and 112 New York State Reporter payment of $10 costs, and, upon payment of an additional $10, leave given to apply to the court below to open default. SCHMEICHEL, Respondent, v. SCHMEI-action against the defendant for the vanef CHEL, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 7, 1902.) Action by Emma Schmeichel against Bernard Schmeichel. No opinion. Order affirmed, with costs. SCHRODT, Appellant, v. GLAVIN et al., Respondents. (Supreme Court, Appellate Division, Third Department. September 9, 1902.) Action by Frederick M. Schrodt against John Glavin and James E. Glavin. No opinion. Appeal dismissed, without costs. SCHULTZ V. GUTMAN et al. (Supreme Court, Appellate Division, First Department. October 17, 1902.) Action by Mary C. Schultz against Alma Gutman and others. No opinion. Motion denied, with $10 costs. SEBRING et al., Respondents, v. LOVELL, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 7, 1902.) Action by James O. Sebring and another against Charles H. Lovell. No opinion. Judgment affirmed, with costs. In re SHELDON. (Supreme Court, Appellate Division, Fourth Department. October 17, 1902.) In the matter of the estate of David W. Sheldon, deceased. No opinion. Motion for modification of order denied, without costs. SIMON, Respondent, v. DUNLAP'S EXP. CO., Appellant. (Supreme Court, Appellate Term. June, 1902.) Action by Jacob C. Simon against Dunlap's Express Company. Louis W. Stotesbury, for appellant. Charles L. Hoffman, for respondent. MacLEAN, J. Certain bailees of the plaintiff, acting through their messenger, delivered to the defendant, a common carrier, a parcel of laces addressed to the plaintiff, and the owner at the same time told the person who received the goods for the company that he should be very careful with the package, as they were expensive curtains. The goods were not delivered. Nor upon the trial of this action, brought for the recovery of their value, did the defendant offer anything in defense, excepting a receipt taken by the bailees on the defendant's printed form upon the bottom of which were the words: "It is agreed that we shall not be held liable or responsible, nor shall any demand be made upon us beyond the sum of $50, at which sum said property is hereby valued, unless the just and true value thereof is stated herein, nor upon any property or thing unless properly packed and secured for transportation." Upon its failure to de liver the parcel, the plaintiff, under the s trine of Swift v. Steamship Co., 106 N. Y. J. 12 N. E. 583, was entitled to maintain th his goods delivered by those acting for him and received for transportation. His recovery s not limited to the amount fixed in the reg which does not protect the carrier against 5 own negligence, especially in the absence explanation of noudelivery. Magnin. It more, 56 N. Y. 168; Blum v. Monahan, Misc. Rep. 179, 73 N. Y. Supp. 162. The j ment should be affirmed. Judgment affirme with costs. All concur. SINGER v. NEW YORK TIMES CO. 18preme Court, Appellate Division, First Depart ment. October 17, 1902.) Action by Mas. Singer against the New York Times Compr No opinion. Motion denied, with $10 costs. SINNOTT, Respondent, V. COLONIE BANK, Appellant. (Supreme Court, Ap nott against the Colonial Bank. Miller, Term. May, 1902.) Action by Thomas P.S & Miller, for appellant. John M. Gardner, respondent. FREEDMAN, P. J. The complaint that the action is brought by the plaintiff, 5· depositor in the defendant bank, to re” from defendant a balance of $426.77 not d out by plaintiff's check or order; that the fendant refused to pay the same on the g that it paid a promissory note made livered to plaintiff by Johnston & Oswal the same amount; but that such payment k made after and against the express instr by the plaintiff to the defendant not to p note. The answer contains no denial leges that Johnston & Oswald indorsed substantial allegation of the complaint, a value delivered the note in question t Western National Bank; that the latter value and before maturity duly indorse delivered it to the Washington Bank of York City; that said Washington Bank prose said note at maturity to the defendant f ment, and received from the defendant f ment thereof; that thereupon the note was livered to the defendant, and charged to tiff's account, and delivered by the defec the plaintiff, who, after the commence this action, returned it to the defendant. er alleging other matters not necessary to * tailed, the answer concludes as follows. "And this defendant herein claims and des that the amount of said note, with interest be deemed an offset for the amount of p claim, or a counterclaim against his ca the court shall determine the facts. Whe this defendant demands judgment of dis of the complaint and for such difference terest as may appear, together with the c this action." The plaintiff demurred to er on the sole ground "that it is insufficient | 1902.) Action by William A. Smith against law to constitute a defense." Conceding that John Kolle. No opinion. Judgment of the mus demurrer would be tenable if the facts set nicipal court affirmed by default, with costs. th in the answer had been pleaded as a deise to the cause of action contained in the nplaint, the difficulty remains that they were t pleaded for