 554.]</p>

<p>Tboveb and Conversion—Evidence—Sufficiency.</p> <p>In an action for the conversion of tobacco by a truckman employed by plaintiff to haul the tobacco to plaintiff’s place of business, evidence that it was delivered to defendant, and that he refused to deliver it to plaintiff, and failed to account for it, was sufficient to show conversion.</p> <p>[Ed. Note.—For cases in point, see vol. 47, Cent. Dig. Trover and Conversion, § 236.]</p>

<p>Courts—Municipal Courts—Judgment—Vacation—Grounds.</p> <p>Under Municipal Court Act, Laws 1902, p. 1563, c. 580, § 254, permitting the trial justice to vacate a judgment rendered upon a trial to the court, the justice’s action in so doing must be based upon some good ground, and he has no authority to vacate a judgment because of his belief that further evidence might be obtained.</p>

<p>Landlord and Tenant—Agreement of Renewal.</p> <p>Plaintiff, who leased premises from defendant with an agreement that, if he renewed the lease with defendant, he was to have a certain reduction in the second year’s rent, plaintiff being told at the time that this would be operative only in case defendant remained the owner, has no claim on account thereof; defendant having sold, and plaintiff having renewed the lease with the successor in title.</p>

<p>Trial—Trial by Court—Decision—Conformity to Issue.</p> <p>Where the only issue in an action was whether a third party had authority to bind defendant as his agent, a decision that there was no privity of contract between the parties to the suit which could justify a recovery was not a sufficient answer to the issue.</p>

<p>Replevin—Evidence.</p> <p>In an action to recover certain property held by defendant as property clerk of the police department of the city of New York, and taken from plaintiff’s assignor by the police on the arrest of the latter, evidence held to require judgment for plaintiff.</p>

<p>1. • Judgment—Setting Aside—Grounds—Insanity of Referee.</p> <p>On a motion to set aside a judgment entered on a decision of a referee on the ground of his insanity, the question to be determined is whether he was unable to comprehend the nature of the act and its relations, effects, and legal consequences, without reference to his sanity on other subjects.</p> <p>2. Same—Time for Determination.</p> <p>On a motion to set aside a judgment on the decision of a referee on the ground of his insanity, the question as to his capacity is to be determined with reference to the date on which his decision was signed and notice of that fact given to the party entitled to it.</p> <p>3. Same—Evidence-Adjudication of Lunacy.</p> <p>On a motion to set aside a judgment on the decision of a referee on the ground of his insanity, an adjudication of lunacy entered on the same date on which his decision was signed was not conclusive on the question of his capacity, though it threw the burden of proof on the person alleging the sanity.</p> <p>4. Evidence—Opinions—Sanity.</p> <p>On an issue as to the sanity of a person, evidence of business men with whom he conducted professional matters at the date in question as to the facts they observed and conversations with him, and even their opinions as to Ms sanity, were competent.</p> <p>[Ed. Note.—Eor cases in point, see vol. 20, Cent. Dig. Evidence, § 2242.]</p> <p>5. Judgment—Setting Aside—Parties.</p> <p>In an action to foreclose a mechanic’s lien, where the lien was discharged on a bond given by a surety company, the principal cannot take advantage of the irregularity in a judgment against the surety, in that the company was dissolved before the rendition of judgment.</p>

Action by the Cerro Du Pasco Tunnel & Mining Company against James B. Haggin. From an order granting defendant’s motion to preclude plaintiff from giving evidence as to certain allegations in the complaint, plaintiff appeals.

Action by Athole B. Reader against James B. Haggin. From an order granting defendant’s motion to preclude plaintiff from giving evidence as to certain allegations in the complaint, plaintiff appeals.

<p>Appeal—Reversal—Excessive Recovery. '</p> <p>A judgment for damages to personal property will be reversed where there is no evidence of plaintiff’s ownership of all the property for which damages was allowed.</p> <p>[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4546-4552.]</p>

<p>Tbial—Abbitbaby Dismissal.</p> <p>An arbitrary judgment of dismissal, rendered before trial of the issue presented, will be reversed on appeal.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Trial, § 900.]</p>

<p>Appeal—N otice—Sufficiency.</p> <p>Where plaintiff served a notice of appeal from a judgment dismissing the complaint, and included therein an appeal from orders not affecting the final judgment, the time to appeal from which had expired, the notice, in so far as it treated of the final judgment, was effective, and was not impaired by the effort to embody therein the two orders.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 2140-2149.]</p>

<p>Cabriers—Regulation—Street Railroads—1Transfers.</p> <p>Though a street railroad company may make rules or regulations as to the issuance or use of transfers, such a rule is not binding on the passengers where no reasonable notice of its existence is given the public.</p>

