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App. Div.]

FIRST DEPARTMENT, JULY TERM, 1903.

evidence of a weak mind or lack of sufficient | intelligence to transact ordinary business and to make any disposition of her property that she pleased. There are objections to evidence, but they present no hestion that requires discussion, and I am clearly of the opinion that there is nothing in this record that would justify us in disturbing the finding of the trial judge. It follows that the judgment should be affirmed, with costs. Van Brunt, P. J., and Laughlin, J., con. curred; Patterson and Hatch, JJ., dissented. William Murray and Others, Plaintiffs, v.

Walter T. Miller and Others, Defendants. (Action No. 2.) - Judgment ordered for plaintiff, with costs.- Submission of controversy upon agreed case. INGRAHAM, J.: The question presented upon this appeal is the same as that presented in Murrayv. Miller, No. 1 (85 App. Div. 414) and for the reasons stated in the opinion in that case judgment is directed for the plaintiff as prayed for, with costs. Van Brunt, P. J., O'Brien and McLaughlin, JJ., concurred;

Hatch, J., concurred in result. Heloise D. Rose, Respondent, v. William W.

Durant, Appellant.- Judgment affirmed, with costs.- Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the report of a referee, HATCH, J.: Dr. Thomas C. Durant died intestate on the 5th day of October, 1885, leaving him surviving as his only heirs at law and next of kin his daughter, the plaintiff, his son, the defendant, and his widow Heloise H. Durant, since deceased. Dr. Durant had been the owner of a large amount of property, and at the time of his death it was somewhat involved and several judgments had been entered against him. This trouble principally grew out of the affairs of the Adirondack Railroad Company, of which he was the president and chief promoter. On the day of his funeral there was a conversation between the defendant and his mother and sister, in which the defendant stated that as he was the only man in the family the burden of managing the estate would fall upon him, and he de. sired his mother and sister each to give him a full power of attorney to manage and control the business affairs of the deceased. The mother consented to this and shortly thereafter she executed and delivered to the defendant such power of attorney. The plaintiff at first demurred, but after a few days, upon the urgent request of the defendant and her mother, she consented, and without consulting a lawyer, she executed a power of attorney and delivered it to the defendant, who immediately entered into possession of all the property of deceased, and was thereafter appointed administrator of the estate. The plaintiff shortly after the execution and delivery of the power of attorney went to Europe, where she remained for several years. At different times while the plaintiff was resid ing in Europe, she demanded an accounting of the defendant, which he refused, informing her that there was nothing coming to her on account of their father being so seri. ously involved, and that there was one judg. ment against him of $20,000,000. The deceased had

left valuable property, consisting largely of stocks, bonds and securities of the Adirondack company, and its successor corporation, the Adirondack Railroad Company. These securities embraced mortgages upon Adirondack lands in the names of Enoch H. Rosekranz and Albert N. Cheney. At the time of Dr. Durant's death certificates for stock and bonds stood in the name of Thomas

