author: O’Brien, P. J.

text:
    Seth B. Robinson, App’lt, v. Herman Passavant et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Appeal—Finding.
    In the absence of any evidence preponderating the other way, a finding of the referee will not be disturbed by the general term.
    3. Release—Construction.
    The referee's finding as to the scope of the release was held to be justified by the evidence.
    Appeal from judgment entered on decision of referee dismissing complaint.

      Charles Be Hart Brower, for app’lt; George M. Pinney, for resp’ts.
   O’Brien, P. J.

The complaint herein alleges “ That, in the year of 1885, Seth B. Bobinson, the father of the plaintiff herein, was engaged in business as an importer in the city of New York, and that in said year, and with the knowledge and consent of defendants, said Bobinson purchased, for the account of defendants, goods, wares and merchandise of the price and value of about $22,809, exclusive of duties. That thereafter the said goods were delivered to and received by the said defendants. That thereafter, and on or about the 10th day of September, 1885, the said defendants employed the said Bobinson to sell said goods for them and promised and agreed to pay him for his services in selling the same, the excess of the price at which he might sell the same over the costs of the goods so sold, five per cent, added thereto. That thereupon the said Bobinson, pursuant to said employment and in reliance upon the aforesaid promises and agreement, sold a large amount of the aforesaid goods, to wit : goods of the cost of about $18,000, for the price or sum of about $30,000. That thereafter, and on the 14th day of June, 1886, the said Bobinson, being then a resident of the city of New York, died intestate, and thereafter the surrogate of the county of New York, having jurisdiction in the premises, duly issued letters of administration upon the goods, chattels and effects of said Seth B. Bobinson, deceased, appointing Caroline L. Bobinson, his widow, administratrix, who thereupon duly qualified as such administratrix and entered upon the discharge of the duties of her said office. That thereafter, and on or about the 13th day of April, 1889, the-said Caroline L. Bobinson, as administratrix, for value received, duly sold, assigned and set over to this plaintiff all claim which the said Seth B. Bobinson had in his lifetime against the defendants on account of or by reason of his said services and employment as aforesaid, and also all claim which she the said administratrix had by reason thereof.”

The judgment asked is for the sum of $10,000, or the difference between the cost and the price for which such goods were sold.

In determining whether the conclusion reached by the referee was correct, the first question that naturally suggests itself is as to whether the cause of action as alleged was proved. The answer to this is to be found in the testimony produced, which, exclusive of extrinsic matter, throwing light upon the situation of the parties, the character of their dealings arid the nature of the business in which both were engaged, may be briefly summarized.

It appears that Mr. Bobinson, senior, was an importer of buttons, that the defendants were commission merchants, and that, in 1885, the former was indebted to the latter in the sum of $18,-902.84, which was secured by the deposit with the defendants of certain goods. This indebtedness is called “ the old indebtedness,” and these goods “the old goods.” Bobinson, Sr., imported goods from Europe, through the defendants as commission merchants, upon a credit or authority to buy given to him by them, or, otherwise, upon their guaranty given to houses abroad; and as the result of such credit extended, Eobinson, Sr., became indebted to defendants for the amount of the old indebtedness, for which he had given what are called the old goods as security.

In the spring of 1885, while thus indebted to defendants, Eobinson, Sr., went to Europe with a contract or authority to buy to the extent of $20,000, given to him by defendants upon the firm of-Anton Aub & Go., of Paris. Under this credit, and between July 2 and October 13, 1885, Eobinson, Sr., purchased goods which were shipped to defendants, the invoice being made in their name, and the payments being by them made to Anton Aub & Go. According to the course of business between the parties, the defendants were to deliver the goods to Eobinson after their arrival in New York city, and were to be paid for them by him, all expenses being included, together with five per cent, commission as the charge of the defendants for giving to Eobinson the credit or authority to buy.

About September 7, 1885, Eobinson, Sr., made a general assignment for the benefit of creditors. On October 10, 1885, and before all the new goods had been received, the defendants executed and delivered to Eobinson, and to his assignee, a general release. The construction to be given this release, and its effect and bearing upon the rights of the parties, are the crucial questions upon this appeal. At the time this release was delivered, the old indebtedness, secured by deposit of certain goods, existed, and the result of the new venture or purchase of the new goods was not ascertained. It is shown that Eobinson was desirous of getting possession for the purposes of sale of the new goods, and that the defendants refused to give him possession without security, which Eobinson was unable to furnish. What occurred between the parties when this arrangement was sought to be affected, appears by the testimony of one Eoss, who, besides Eobinson and Sutton, one of the defendants’ firm, was the only person present at the interview. In answer to the question as to what was the conversation between the parties, this witness Eoss said:

“ It was only a short conversation. Mr. Eobinson did not know what to do with the old goods he had on hand unless he got a new ■stock that came in, and he wanted to know of Mr. Sutton about it, and Mr. Sutton said he could not give them to him unless he gave him some security, and I think he suggested the name of Mr. Striker as security, and Mr. Eobinson could not give that security, so Mr. Sutton said he could not deliver the goods.” * * * “I am talking of the new goods that were just arrived at the time. Then it was concluded that Mr. Sutton was to sell the goods that were coming in from his store, under the heading of their firm of Passavant & Co,” * * * “ Under their bill heads, in the store of Passavant & Co., goods that he stored with them.” * * * “ Mr. Eobinson thought at the time that it would not take more than a month or two, or three months at the furthest, until he could pay up Mr. Sutton every cent he owed — all the indebtedness would be cleared off and he would get then what was remaining, the difference, either in cash or goods, back to his store, and that was the whole agreement at that time.”

And in another place this same witness testifies: “ Robinson was to have the whole thing; Passavant & Co.’s indebtedness would have been paid—that was all there was about it; they wanted to get themselves settled up for the old and the new goods and clear. * * * ”

It is upon the testimony of this witness that plaintiff’s claim *is predicated that Robinson, Sr., was to be employed by defendants to sell the new goods and entitled to all the profits remaining after payment of costs, and five per cent, commission added; and an effort was made upon the claim of such an agreement to show that while that was the situation of the parties the release in question was given, which was intended to discharge the old indebtedness in consideration of the retention by defendants of the old goods—thus giving Robinson a claim by way of compensation against defendants for anything that might be realized upon the sale of the new goods over and above what they were to receive under such alleged agreement. The testimony fails to show whether the release was prior or subsequent to this conversation detailed by the witness Ross ; yet the necessity for such proof— the burden of showing which was upon plaintiff—clearly appears when we consider that if it had been shown that the release was subsequent, that would necessarily be the end of plaintiff’s case, as showing that .the release was not intended merely and solely as •a discharge of the old indebtedness.

The weakness, therefore, of appellant’s contention appears, first, in the failure to prove the allegations of the complaint by showing an employment by the defendants of Robinson, Sr.; and, secondly, in failing to show that the release was intended as a discharge only of the old indebtedness. There is nothing in" the case to show that the arrangement with respect to the new goods was any other or different from that which had previously existed between the parties, excepting that, Robinson having failed and made an assignment for the benefit of his creditors, the defendants retained possession of the goods, billed them in their own firm name, and received payments upon the sales, to the end that they might be secured to the extent of their advances and the five per cent commission. ■ We think, therefore, that there was sufficient evidence to justify the referee in finding “thatthe release was not intended to release the old debt, or the indebtedness growing out of the purchase of the new goods, or any part of either of such debts, or to discharge the security for such debts, or any part of the security for either of such debts; ” and that, in the absence of any evidence preponderating the other way, such a finding and the judgment based thereon should not be disturbed by this court. "

" Moreover, the conclusion reached by the referee seems the most natural and most consonant with reason and justice. The defend-, ants were engaged as commission merchants, lending their credit to Robinson, who, subsequent to his failure, stood in the position towards them of owing about $18,000, which was secured by goods nominally of the value of $19,000 ; and in addition thereto was indebted to them for whatever guaranties they had given to Anton Aub & Co. for the goods purchased between July and October. ISTo good reason is assigned why they should give up their lien upon both the old and the new goods, in Robinson’s favor; but, on the contrary, it would seemingly be the natural arrangement between the parties that, after the application of all the security, both old and new goods, which the defendants had to the payment of their indebtedness, whether for the old or new goods, any surplus remaining, under the course of dealing as between the parties, should be turned over to Robinson. It is conceded by the stipulation of the counsel that the amount of such indebtedness for the old and the new goods exceeded the total credit as the result of the application of the old goods, and what was realized from the sale of the new; so that, upon a statement of the account between the parties of all their transactions, there would be no credit balance in favor of Robinson, Sr.

The theory presented by the allegations of the complaint that the former relations between the parties were changed, and that, with respect to the new goods, Robinson entered into the employ of the defendants, is not sustained by the evidence, and is inconsistent with the prior dealings between the parties.

Upon examining the record, therefore, we are of opinion that the cause of action as stated in the complaint was not made out, and that the referee was justified, for the reasons given in his able opinion, in dismissing the complaint, and that his conclusion should not be disturbed, but that the judgment entered upon his decision should be affirmed, with costs.

Follett and Parker, JJ., concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Robert S. Powell et al., Resp’ts, v. Daniel D. Conover, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January, 12, 1894.)

    Evidence—Corporate books.
    The hooks of a corporation are not admissible in evidence against its trustee, without proof that he has either actual or constructive knowledge of their contents.
    Appeal from a judgment entered upon a verdict in favor of plaintiffs.

      Thos. K Stewart (K H. Benn, of counsel), for app’lt; Wilcox, Adams & Green (George B. Adams, of counsel), for resp’ts.
   Parker, J.

The judgment awards to the plaintiffs $954.05, which was necessarily founded upon a determination by the jury that plaintiffs had loaned to the defendant the principal of said sum It was defendant’s contention on the trial that, while he received the money from the plaintiffs, it was received by him as an officer of a corporation, and that it was understood and intended by plaintiffs, and defendant as well, that the loan was made to the corporation, and not to the defendant. Upon the trial, one of the plaintiffs, who represented his firm in making a loan, and the defendant, testified, each sharply contradicting the other. At the close of the testimony no motion to dismiss, or for the direction of a verdict, was made by either side, both the parties assuming that the testimony presented a question for the jury. The case was submitted in a charge by the court, to which no exception was taken; and, the jury having rendered a verdict in favor of the plaintiffs, it follows that the judgment must stand, unless errors were committed during the trial which call for a reversal.

The only exception to which our attention is called by the appellant was taken to the refusal of the court to admit in evidence the books of the corporation, to which the defendant claims the loan was made. Defendant, before offering the books in evidence, did not show by whom they were kept, furnished no proof that the •entries were made at the time of the transactions, nor by whose direction they were made. Indeed, there was an entire absence of proof tending to authenticate the books, or to warrant the inference that plaintiffs had actual, or was chargeable with constructive, knowledge of their contents; while, on the other hand, it had already been made to appear by the plaintiff’s testimony that he never saw or knew of the entries, had never examined the books, and that they were never shown to him. How it was that defendant’s counsel was induced to be content with a simple offer of the books in evidence is apparent when we read from the record what he said to the court at the time of offering them in evidence. He said:

“ The books are offered for the purpose of showing that the transaction was a company transaction, and the witness, being a trustee of the company, must have been familiar with the entries in the books of the company.”