any such purpose, but as an offor a counterclaim, and no demurrer to the ficiency of the answer in any such aspect s taken. The demurrer being insufficient to 1 for a determination of the sufficiency of the set or counterclaim pleaded, and the answer t having been interposed as a defense, the Igment upon the demurrer cannot be susned. The judgment and order appealed from must cede that this demurrer would be tenable n re SLOCUM. (Supreme Court, Appellate ision, Fourth Department. October 14, 2.) In the matter of the proceedings for the harment of Robert H. Slocum. No opinion. ler of reference entered, referring the rges to D. F. McLennan, Esq. attorney and nselor at law, of Syracuse, N. Y., and diting the district attorney of Onondaga counand Charles G. Baldwin, Esq., as counsel, prosecute. MALL, Appellant, v. BLOOMFIELD, Rendent. (Supreme Court, Appellate Division, ond Department. October 10, 1902.) Acby Fenwick B. Small, as trustee in banktcy, against Charles S. Bloomfield. No opinOrder affirmed, with $10 costs and dissements. MITH, Respondent, v. CONVERSE, Appel(Supreme Court, Appellate Division, SecDepartment. October 17, 1902.) Action by ward P. Smith against Robert R. Converse. opinion. ER CURIAM. This order should be resed, on the ground that the affidavit read in osition to the motion is not sufficient, unthe settled rules of practice relating to this s of motions, to show that the opposing ty really has a larger number of material necessary witnesses in Kings county. The er should be reversed, with $10 costs and ursements, and the motion granted, changthe place of trial, with costs to the defendto abide the event. MITH v. KOLLE. (Supreme Court, AppelDivision, Second Department. October 10, 78 N.Y.S.-72 SMITH, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. Octoher 7, 1902.) Action by Chris. J. Smith against the New York Central & Hudson River Railroad Company. PER CURIAM. Judgment and order affirmed, with costs. SPRING and DAVY, JJ., dissent. SMITH, Respondent, v. SMITH, Appellant. (Supreme Court, Appellate Division, Second Department. October 3, 1902.) Action by Cornelia Edith Smith against Harry Sawyer Smith. No opinion. Order affirmed on argument, with $10 costs and disbursements. SMITH et al., Appellants, v. FIRTH et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 10, 1902.) Action by Samuel Smith and others against Christopher C. Firth and others. PER CURIAM. Order of affirmance modified, by striking out the word "unanimously," before the word "decided," and inserting, after the word "decided," the words, "Mr. Justice Bartlett sitting, but not voting." The other portion of the motion, relative to an appeal to the court of appeals, is not passed upon, as the court understands that it has been withdrawn. SMITH et al., Appellants, v. HALL, Ro Fourth Department. September 30, 1902.) Acspondent. (Supreme Court, Appellate Division, tion by James B. Smith and another against George W. Hall. PER CURIAM. Order affirmed, with $10 costs and disbursements. Held, that upon all the papers the application to punish for contempt was properly denied, and the parties left to other remedies. SMITH et al., Appellants, v. LONG ISLAND R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. October 3, 1902.) Action by William E. T. Smith and others against the Long Island Railroad Company. No opinion. Reargument ordered, and case set down for the 15th inst. SOLOMON v. METROPOLITAN ST. R. CO. (Supreme Court, Appellate Division, First DeOctober Action partment. 17, 1902.) by Adolph Solomon against the Metropolitan Street Railroad Company. No opinion. Motion denied. upon payment of $10 costs, and, upon payment of an additional $10, leave given to apply to court below to open default. and 112 New York State Reporter SOMMER Y. SOMMER et al. (Supreme | believe him on oath. Phillips states that fo Court, Appellate Division, First Department. October 17, 1902.) Action by Helena Sommer against Frederick W. Sommer and another. No opinion. Motion denied. In re SPENCER PLACE. (Supreme Court, Appellate Division, First Department. November 21, 1902.) Motion by the commissioners of estimate and assessment for an order taxing fees and costs in a proceeding by the city of New York to acquire title to Spencer Place. From a judgment in favor of petitioners, the city appeals. Reversed. John P. Dunn, for appellant. John F. O'Ryan, for respondent. PER CURIAM. For the reasons stated in the opinion in Re Spofford Ave. (herewith decided) 78 N. Y. Supp. 726, this order must be reversed, and the motion sent back for a rehearing at special term, without costs to either party on this appeal. SPIRA et al., Respondents, V. HOLOSCHUTZ, Appellant. (Supreme Court, Appellate Term. May, 1902.) Action by Joachim Spira and another against Isaac Holoschutz. Aaronstamm & Chorosh, for appellant. Krakower & Peters, for respondents. mode of inquiry is to ask the witnesses which Ev. (Chase's Am. Ed.) 334. The rule SPRAGUE, Appellant, v. CITY OF NE (Supreme Court, Apr late Division, Second Department. Octo 1902.) Action by S. Foster Sprague ap the city of New York. PER CURIAM. The credibility of the wit-YORK, Respondent. ness Kornreich was a material question. A witness was called by the defendant, who testified that he knew Kornreich, and