C. Durant, as agent for the respondent herein, Heloise H. Durant, the widow, and other persons.

The defendant appellant has by careful management and clever manipu. lation secured control of all this property and has gotten the title thereto in his own name. The plaintiff returned from Europe, and on July 9, 1895, commenced an action for an accounting against the defendant. Upon the trial of that action the court dismissed the complaint upon the merits. The plaintiff appealed, the Appellate Division reversed the judgment and sent the case back for a new trial. (Frethey v. Durant, 24 App. Div. 58.). A new trial was had, and the court found that the plaintiff was entitled to an accounting, and in an interlocutory judgment entered therein, it was directed, among other things, that a referee be appointed to take the proof, and that the defendant make full discovery and account to the plaintiff in respect to the interest of Thomas C. Durant in and to all property which he held either in his name, or as agent, or in trust for any other person, and that such accounting should contain a statement of any moneys which the defendant used in protecting the estate from claims and judg. ments and other interests; that the said defendant produce before the referee for examination all books of account, checks, stubs thereof, vouchers, securities and writings whatsoever, which were in the possession of Thomas C. Durant at the time of his death, and all such similar papers which the defendant had himself used or made in the management or control of said property. The defendant appealed from such interlocutory judgment and the same was affirmed by this court. (Rose v. Durant, 44 App. Div. 381.) On December 27, 1899, the defendant filed with the referee an account, but it accounted for no part of the Durant interest in the Adirondack investments, as defined by the interlocutory judgment, except 280 shares of the stock of the Adirondack Railway Company, a certificate for $3,000 in second mortgage bonds of said railway company, and a $7,000 interest in the $150,000 Rosekranz mortgage. The account was in substance the copy of an account and inventory filed by the defendant as administrator in a proceeding before the surrogate of Warren county, the county in which Dr. Durant resided at the time of his death. The referee then directed the defendant to file a further account, which should include the interest and securities mentioned in the interlocutory judgment. With such direction, the defendant "willfully” refused to comply. Nearly two years later an order was obtained adjudging the appellant in contempt, and directing that he be commit ted to close custody in the county jail until he should comply with the direction of the referee and the interlocutory judgment. From the order so entered, the defendant appealed to this court, where the order was affirmed without opinion (68 App. Div. 639.) Thereafter on February 10, 1902, the appellant filed a supplementary account, and on May 8, 1902, he filed a supplementary schedule. After the close of the case before the ref. eree, three stipulations were filed with him. These three stipulations and the two supplementary accounts made a large part of the evidence taken before the referee useless, as they practically covered all the property of which an accounting had been directed by the referee and by the interlocutory judgment. The only thing left for the referee to determine was whether or not certain property which Dr. Durant held at the time of his death, as agent, was his own

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FIRST DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

individual property. Upon that question ! the referee has found that such property was owned by Dr. Durant and that the plaintiff's share therein amounted to $ 162, 088.54, which, with interest thereon, aggregated at the time of the date of the report $753,932.71. Upon motion the ref. eree's report was confirmed at Special Term, and from the judgment entered thereon this appeal is taken. Practically, the only question left for this court to determine is, was there sufficient evidence to warrant the referee in finding that the property held by Dr. Durant, purporting to be as agent, was his individual property. The specific property to which such question relates was further narrowed by admissions and otherwise to the Cheney and Rosekranz mortgages, the so-called first mortgage bonds of $15000, the certificates for the stock and second mort. gage bonds of the Adirondack Railway Company, the money received on the forfeit of the Crane contract, a certain note of the Adirondack Railway Company for $37,140, and the rental of two locomotives and a car, paid by the railway company. The referee found that Dr. Durant owned $114,500 of the Rosekranz mortgage at the time of his death and that the defendant subsequently acquired the remainder thereof, $35,500, with money derived from the “Durant interest," for which the defendant is accountable. The evidence upon this point is documentary in character and is contained in assignments from Rosekranz to Dr. Durant. By these assignments it is established that Dr. Durant owned of this mortgage $82,500, In 1868 Rosekranz assigned to Dr. Durant and one Bushnel! $30,000 ot this mortgage. In November, 1871, Bushnell assigned to Dr. Durant $7,000 of his share in the mortgage, thus bringing Dr. Durant's share up to $114,500 and leaving Bushnell's share $18,000. In December, 1872, Rosekranz assigned to Bushnell a further interest of $8,500, thus bringing Bushnell's share to $26,500. By various assignments this latter interest of Bushnell was assigned to the defendant, and it is admitted that the defendant acquired this interest with proceeds from the Rosekranz and Cheney mortgages. Tuis accounts for $141,000 of the Rosekranz mort. gage. The balance of $9,000, the evidence does not fully disclose just how it came into the possession of the defendant, but the whole Rosekranz mortgage was finally satisfied by Janet L. Durant, defendant's wife, although she had previously assigned it to the defendant. The defendant and his wife both testified that she had no money when she was married, and her testimony is that she never paid anything for the various assignments made to her. This evidence, in connection with the stipulation that whatever defendant had paid to get possession of this property came from the Rosekranz and Cheney mortgages, seems to warrant the conclusion reached by the referee upon this subject. The Cheney mortgage was for the same amount as the Rosekradz mortgage, and the referee found that Dr. Durant owned all of this mortgage. The facts in regard thereto are as follows: Cheney's executrix in 1808 contracted to sell this mortgage to Dr. Durant and the agreement was thereafter recorded in 1884; thereby public notice was given of Dr. Durant's title thereto. After the death of the executrix, and on April 19, 1896, Cheney and Fowler, administrators with the will annexed of Albert N. Cheney, deceased, made an assignment after the death of Dr. Durant to his widow. On the thirtieth day of April thereafter she assigned it to the wife of the defendant,