It seems to be clear, therefore, that it was his view that the mere fact that one of the plaintiffs was a trustee of the corporation made him chargeable with actual knowledge of its business transactions, and of the entries made on its books. But this is not the rule, and has not been, at least since Rudd v. Robinson, 126 N. Y., 113; 36 St. Rep., 500. The refusal to admit them, therefore, was not, in view of the evidence previously adduced, error.

The judgment should be affirmed, with costs.

All concur.


text:
    Supreme Court, General Term, First Department.
    Filed October 13, 1893.
    The People ex rel. James I. Raymond, App’lt, v. Thomas F. Gilroy et al., Resp'ts.
    Appeal from an order of the special term.

      J. M. Bowers, for app’lt; G. S. Coleman, for resp’ts.
   Order affirmed, with disbursements, on opinion of court below.


text:
    The People ex rel. Henry A. Siebrecht et al., App’lts, v. Thomas F. Gilroy et al., Resp’ts.
    Appeal from an order of the special term.

      J. M. Bowers, for app’lts; G. 8. Coleman, for resp’ts.
   Order affirmed, with $10 costs and disbursements, on opinion of court below.


text:
    The People ex rel. John H. Young, App’lt, v. Thomas F. Gilroy et al., Resp’ts.
    Appeal from an order of the special term.

      J. M. Bowers, for app’lt; G. 8. Coleman, for resp’ts.
   Order affirmed, with disbursements, on opinion of court below.


text:
    Bangor Cent. Slate Co. v. Bangor Southern Slate Co., Limited.
   No opinion. Judgment affirmed, with costs, and with leave to answer over upon payment of costs of appeal and of the court below.


text:
    George H. Barnes, Resp’t, v. Louis W. Schroder, App’lt.

      Wm. Stone, for app’lt; L. Godkin, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Charles A. Breck, App’lt, v. Frederick A. Ringler, Resp’t.
    Appeal from a judgment dismissing the complaint.

      Calvin & Breck, for app’lt; Henry Daily, Jr., for resp’t.
   Parker, J. —The appellant presents for review a judgment entered on a dismissal of the complaint at the close of plaintiff’s case. This determination of the court seems to have been required by the decision of the court of appeals in this action on review of a former judgment rendered in favor of the plaintiff. 129 N. Y. 656 ; 42 St. Rep. 356. The plaintiff had produced five additional witnesses on this trial, and proved several facts not in evidence on the former hearing, but the matters now for the first time proven are not of such character as to entitle the plaintiff to go to the jury under the construction which has been given to the contract. The judgment should be affirmed, with costs.

All concur.


text:
    Breckenridge Co., Limited, Resp’t, v. James D. Perkins et al., App’lts. C. C. Luther, for app’lts; D. Wilcox & W. B. Bristow, for resp’t.
   No opinion. Order affirmed, with $10 costs and printing disbursements.


author: Per Curiam.

text:
    Frederick A. Card, App’lt, v. Mary H. Meincke et al., Resp’ts.
    Appeal from a judgment dismissing complaint.

      L. Karge, for app’lt; F. W. Hinrichs, for resp’ts.
   Per Curiam.

We see no reason for interfering with the conclusion arrived at by the learned judge below. The evidence of the plaintiff in regard to the amount necessary to support the defendant was entirely unsatisfactory and unreliable; the figures of the principal witness not by any means maintaining his conclusions. It feems to be apparent from the evidence which was introduced upon the part of the plaintiff that the amount received by the defendant from the provisions made for her by her husband was not in excess of that which was necessary for her decent and proper support; and there seems to be no reason why any part of the money with which the husband had endeavored to provide for the support of his widow should be anticipated by her creditors, and she deprived of the use of the same for the purpose of support. The question in regard to the form of the judgment entered has been discussed in the opinion on the appeal from the order in this action, decided herewith. 54 St. Rep. S85. The judgment should be affirmed, with costs.

All concur.


text:
    Wade B. Davis, App’lt, v. Julius C. Schlachter et al., Resp’ts.

      W. P. Butler, for app’lt; A. Blumensiiel, for resp’ts.
   Ro opinion. Order affirmed, with costs.


text:
    Paul C. Grening, App’lt, v. George Malcon, Resp’t.

      B. T. Green, for app’lt; B. D. Bettens, for resp’t.
   Ro opinion. Order affirmed, with $10 costs and printing disbursements.


text:
    Edward L. Milhau, App’lt, v. Louis John et al., Resp’ts.
   Ro opinion. Order affirmed.


text:
    People, App’lt, v. Alexander Meakim et al., Resp’ts.

      H. B. B. Stapler, for the People; A. J. Bittenhoefer, for resp’ts.
   Ro opinion. Judgment affirmed on opinion of Ingraham, J., in court below.


text:
    John B. Solley, Resp’t, v. John B. McGeorge, App’lt.

      Bill, Chandler & Seymour, for app’lt; B. Bather Hamilton, for resp’t.
   Ro opinion. Order affirmed, with $10 costs and printing disbursements.


text:
    Albert G. Voight, App’lt, v. William E. Widgeley, Resp’t.

      Bugene Broyer, for app’lt; Wolff & Hodge, for resp’t.
   Ro opinion. Order affirmed, with $10 costs and disbursements.


text:
    Annie Weed, Resp’t, v. Robert M. Weed, App’lt.

      C. Harwood, Jr., for app’lt; L. G. Waehner, for resp’t.
   Ro opinion. Judgment affirmed, with costs.


text:
    Gerhard Wessels et al., App’lts, v. Gustavus A. Boettcher et al., Resp’ts.

      J. A. Shoudy, for app’lts ; C. W. BeWolf, for resp’ts.
   Ro opinion. Order affirmed, with $10 costs and disbursements.

See 53 St. Rep. 313.


text:
    Catharine Willoughby, Resp’t, v. Julius Ehrmann, App’lt.

      T. Baumeister, for appfit; L.B. Becldey, for resp’t.
   Ro opinion. Order reversed, and motion granted.


text:
    Gustavus Wolfers, App’lt, v. John J. Duffield et al., Resp’ts.

      W. F. Clare, for app’lt; P. H. Vernon, for resp’ts.
   Ro opinion. Order affirmed, with $10 costs and disbursements.

See 55 St. Rep. 485.


text:
    Filed November 17, 1893.
    Rosine Bechler, Resp’t, v. Commercial Advertiser, App’lt.

      Arthur H. Van Brunt, for app’lt; John M. Lathrop, for resp’t.
   Ro opinion. Order affirmed with costs.


text:
    Daniel E. Donovan, Resp’t, v. Margaret Clark, App’lt.
    Appeal from order denying motion to vacate attachment.

      Kellogg, Bose & Smith (L. L. Kellogg, of counsel), for app’lt; Kernam, Bros. <6 Quin (W'. P. Quin, of counsel), for resp’t.
   Per Curiam.

This action was brought to recover against the defendant as a surety upon an undertaking, and an attachment was granted therein upon the ground that the defendant, a resident of the state, had kept herself concealed therein, with intent to evade the service of the summons. In the disposition of this appeal, it is not necessary to recite the facts established by the evidence. Suffice it to say that they necessarily lead to the conclusion that the defendant was keeping herself concealed, with intent to evade the service of the summons in this action, and it is seldom that such conclusion is so satisfactorily established in cases of this character. The order appealed from should be affirmed, with $10 costs and disbursements.


text:
    Benjamin H. Howell, App’lt, v. William W. Tompkins, Resp’t.

      G. E. Blackwell, for app’lt; J. M. Bowers, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Charles H. Jenkins, Resp’t, v. Henry Rogers, App’lt.

      John H. V. Arnold, for app’lt; Thomas B. Odell, for resp’t.
   No opinion. Judgment affirmed, with costs.

All concur.


text:
    Martha Keery, Resp’t, v. Charles L. Dimon, App’lt.

      W. B. Wilder, for app’lt; T. H. Briend, for resp’t.
   No opinion. Order modified, and affirmed as modified, without costs.


text:
    Hannah Kennedy, as Admrx., etc., Resp’t, v. Manhattan Railway Company, App’lt.

      B. L. Maynard, for app’lt; Julius H. Oohen, for resp’t.
   No opinion. Judgment and order affirmed, with costs.


text:
    Mark Lythgoe, Resp’t, v. Jane Smith, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Manhattan Railway Company, Resp’t, v. Henry N. Tabor et al., App’lts.

      JB. B. Olossen, for app’lts ; J. T. Davies, for resp’t.
   No opinion. Order reversed, with $10 costs and disbursements.


text:
    Edwin P. Merritt, Resp’t, v. George W. Stickle, App’lt.

      N. S. Spencer, for app’lt; JB. Q. Atwater, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Louis Swartz, Resp’t, v. Samuel Jerkowski, App’lt.

      A. Blumenstiel, for app’lt; J. J. Drank, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Anthony Van Bergen et al., v. Ludwig Lehmaier et al.

   No opinion. We think that restitution should be made, or a bond given.

See 55 St. Rep. 532.


text:
    Simon Wormser et al., App’lts, v. John Nicholas Brown et al., Resp’ts.

      JHoadley, Lauterbach & Johnson, for app’lts; Strong & 0adwalader, for resp’ts.
   No opinion. Motion denied, with $10 costs.

See 55 St. Rep. 663.


text:
    Filed December 15, 1893.
    James J. Belden, App’lt, v. Stevenson Burke et al., Resp’ts.

      Elihu, Boot, for app’lt ; Jas. W. JBJawes, for resp’ts.
   No opinion. Motion denied, with $10 costs.

See 55 St. Rep. 844.


text:
    Arthur Brichant, App’lt, v. George H. Bronwer et al., Resp’ts.

      A. Gruber, for app’lt; Carter, Lindan & Van Schaick, for resp’ts.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Mary A. Browne, App’lt, v. John M. Baker et al., as Admr., etc., Resp’ts.

      A. W. Card, for app’lt; W. E. Stiger, for resp’ts.
   No opinion. Upon payment of $10 costs to defendant, motion to dismiss denied.


text:
    Annie Butler, App’lt, v. James R. Townsend et al., Resp’ts.

      Ira Leo Hamberger, for app’lt; John A. Beall, for resp’ts.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    In the Matter of E. Townsend Goldberg, an Attorney.
   No opinion. Referred to Thomas P. Wickes, as referee, to take proof, and report with his opinion.


text:
    Henry Winthrop Gray, as Receiver, etc., Resp’t, v. Benjamin Croner et al., App’lts.

      I. L. Bamberger & Grantz Nathan, for app’lts; Burrill, Zabrishie & Burrill, for resp’t.
   No opinion. Order denying motion to increase undertaking on injunction affirmed, with costs.


text:
    Hannah Kennedy, as Admrx., etc., Resp’t, v. Manhattan Railway Company, App’lt.

      David Leventritt, for pl’fE; Davies & Sapallo, for def’t.
   No opinion. Motion denied, with $10 costs.


text:
    Rene J. Lecomte v. Jeanne Claire Angele Langier.

      G. H. Brewster, for pl’fl ; Garter, Hughes <6 Kellogg, for def’t.
   No opinion. Motion dismissed.


text:
    In the Matter of the Estate of Abner Mellen, Deceased.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Raphael J. Moses, App’lt, v. George W. Glynn, Resp’t.