that he also knew many people in his (Kornreich's) com- PER CURIAM. This case differs ra munity who knew Kornreich. He was then from any of those relied upon in support asked, "Do you know what reputation he has motion. Here the learned justice who In his community as to truth and veracity?" the cause adopted the short form of der This question was objected to as immaterial, sanctioned by the Code, and fully e incompetent, and irrelevant, and the objection with its requirements by stating the gro was sustained. To this ruling the defendant such decision therein. In Baker v. Moore, excepted. We are of the opinion that the trial Hun, 458, 34 N. Y. Supp. 874, there was justice erred in excluding this evidence. "The fact found, nor any conclusion of law sta rule," said Mr. Justice William L. Marcy, in nor any grounds of the decision set forth, the case of l'eople v. Mather, 4 Wend. 229-quired by the statute. In Shaffer v. Mat 257, 21 Am. Dec. 122, "which, everything con- 20 App. Div. 304, 46 N. Y. Supp. 992, the i sidered, has been found safest on this subject, cision was also defective, in that it failed à is to allow general evidence to be given of a state concisely the grounds upon which th general character. Starkie says that the prop- sues had been decided. Under such circ er question to be put to a witness who is stances, the court unquestionably had power called to impeach another is whether he would send the case back to special term, in c hat a decision might be made in the form re-eral Term. June, 1902.) Action by David uired by law; but, where a decision has been Steckler against Abram April and another. nade which fully complies with the require- Alfred B. Jaworower, for appellants. Solomon nents of the Code, we cannot send it back. Levi, for respondent. Motion denied. = SPRINGER et al., Appellants, v. BOSSELMAN, Respondent. (Supreme Court, Appelate Term. May, 1902.) Action by Isidor springer and another against Andreas C. Boselman. Meighan & Necarsulmer, for appelants. J. W. Brainsby, for respondent. PER CURIAM. The action is to recover 247.50 for goods sold and delivered. The nswer is a general denial, with a counterlaim for breach of contract. The action was ried on November 4, 1901, and at the conclusion of the trial it was stipulated by counsel hat the briefs might be submitted on or be 'ore November 11, 1901. Subsequently, but rior to November 11, 1901, the plaintiffs aplied ex parte for leave to discontinue on the Dayment of costs, and afterwards moved, on notice, for an order "discontinuing and dismissng the above-entitled action, upon payment by he plaintiffs to the defendant of the statutory costs to date, but without prejudice to the bringing of a new action." This motion was noticed for November 7th. On November 11, 1901, an order was made denying the motion, and judgment was rendered in favor of the deendant, upon the_counterclaim, for $270 damages and costs. From this judgment, and the order denying plaintiffs' motion to discontinue pon payment of costs, the plaintiffs appeal. The plaintiffs had a right to discontinue their action at any time before the cause was finally submitted to the justice for his judgment. Goldberg v. Victor, 26 Misc. Rep. 728, 56 N. Y. Supp. 1044. The interposition of a counerclaim by defendant does not deprive plainiffs of this right. Bidwell v. Weeks, 2 Hilt. 06; Tubbs v. Hall, 12 Abb. Prac. (N. S.) 237. The application for leave to discontinue n payment of costs was made, as we have een, previous to November 11, 1901, the day xed for the filing of the briefs. Where the ustice reserves his decision in order to enable he parties to file briefs, the case is not before im for decision, and the time within which he must make his decision does not begin to run ntil the briefs are filed. Babin v. Ensley, 14 App. Div. 548, 43 N. Y. Supp. 849. Plaintiffs' pplication having been made before the briefs ere due, or had been filed, was well within he rule that an action in the municipal court may be voluntarily discontinued by the plainff at any time before the action is finally ubmitted, upon the payment of costs; and a efusal of the court to permit such a disconnuance is a sufficient ground for the reversal f a judgment for the defendant. Goldberg v. Victor, 26 Misc. Rep. 728, 56 N. Y. Supp. 044. The judgment and order must be reersed, with costs, from which the costs in the ourt below should be deducted. Judgment ud order reversed, with costs. STECKLER, Respondent, v. APRIL, et al., -ppellants. SEABURY, J. This action was brought to recover on an undertaking given in the supreme court of New York county in an action in which an order of arrest was obtained. The defendants in this action were the sureties upon the undertaking then given. The order of arrest was afterwards vacated, and the defendant in that action assigned his cause of action growing out of the vacation of the order of arrest in the supreme court to the plaintiff in this action. This action was tried without a jury, and the court rendered judgment in favor of the plaintiff. The only question presented by this appeal is whether this court has jurisdiction of this action. It is true that the jurisdiction of this court is purely statutory, but the language of the statute seems to be broad