who assigned it to the defendant on June 25, 1889. No reason is shown why the Cheney administrators should have made this assignment to the widow of Dr. Durant instead of to his administrator, except that there was an instrument, bearing date October 6, 1871, purporting to be an assignment of this mortgage by Dr. Durant to his wife, which was received subject to proof of delivery. The defendant relies in establishment of such delivery upon (1) the presumption of ownership by reason of the assignment be ing in her name, and (4) of the declaration made by Dr. Durant in his lifetime that his wife was the owner of the property and he was acting as her agent. So far as the presumptive proof is concerned it is the reverse of that claimed by the defendant. The title to this property was in Dr. Durant. The written agreement which he made with the executors of Cheney established that fact, and the agreement of purchase was subsequently consummated by payment on his part. He was not therein described as

agent" but as owner. The case relied upon by the appellant (Louery v, Erskine, 113 N. Y. 52) holds that, under such circumstances, the presumption of ownership is in the party holding the title. Dr. Durant held the title in his lifetime and the presumption is that he was the owner. The declarations and admissions claimed to have been made by Dr. Durant, often a dangerous species of evidence, were made at the time when the writteu record disputed such fact. There is not a scintilla of evidence that Mrs. Durant knew that this mortgage was held by her husband for her as her agent, or that she knew anything about the execution of the assignment during the lifetime of her hus. band. The assignment was found after the death of Dr. Durant, signed by him, and that is all that appears. of proof of delivery or of ownership upon Mrs. Durant's part there is not a syllable. The insirument itself was not recorded until after Dr. Durant's death and was not acknowledged by him. Abundant reasons may be assigned why Dr. Durant was willing to make an agency appear, quite independent of such relationship existing between his wife and himself, and when it appears that the unacknowledged assignment of Dr. Durant was subsequently recorded and then assigned by the widow to the wife of the defendant and by the wife to the defendant without any consideration moving from anybody therefor, we have little difficulty in concluding that the referee was justified in finding that this mortgage was the property of Dr. Durant at the time of his death, and to charge the defendant with the same, with interest, and award to the plaintiff her one-third share thereof. The referee has also found that the so-called first mortgage of $75,000 was executed by the Adirondack Railway Company in January, 1883, “to reimburse for moneys received from T. C. Durant, agent; that $63,238.78 thereof was issued and assigned to Durant, "agent," in February, 1883, and that this itepi was the property of Dr. Durant in his lifetime. The same is also true as to the Adirondack Railway Company note of $37,140, which, with interest, amounted to $39,041.97. It was stipulated that this note was made payable 10 T. C. Durant, agent. Also that the proof of the rolling stock, which was mentioned in stipulation No. 3 was owned by Dr. Durant, and that all of the second mortgage bonds to Durant, agent, which amounted to $630,908.77, were likewise his property. This entire issue was payable to Thomas c. Durant or bearer, and he was entitled to sur. render these bonds and receive therefor new

App. Div.]

FIRST DEPARTMENT, JULY TERM, 1903.