      Arthur 8. Luria, for app’lt; Mitehell Levy, for resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    In the Matter of New York Elevated Railway Company.
   No opinion. Reargument ordered.


text:
    In the Matter of One Hundred and Twenty-Seventh Street. In the Matter of James A. Deering.

      George G. Hunger, for app’lt; Hem'y A. Powell, for resp’t.
   Per Curiam.

The record upon which this appeal is heard shows beyond dispute that the relation of attorney and client between Deering and James Baird never existed ; and as that relation is the necessary foundation for an attorney’s lien, it follows that the attorney .has no lien upon the fund. The order should be affirmed, with $10 costs and disbursements.


text:
    Ong Sing, Resp’t, v. Hom Mon Dus, Impleaded, etc., App’lt.

      W. G. Beecher, for app’lt; H. M. Hermann, for resp’t.
   Per Curiam.

The fact that the money was loaned gives no ground of arrest. The only ground upon which this order of arrest can be sustained is that the defendant has fraudulently disposed of his property with intent to defraud his creditors. Tho allegations in the affidavits wholly fail to set up any facts from which any such conclusion can be drawn, and are therefore wholly insufficient. The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.


text:
    Phoenix Manufacturing Corporation, Resp’t, v. Everett D. Barlow, App’lt.

      Sobt. P. Barlow, for app’lt; T. D. Kenneson, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Eugene Smith, as Exr., etc., Resp’t, v. Frederika Rentz, App’lt.

      Leopold, Leo, for app’lt; II. B. Glosson, for resp’t.
   No opinion. Motion to resettle denied, with $10 costs.


text:
    In the Matter of Bernard Tock, Deceased.
   No opinion. Order modified by inserting the Trust Company, and affirmed as modified, without costs.


text:
    Jennie B. Woolley, Resp’t, v. William Buhler, Jr., App’lt.

      Bolton Hall, for app’lt; W. T. Birdsall, for resp’t.
   No opinion. Motion denied, with $10 costs.


text:
    Henry E. Wessels et al., Resp’ts, v. Gustavus A. Boettcher, App’lt.

      G. W. McKenzie, for app’lt; J. A. Shoudy, for resp’ts.
   No opinion. Order reversed, with $10 costs and printing disbursements, and the motion to vacate the attachment granted, with $10 costs, unless the plaintiffs within 20 days pay the costs taxed in the action brought by Gerhard Wessels and another against the same defendant, in which case, order affirmed, without costs to either party.


text:
    Evelyn M. Trost, Resp’t, v. Charles J. Hinman, App’lt.

      Horace Grames, for app’lt; 8. A. & I). J. Noyes (Alex. Thain, of counsel), for resp’t.
   No opinion. Judgment affirmed.


text:
    Filed January 12, 1894.
    Henry Winthrop Gray, as Receiver, etc., Resp’t, v. Louis Muhlhauser, App’lt.
    Appeal from an order denying a motion to retax plaintiff’s bill of costs.

      Ira Leo Bamberger, for app’lt; George Zabriskie, for resp’t.
   Per Curiam.

The judgment in this case having been reversed, it is unnecessary to decide the questions here raised upon taxation of costs. Appeal dismissed, without costs.


text:
    Therese Murphy, as Admrx., etc., App’lt, v. Frank K. Hays et al., Resp’ts.

      G. Washbourne Smith, for app’lt; Charles C. Nodal (Ihomas S. Moore, of counsel), for resp’ts.
   Per Curiam.

While a portion of the opinion of this court on the former appeal (68 Hun, 450 ; 52 St. Rep. 749 ;) is not applicable on this review, because it discusses the testimony of the engineer, who was not sworn on the retrial, it is in other respects in point. As a re-examination of the case has not led to any change in the position then taken and expressed by the court, further discussion need not be had. The judgment should be affirmed, with costs.


text:
    In the Matter of the Application of William Alderson.
   No opinion. Order signed.


text:
    Canadian Agricultural Coal & Colonization Co., v. Joseph L. Spofford.

      Hdward T. Bice, for pl’ff; Philip 8. Bean, for def’t.
   No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.


text:
    Charles L. Dimon, as Admr., etc., Resp’t, v. Martha Keery, App’lt.

      T. H. Friend,, for app’lt; W. B. Wilder, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    John E Domschke, Resp’t, v. Metropolitan Elevated Railway Company et al., App’lts.

      Howard Me William, for app’lts ; H. G. Atwater, for resp’t.
   Motion for argument denied.


text:
    Henry Harbeck, Resp’t, v. Sarah Catharine Pupin, App’lt.
   No opinion. The order will he resettled by reversing order upon the facts.


text:
    James E. Howell, Pl’ff, v. William Donegan, Def’t.
   No opinion. Motion denied, with $10 costs.


text:
    George W. Lederer, App’lt, v. Tribune Association et al., Resp’ts.

      1. L. Bamberger, for app’lt; H. W. Saclcett, for resp’ts.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Mary McCarthy, as Admrx., etc., App’lt, v. Thomas J. Sullivan, Resp’t.

      G. F. Langbein, for app’lt; F. W. 8. Johnston, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Adolph Moonelis et al., App’lts, v. James E. Smith, Resp’t.

      Mr. Arnold, for app’lts ; F. W. 8. Johnson, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Joseph Rafolovitz, Pl’ff, v. American Tobacco Company, Def’t.

      Oharles F. Holm, for pl’ff; Oudin & Oakley, for def’t.
   No opinion. Motion granted, with $10 costs.


text:
    Philo T. Ruggles v. Francis X. Stafford et al.,

    (two cases.)

      Thos. 8pratt, for pl’ff ; N.J. Waterbury, for def’ts.
   No opinion Motion denied.

See 51 St. Rep. 937.


text:
    Frank W. Sanger v. Thomas H. French.

      A. Goodwin, for pl’fE; A. J. Fittenhoefer, for def’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Edward M. Steck, Resp’t, v. Colorado Fuel & Iron Company, App’lt.

      Jas. Stikeman, for app’lt; Geo. H. Adams, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


author: Barnard, P. J.

text:
    General Term, Second Department.
    Filed December 1, 1893.
    In the Matter of the Application of George Peterson.
   Barnard, P. J.

The order appealed from should be affirmed. Peterson held a claim of $160 against one Ganung. The action was put in the hands of the attorney Adams. $40 was paid without action, and Adams received $10 for his services. Adams obtained a judgment by default in favor of Peterson, before a justice of the peace for the balance of the claim, and Ganung paid the judgment, which was for $122.65. The parties to the transaction differ as to the contract. Adams says he was to have half and the claimant says the whole services were paid for by the $10. The special term allowed $25 additional and this was a very ample compensation for the services done. Ganung made no defence and the money was collected by proceedings supplementary to execution upon the judgment. Order affirmed, with costs and disbursements.


author: Dykman, J.

text:
    Ackart, Resp’t, v. Miller, App’lt.

      Fsselstyn & MeOarty, for app’lt; A. Lee Wager, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the decision of a judge of this court, before whom the cause was tried without a jury. The action was commenced for the recovery of money due the plaintiff from the defendant for labor and services performed in the erection of a house, and for bills paid for hauling material to the house. The claim was ñilly proven, and the trial judge found all the facts in favor of the plaintiff, and they are amply sufficient to justify the judgment. The appeal is entirely destitute of merit, and the judgment should t¡e affirmed, with costs.


text:
    Atlas Construction Company, App’lt, v. George Ferguson, Resp’t.

      F. F. Marbury & Oharles Fox, for app’lt; O. H. & J. A. Young, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the report of a referee to hear and determine. The action was brought to foreclose a mechanic’s lien for $1,250.60. The defense was failure to perform the contract made by the plaintiff, and a counterclaim. The referee reported against the plaintiff upon its principal claim for material, and in its favor for extras, $4.03 and the appeal is by the plaintiff. The questions involved were questions of fact, and the cause was fully tried and carefully examined by the referee. He wrote an opinion in which he carefully analyzed the testimony, and gave abundant reasons for his decisions. ■ A further examination of the evidence by us would subserve no profitable purpose, as we concur in the views of the referee, and with his opinion. The appellant raises a question respecting the allowance of costs, but we think the plaintiff sustained a substantial defeat upon the merits, and there is no sufficient reason why it should not pay the costs of the litigation it so precipitated without a just claim. The judgment should be affirmed, with costs.


text:
    George Duryea, Resp’t, v. John Mackey et al., App’lts.

      J. M. & T. B. Seaman, for app’lt John Mackey; Nathan Comstock, for app’lts Jacob Mackey and Freelove Lewis; E. T. Payne {Oscar Trishie, of counsel), for resp’t.
   Pbatt, J.—There can be no question of the justice of the decree appealed from. The plaintiff advanced the money with the knowledge and consent of the defendants. It was used for their benefit, and they still enjoy the advantages by it procured. As remarked by the trial judge, they are in no position to dispute the validity of the loan. Judgment affirmed, with costs.


text:
    Frederick W. Helmke, Resp’t, v. Henry I. Stetler, App’lt.

      Abram H. Demarest, for app’lt ; G. P. Hoffman & A> tliur S. Tompkins, for resp’t.
   Dykman, J.—This is a motion for a reargument of the appeal in this action. The action was for the recovery of damages resulting to the plaintiff from the kick of a horse. The appeals were from the judgment and order denying motion for a new trial on the minutes of the court, and also from an order denying a motion for a new trial upon newly-discovered evidence. The case was fully examined, and an opinion was written in the case. The appeals presented no difficult questions. The verdict and judgment were in favor of the plaintiff, and were amply sustained by the testimony. The affidavits upon which this motion is based fails to make a case for a reargument. Nothing was overlooked, and no principal of law has been violated, and there is nothing to induce a belief that any different conclusion could or should be reached. The motion should be denied, with $10 costs and disbursements.


text:
    Lucy S. Morrison, Resp’t, v. Metropolitan Telegraph & Telephone Company, App’lt.

      Burton N. Ha/rrison, for app’lt; Thomas E. Pearsall, for resp’t.
   Dykman, J.

This is an appeal from a judgment against the defendant, entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial upon the minutes of the court. • The case has been here before upon an appeal by the plaintiff from a judgment dismissing her complaint, and we then expressed our views of the case, and decided that the dismissal of the complaint was erroneous, and that the case was one for the jury. There has now been a new trial, and a verdict for the plaintiff. Our views were fully expressed in the former opinion, (69 Hun, 100; 52 St. Rep., 601;) and require no further elaboration at this time. The case of the plaintiff was somewhat strengthened upon the second trial, and the verdict meets our approbation. The judgment and order should be affirmed, with costs.


text:
    Mutual Life Insurance Company v. Darius C. Newell.
   No opinion. Appeal withdrawn.


author: Pratt, J.

text:
    The People, Resp’t, v. H. E. Kane et al., App’lts.

      Limngston Smith, for app’lts; Benjamin H Beere, Dist. Atty., for the People.
   Pratt, J.

