App. Div.] SECOND DEPARTMENT, MARCH TERM, 1903. pany denies its liability to me under said | policy because the insured premises had been vacant more than ten days before said fire, and that this payment is not made to me under said policy or because of any liability on its part to me, but to avoid the expense of litigation." Before this $200 passed, the defendant paid to the mortgagee the full sum of $641 then due him and took from him an assignment of his mortgage. Some few days after the settlement between the parties hereto the plaintiff asked the defendant to satisfy the mortgage. This the defendant declined to do, and the action is brought to compel the defendant to execute and deliver a satisfaction of that mortgage. The learned court below evidently tried this case upon the theory that it was brought for the purpose of reforming the receipt quoted from on the ground of mutual mistake, but the demand for relief, as appears in the complaint, is unambiguous and clear, and the pleadings present for the determination of the court but the single question whether the defendant in the course of its negotiations with the plaintiff for settlement intended to treat the amount of money paid to the mortgagee as part of the sum included in the settlement with the plaintiff. It appears from the letters in evidence that some correspondence was had between the representatives of the respective parties in relation to the adjustment of this insurance, the defendant asserting that it was not liable to the plaintiff, on the ground that the policy had become void for the reason that the premises had been vacant at the time of the fire for more than ten days. Defendant's agent, in its first proposition of settlement, writes as follows: "I am always disposed to settle claims against insurance companies rather than go into litigation. We paid the mortgagee $641. The amount of the policy was $1,000, so that, if we owed Mrs. Prinz anything, it would be $359. If you will accept one-half this sum in full settlement, I will advise the company to pay it." In reply to this letter, the plaintiff suggested that the defendant make the settlement for $200, even, instead of for one-half the $359, and later that counter offer was accepted by the defendant, the money paid, and receipt passed. There is in the case no evidence as to the value of the property destroyed. The defendant admits the presentation of a proper satisfaction piece with the request for its execution, and that it has declined to execute and deliver to the plaintiff a satisfaction of the mortgage referred to. Upon these proofs the learned court found as a fact that the policy became void owing to the unoccupancy of the insured premises, that the $200 paid was in full settlement of plaintiff's claim, and that the defendant made the payment of $200 and accepted a receipt under no mistake or misapprehension. Exceptions were filed by the plaintiff, and these present the questions for review. We are of the opinion that the proposition of the defendant to settle plaintiff's claim clearly indicated an intention on its part to include in the settlement the value of the mortgage. In presenting the matter to her the company called to her attention the fact that it had paid the mortgagee $641, and sought to agree with the plaintiff upon an amount to satisfy her claim on the basis of the exact difference between that sum and the face of the policy. We think that the only fair intendment of this evidence is that the defendant by that proposition was offering the amount then due on the mortgage together with something in addition thereto, and that the settlement as it actually took place was for the sum of $841, being the amount then due upon the mortgage together with the $200 paid in cash. Under this view of the effect of the evidence the judgment appealed from should be reversed and a new trial granted, with costs to abide the event. Bartlett, Hirschberg and Jenks, JJ., concurred; Goodrich, P. J., dissented. In the Matter of the Application of the Board of Education (Sheepshead Bay Road).- Order signed. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Bartholomew Devany, Respondent, v. The Degnon-McLean Construction Company, Appellant. Motion denied. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Edward Bessenger, Appellant, v. Metropolitan Street Railway Company, Respondent.Motion granted. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Arthur T. Stoutenburgh, as Temporary Receiver, etc., Respondent, v. Bush Company, Limited, Appellant.- Motion denied, with ten dollars costs. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Myron E. Golubock, Respondent, v. Gerardo John A. Phoebus, Respondent, v. David Web- Alfred S. Brown, Appellant, v. Mortimer S. Brown and Others, Respondents.- Order resettled so as to allow costs of the appeal to this court to all parties, payable out of the estate. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. In the Matter of Anna Eliza (McCreedon) Lawlor, Deceased.- Motion to dismiss appeal or to declare the same abandoned, denied, and the case placed at the foot of the present calendar. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. SECOND DEPARTMENT, MARCH TERM, 1903. [Vol. 80. Ellen A. Raynor, Appellant, v. The Prudential | Isaac Bressman and Michael Polokoff, etc.. Insurance Company of America, Respondent.-Motion to dismiss appeal granted, with ten dollars costs. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. In the Matter of the Estate of Catherine C. Kalbfleisch, Deceased.-- Motion denied, with ten dollars costs. Present - Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. James E. Sayer, Respondent, v. Edward C. Beirne, Appellant.- Motion denied. Present ---Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Giovanni Bardi, Respondent, v. James J. Buckley, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present - Goodrich, P. J.. Bartlett, Hirschberg, Jenks and Hooker, JJ. James A. Richardson, Respondent, v. The City of New York and William Maske, Appellants. Judgment and order unanimously affirmed, with costs. No opinion. Present — Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ. James L. Bennett, Respondent, v. John F. Regan, as Executor, etc., of William H. Regan, Deceased, Appellant.- Interlocutory judgment affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. In the Matter of the Application of James Lee Collins for Admission to the Bar - Application granted. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Aniello Simonetti, Respondent, v. Michael Rini, Appellant. Judgment of the Municipal Court affirmed, with costs. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Arnold Sampter, Appellant, v. Gustaf A. Edelsvard and Others, Defendants, and De Witt Smith, Respondent.- Order modified by adding a provision that the judgment stand as additional security, and as thus modified affirmed, without costs. No opinion. Goodrich, P. J., Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. In the Matter of the Probate of the Alleged Last Will and Testament of Edward Gorman, Deceased.- Decree of the Surrogate's Court of Kings county affirmed, with costs. No opinion. Goodrich, P. J., Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Lena Du Bois, as Administratrix, etc., of Elmer J. DuBois, Deceased, Respondent, v. Erie Railroad Company, Appellant.- Judgment and order affirmed, with costs. No opinion. Goodrich, P. J., Hirschberg and Hooker, JJ., concurred; Woodward and Jenks, JJ., dissented. Henry Gebhard, Respondent, v. New York and Queens County Railway Company, Appellant. Judgment of the Municipal Court unanimously affirmed, with costs. No opinion. Present- Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Adolph H. Knoll, Respondent, v. Hugo J. Hanf and Louise Hanf, Appellants.-Judgment of the Municipal Court affirmed, with costs. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Charles T. Closs, Respondent, v. Hugo J. Hanf and Louise Hanf, Appellants.-Judgment of the Municipal Court affirmed, with costs. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. John B. Franklin. Jr., Respondent, v. Max Kauder, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Respondents, v. Herman Cohen, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. The People of the State of New York ex rel. James R. McCullough, Appellant, v. Jonathan D. Wilson and Others, as Members of and Constituting the Board of Public Works of the City of Newburgh, N. Y., and Others, Respondents.- Order affirmed, with ten dol lars costs and disbursements. No opinion. Goodrich, P. J., Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. No James L. Kent, as Administrator, etc.. of John E. Kent. Deceased, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.- Order affirmed, with ten dollars costs and disbursements. opinion. Goodrich, P. J., Woodward. Hirschberg, Jenks and Hooker, JJ., concurred. Henry B. Davenport, Respondent, v. Richard Ficken, Appellant.-Judgment and order affirmed, with costs. No opinion. Goodrich, P. J., Woodward, Hirschberg, Jenks and Hooker, JJ.. concurred. and Charles M. Murphy and Libbie Murphy, Respondents, v. William J. Kaiser and George W. Dalton, Appellants.- Judgment order affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred. In the Matter of the Application of the New Rochelle Trust Company.-Application to confirm referee's report granted, and order signed. Present - Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ. Pontus I. Thompson, Respondent, v. Emma A. Richardson and Others, Appellants.Motion to dismiss appeal granted, with costs, unless the appeal papers are served on or before the 25th day of March, 1903, in which event the motion is denied and the case ordered to be placed upon the April calendar. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Abraham Begelman, Appellant, v. Brooklyn Heights Railroad Company, Respondent.Judgment and order unanimously affirmed, with costs. No opinion. Present-Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ. John Fleischer, Respondent, v. Metropolitan Street Railway Company, Appellant.-Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce recovery of damages to the sum of $5,000 and extra allowance proportionately, in which case the judgment and order as modified are affirmed, without costs of this appeal to either party. No opinion. Goodrich, P. J., Bartlett and Jenks, JJ., concurred; Hirschberg and Hooker, JJ., vote for affirmance. Elizabeth Safford Gillespie, Appellant, v. The Brooklyn Heights Railroad Company, Respondent. Judgment unanimously affirmed, with costs. No opinion. Present Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ. Delaware La Marsh, Respondent, v. Ada E. Bingham and Others, Appellants, Impleaded with Another.- Judgment and order unanimously affirmed, with costs. No opinion. Present-Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ. App. Div.] SECOND DEPARTMENT, MARCH TERM, 1903. Charles W. Ball, Respondent, v. Arthur S. Hoyt, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Josephine Kline, Respondent, v. Abraham Abraham and Others, Appellants.-Judg. ment and order affirmed, with costs. No opinion. Goodrich, P. J., Hirschberg and Hooker, JJ., concurred; Woodward and Jenks, JJ., dissented. The People of the State of New York ex rel. Edward J. Burns, Appellant, v. John N. Partridge, as Police Commissioner of the City of New York, and Others, Respondents. Örder reversed, with ten dollars costs and disbursements, on the authority of Matter of Sugden v. Partridge (174 N. Y. 87). Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. Louis Bossert and John Bossert, Respondents, v. Edward R. Poerschke, Appellant.-Judgment affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. Martin Grossman, Appellant, v. Theresa Reinhardt and Harry Woods, Respondents.-Judgment unanimously affirmed. with costs. No opinion. Present - Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ. Bohn Manufacturing Company, Appellant, v. Rose E. Van der Valde, Respondent.-Judg. ment of the Municipal Court affirmed by default, with costs. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. Frank H. Tyler, Respondent, v. David K. Case, Appellant.- Judgment of the Municipal Court affirmed on consent, with costs. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. Harris Marx, Respondent, v. Chevra Anshe Wolkowisk, Appellant.- Judgment of the Municipal Court affirmed by default, with costs. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. Dana Longuemare, Respondent, v. Anthony Cuslinskie, Appellant.- Appeal withdrawn on consent. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ. Michael Brennan, Plaintiff, v. The City of New York, Defendant.- Motion denied. Present -Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. William J. Fitzpatrick, Respondent, v. Patrick Fox and Catherine Fox, Appellants.- Motion denied. Present - Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Maud R. Spear, as Executrix, etc., of Arthur H. Spear, Deceased, Appellant, v. American Service Union, Respondent. Motion to resettle order granted. Present - Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. The People of the State of New York ex rel. Rosie Frank, Respondent, v. Katherine Bement Davis, Superintendent of the State Reformatory for Women at Bedford, New York, and Leroy B. Crane, City Magistrate, Appellants. The People of the State of New York ex rel. May Clark, Respondent, v. The Keeper of the New York State Reformatory for Women at Bedford, New York, and Leroy B. Crane, City Magistrate, Appellants. The People of the State of New York ex rel. Mamie Smith, Respondent, v. The Keeper of the State Reformatory for Women at Bed. ford, New York, and Joseph Pool, City Magistrate, Appellants.- Motion denied. See People ex rel. Van Riper v. New York Catholic Protectory (106 N. Y. 604, 614), and cases there cited. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Revillo G. Wood, as Guardian ad Litem of Harry C. Wood, a Minor, Respondent, v. E. & H. T. Anthony Company, Appellant.Motions denied. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Joseph Hartmann, Appellant, v. Jacob Hoffman, Respondent,- Motion denied. Present-Goodrich. P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Priscilla Levett, Appellant, v. Horace C. Polhemus and John Crispe, Individually and as Executors, etc., and Others, Respondents.Motion granted and order signed. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. The Atlantic Trust Company, Plaintiff, v. The New York City Suburban Water Company, Defendant.- Motion denied. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Mary A. Meiggs, Respondent, v. Raymond Hoagland, Appellant.