certificates. After his death this was done of Dr. Durant in this railway company was and the new certificates were made out in in the main his individual interest, and, so the name of Mrs. Heloise H. Durant by the far as the word "agent" was used in condirection of the defendant The evidence nection with the accounts which he kept which was introduced by the defendant to and which were entered in the books, it was defeat the plaintiff's interest in the last four used as a cover of the property, provoked items is all of the same class and rests upon probably by reason of his involved financial the same testimony, i. e., that Dr. Durant condition; but he represented no person as dealt with this property and was in fact the principal, except as it plainly appears, and agent of his wife. The basis of this claim is dealt with the property as his own, and, built up from the fact that in 1853 Mrs. Du when he died, held it as such. This proprant had a small sum of money from her erty, under these circumstances, came into father's estate and that Dr. Durant had this the hands of this defendant as the trustee money; that from time to time, being a man for his mother and sister. He evidently apof considerable wealth, he made gifts of con plied to its management, business skill and siderable sums and securities to his wife, judgment, and he produced, as doubtless whereby she became possessed of an inde Dr. Durant would have done had he lived, pendent property, which he subsequently from these interests a very large property, took and invested in promoting and building which, by adroit manipulation under power the Adirondack Railway Company. It is not of attorney given by his mother and sister, necessary that we rehearse the details in without cost to himself in money outside of connection with this matter. This claim, what the property produced, in vesting title coupled with the use of the word “agent,' to the whole of this very large estate in is the basis upon which it is sought to show himself. His mother became dependent, that Dr. Durant did not own this property, his sister languished in want, and he reveled but held and dealt with it as the agent of his in luxury. The defendant resisted every wife. There is no evidence that Mrs. Durant attempt to compel an accounting of his had knowledge of the fact of such agency or stewardship, and the bars of a jail conthat she was the owner of this property dur. fronted him before he could be induced to ing the lifetime of Dr. Durant, and the fact render an account of his proceeding. The remains that the whole of the property learned referee has, with painful and painsthrough assignments and other instruments taking care, gone ever this mass of figures had become vested not in Mrs. Durant, the and accounts; traced the transactions in the claimed principal, but in the defendant, and minutest detail, and upon evidence abundthat without the payment of any considera• antly satisfying has charged the defendant tion, save such as had been derived from the with the sum for which he must account to property itself. This claim carried to its the plaintiff. It is sufficient now to say that fullest extent deprived Dr. Durant of any we are satisfied from the proof that the de. right, title and interest in and to any of the fendant made use of the method adopted by property for which the defendant has been Dr. Durant in keeping his books to defraud called to account. If the item last specified his sister out of her patrimony, and in this was the property of Mrs. Durant then it fol scheme his mother did not escape. We have lows that she owns the whole, and that Dr. no hesitancy, therefore, in reaching the conDurant had no interest therein. Such were clusion that the referee was correct in the not the dealings. It appears that the certifi. conclusions which he reached, and that the cates of tne second mortgage bonds were judgment entered thereon is correct. It issued to Dr. Durant on the 20th day of Sep should, therefore, be affirmed, with costs. tember, 1881, and at the same time and on Van Brunt. P. J., Patterson and Ingraham, the same day 230 of the bonds, which entitled JJ., concurred; Laughlin, J., not voting: the holder to trustee certificates of forty per Frank J. Dupignac, Respondent, v. John Berncent, amounting to $44,589.37, were issued to strom, Individually and as Managing DirecHeloise H. Durant direct, while the others tor of Aktiebolaget Separator, and Others, were issued to Dr. Durant, "agent." All of Appellants.- Order modified as directed in these bonds came to Dr. Durant on account opinion, and as modified affirmed, without of his claim against the Adirondack Railway costs. - - Appeal by the defendants from an Company, and this individual claim, thus order of the Special Term of the Supreme existing by the use of the word “agent," is Court, entered in the clerk's office of the claimed to deprive him of his ownership county of New York on the 28th day of May, therein. In this connection evidence was 1903, granting a temporary injunction.given, and not only given, but it was ad. LAUGHLIN, J.: The injunction order was mitted by formal stipulation, that in many granted on the complaint and affidavits. The places in the ledger of the Adirondack Rail facts, so far as material, are stated in our way Company and in the journal entries the opinion sustaining the sufficiency of the abbreviations "agt." after the name Thomas complaint on an appeal from the interlocuC. Durant is either written in at the end of a tory judgment on the decision of a demurrer line or is interlined, and that this was done thereto. (Dupiguac v. Bernstrom, 70 App. by a pensioned private secretary and clerk Div. 111.). The injunction order restrains the of the defendant, Mr. Banker, after the en De Laval Separator Company from paying tries themselves

made, and in to its stockholders more than ninety-five per these books there is

account in cent of its surplus or net earnings set aside the name of Dr. Durant as an individual. for the payment of dividends, and required The Crane forfeit, so called, of $27,000 arose it to deposit the remaining five per cent by reason of a failure to fulfill a contract of thereof with the Union Trust Company to purchase of some of the Adirondack proper: await the determination of this action. By ties. Such sum of money was actually paid his affidavit setting forth the facts alleged in by Crane, and, as it related to a purchase of the complaint, the plaintiff, under our former property which had come to the defendant decision, establishes prima facie that he is as trustee, the forfeit inured to the benefit entitled to five per cent of the dividends of of the trust estate, and the defendant was this corporation. The stock holders, except properly charged therewith. It is needless, the plaintiff, are non-residents. The order, in view of the testimony to which we have therefore, in so far as it enjoins the payment already called attention, to go through with of the dividends to them and requires the each item in further detail. It is patent deposit thereof with the trust company was upon the face of this record that the interest properly granted. The order, however,