This is an appeal from a conviction upon an indictment for unlawfully and willfully injuring personal property. The trial was had in the court of sessions for Suffolk county on 6th of June, 1893. The evidence showed that the defendant’s willfully destroyed the complainant’s boat, which at the time was on or near defendant’s land. The defendant claimed that the owner of the boat persisted in trespassing upon his premises with his boat, and that the destruction of the boat was necessary in order to protect his possession of his own property. The charge of the judge was eminently fair, and as favorable to the defendants as the case warranted. The issue submitted to the jury, there being no dispute as to the acts of the defendants in destroying the boat, was whether the acts were necessary and proper to protect the property rights of the defendant Kane. The contention of the defendants that Kane was the owner of the land where the hoat was placed by the owner, and that the boat was not rightfully there, was assumed by the court, so that substantially the only question for the jury was whether the acts of the defendants were wanton and unnecessary to protect and defend successfully his possession of the land. The jury returned a verdict' of guilty, and found the value of the boat at $28. There are several exceptions to the rulings of the court, but upon examination we find no error sufficient to warrant a reversal of the judgment. Conviction affirmed.


text:
    The People ex rel. Doty v. Board of Police of Yonkers.
   No opinion. Writ of certiorari quashed and judgment affirmed for failure to submit according to stipulation.


text:
    Franklin P. Roberge v. Maria N. Winne et al.

    (two cases).
   No opinion. Submissions withdrawn.


text:
    James R. Wright v. Gillaume A. Reusens et al.

   No opinion. Motion for reargument denied, with leave to go to the court of appeals.

See 50 St. Rep. 869.


text:
    General Term, Third Department.
    Filed May, 1893.
    Anna V. Conway, as Admrx., etc., Resp’t, v. Phoenix Mutual Life Insurance Company, App’lt.

      Berriek & Bulkeley, for app’lt; Smith & Wellington, for resp’t.
   No opinion. Judgment affirmed, with cost.


author: Putnam, J.

text:
    Filed September, 1893.
    The Albany County Bank, Resp’t, v. The Burton & Cory Cider and Vinegar Company, App’lt.

      Stedman, Thompson & Andrews (Arthur L. Andrews, of counsel), for app’lt; Peter A. Stephens (John A. Stephens, of counsel), for resp’t.
   Putnam, J.

Whether or not Burton was authorized to borrow money for defendant, was, under the evidence in the case, a question of fact for the trial court. On that question we are unable to hold that he did not reach a correct conclusion. Fifth Nat. Bank of Providence v. Navassa Phosphate Co., 119 N. Y. 256 ; 29 St. Rep. 686 ; Marine Bank of Buffalo v. Butler Colliery Co., 23 St. Rep. 318 ; 125 N. Y. 695; Kraft v. Freeman Print. & Pub. Asso., 87 N. Y. 628. The liability of defendant to Van Natta, if any, arose at the time the loan was made. The fact that afterwards and after Van Natta had commenced an action against defendant he was uncertain whether or not Burton was authorized to make the loan and accepted his money from plaintiff does not, we think, in any manner, affect the liability of defendant. At the most the transaction shows that Van Natta was in doubt as to such liability. Judgment affirmed, with costs. All concur.


author: Mayham, P. J.

text:
    The People on the Relation of Mark L. Sheldon, Resp’t, v. Walter Fraser and Others, Assessors of the Town of Salem in the County of Washington, App’lt.
    Appeal from an order and determination of the special term, setting aside an assessment made by the assessors of the town of Salem, Washington county.

      F. Fraser (L. Fraser, of counsel), for app’lt; James Gibson, for resp’t.
   Mayham, P. J.

The judgment and order in this case should be affirmed on opinion of judge at special term. Judgment affirmed, with costs of this appeal, in favor of the respondent against the town of Salem. All concur.


author: Herrick, J.

text:
    Annie Taylor, App’lt, v. Stephen Taylor, Resp’t.

      Mills & Bridge, for app’lt; Stedman, Thompson c6 Andrews (.Arthur L. Andrews, of counsel), for resp’t.
   Herrick, J.

I have examined the findings of the referee, and the evidence in this case, and his findings seem to be abundantly supported by the evidence. I am inclined to think that an error was committed by him in refusing to admit the evidence offered (folio 67 in the case), but in view of all the testimony, it seems to me that if such evidence had been admitted, it ought not to change the result. The behavior of the plaintiff was such as to provoke harsh treatment of her by the' defendant. The judgment should be affirmed, with costs. All concur.


text:
    Filed December 6, 1893.
    In the Matter of the Settlement of Account of James W. Walrath.
   Decree affirmed.


text:
    Harvey Cook, App’lt, v. Saratoga Victory Manufacturing Company, Resp’t.

      T. F. Hamilton, for app’lt; James O. Fursman {J. W. Houghton, of counsel), for resp’t.
   Herrick, J.

After a somewhat careful examination .and consideration of the evidence in this case, I can see no reason to reverse the action of the court below. Without discussing the evidence, it strikes me that the evidence as to whether the new dam was erected higher than the old one preponderates largely in favor of the defendant, and a finding of the jury to the contrary could not be sustained. It appears to be uncontradicted that the top of the dam was five feet lower than the water of Saratoga Lake. That being a fact, I do not see how the dam could cause the water to rise in Saratoga Lake. It further appears that the water running over Winne’s reef, which is above the dam, and between it and the lake, has some considerable current to it, and if the water set back from the dam, so as to cause the water to rise in the lake, it is difficult for me to conceive that there would have been any perceptible current at Winne’s reef. The water above the reef appears to have been considerably higher than the water below the reef, which 1 cannot conceive to be possible if the erectiou of the dam caused the water of Fish creek to set back to Saratoga Lake, so as to raise the water there ; that would stop the current in the creek. While it is doubtless true that there has been a gradual rise in the waters of the lake, I fail to see that the evidence shows that the dam is responsible for it. Judgment should be affirmed, with costs. I see no -reason to write an opinion.

Mayham, P. J., concurs; Putnam, J., not acting.


text:
    John A. Gordon, Resp’t, v. Abram Becker et al., App’lts.
   Ho opinion. Motion for leave to go to the court of appeals denied, without costs.

See 54 St. Rep. 731.


text:
    In the Matter of the Application by Helen M. Kellogg, etc.
   Ho opinion. Order affirmed, with $10 costs, with printing and other disbursements.


text:
    Charles Leopold, Resp’t, v. President, etc., of Delaware & Hudson Canal Company, App’lt.

      W. F. Bathbone {Lewis E. Oarr, of counsel), for app’lt; J. W. Houghton, for resp’t.
   Herrick, J.

This case arises out of the same accident as did the case of Fanny Leopold against the defendant, reported in 66 Hun, 628 ; 49 St. Rep. 459, and while some additional witnesses testified in this case, I do not see that the facts are substantially different from what they were in the case of Fanny Leopold. In this case, as in that, there was a conflict of evidence both upon the question of the plaintiff’s freedom from contributory negligence and upon the question as to whether the defendant was guilty of negligence; and there was evidence in the case from which the jury mightinferthe plaintiff’s freedom from contributory negligence and the defendant’s negligence. The case was fairly submitted to the jury by the court. I can see no error in the charge calculated to prejudice the rights of the defendant. Judgment should be affirmed, with costs. AH concur.


text:
    Jane E. O’Bryan, App’lt, v. City of Amsterdam, Resp’t.

      A. B. Elansburg, for app’lt; Ed. J. Maxwell, for resp’t.
   Herrick, J.

The referee has found in this case that the plaintiff “ tripped or stubbed"’ on the curbstone, and “did not stub or trip upon the stump of a tree,” or because of any opening in the sidewalk, or because of any elevations or depressions in the sidewalk where the stump was situated; in other words, that the proximate cause of the plaintiff’s injury was her stubbing or tripping over the curbstone, and not the defect in the defendant’s sidewalk set forth in the complaint; and, that being so, the plaintiff has no cause of action against the defendant. I have read over the testimony in the case, and there is sufficient in the evidence to warrant the finding of fact by the referee. I can see no sufficient reason for reversing it. Judgment should therefore be affirmed, with costs. All concur.


text:
    Charles Smith et al., Resp’t, v. Hamilton A. Roblee et al., App’lts.

      C. O. Lester & James W. Lester, for app’lts ; A. W. Sheperd, for resp’ts; Smith & Hickey; Jesse Stiles, for resp'ts Hammond et al.

   Mayham, P. J.

On a careful examination of the facts and questions of law raised by the appellants in this case, I think that the judgment should be affirmed, and that a written opinion is not required. Judgment affirmed, with costs. All concur.


text:
    Wakefield Rattan Company, Resp’t, v. Shepherd Tappan, App’lt.
   No opinion. Motion for reargument denied.

See 53 St. Rep., 703.


text:
    Charles N. Williams, App’lt, v. Nathaniel C. Boynton as County Clerk, etc., Resp’t.
   No opinion. Motion for leave to go to the court of appeals granted.

See 54 St. Rep., 748.


author: Hardin, P. J.

text:
    General Term, Fourth Department.
    Filed November, 1893.
    The People of the State of New York ex rel. The American Road Machine Company v. The Town Board of Auditors of the Town of Floyd, Oneida County, N. Y.
    Certiorari to review the disallowance by the town board of auditors of the claim of relator for a road machine had by the commissioners of that town.

      O. J). Prescott, for relator; Evans & Kneeland, for def’ts.
   Hardin, P. J.

There was no action of the town board which authorized the purchase of the machines as appears from the return; therefore the relator is not entitled to the relief claimed. The action of the town board confirmed with $50 costs and disbursements.

Martin and Merwin, JJ., concur.


text:
    Filed December 8, 1893.
    Benjamin Blackburn, App’lt, v. Rome, Watertown & Ogdensburgh Railroad Company, Resp’t.
   No opinion. Judgment affirmed with costs.

See Redmond v. R., W. & O. R. R. Co., 31 St. Rep., 366, and case cited therein.


text:
    Catharine Boland, App’lt, v. New York Central & Hudson River Railroad Company, Resp’t.
   No opinion. Judgment and order reversed, and a new trial ordered, with costs to abide the event. Held, that the question of damages should have been submitted to the jury. Ihl v. Railroad Co., 47 N. Y. 317 ; Gorham v. Railroad Co., 23 Hun, 449; Birkett v. Ice Co., 110 N. Y. 504 ; 18 St. Rep., 130 ; Murray v. Usher, 117 N. Y. 542 ; 27 St. Rep., 928; Code Civil Proc. § 1904.


text:
    Leah v. Briggs et al., App’lts, v. Azzle Clark, Resp’t.
   Ho opinion. Order reversed, without costs. Action upon the appeal suspended.


text:
    Isaiah J. De Foe, App’lt, v. Mary Baltz, Resp’t.
   Ho opinion. Judgment reversed, and a new trial ordered, with costs to abide the event. Held, the evidence presented a question of fact which ought to have been submitted to the jury.


text:
    Lafayette Denio, Resp’t, v. John Lord, App’lt.
   Ho opinion. Judgment and order affirmed, with costs.


text:
    Horace B. Ensworth, Resp’t, v. Albert Wright, App’lt.
   Ho opinion. Judgment affirmed, with costs.


text:
    Thomas Fanning, Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
   Ho opinion. Judgment and order affirmed, with costs.


text:
    John Flynn, App’lt, v. George D. Lathrop, as Administrator, etc., Resp’t.
   Ho opinion. Judgment and order affirmed, with costs.


text:
    George G. French, Resp’t, v Susan Row et al., App’lts.
   Ho opinion. Ordered that the appeal of the defendants be dismissed, with costs of the appeal, unless the defendants shall within 20 days from the service of this order serve a proposed case, and pay the plaintiff $10 costs. See 64 St. Rep., 937.