enough to clothe this court with jurisdiction of an action of this nature. Section 315, subd. 1, of the Code of Civil Procedure gives this court jurisdiction of an action "wherein the complaint demands judgment for a sum of money only." Section 316, subd. 1, provides that "in an action wherein the complaint demands judgment for a sum of money only, the sum for which judgment is rendered in favor of the plaintiff cannot exceed $2,000, exclusive of interest, and costs as taxed, except where it is brought upon a bond or undertaking given in an action or special proceeding in the same court, or before a justice thereof." This last section limits the jurisdiction of the court in actions for a sum of money only to $2,000, except in certain cases therein specified. The fact that this section excepts this class of actions from the $2,000 limitation indicates that the intention of the legislature was to include in the general provision an action of this character as an action for a sum of money only; otherwise, no reason or necessity We think that for this exception would exist. the fair and reasonable construction to be placed upon these two sections, when read together, is that this court has jurisdiction of actions of this character, provided that the judgment rendered does not exceed $2,000, exclusive of interest and costs as taxed, except when it is brought upon a bond or undertaking given in this court, or before a justice thereof, in which case the limitation as to amount does not apply. The action at bar was brought to recover a sum of money less than $2,000 upon an undertaking, and the fact that the undertaking was originally given in the supreme court does not deprive this court of jurisdiction. The case of Ward & Co. v. American Surety Co., 25 Misc. Rep. 198, 54 N. Y. Supp. 177, upon which the appellants rely, is not appliIn that case the appellate cable to this court. term construed the language of the charter, which was exclusively applicable to the municipal courts. The judgment appealed from is affirmed, with costs. Judgment affirmed, with costs. All concur. STERN et al. v. MANHATTAN ICE CO. et (City Court of New York, Gen-al. (Supreme Court, Appellate Division, First In re STORM. (Supreme Court, Appellate Division, Second Department. October 17, 1902.) In the matter of the accounting of Edward Storm, as trustee under the third clause of the will of Margaret A. Brinkerhoff, deceased. Motion to dismiss appeal denied. Motion to bring in parties granted,-those persons mentioned in the moving paper who reside in the state of New York by personal service of the notice of appeal and notice of argument, and those residing in the state of Kansas by service of the notice of appeal and notice of argument by mail, together with a copy of the order of this court upon the present motion, at least 20 days before the term of court at which the appeal is to be brought on for hearing. STOUTENBURGH, Respondent, v. BUSH CO., Limited, Appellant. (Supreme Court, Appellate Division, Second Department. October 10, 1902. Action by Arthur T. Stoutenburgh, as temporary receiver, etc., of Richard Gibbons, etc., against the Bush Company, Limited. No opinion. Order affirmed, with $10 costs and disbursements. legal services, and for which they have a lec upon the papers in their hands. Said sum so due as aforesaid shall be determined by Hon. Samuel Edwards, who is hereby appointed a referee for such purpose. Said bond shall be approved by the Chemung county juice upoz two days' notice to Reynolds, Stanchied & Collin, and upon said approval the said Regnolds, Stanchfield & Collin shall deliver to Hassett all papers in said case. In re STRONG. (Supreme Court, Appelat Division, Second Department. October in Selah B. Strong to lay out or alter a highwir 1902.) In the matter of the application of in the town of Brookhaven, and the assessment of damages therefor. No opinion. Order of Lie county court of Suffolk county confirmed. SULLIVAN SOUTHARD. (Supreme Court, Appellate Division, First Department October 24, 1902.) Action by Dennis Salva against Charles Southard. No opinion. Mo granted, so far as to dismiss appeal, with $1! costs. In re TOWNSEND AVE. (Supreme Court Appellate Division, First Department. Novem ber 21, 1902.) Proceedings to open Towns avenue in New York City. Appeal from denying motion to confirm report of commiss John P. Dunn, for appellant. James A. Deð ing and John C. Shaw, for respondents. STRAIT V. LINDSAY et al. (Supreme Court, Appellate Division, Third Department. September 9, 1902.) Action by Celestia Lers of estimate and assessment. Order and Strait against Walter E. Lindsay and others. PER CURIAM. J. John Hassett is substituted as attorney for the plaintiff in this action, upon plaintiff's giving to Reynolds, Stanchfield & Collin a bond, with sufficient surety, in the penal sum of $1,000, conditioned for the payment to said Reynolds, Stanchfield & Collin of such sum as shall be found due to Reynolds, Stanchfield & Collin from said Strait for PER CURIAM. This case involves the same question as was considered in Re Grant Ar (decided herewith) 78 N. Y. Supp. 737, and for the reasons stated in the opinion in that the order appealed from should be affirmed, with costs. VAN BRUNT, P. J., dissents. |