APP. Div.-VOL. LXXXVI. 40

were

no

FIRST DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

further enjoins the transfer of any shares of | The People of the State of New York ex rel. stock of the De Laval Separator Company Ella Beebe, Appellant, v. The Warden of the pending the determination of this action, un- City Prison of the Borough of Manhattan, less a notice of plaintiff's claim and a state- City of New York, and William E. Wyatt, ment that the transfer is subject thereto be Justice of the Special Sessions of the indorsed upon the assignment, and enjoins Borough of Manhattan, City of New York, any further issue of certificate of stock in Sitting as a Magistrate of Said Borough, Resaid company without a similar indorsement spondents. ---Order affirmed. No opinion. thereon or attached thereto that it is issued The People of the State of New York ex rel. and accepted with notice of and subject to Leah Van Linda, Appellant, v. The Warden the claim of the plaintiff. It is manifest that of the City Prison of the Borough of Mansuch an indorsement upon the certificates of hattan, City of New York, and William E. stock or assignments thereof would mate- Wyatt, Justice of the Special Sessions of rially interfere with the rights of the stock- the Borough of Manhattan, City of New holders to sell and assign their stock. The York, Sitting as a Magistrate of Said necessity for this relief by final judgment in Borough, Respondents. -- Order affirmed. the action in order to fully protect the plain- No opinion. tiff's rights is by no means clear and it Charles C. Dickinson, as Assignee of Eugene should not be awarded until the issues are M. Earle, Individually, for the Benefit of tried and plaintiff's rights are established, Creditors, and as Assignee of Eugene M. and it is shown to be essential to a protec- Earle and William Pitt Earle as Copartners tion of those rights. It follows, therefore, for the Benefit of Creditors, Appellant, v. that the order should be modified by strik- Eugene M. Earle and Others, Respondents. — ing out these provisions, and as modified Order affirmed, with ten dollars costs and affirmed, without costs. Van Brunt, P. J. disbursements. No opinion. Patterson, Ingraham and Hatch, JJ., con- Patrick W. Cullinan, as State Commissioner of curred.

Excise, Respondent, v. Fidelity and Deposit Thomas J. Healy, Respondent, v. Metropolitan Company of Maryland, Appellant, 'Im

Street Railway Company, Appellant. -- Judg. pleaded with Criterion Club, Defendant. ment and order affirmed, with costs. No Judgment and order affirmed, with costs. opinion.

No opinion. The People of the State of New York ex rel. Isidor Weissman, Respondent, v. Deborah

Francis T. McDonough, Relator, v. Michael Weissman, Appellant. - Order affirmed, with J. Garvin, Superintendent of Buildings, Bor- ten dollars costs and disbursements. No ough of the Bronx, New York City, Respond- opinion. ent. - Proceedings afirmed and writ dis- John Fleming, Respondent, v. Charles A. missed, with costs. No opinion.

Brown, Appellant. - Motion denied. MemoDaniel Buckley, Respondent, v. Metropolitan randum per curiam.

Street Railway Company, Appellant.-- Judg. Cornelius W. Luyster, Respondent, v. Fred.

ment affirmed, with costs. No opinion. erick Joseph, Appellant.-Judgment afRobert F. Campbell, Respondent, v. Metropoli- firmed, with costs." No opinion. Van Brunt,

tan Street Railway Company, Appellant.- P. J., dissenting.
Judgment and order affirmed, with costs. John G. O'Keeffe, as Receiver, etc., of the
No opinion. Van Brunt, P. J., dissenting. Matt Taylor Paving Company, Appellant, v.
Mary W. Lennan, as Executrix, etc., of John The City of New York, Respondent. - Judg-

M. Lennan, leceased, Respondent, V. The ment and order affirmed, with costs. No
Hamburg-American Steamship Company, opinion.
Appellant.- Judgment and orders affirmed, Moses J. Wolf, as Trustee in Bankruptcy of
with costs. No opinion.