text:
    Wilson Gardiner, App’lt, v. Mary J. Perry et al., Resp’ts.
   Ho opinion. Judgment and order affirmed with costs.


text:
    Cordelia Green, Resp’t, v. Peter Rebyor, App’lt.
   Ho opinion. Judgment and order affirmed, with costs.


text:
    Greenway Brewing Company, App’lt, v. James Bishop, Resp’t.
   Ho opinion. Judgment of the .county court modified by striking therefrom the provision which awards a new trial and so as modified affirmed, without costs to either party on this appeal.


text:
    Havana Journal, App’lt, v. Sewell Pike, Resp’t.
   Ho opinion. Judgment affirmed with costs.


text:
    Havana Journal, App’lt, v. Mary E. Weed et al., Resp’ts.
   Ho opinion. Judgment affirmed, with costs.


text:
    William S. Hirst, Resp’t, v. People’s Railway Company of Syracuse, App’lt.
   Ho opinion. Judgment and order affirmed, with costs.


text:
    Holland C. Johnson, App’lt, v. Lewis Warren, Resp’t.
   Ho opinion. Order affirmed, with $10 costs and disbursements.


text:
    Esther Y. McCarthy, App’lt, v. Eugene McCarthy, Respondent.
   Ho opinion. Order reversed, with $10 costs and disbursements. Held, (1) that the giving of the undertaking specified in the papers before us did not operate per se as a stay of proceedings without the giving of the bond with sureties, as provided in the judgment, Code Civil Proc. § 1330; Galusha v. Galusha,, 108 N. Y. 114 ; 13 St. Rep. 85 ; (2) that if the supreme court has power to stay proceedings on the judgment without the giving of the bond called for by the judgment, as intimated in Granger v. Craig, 85 N. Y. 619, there is no sufficient reason apparent in the papers before us for the exercise of the discretion of the court in that regard.


text:
    In the Matter of the Application to remove Lewis E. Mosher, Justice of the Peace.
   Ho opinion. Order granted continuing case to next term.


text:
    Moses Nelson, App’lt, v. Jason Burchell, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Simon D. Paddock, App’lt, v Patrick Guyder, Resp’t.
   No opinion. Interlocutory judgment affirmed, with costs. See Berney v. Drexel, 33 Hun, 34; Kennagh v. McColgan, (Sup.) 4 N. Y. Supp. 230 ; People v. Hagadorn, 104 N. Y. 518; 5 St. Rep., 782; Railway Co. v. Robinson, 133 N. Y. 242; 44 St. Rep., 872.

See 29 St. Rep., 773.


text:
    Alexander Richert, Resp’t, v. John Backenstross, App’lt.
   No opinion. Decision as stated in memorandum of Hardin, P. J., filed with the clerk of Onondaga.


text:
    Daniel Schmeer, as Admr., etc., App’lt, v. Gas Light Company of Syracuse, Resp’t.
   No opinion. Judgment affirmed, with costs.

See 48 St. Rep., 6.


text:
    Seymour Smith, Resp’t, v. George Barnard, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    John M. Walker et al., App’lts, v Arthur E. McAllister, Impleaded, etc., Resp’t.
   No opinion. Judgment and order reversed, and a new trial ordered, with costs to abide the event. Held, (1) the court erred in receiving evidence of Phillip's conversation with McAllister, at folio 181 of the case ; (2) whether on the facts the defendant was entitled to have the case submitted to the jury is at least doubtful, but as the judgment must be reversed for the error already pointed out, we do not discuss that question.


text:
    General Term, Fifth Department.
    Filed June 23, 1893.
    Jane E. McLaughlin, App’lt, v. Edward Webster et al., Resp’ts.
   No opinion. Judgment appealed from affirmed.


text:
    Filed October 20, 1893.
    Village of Nunda v. Patrick J. McNeal, as Sheriff, etc.
   No opinion. Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    Osceola Goodelle et al., Resp’ts, v. Emerson J. Eddy, App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    Henry Dale et al., Resp’ts, v. Frank T. Gilbert, Sheriff, App’lt.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements. Lewis, J., not sitting.


text:
    Jonas Garter, Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
   No opinion. Judgment and order appealed from affirmed, on the authority of Garter v. Same, 138 N. Y. 672; 53 St Rep., 932. Lewis, J., not sitting.


text:
    Farley W. Gray, Resp’t, v. Town of Caneadea, App’lt.
   No opinion. Interlocutory judgment appealed from affirmed, with costs, but with leave to withdraw demurrer and answer over within twenty days on payment’of the costs of the demurrer and of this appeal.


text:
    Madge M. Harter, Resp’t, v. Town of Moravia, App’lt.
   No opinion. Order appealed from affirmed, with costs.


text:
    William A. Hetzler, App’lt, v, Thomas C. Hodgson, Sheriff, Resp’t.
   No opinion. Judgment and order appealed from affirmed.


text:
    Charles B. Lapham, Resp’t, v. Richard P. McBride, App’lt.
   Mo opinion. Judgment and order appealed from affirmed.


text:
    Richard P. McBride, Resp’t, v. Frank O. Chamberlain et al., as Adm’rs, etc., App’lts.
   Mo opinion. Judgment appealed from affirmed.


text:
    Eulalia H. Meads, as Admrx., etc., Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
   Mo opinion. Order appealed from affirmed.


text:
    Edwin W. Montgomery, Resp’t, v. William S. Gubelmann et al., App’lts.
   Mo opinion. Judgment appealed from affirmed.


text:
    In the Matter of Will of Mary Morgan, deceased. In the Matter of Hiram Thornton.
   Mo opinion. Decree of the surrogate’s court of Cayuga county affirmed, with costs.


text:
    William F. Peck, Resp’t, v. Josias W. Jones et al., App’lts.
   Mo opinion. Judgment appealed from affirmed, with costs.


text:
    Anna Ryan, App’lt, v. Frank L. Smith, Resp’t.
   Mo opinion. Judgment appealed from affirmed, on the authority of Com-stock v. Hopkins, 61 Hun, 189 ; 40 St. Rep. 568.


author: Bradley, J.

text:
    Frank Saumby, an Infant, by Guardian, etc., Resp’t, v. City of Rochester, App’lt.

      Abraham, Benedict, for app’lt; P. Chamberlain, Jr., for resp’t.
   Bradley, J.

The plaintiff sustained a personal injury by stepping into a manhole of a lateral sewer on the east side of Chatham street, and near the corner of that and Holland street, in the city of Rochester. He charges that the injury was occasioned by the negligence of the defendant, in that the hole was permitted to remain uncovered. The injury occurred just at dusk in the evening of August 5, 1890. When the attention of the plaintiff was attracted by a -crowd of people in the street, he stepped from the sidewalk into the manhole, which was between the sidewalk and the curb. The conclusion was warranted from the evidence that the manhole was left open that evening, that the defendant was chargeable with negligence in that respect, and that the plaintiff’s injury was the consequence of that negligence, and was caused .without any negligence on his part. • The question of the sufficiency of the notice of the claim is raised by the defendant’s counsel. Upon that subject it appears that the plaintiff’s claim was presented to the common council upwards of 40 days before the action vras commenced, and that in due time notice of intention to commence it, etc., was filed with the city attorney. The notice of claim in its statement, presentation, and service was a substantial compliance with the statute. Laws 1890, c. 561, § 18. The evidence presented questions of fact for the consideration of the jury, and was sufficient to fairly permit inferences in support of all that was essential to the recovery of the plaintiff. None of the exceptions to the refusal to charge as requested were well taken. The court had fully charged the jury upon the matters for their consideration, and submitted to them the questions of fact arising upon the evidence. There was no error in any of the rulings on the trial. The judgment and order should be affirmed.


text:
    Willard C. Tyler, as Admr., etc., Resp’t, v. Edward C. Parker, as Assignee, etc. et al., App’lts.
   Mo opinion. Judgment appealed from modified by striking out the clause awarding executions, and, as so modified, affirmed, with costs.


text:
    N. Y. Superior Court, General Term.
    Filed December 29, 1893.
    Jane Callaghan, App’lt, v. Diedrich W. Rohde, Resp’t.

      Cantor, Linson & Vanschaick, for app’lt; G. F. Holm,, for resp’t.
   Per Curiam.

The defendant, as owner of the tenement 52 Amsterdam avenue, was sued by his tenant, the plaintiff, for injuries alleged to have been received by tripping on the stairway, and falling down staiis. The ground of action was negligence by reason of defects said to exist in the oilcloth covering. All the questions tending to create a liability were disputed, and the case was carefully submitted to the jury, who found in favor of the defendant. This finding was made on conflicting evidence, and is amply sustained by the proofs. Indeed, the only ground upon which the judgment is assailed is for alleged error in admitting evidence under the plaintiff’s objection. We have carefully examined the exceptions taken, and find them to be without merit. They require neither comment nor explanation. It follows that the judgment and order appealed from must be affirmed, with costs.


text:
    Julius Jacobs et al., v. Howard Insurance Company of New York.

      Hatch & Wiclces, for app'lts ; T. Henry Dewey, for resp’t.
   Per Curiam.

The case seems to have been carefully tried and considered by the learned referee, and the judgment directed by him must, for the reasons assigned in his opinion, be affirmed, with costs. The allowance granted by the special term judge was within the statutory limit, so that there was no abuse of power ; neither was there any abuse of discretion ; hence the order must likewise be affirmed, with costs.


text:
    John F. Peppard, Resp’t, v. Delaware, Lackawanna & Western Railroad Company, App'lt.

      H. Odell, for app’lt; Wollf & Hodge, for resp’t.
   Per Curiam.

The substantial questions presented by the appeal in this case have been passed upon in the case of plaintiff’s fellow passenger. Toomey v. Same Defendant, 4 Misc. Rep. 392; 53 St. Rep. 567. For the reasons assigned in that case upon which the verdict in favor of the plaintiff was sustained, and there being no new question in the present case which deserves special notice, the judgment and order should be affirmed, with costs.


text:
    Henry Piepgras, App’lt, v. Walter D. Edmunds et al., Resp’ts.

      Geo. A. Black, for app’It;' T. O. Byrnes and Geo. Gordon Battles, for resp’ts.
   Per Curiam.

The judgment appealed from must be affirmed, with costs, on the opinion of the court below.


author: Freedman, J.

text:
    David Roth, Resp’t, v. Dry Dock, East Broadway & Battery Railroad Company, App’lt.

      J. M. Swibner, for app’lt; M. J. Kate, for resp’t.
   Freedman, J.

There was no error in the refusal of the trial judge to dismiss the complaint, or to direct a verdict in favor of the defendant. Upon all the facts disclosed, the case was clearly one for the jury, and, upon due examination, We cannot say that the verdict which was rendered in favor of the plaintiff is contrary to the evidence or against the weight of the evidence, or excessive in amount. The defendant’s exceptions are clearly untenable. The judgment and order should be affirmed, with costs.


text:
    Suzanna Saunders, App’lt, v. Mary A. Timken, Resp’t.

      V. W. Kingsley, for app’lt; P. O. White, for resp’t.
   Per Curiam.

The order should be affirmed, with $10 costs and disbursements.


text:
    N. Y. Common Pleas, General Term.
    Filed October 25, 1893.
    Gustav Papp, Resp’t, v. Clover Club, App’lt.
    Appeal from judgment of the fourth district court.