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

<p>Landlord and Tenant—Renewal Leases—Advance in Rent.</p> <p>A tenant who had occupied a store and two apartments under the same lease, at the expiration of such lease took a new lease, covering specifically the store, and making no mention of the apartments. Eeld, that this did not show that the apartments were covered by the new lease, so as to prevent an advance in the rent thereof during the' term of such lease.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Thompson W. Miller and another against Meyer Isear and others. From a judgment dismissing the complaint, plaintiffs appeal.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by H. B. Kirk & Co. against the Cunningham & Kearns Contracting Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Courts—Jurisdiction—Controversies Concerning Indian Lands—Jurisdiction of Indian Courts.</p> <p>Indian Law, Laws 1892, p. 1585, c. 679, § 47, provides that the Peacemakers’ Court of the Alleghany and Cattaraugus reservation shall have exclusive jurisdiction of all questions between individual Indians involving the title to real estate on the reservation. Section 51 authorizes an appeal from the Peacemakers’ Court to the council of the Seneca Nation, and declares that the decision of the council shall be conclusive. An action involving title to lands in the Cattaraugus reservation was tried in the Peacemakers’ Court, and a judgment rendered. Held that, the jurisdiction of the Peacemakers’ Court being exclusive, injunction would not lie at the suit of the defeated party in an action in the Supreme Court to restrain the Peacemakers’ Court from carrying its judgment into effect, and to have the deed under which the successful party claimed declared fraudulent.</p>

<p>1. Insurance—Application—Representations as to Health.</p> <p>Where a life policy was issued on a written application made by insured, providing that it should not take effect unless upon its date and delivery insured be alive and in sound health, the policy containing the same provision, the applicant, by accepting the policy, assented to the statement as a representation made by him.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 681-690.]</p> <p>2. Same—Misrepresentation—Knowledge op Agent.</p> <p>Under a life policy and an application therefor, providing that the policy should not take effect unless on its date and delivery insured was in sound health, fraud of the applicant could not be predicated on such statement, where prior to and at the time of the application the insurance company’s agent had actual knowledge that the applicant was not in sound health.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 993, 994.]</p> <p>3. Same—Extent of Knowledge.</p> <p>Where a life policy and an application therefor provided that it should not take effect unless on its date and delivery the applicant was in sound health, the fact that the insurance company’s agent was told prior to and at the time the application was made that the applicant was subject to fits did not charge the company with knowledge that the fits were epileptic.</p>

<p>Justices of teto Peace—Appeal—Presumptions.</p> <p>In an action in a justice’s court for failure of defendant to deliver possession of a colt, plaintiff gave evidence that the value of the colt was between $50 and $60, while defendant’s evidence tended to show that its value was little or nothing. Defendant was also allowed to prove the value of the pasturage of the animal while having possession thereof. The justice did not charge the jury, which returned a verdict for $35 in favor of plaintiff. Held, that the presumption was that the jury considered all the evidence, and that it made allowance to defendant for pasturage.</p> <p>Gaynor and Jenks, JJ., dissenting.</p>

Proceedings by the people of the state of New Tork, on the relation of the Troy Record Company, against the common council of the city of Troy and others.

<p>Action by the city of Buffalo against the Delaware, Lackawanna & Western Railroad Company. •</p>

<p>Action by William H. Davis against John Maxwell.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Charles G. Atwood against the Interborough Rapid Transit Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Action by Albert L. Brockway against Andrew S. White.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourteenth District. Action by Joseph Brettauer against Leopold Weiss. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Edwin R. Bryant and others against Charles H. Turner and others.</p>

<p>Appeal from City Court of New York, Trial Term. Action by Arthur S. Cox and another against Madison G, Hawke. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from City Court of New York, Special Term. Action by Jane E. Duffy, as executrix of Terence J. Duffy, against Mabel C. Dusenbury. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.</p>

Action by Edward Hill against Mary C. McCafEerty and another, as administrators of the goods, etc., of Robert McCafEerty, deceased. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, they appeal.

<p>Action by Adelbert Moot and others against Harlow W. Bailey.</p>

<p>Proceedings by the people of the state of New York, on the relation of the Ticonderoga Union Terminal Railroad Company, against the Board of Railroad Commissioners and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by Pasquale Ricciardi against the Cunard Steamship Company, Limited. From a judgment for defendant, plaintiff appeals.</p>

<p>Action by Julius Remy against the Interurban Street Railway Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District. Action by Cora H. Sabin against Levi C. AVeir, as president of the Adams Express Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Zimon Serowitz against Adolf Zweifach and another. From a Municipal Court judgment in favor of plaintiff, and from an order denying defendants’ motion for a new trial, they appeal.

<p>Action by Louisa M. Wilson, as, etc., against the New York Mills.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the William B. Harris Company against Louis P. Kirchofer and another. From a judgment for defendants, plaintiff appeals.</p>