Solonion J. Brumberg, Respondent, v. Esiella The People of the State of New York, Respond- Brumberg and Grace Brumberg, Appel

ent, v. Anton Lampel, Appellant.--- Judg- lants.-Judgment afirmed, with costs. No ment affirmed. No opinion.

opinion. The People of the State of New York, Respond- David F. Harbaugh v. Joshua M. Fiero.- Mo

ent, v. Joseph Goldman, Appellant, Im- tion granted, with ten dollars costs. pleaded with Morris Gross and Others.- Bernard McDonald, Appellant, v.

Bernard Judgment affirmed. No opinion.

Naughton and Others, Trading as Naughton Ephraim B. Levy, Respondent, v. John & Co., and The Third Avenue Railroad ComSchreyer, Appellant.- Order affirmed, with pany, Respondents. - Judgment affirmed, ten dollars costs and disbursements. No with costs. No opinion. opinion,

Hannah E. Nelson and Others, Respondents, v. The People of the State of New York ex rel. Theresa Alice Velrichs and Virginia Vander

George Blair, Respondent, v. Homer Folks, bilt, Appellants, Impleaded with Others. Commissioner of Public Charities of the City Order affirmed, with ten dollars costs and of New York, Appellant.- Order affirmed, disbursements. No opinion. with fifty dollars costs and disbursements. Hannah E. Nelson and others, Respondents, v. No opinion.

Theresa Alice Delrichs and Virginia Vander. Ellis Goldberg, Respondent, v. George M. Ja. bilt, Appellants, Impleaded with Others

cocks and Joseph F. Jacocks, Composing the Order affirmed, with ten dollars costs and Firm of Joseph F. Jacocks & Co., and disbursements. No opinion. Others, Defendants. Joseph F. Jacocks, Ap. In the Matter of Joseph Bieber.- Motion pellant.- Order affirmed, with ten dollars granted, with ten dollars costs. costs and disbursements. No opinion. Robert D. Kent v. Ætna Insurance Company. O'Brien, J., dissenting.

Motion denied. William W. Mandrey, Appellant, y. Willis L. Peter Rigas, Respondent, v. George Living:

Ogden and Others, as the Municipal Civil ston, as Commissioner of Public Works of Service Commission of the City of New the Borough of Manhattan, City of New York, Respondents.- Order affirmed, with York, and Another, Defendants. Morris ten dollars costs and disbursements. No Levy, Appellant. - Order affirmed, with opinion.

ten dollars costs and disbursements. No Mary J. Murphy, Respondent, v. Cecelia opinion.

Hogan, as Executrix, etc., of George M. A. In the Matter of the Estate of Andrew Hack. Keck, Deceased, Appellant.-Order affirmed, Deceased. John Houser, as Surviving Adwith ten dollars costs and disbursements. ininistrator, etc., of Barbara Hack, DeNo opinion.

ceased, Appellant; Katharina Bothner and App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

George Bothner, as Executors, etc., of lants.- Order affirmed, with ten dollars costs
George Bothner, Deceased, Respondents.-- and disbursements. No opinion.
Order affirmed, with ten dollars costs and Elise M. Jewett v. Melinda P. Schmidt.-
disbursements. No opinion.

Motion denied, with ten dollars costs. James N. Butterly, Appellant, v. James A. Arthur Anisansel v. Josephine H. Coggeshall, Deering, Respondent. (No. i.) – Order af- Motion denied, with ten dollars costs. firmed, with ten dollars costs and disburse- Moses Tanenbaum v. Aaron Simons and ments. No opinion.

Another.- Motion denied. James N. Butterly, Appellant, v. James A. In the Matter of Therese Friedman.- Motion

Deering, Respondent. (No. 2.) – Order af. denied on payment of ten dollars costs, for firmed, with ten dollars costs and disburse- the purpose of allowing appellant to apply ments. No opinion.

to be relieved from default in service of Hermann Hamberg, Respondent, v. Charles undertaking.

Counselman and Albert M. Day, Doing Busi- William C. Haight v. Stock Grain and Proness under the Firm Name of Counselman vision Company.- Motion denied on pay& Day, Appellants.- Order affirmed, with ment of ten dollars costs. ten dollars costs and disbursements. No Hoffman House, New York, v. Hoffman House opinion.