      E. H. Ball, for app’lt; A. & L. Levy, for resp’t.
   Ho opinion. Judgment affirmed, with costs.


text:
    Joseph M. Alexander, App’lt, v. Louis Merryach, Resp’t.
    Appeal from judgment of district court.

      J. Marks, for app’lt; S. D, Levy, for resp’t.
   Ho opinion. Appeal dismissed, with $10 costs.


text:
    Annie Straub, App’lt, v. Commercial Credit Company, Resp’t.
    Appeal from judgment of eighth district court.

      J?. BL. Gray, for app’lt; D. O. Myers, for resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Angie Seaman, Resp’t, v. T. A. Snider Preserve Company, App’lt.
    Appeal from judgment of first district court.

      Epstein Bros., for app’lt; B. G. Whipple, for resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    James Pyle, App’lt, v. Mary Carver, Resp’t.
    Appeal from judgment of first district court.

      J. Oochrane, for app’lt; J. Gallaban, for resp’t.
   No opinion. Judgment reversed, with costs.


text:
    Filed October 26, 1893.
    Morris Pollatscheck, App’lt, v. Raphael Grieff, Resp’t.
    Appeal from judgment of sixth district court.

      Berry & Another, for app’lt; Taylor & Another, for resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Filed November 6, 1893.
    Mary C. Blassett, App’lt, v. New York & Northern Railroad Company, Resp't.
    Appeal from special term.

      A. Day, for app’lt; 8. Evarts, for resp’t.
   No opinion. Order affirmed, with costs.


text:
    Edward S. Steinam, App’lt, v. George H. Bell, Resp’t.
   Per Curiam.

Notice of argument herein not having been served, the appellant, in default of an appearance for the respondent, was in no position to move the hearing. This appeal must therefore stand over until the next general term to be held for the hearing of appeals from the district courts.


text:
    Edward Smith, Resp’t, v. Antonio C. Pucci, App’lt.

      jW. Maman, for app’lt; B. & L. Kohn, for resp’t.
   No opinion. Motion to dismiss appeal granted, with $10 costs.


text:
    Samuel W. Ehrich et al., Resp’ts, v. Chas. L. Bucki, App’lt.
    Appeal from seventh district court.

      John T. Walker, for app’lt; J. Lehman, for resp’ts.
   No opinion. Judgment affirmed, with costs.


text:
    Dry Dock, East Broadway & Battery Railroad Company, Resp’t, v. The North & East River Railroad Company, App’lt.

      ,R. & 8. Kellogg, for app’lt; J. & T. H. Troy, for resp’t.
   No opinion. Motion to strike cause from calender and for judgment granted, with costs.


text:
    Louis Appleby, Subt. etc., Resp’t, v. Westchester Hardware Company, App’lt.
    Appeal from first district court.

      D. & G. Goodrich, for resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Joseph Goldstone, Resp’t, v. Jacob Silberstein, App’lt.
    Appeal from city court.

      Blumastiel & an., for app’lt; H. Joseph, for resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Mary C. Blassett, App’lt, v. The New York & Northern Railroad Company, Resp’t.
    Appeal from order of special term.

      A. Day, for app’lt; 8. Evarts, for resp’t.
   No opinion. Order affirmed, with costs.


text:
    Wm. R. Randall, App’lt, v. Matthew Baird, Resp’t.
    Appeal from order special term.

      G. 0. Comstock, for app’lt; Harriman & F., for resp’t.
   No opinion. Appeal dismissed, with $10 costs.


text:
    Filed November 8, 1893.
    Martin H. K. Kelly, Resp’t, v. Patrick J. McArdle, App’lt.
    Appeal from orders of special term.

      Countryman & Dubois, for app’lt;. W. F. Severance, for resp’t.
   No opinion. Ordered that the order of May 24, 1893, be dismissed with costs and the order of June 14, 1893, be affirmed with costs.


text:
    Filed November 13, 1893.
    Abraham Elfenbein et al., Resp’ts, v. Dorette von Hafen, App’lt.
    Appeal from city court.

      T. B. Seaman, for app’lt; S. Strasbourger, for resp’ts.
   No opinion. Judgment affirmed, with costs.


text:
    Adolph Green, Resp’t, v. John R. M. Hernz, as Executor, etc., App’lt.
    Appeal from order of special term.

      Beeves & Todd, for app’lt; Goldfogle <6 C., for resp’t.
   No opinion. Order affirmed, with $10 costs.


text:
    Filed November 15, 1893.
    Henry Whittemore, Resp’t, v. Jas. T. White et al., App’lts.
    Appeal from judgment of this court.

      O. J. Hochstadler, for app’lts; G. B. Hawes, for resp’t.
   No opinion. Judgment affirmed with costs.


text:
    Filed November 16, 1893.
    Cornelia C. Terry, Resp’t, v. Katharine T. Moore, App’lt.
    Appeal from order.

      C. B. Southern, for app’lt; J. M. Buckingham, for resp’t.
   No opinion. Order affirmed with costs.


text:
    Morris Kahn, Resp’t, v. Isaac Jacobs, App’lt.
    Appeal from city court.

      A. & L. Levy, for app’lt; D. Leventñtt, for resp’t.
   No opinion. Judgment and order affirmed, with costs.


text:
    Filed November 17, 1893.
    Alfred Epstein, Resp’t, v. Chas. Hodgetts, App’lt, Impld.
    Appeal from city court.

      ■Johnston & J., for app’lt; Bpstein Bros., for resp’t.
   No opinion. Judgment affirmed with costs.


text:
    Walter Logan, App’lt, v. The McCall Pub. Co., Resp’t.
    Appeal from order special term.

      B. J. Tinsdale, for app’lt; Thomas M. Wyatt, for resp’
   No opinion. Order affirmed with costs.


text:
    Adam Martin, App’lt, v. Frank Pollatschek, Resp’t.
    Appeal from city court.

      A. J. Sire, for app’lt; O. B. Gould, for resp’t
   No opinion. Judgment affirmed with costs.


text:
    Conrad Witzel, Resp’t, v. The Third Ave. R. R. Co., App’lt.
    Appeal from city court.

      L. & S. Hoadly, for app’lt; H. t&. T. Forster, for resp’t,
   No opinion. Judgment reversed, new trial ordered, costs- to appellant to -abide event.


text:
    Jacob Finelite, Resp’t, v. Barney Golden, App’lt.
    Appeal from city court.

      Thomas J. McKee, for app’lt; G. W. Stephens, for resp’t.
   No opinion. Judgment affirmed with costs.


author: Daly, O. J.

text:
    Filed December 4, 1893.
    Arthur J. Robbins et al., Resp’ts, v. Simon Arendt et al., App’lts.
    Motion by respondents for leave to appeal to the court of appeals. Granted.

      O. jW. L. Jeliffe, for app'lts ; Phillips & Avery, for resp’ts.
   Daly, O. J.

While I do not doubt the correctness of the decision reached by this court, I am in favor of permitting an appeal to the court of appeals, as the questions involved are novel, and, as they arise under the mechanic’s lien act, are of general interest to owners of property, and mechanics and persons furnishing materials.


text:
    Edward Kelly, App’lt, v. Josiah Partridge, Resp’t.
    Motion for reargument or leave to go to court of appeals. Denied.

      Edward 8. Johnson, for the motion; George Wilcox, opposed.
   Per Curiam.

After examination of the brief for a reargument or leave to appeal further, we are still of the opinion that no material fact of the case has been overlooked or misapprehended, and that the decision stands well upon reason and authority. It is quite obvious that the moving papers fail to comply with the requirements of rule 16. Neither the magnitude of the interests nor the importance of the legal questions involved is such as to justify recourse to the court of appeals. Motion denied, with costs.


text:
    Richard Siegman, Resp’t, v. Sarah W. Keeler, App’lt.
    Motion for reargument. Denied.

      Albert F. llagar, for app’lt; Sol Kohn, for resp’t.
   Per Curiam.

A motion for reargument is allowed only where it appears that some question decisive of the case, and which was presented by counsel upon the argument, has been overlooked by the court, or that the decision is inconsistant with some statute, or with a coni rolling decision, to which the attention of the court was not drawn, through the neglect or inadvertence of counsel. Rule 16, Gen. Term Com. PI. N. Y. The opinion handed down at the time of the decision of the appeal herein (4 Misc. Rep. 528 ; 59 St. Rep. 125;) refutes the claim that either of the grounds above specified exists, and the plain purport of this motion is no other than to secure a second hearing upon the same points and facts which have been exhaustively examined and discussed in the opinion of the court. Motion for reargument denied, with costs.


text:
    The People v. J. M. Early et al.

      Be Lancey Nicoll, for the People ; Miller, Peekham & Dixon, for def’t.
   No opinion. The judgment having been paid, as appears by the receipt of the district attorney, the order for its cancellation is granted.


text:
    The People v. Mary Williams.

      Be Lancey Nicoll, for the People; O. J Schampion, for def’t.
   No opinion. Application granted. Forfeiture of recognizance remitted, and order to be entered restoring the sum deposited to the party depositing the same.


text:
    The People v. Alice Cunningham.

      Be Lancey Nicoll, for the People ; Thomas B. Bush, for def’t.
   No opinion. Application to vacate judgment entered on a forfeited recognizance. It appearing satisfactorily that the people had lost no rights, or suffered expense, the apblication should be granted.


text:
    The People v. Louis Silverman et al.

    Application to vacate judgment on a forfeited recognizance.

      Be Lancey Nicoll, for the People ; H. F. Pepper, for def’ts.
   Per Curiam.

The prisoner having been surrendered, and, upon confession, convicted and fined, and having paid his fine, a case is presented for the cancellation of the judgment against his surety when the application comes properly before us. But our rule 13 requires that eight days’ notice shall he given the district attorney; and as, in this case, no notice whatever was given, the petition must be denied, witli leave, however, to renew. Application denied, with leave to renew on notice to the district attorney.


text:
    Filed January 2, 1894.
    Wilson Printing Ink Company, Resp’t, v. Austin E. Ford, App’lt.
    Appeal from order of the general term of the city court.
    IK Lane O’Neill, for app’lt; Philip Carpenter, for resp’t.
   No opinion. Order of tne general term of the city court reversed and judgment of tile special term affirmed with costs.


text:
    Maurice Jacobs, Resp’t, v. Nathan Stern, App’lt.
    Appeal from judgment eleventh district court.

      B. A. Jacobs, for app’lt; E. L. Me A dam, for resp’t.
   No opinion. Judgment reversed with costs.


text:
    Filed January 3, 1894.
    Gendron Iron Wheel Co., App’lt, v. Snow, Church & Co., Resp’t.
    Appeal from order of special term.

      G. JI. Fuller, for app’lt; Campbell <6 M., for resp’t.
   No opinion. Judgment affirmed with costs.


text:
    Arthur A. Kline, Resp’t, v. The Wilson Printing Ink Co., App’lt.
    Appeal from judgment of Hon. H. W. Bookstaver, J.

      Philip Carpenter, for app’lt; Jlonntz c6 JI., for resp’t.
   No opinion. Judgment affirmed with costs.


text:
    Filed January 4, 1894.
    Charlotta Hodge, Resp’t, v. Andrew B. Yetta, App’lt.
    Appeal from judgment of Hon. H. AY. Bookstaver, J.