-Order signed. Pres ent-Goodrich, P. J., Bartlett, Woodward. Hirschberg and Hooker, JJ. In the Matter of the Application for Letters of Administration of the Goods, Chattels and Credits which Were of Charles P. Haughian, Deceased. Leave to withdraw appeal granted, upon the payment of ten dollars costs. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. In the Matter of the Application of James Haughian for a Decree Directing the Executors and Trustees of Charles P. Haughian, Deceased, to Render and Settle their Accounts as such Executors.- Leave to withdraw appeal granted, upon the payment of ten dollars costs. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. In the Matter of the Petition of the Brooklyn Bar Association to Punish Louis R. Phelan, an Attorney.- We think the papers in this matter present a case of ignorance rather than of willful misconduct on the part of the attorney, and that the facts do not warrant any further punishment than he has already received by reason of the publicity which has been given to his conduct. Application denied. Present - Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Robert S. Hall, Respondent, v. The City of New York and The Western National Bank of The City of New York, Appellants, and Others, Respondents.- Motion for reargument denied. Present-Goodrich, P. J. Bartlett, Woodward, Hirschberg and Hooker, JJ. Henry Miller and Stephen A. Donlon, Respondents, v. The County of Nassau, Appellant, and Charles A. Seaman, Defendant.- Judg. ment and order affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. Domenico Di Marco, Appellant, v. Joseph W. Papiett, Respondent. Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred. John J. O'Connor, Respondent, v. New York and Queens County Railway Company, Appellant. Judgment and order unanimously affirmed, with costs. No opinion. Present Goodrich, P. J, Bartlett, Woodward, Hirschberg and Hooker, JJ. S. Warren Quick, Respondent, v. Edgar H Hazelwood, as Executor, etc., of Julia F SECOND DEPARTMENT, MARCH TERM, 1903. [Vol. 80, App. Div.] Warner, Deceased, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. The People of the State of New York ex rel. Charles J. Carroll, Respondent, v. John J. Scannell, as Fire Commissioner of the City of New York, Appellant.- Final order and judgment affirmed, with costs, on the authority of People ex rel. Gleason v. Scannell (172 N. Y. 316). Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ., concurred. The People of the State of New York ex rel. Michael F. Balbert, Respondent, v. John J. Scannell, as Fire Commissioner of the City of New York, Appellant.- Final order and judgment affirmed, with costs, on the authority of People ex rel. Gleason v. Scannell (172 N. Y. 316). Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ., concurred. The People of the State of New York ex rel. Matthew O'Farrell, Respondent, v. John J. Scannell, as Fire Commissioner of the City of New York, Appellant.- Final order and judgment affirmed, with costs, on the authority of People ex rel. Gleason v. Scannell (172 N. Y. 816). Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ., concurred. The People of the State of New York ex rel. Henry J. Padden, Respondent, v. John J. Scannell, as Fire Commissioner of the City of New York, Appellant.- Final order and judgment affirmed, with costs, on the authority of People ex rel. Gleason v. Scannell (172 N. Y. 316). Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred. Daniel S. Redner, Respondent, v. The Butter- In the Matter of the Probate of the Last Will in this court, and the argument must be brought on in the regular way. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Count W. Weeks, Respondent, v. E. Holloway Fannie Shelibov, an Infant, by Meyer Shelibov, In the Matter of the Application of Charles B. George T. Kelly, Respondent, v. Joseph J. Daniel S. Redner, Respondent, v. The Butter- Fenwick B. Small, as Trustee in Bankruptcy, John L. Peters, Respondent, v. John Slattery, Appellant, Impleaded with Metropolitan Street Railway Company, Defendant.- Interlocutory judgment affirmed on argument, with costs. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. ACCEPTANCE - Of the lessee's surrender of the premises. See LANDLORD AND TENANT. PAGE. ACCESSORY- Prize fight - what proof establishes the offense of aiding and abetting it ACCOMMODATION PAPER: ACCOMPLICE - In crimes. Corroboration of the testimony of an accomplice. ACCORD AND SATISFACTION - Of debts. ACCOUNT BOOK: See EVIDENCE. ACCOUNTING - By executors and administrators. Of the general guardian of an infant. Between partners. See PARTNERSHIP. For the profits of a business. See PLEADING. Reference to take an account. See REFERENCE. By trustees. See TRUST. ACKNOWLEDGMENT - Taken by notaries and others. ACTION- Issuing of attachments in. See ATTACHMENT. 407 |