Café.- Motion denied, with ten dollars costs. Mary Sexton, as Administratrix, etc., of The People of the State of New York v. Amer

Edward Sexton, Deceased, Respondent, v. ican Loan and Trust Company.- Motion The Opward Construction Company, Appel. granted so far as to take the papers off the lant.--Order affirmed, with ten dollars costs files and remit the same to the court below. and disbursements. No opinion.

Jacob Horr v. Antonio G. Pucci.- Motion John C. Rodgers and Others, Appellants, v. granted, with ten dollars costs.

The Mayor, Aldermen and Commonalty of New York and Haiti Trading Company v. the City of New York, Respondent.- Order Thomas C. Campbell and Another.- Motion affirmed, with ten dollars costs and disburse- granted, with ten dollars costs. ments. No opinion.

Victor Herbert, Respondent, v. The Musical Charles J. Chapman, Respondent, v. Charles Courier Company, Appellant. - Upon plain

L. Ropes, Appellant.- Order affirmed, with tiff stipulating to reduce the judgment as ten dollars costs and disbursements. No entered to the sum of $5,158.40, the judgopinion.

ment as so modified affirmed, without costs; Mary Ann Hearn, Respondent, v. New York if such stipulation be not given, judgment

Building-Loan Banking Company, Appel- reversed, new trial ordered, costs to appellant.- Order affirmed, with ten dollars costs lant to abide event. No opinion. Ingraham, and disbursements. No opinion.

J., dissenting on the ground that the judg. Edward R. Poerschke v. Philip Horowitz.- ment should be reversed. Motion denied.

In the matter of the Application of Gertrude Frederick W. Lewis and Herman A. Friese, M. Stewart, a Judgment Creditor, Appellant,

Comprising the Firm of Fred W. Lewis & for the Examination of the Mutual Reserve Company, Respondents, v. William L. Pol. Life Insurance Company, Respondent, in a lack, Appellant.- Order affirmed, with ten Proceeding Supplementary to an Execution dollars costs and disbursements. No against the Property of the Northwestern opinion.

Life Assurance Company, the Judgment Thomas Lancaster, Respondent, v. Thomas E. Debtor.- Order affirmed, with ten dollars

Spotswood and Horace Turner, Copartners costs and disbursements, on the opinion of Carrying on Business under the Firm Name the court below. (Reported in 40 Misc. Rep. of Spotswood, Turner & Company, Appel

32.)

FOURTH DEPARTMENT, JULY TERM, 1903. William O'Connor, Appellant, v. Peter Byrne, upon the trial of the present action. The Respondent.- Judgment and order of

pleadings in the first action were oral and as County Court reversed and judgment and follows: Complaint, . rent, sixty dollars. order of Municipal Court affirmed, with Answer, denial, termination of the lease, costs of both appeals to the plaintifl.- Ap- surrender and acceptance. The pleadings peal from a judgment of the Onondaga in the present action are in writing. The County Court, entered July 25, 1901, revers- complaint alleges a leasing for one year, ing a judgment of the Municipal Court of the from May 1, 1900, payable in monthly install. city of Syracuse and granting a new trial.- ments of thirty dollars, and demands judgWILLIAMS, J.: The judgment of the County ment for five months' rent, as above stated. Court should be reversed and the judgment The answer denies the lease as alleged, and of the Municipal Court affirmed, with costs alleges a leasing from month to month, a of both appeals to plaintiff. The action was termination of the tenancy and surrender brought to recover rent of premises 641 South and acceptance of the premises before OctoSalida street for the month of December, ber 1, 1900. There appears to be no dispute 1900, and January, February, March and but that both actions involved the collection April, 1901. There had been a recovery in a of rent of the same premises under the same former action for rent for the months of leasing. This being so, the defenses in the October and November, 1900, and the recov. two actions were practically the same, and ery had been paid. The judgment in the it would seem that the determination of the former action was held conclusive against issues in the first action was conclusive upon the defendant, as to his defense in the pres. the parties in the present one. The two ent action, and judgment was, therefore, actions were tried before the same judge, directed for the plaintiff by the Municipal and in the latter trial he attempted to state Court. Upon appeal, the County Court held his recollection of the basis upon which the that was error, reversed the judgment of the first action was decided, viz.: "My decision Municipal Court and ordered a new trial. in the former action, as I recall it, was based The question to be determined here is the upon the finding that even if Mr. Byrne held effect to be given to the first judgment the premises under a lease from month to

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