      C. B. I.abarbierre, for app’lt; I. N. Williams, for resp’t.
   No opinion. Judgment affirmed with costs.


text:
    Julia C. Schaefer, Resp’t, v. William F. Thornton, App’lt.
    „ppoal from judgment of the eighth district court.
    No appearance for app’lt;. J. F Higgins, for resp't.
   No opinion. Judgment affirmed with costs.


text:
    John Mahoney, Resp’t, v. Alexander T. Kent, App’lt.
    Appeal from the judgment of-the second judicial district court.
    No appearance for app’lt; J. J. Walsh, for resp’t.
   No opinion. Judgment affirmed with costs,


text:
    Julian Rosenthal, App’lt, v. William Hunt, Resp’t.
    Motion to amend justice’s return.

      Sampler é Fleishman, for app’lt; C. H. Preyer, for resp’t.
   No opinion. Motion granted.


text:
    Charles A. Glyn, App’lt, v. Julia Miner, Resp’t.
    Appeal from judgment of Hon. Henry W. Bookstaver, J.

      Theodore N. Meloni, for app’lt; Howe & Hummel, for resp’t.
   Judgment affirmed. See opinion.


text:
    William Fiss et al., Resp’ts, v. Henry M. Warren, App’lt.
    Appeal from judgment of the city court.

      H. <& M. Strong, for app’lt: B. B. La Fetra, for resp’ts.
   No opinion, judgment affirmed with costs.


text:
    Filed January 5, 1894.
    Frank Raubicheck, Resp’t, v. William V. Snedecor, App’lt.
    Appeal from judgment of the city court.

      II. R. Sguier, for app’lt; Niles <6 Johnson, for resp’t.
   No opinion. Judgment affirmed with costs.


text:
    James R. Smith, Resp’t, v. Stewart Robeson, App’lt.
    Appeal from the judgment of the city court.

      W. W. Quiver, for app'lt; Howe & Hummel, for resp’t.
   No opinion. Judgment reversed; new trial ordered; costs to the appellant to abide the event. Motion for leave to appeal to the court of appeals granted.


text:
    Nathan Hutkopf, Resp’t, v. Robert M. Weed, App’lt.
    Appeal from judgment of the fifth judicial district court.

      W. G. Davis, for app’lt; J. Levy, for resp’t.
   No opinion. Judgment affirmed with costs.


text:
    Filed January 8, 1894.
    Rose Hyman and another, Resp’ts, v. Sigmund A. Schmidt, App’lt.
    Appeal from judgment of Hon. L. A. Giegerich.

      J. G. Rosenbaum, for app’lt; G. Meyers, for resp’ts.
   No opinion. Judgment affirmed, with costs. -


text:
    Filed January 9, 1894.
    Thos. E. Henry, Resp’t, v. Houston, West St. & Pavonia Ferry Railroad Company, App’lt.
    Appeal from judgment of the city court.

      Ooudert Bros., for app’lt; J. B. Humphreys, for resp’t.
   No opinion. Judgment reversed; new trial ordered; costs to the appellant to abide the event.


text:
    Annie Haines, Resp’t, v. Denman Thompson and another, App’lts.
    Appeal from judgment of the city court.

      A. J. Dittenhofer, for app’lts; J. T. Easton, for resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Charles Swain, Resp’t, v. Denman Thompson et al., App’lts.
    Appeal from the judgment of the city court.

      J. T. Easton, for app’lts; A. J. Dittenhofer, for resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Filed January 10, 1894.
    George Guttroff, App’lt, v. Julius Wallach & Joseph C. Wallach, Resp’ts.
    Appeal from order of the general term of the city court.

      H. Bolte, for app’lt; M. Meyer, for resp’ts.
   No opinion. Order reversed, with costs.


author: Newburger, J.

text:
    N. Y. City Court, General Term.
    Filed October 20, 1893.
    William F. Howe et al., Resp’ts, v. Edward J. Woolsey, App’lt.

      Wells & Waldo, for app’lt; David May, for resp’ts.
   Newburger, J.

This action was brought to recover for the value of legal services rendered, and resulted in a verdict for plaintiffs. This case was properly submitted to the jury. The exceptions taken are without merit. Judgment must therefore be affirmed, with costs. All concur.


author: "McCarthy, J.

text:
    Frank Raubicheck, Resp’t, v. William J. Snedecor, App’lt.

      Hiles <6 Johnson, for app’lt; Hamilton R. Bquier, for resp’t.
   "McCarthy, J.

Upon an examination of this case we find no errors. It involved a question of fact, which was fairly and fully submitted to the jury. They had a right to accept and believe the evidence of one side or the other. By their verdict it is clear they accepted the plaintiff’s version. Judgment should be affirmed, with costs.


author: Ehrlich, C. J.

text:
    Edward B. Spaulding, Resp’t, v. Wright Universal Electric Company, App’lt.

      Sullivan & Gromwell, for app’lt; Royal S. Orane, for resp’t.
   Ehrlich, C. J.

The plaintiff recovered upon an express contract, which was proved to the satisfaction of the jury, and they accordingly found for the plaintiff for the balance due thereon. The case was fairly tried and submitted to the jury, and there is no reason why their finding should be disturbed. The exceptions are without merit, and the judgment must be affirmed, with costs. All concur.


text:
    Bernard Campbell, Resp’t, v. Juan Y. Jimenes et al., App’lts.

      Tracy, Boardman & Plait, for app’lts; William F Handel, for resp’t.
   Newburger, J.

Our appellate court having held (Campbell v. Jimenes, 23 N. Y. Supp. 333; 52 St. Rep. 495;) that the terms of the contract between plaintiff and defendants were ambiguous, and that the meaning of the instrument can only be determined by a jury, the trial justice therefore properly denied the defendants’ motion to dismiss. There appears to be no other exception in the case of merit, and judgment must therefore be affirmed, with costs.


text:
    Henry J. Fisher, Resp’t, v. Gertrude Boecher, App’lt.

      A. H. Berriek, for app’lt; Wensley & Gilroy, for resp’t.
   Newburger, J.

This action was brought by one of two sureties against his cosurety to recover one-half of the amount paid by plaintiff upon the breach of the condition of an undertaking, which he and his cosurety, the defendant, executed. After the finding of the undertaking, a judgment was recovered against the defendant in said action. Subsequently an action was brought against the sureties upon the undertaking in question to recover the amount of such judgment, and thereupon the plaintiff herein paid the sum, with interest and costs, and brought his action to recover one-half of the judgment paid by him. The cause was tried, and, the defendant not offering any evidence, the court directed a verdict for the amount claimed, and from the judgment entered thereon this appeal is taken. The trial justice properly denied defendant’s motion to dismiss the complaint, and the exception thereto was without merit. Judgment must therefore be affirmed, with costs. All concur.


text:
    Thomas E. Henry, Resp’t, v. Houston, West Street & Pavonia Ferry Railroad Company, App’lt.

      Coudert Bros., for app’lt; John B. Humphreys, for resp’t.
   Newburger, J.

This action was brought to recover damages for injuries received by plaintiff while in the employ of defendant. A careful examination of the case fails to disclose any valid exception. Judgment affirmed, with costs.


author: Ehrlich, U. J.

text:
    John Livingston et al., Resp’ts, v. Percy N. Lawrence, App’lt.
    Appeal from judgment entered on verdict directed by trial judge in favor of plaintiff.

      E. Bennemlle, for app’lt; Weekes Bros., for resp’ts.
   Ehrlich, U. J.

There was no allegation of fraud, nor of rescission therefor, and no allegation that the defendant had vacated or surrendered the premises, and the matters sought to be proved did not rise to the dignity of an eviction or defense. For these reasons, the judgment appealed from must be affirmed, with costs. All concur.


author: Ehrlich. C. J.

text:
    George H. Eldridge et al., Resp’ts, v. Moses R. Crow, App’lt.
    Appeal from judgment entered on order sustaining demurrer, to counterclaim.

      A. Perry, for app’lt; B. D. Eisler, for resp’ts.
   Ehrlich. C. J.

The matters set up by the defendant, are pleaded as a counterclaim, and as such they are not the subject of counterclaim to an action on a promissory note. The defendant had not paid O’Hara’s claim on which he relies, and may -never be obliged to pay it or any part thereof, and until then his loss is not the subject of set-off. In view of these facts, the condition said to have been affixed to the delivery of the note, does not aid the allowed counterclaim, as such. It follows that the judgment appealed from must be affirmed, with costs.

McCarthy, J., concurs.


text:
    Filed November 27, 1893.
    Nina H. Dearing, Resp’t, v. Aylma Y. Pearson, App’lt.

      Smith, Bowman <6 Close, for app’lt; David Leventritt, for resp’t.
   Newburger, J.

This is an action brought to recover damages for a wrongful discharge. The plaintiff, an actress, claims that she was employed by the defendant for a theatrical season of thirty-two weeks. That she performed for a period of five weeks and the defendant, then, without cause discharged her. Defendant admits the employment of plaintiff, but denies that sdch employment was for thirty-two weeks, and that he discharged her for incompetency. There was a conflict of evidence as to whether or not the contract was for thirty-two weeks or not, and as to the custom iu the theatrical profession by which the manager gives what is termed “two weeks notice ” of his desire to terminate a contract. All these questions weie properly submitted to the jury by the trial justice, and no errors are disclosed iu the appeal book. The judgment must therefore be affirmed, with costs. All concur.


author: Van Wyck, J.

text:
    Joseph Green, Resp’t, v. New York & Honduras Company, App’lt.
    Appeal from a judgment for plaintiff on a verdict.

      N. A. Prentiss, for app’lt; Johnston & Johnston, for resp’t.
   Van Wyck, J.

Under a written contract between the parties to this action plaintiff agreed to go to defendant’s mines in Honduras, and work for two years at $100 per month, and his board and lodgings, and defendant was to return him $72.50, his passage money out, at the completion of his term of employment. The defendant had the option to terminate the contract at any time. Plaintiff went to the mines, and worked for eleven months, was paid $1,100, was furnished board for nine months, and received $50 towards his board for two months, but which cost him about $70. He says that the superintendent informed him that there was no work for him to do, and that, as he was sick, he must return to New York, and that he (plaintiff) then demanded a return of his passage money, with the extras for board, etc., but was informed that a letter would be ivritten to the New York office, and that, when he arrived there, everything would be found satisfactory, and his demands paid. The plaintiff so returned, and made such demands, including the $72.50 and the extras for his two months’ board, which was refused, whereupon he brought this suit, and the jury, after a charge and rulings, which if anything, were too favorable to plaintiff, found for him in $116.46. No error having been made, and the verdict not being against the weight of evidence, the judgment and order are affirmed, with costs.


text:
    Paello Frabetto et al., Resp’ts, v. Hugh N. Camp, App’lt.

      Samuel B. Duggey, for app’lt; Michael L. McQoldrick, for resp’ts.
   Newburger, J.

The plaintiff’s hired a plot of ground at Sedgwick avenue and tiie old Boston road, in the city of New York, on which a frame house stood belonging to plaintiffs and occupied the same. During plaintiffs’ absence in the month of September, 1893, plaintiffs’ house was broken into by a number of men, and filled with cement, and the property of plaintiffs’ injured and destroyed. It is claimed that the cement was the property of defendant, and was brought to the house by the agents of defendant, to be used in improvements to the farm on which the house stood. This action is brought to recover damages for such acts on the part of defendant and his agents. A careful examination of the appeal book fails to disclose any errors. The trial justice properly submitted the case to the jury, and there are no exceptions that would warrant us in disturbing the judgment herein. The judgment must therefore bo affirmed, with costs.


text:
    David M. Kohler, Resp’t, v. Henry Cordes, App’lt.

      Cardoza Bros., for app’lt; Charles Qoldzier, for resp’t.
   Newburger, J.

This in an appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial. This action was brought to recover for goods sold and delivered by plaintiff to defendant. This answer admits the sales at the prices stated, but alleges an extension of the time for the payment by reason of the acceptance by the plaintiff of defendant’s three promissory notes for the amount of the purchase price, which had not matured at the time of the commencement of the action.' The plaintiff, however, claimed that the defendant had been guilty of fraud in obtaining the merchandise and the extension of the credit, and therefore was authorized to rescind the credit, and sue for goods sold. The trial justice properly submitted the question of fraud to the jury, and a careful examination of the appeal book fails to disclose any error on trial. Judgment must be affirmed, with costs. All concur.


author: McCarthy, J.

text:
    Herman Oetjen, Resp’t, v. Henry F. Fajen, App’lt.

      Gumbleton & Hottenroth, for app’lt; Foster, Hotaling & Klenke, for resp't.
   McCarthy, J.

This is an appeal from an order denying a motion to vacate and set aside a judgment entered herein, and to vacate and set aside an attachment issued in the same action. The facts are conflicting, and appear to have been fairly and fully considered by the justice who passed on the motion. It involves a question of fact, and we do not feel that we can determine more correctly than he. Order is affirmed, with costs.


text:
    Filed December 8, 1893.
    William H. Lee et al., App’lts, v. Meyer Corn et al., Resp’ts.
    Appeal from order directing exceptions to be heard, etc., of trial judge and motion for allowances, etc.
    «7. Baptist Marshall, {J. D. Hallen, of counsel,) for app’lts; Paul Wilcox, (B. Lewinson, of counsel,) for resp’ts.
   Ehrlich, C. J.

When this case was at a previous general term, 51 St. Rep. 157, 945 ; the law controlling it was laid down, and this seems to have been followed by the learned trial judge, as authority for dismissing the complaint. We find no error in the disposition made. The confession of judgment was never canceled of record, but kept alive. Under such circumstances, (he election made was binding, and the plaintiff’s are not in a position to recall it. The exceptions will be overruled, and judgment ordered for defendant, with costs and costs of appeal. The motion' for an extra allowance will be granted, and 5 per cent awarded. All concur.


text:
    Dion W. Burke, Resp’t, v. United Cloak & Suit Cutters’ Benevolent & Protective Association of New York, App’lt.

      8. H. Hyman, for app’lt; John M. Harrington, for resp’t.
   Newburger, J.

A careful examination of the printed case fails to disclose any error on the trial of this action that would warrant us in disturbing the verdict of the jury. Judgment affirmed, with costs.


text:
    Annie Haines, Resp’t, v. Denman Thompson et al., App’lts.

      Browne & Sheehan, for app’lts; Bittenhoejer, Gerber & James, for resp’t.
   McCarthy, J.

We have examined the evidence very carefully, and find no errors. It involved a question of fact, which was properly and fairly presented to the jury by the trial justice. The jury found for the plaintiff, and there was sufficient evidence upon which to base their verdict. Judgment should therefore be affirmed, with costs.


text:
    Michael Hassett, Resp’t, v. Patrick J. McArdle et al., App’lts.

      Gardozo Bros., for app’lts; Hyland, & Zabriskie, for resp’t.
   Newburger, J.

This action is brought against the defendants to recover damages by reason of the failure of defendants to carry out the terms of a contract, under which they were to give plaintiff a cargo of iron to be carried from New York city to Troy, N. Y. The jury found for the plaintiff. This court has held that the case was a proper one for the jury. Hassett v. McArdle, 51 St. Rep. 135. A careful examination of the record fails to disclose any error that would warrant us in disturbing the judgment herein. Judgment affirmed, with costs.


author: Ehrlich, O. J.

text:
    Peter Hay, Resp’t, v. Rosalie Muller, App’lt.
    Appeal from judgment entered on verdict in favor of plaintiff.

      F. J. Bischoff, for app’lt; Paul Wilcox, for resp’t.
   Ehrlich, O. J.

The complaint sets forth a sufficient cause of action, and the proofs sufficiently established title in the plaintiff, value, demand, and refusal, before suit brought, to send the case to the jury. They found on all the issues in favor of the plaintiff. No error was committed to the prejudice of the defendant. The case was fully tried, and intelligently submitted to the jury. The judgment must be affirmed, with costs.


author: McCabthy, J.

text:
    Filed January 18, 1894.
    Nathan Lichtenstein, Resp’t, v. Herman Lichtenstein, App’lt.

      George Halm, for app’lt; Alfred & Charles Steckler, for resp’t.
   McCabthy, J.

This is an appeal from an order denying a motion for the examination of the plaintiff before trial. The papers used on the motion present a proper case for the exercise of judicial discretion. In the absence of abuse in the use of this discretion, we cannot interfere. There was none here and the order must therefore be affirmed, with costs.

Newbdbgbb, J., concurs. ,


author: Newbtjbgeb, J.

text:
    John J. Smith, Charles H. Smith and Elias D. Smith, Resp’ts, v. Walton Storm, Impleaded, etc., App’lt.

      Samuel B. Taylor, for app’lt; P. Q. &P. L. Mekerson, for resp’ts.
   Newbtjbgeb, J.

This action is brougnt on a promissory note endorsed by the defendant, Storm. The complaint alleges that the endorsement was for the purpose of procuring credit for the Manhattan Athletic Club and inducing plaintiffs to extend the payment of a claim then due from the defendant on the credit of such endorsement. The defendant demurred to the complaint, which was overruled, and from the order entered thereon this appeal is taken. The complaint states facts sufficient to constitute a cause of action. The objection that there is a defect of parties defendant is untenable. The authorities cited by appellant’s counsel have no bearing on the issue raised by the demurrer. For these reasons the order appealed from must be affirmed with costs.

McCabthy, J., concurs.


author: Ehblich, O. J.

text:
    Filed February 8, 1894.
    Ernest Lieberman v. Oscar E. Vermilye et al.

    Appeal from an order granting a bill of particulars.
    if. J. Stein, for app’lt; I. A. Mnglehard, for resp't.
   Ehblich, O. J.

The papers presented a fair case, calling for the exercise of the discretion of the court below, which was not abused by directing the ■defendant to furnish the bill of particulars provided for by the order, which must be affirmed with costs.

Van Wyck, J., concurs.


author: Fitzsimons, J.

text:
    Joseph Bird, App’lt, v. Samuel Kreiser, Resp’t.

      C. Bainbridge Smith, for app’lt; JTromme Brothers, for resp’t.
   Fitzsimons, J.

The order appealed from is affirmed with costs. The reasons stated by the special term judge in his opinion are sufficient to sustain the order, and are adopted by us.

Ehblich, C. J., and Van Wyck, J., concur.


author: Peb Oubiam.

text:
    Brooklyn City Court, General Term,
    Filed August, 1892.
    Thomas White, Resp’t, v. City of Brooklyn, App’lt.
    Appeal from special term.

      William T. Gilbert, for app’lt; William M. Osborn, for resp’t.
   Peb Oubiam.

In a previous appeal in the action, a judgment which had been rendered in favor of the defendant was reversed by the court of appeals, and a new trial ordered. See 122 N. Y., 53 ; 33 St. Rep. 307. This new trial has been had, and judgment has been rendered in favor of the plaintiff in accordance with the law as laid down in the opinion of the court of appeals. Appellant nów appeals from the judgment so entered, No points have been submitted on behalf of the city by the learned counsel for the appellant, and we are left entirely in the dark as to the grounds on which this appeal Is based. A careful examination of the proceedings below discloses no error. The judgment appealed from should be affirmed, with costs.


text:
    Filed February 28, 1893.
    Frank E. Parshley v. Third Methodist Episcopal Church of Brooklyn.
    Appeal from special term. Defendant appealed from a judgment in favor of plaintiff, and plaintiff now moves for an order requiring William J. Groo, ' Esq., to exhibit his authority for serving the notice of appeal herein, served by him, claiming to represent the defendant on such appeal, and filed with the clerk of this court on the 17th day of November, 1892; and further, why the said notice should not be declared invalid, for the reason that said attorney was not authorized by defendant to serve said notice of appeal; and why the appeal herein should no be dismissed.

      Charles M. Stafford, for the motion; William J. Groo, opposed.
   No opinion. Motion denied, with $10 costs against the plaintiff.


author: Per Curiam.

text:
    Filed October 23, 1893.
    Balthazar Dornbach et al., Resp’ts, v. John Hahn, App’lt.

      August P. Wagener, app’lt; Frank Obernier, for resp’ts.
   Per Curiam.

The appellant has not, by oral argument or printed points, called our attention to any exception or ground upon which he claims that this judgment should be reversed. He has simply submitted the appeal book. Our examination of the case discloses no reason for a reversal. Judgment must be affirmed, with costs.


text:
    Maggie Smith, Resp’t, v. Katharina Gebhardt, App’lt.

      Alex. T. Carpenter, for app’lt; McMahon, Stapleton & Milis, for resp’t.
   Per Curiam.

The complaint in this action was evidently drawn by a person who had but little knowledge of the rules of pleading in this state, and, if a demurrer had been interposed, the same would have sustained. The objection that causes of action have been improperly joined must be taken by demurrer or answer, or be deemed to be waived. Code, §§ 488, 498, 499. After the denial of the motion to dismiss at the opening, the case seems to have been tried on the theory that the husband was liable only if he instigated the wife to utter the words complained of. Neither counsel excepted to the-charge of the court, or made any requests, except on another point. Judgment and order denying new trial affirmed, with costs.


text:
    Filed November 27, 1893.
    Geraldine B. Bertuch, App’lt, v. Andrew J. Dower, Resp’t.

      Charles F. Burke, for app’lt; Hirsch & Masquin, for resp’t.
   Per Curiam.

The order appealed from should be modified by striking out the words “exact” and "precise.” The appellant is entitled to the disbursements of this appeal, to be taxed by the clerk.


text:
    Annie Goldsmith et al., Resp’ts, v. Leopold Goldsmith, App’lt.

      Bayes <6 Greenbaum, for app’lt; Jerry A Wernberg, for resp’ts.
   Per Curiam.

As plaintiffs waived their claim for rents, the defendant can-

not complain that the judgment was not resettled in such a way as to charge-him with the amount he should pay. Order affirmed, with $10 costs and disbursements, to be taxed by the clerk.


text:
    Filed December 26, 1893.
    Frances F. Lombard, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      Morris cB Whitehouse, for app’lt; Thos. E. Pearsall, for resp’t.
   Per Curiam.

The defendant in this case conceded its liability, and its-counsel seeks a new trial only "on the ground that the damages fixed by the jury were excessive. We have carefully examined the appellant's brief and the printed record, and conclude that we should not set aside the verdict, as it does not appear from the evidence to have been the result of sympathy or prejudice. Judgment and order denying new trial affirmed, with costs.